Delhi High Court
Radha Kishan Agarwal And Anr vs Ms Ignyt Electricals on 20 December, 2024
Author: Navin Chawla
Bench: Navin Chawla
$~48
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 20.12.2024
+ FAO (COMM) 239/2024
RADHA KISHAN AGARWAL AND ANR .....Appellants
Through: Mr. Shailesh Kumar Pandey,
Adv.
Mr. Sanchay Mehrotra, Adv.
versus
MS IGNYT ELECTRICALS .....Respondent
Through: Mr. Rajat Wadhwa, Mr. Vikas
Sood, Mr. Gurpreet Singh, Mr.
Harsh Vikram and Ms. Divya
Kanwar, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
NAVIN CHAWLA, J. (ORAL)
CM APPL. 75072/2024 (Exemption)
1. Allowed, subject to all just exceptions.
REVIEW PET. 487/2024
2. Issue notice.
3. Notice is accepted by Mr. Shailesh Kumar Pandey, the learned
counsel on behalf of the appellants.
4. By the present Review Petition, the respondent in the appeal
prays for a review of our Order dated 17.12.2024 and for dismissal of
the appeal. The Review Petitioner also prays for initiating contempt
proceedings under the Contempt of Courts Act, 1971, alleging a
Signature Not Verified
Digitally Signed FAO (COMM) 239/2024 Page 1 of 11
By:NEELAM
Signing Date:26.12.2024
15:30:15
breach of the undertaking and violation of the said Order dated
17.12.2024 by the appellant.
5. The above appeal had been filed by the appellants challenging
the Order dated 12.12.2024 passed by the learned District Judge
(Commercial Court-03), West District, Tis Hazari Courts, Delhi in CS
(COMM) 220/2024, titled M/s Ignyt Electricals v. Radha Kishan
Agarwal and Anr., by which the learned Trial Court, while disposing
of the two applications filed by the respondent herein under Order
XXXIX Rule 2A of the Code of Civil Procedure, 1908 (in short,
„CPC‟), passed the following directions:
“8.2. This constrains this Court to order that
all goods bearing the trademark “IGLYTE” as
were available at the time of joint inspection
and as available today, be handed over to the
plaintiff for its safe custody.
8.3 The plaintiff is directed to arrange for
necessary transportation and a safe house.
The plaintiff is to obtain all these goods from
the premises of the defendants within a week of
this order.
8.4 The defendants shall render all
necessary assistance in handing over the
custody of these “IGLYTE” products to the
plaintiff within a week of this order.
8.5 The plaintiff would keep all those goods
in the gunny bags in the presence of the
defendants and seal and sign each of the
gunny boxes which should also be signed by
the defendants. All inventory at the time of
receiving these articles be prepared.
Necessary videography and photography be
also done and the plaintiff to keep “IGLYTE”
products in safe custody till further orders.”
6. As a brief background, the learned Trial Court vide interim
Order dated 03.09.2024, had restrained the appellants herein from
Signature Not Verified
Digitally Signed FAO (COMM) 239/2024 Page 2 of 11
By:NEELAM
Signing Date:26.12.2024
15:30:15
infringing the trademark of the respondent, namely “IGNYT” or
“IGLYTE”, except to the extent that they were allowed to dispose of
the original “IGNYT” trademark goods belonging to the respondent
herein.
7. By the Order dated 03.09.2024, the learned Trial Court further
directed the release of the goods confiscated by the learned Local
Commissioner by observing as under:
“9.5 No useful purpose would be served by
directing the goods to be preserved further. It
would unnecessarily burden the defendants
financially and also the goods may become
outdated by the time trial is over. No prejudice
is going to be caused to the plaintiff, if these
goods are allowed to be sold with a different
trade name. As to the damages portion of the
prayer of plaintiff, same can be taken care of
by passing appropriate directions. There is no
adequate reason for this Court to allow the
application of the plaintiff to hand over
custody of those goods to the plaintiff.
9.6 Since a detailed inventory has been
prepared jointly by the parties, the quantity of
goods can be conveniently proved from it
during trial. And the prayer of the plaintiff to
grant damages is a subject of trial which
would require evidence, and the quantum of
damages can always be ascertained from the
detailed inventory and by directing the
defendant to keep in safe custody all the
invoices and account books qua sale of goods.
9.7 In the disputed trademark “IGLYTE”,
presently the defendants have prefixed two
letters „BR‟ and the remaining trademark is
same. Therefore, it cannot be said that the
defendant has coined a word which is
completely distinct from the disputed
trademarks. It would be better if the defendant
coins some new word by preferably avoiding
the use of letters contained in the trademark of
the plaintiff i.e. “IGNYT” or disputed one i.e.Signature Not Verified
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By:NEELAM
Signing Date:26.12.2024
15:30:15
“IGLYTE”, and at least by preferably
avoiding use of those letters in that very
sequence. That would also allay the fear of
plaintiff qua further infringement.
9.8 Accordingly, it is ordered that so far as
goods bearing the trademark “IGLYTE” are
concerned, the defendants are permitted to sell
them in the market, but not under the
trademark “IGLYTE” or “BRIGLYTE”,
Defendants may coin 5-6 new words, which
preferably should not include the letters
“IGNYT” or “IGLYTE” in that combination
or in that sequence. Let 5-6 new such words be
coined by the defendants and the defendants
can then approach the Court seeking
permission to dispose of the goods after
changing the trademark “IGLYTE” under
new trademark.
9.9 This order is subject to the condition of
removing or changing trademark “IGLYTE”
on all the goods, including those which are
embossed or engraved on the products itself as
well as on the packaging materials. The
defendants may apply some sticker on the
products also, so that the new trademark only
is visible and not the trademark “IGLYTE”.
9.10 Entire process of changing of trademark
shall be photographed and videographed by
the defendants and it shall be filed in the court
with necessary Affidavits and Certificates.
Sequence of changing the trademark be kept
according to the inventory jointly prepared
recently, as far as possible. Copies of photos,
videos, affidavits and certificates be also
supplied to the plaintiff.
9.11 Sale shall be made only under genuine
invoices with complete particulars as to the
products description as well as the buyers.
Proper account thereof shall be maintained by
the defendants. The defendants shall keep in
safe custody entire invoices and related
documents as also the ledger accounts qua
selling of those category of goods, and file
them on record as soon as the articles are
disposed of, so that during trial those
Signature Not Verified
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By:NEELAM
Signing Date:26.12.2024
15:30:15
documents can be assessed and then damages
can be ascertained. Their copies be supplied to
the plaintiff also.
9.12 It is also directed that the defendants
shall retain one sample each of every category
of products without changing existing
trademark and also one sample each of the
packaging material for those products without
changing the trademark. It is also directed that
the defendants shall retain one sample each of
every category of products after changing
existing trademark and also one sample each
of the packaging material for those products
after changing the trademark.
9.13 The defendant shall also retain in
original and keep in safe custody all those
packaging materials which bear the date of
manufacturing as that of any date or month
after 22.03.2024, without changing anything
qua them, and shall produce the same as and
when directed by the Court. The defendant
shall keep those packaging materials in safe
custody till further orders.
9.14 It is also made clear that while selling
the goods after changing the trademark, the
defendants shall comply with the necessary
statutory provisions as to the details of the
month of manufacturing and other standard
disclosures in confirmation to the BIS Act or
any other Law as may be applicable for sale of
such products.
xxx
10.3 Accordingly, it is ordered that the goods
bearing trademark “IGNYT”, except the
packed rope lights which are disputed, the
defendant can dispose of and sell those
goods. However, the defendant shall maintain
invoices and statement of account/ledger qua
all those goods also, and in case required
those documents shall be summoned and be
looked into during trial.
10.4 So far as the packed rope lights with the
trade name “IGNYT” are concerned, though
the plaintiff claims them to be duplicate,
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By:NEELAM
Signing Date:26.12.2024
15:30:15
whereas the defendant claims it to be
genuinely supplied by the plaintiff himself, but
it would be a question of trial and therefore so
far as packed rope lights are concerned, they
be handed over to the plaintiff by the
defendant against due receipt and while
executing the documents of handing over of
those packed rope lights by the defendants to
the plaintiff, the inventory shall be prepared
afresh mentioning complete particulars of
those bundles/loose packed rope lights with
photography/videography which would be
done by the plaintiff at its cost. And at the time
of taking custody those rope lights be kept in
gunny bags which be sealed and signed by
both the sides in presence of each other.
Plaintiff shall preserve those articles safely till
further orders.”
8. The above order has not been challenged by either party.
9. The respondent herein, complaining that the said interim order
has been violated by the appellant, then filed two applications under
Order XXXIX Rule 2 A of the CPC before the learned Trial Court,
which came to be disposed of by the learned Trial Court by its
Impugned Order dated 12.12.2024, with the directions that have been
reproduced hereinabove. In passing the above Impugned Directions,
the learned Trial Court observed that the appellant had clearly used the
mark “IGLYTE” in breach of the interim order. The learned Trial
Court has observed as under:
“8.1 Though the defendants in response to
the contempt application dated 09.10.2024
claims, that only adhesive tape and the cloth
bag bearing the trademark “IGLYTE” were
used on 26.09.2024 and 27.09.2024 while
selling/transporting goods of other
description/manufacturers, but a perusal of the
photographs affixed with the applicationSignature Not Verified
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By:NEELAM
Signing Date:26.12.2024
15:30:15
reveals that in a photograph at page no.22
there is one long carton box which reflects the
trademark “IGLYTE” and which does not
match with the photograph of the adhesive
tape relied by the defendant as at page no.9
Annexure D1 to the reply to this application in
question. It seems that at least one carton box
bearing the trademark “IGLYTE” was used on
26.09.2024 & 27.09.2024 while transporting
goods contained inside the carton for either
“IGLYTE” products or maybe some other
product. Since no test purchase was done by
the plaintiff qua the infringed goods from the
third-party shopkeeper at that time, therefore,
it is not clear as to what products were
contained inside the carton were transported
by the defendants. But the said fact of one of
the cartons bearing an infringed trademark
does raise a strong suspicion against the
defendants. Once an injunction order was
passed against the defendant, obviously the
defendant should not have even used the
adhesive tapes, the carton box, or the carry
box.
xxxxxx
8.6 This Court has been constrained to pass
the above-mentioned order because of the
above-mentioned reasons and also because of
the fact that though the defendants expressed a
hurry to get the trade name changed from
“IGLYTE” to some other trade name before
this Court passed an order on 03.09.2024,
despite 03.09.2024‟s order of this Court to
coin some dis similar trade names, the
defendants kept quiet till now and has not
proposed any change of trade name till now.
It‟s been more than 3 months now and
although earlier the defendant was expressing
hurry, now the defendant is quiet for some
months which may also be an indication of the
defendant‟s ill intention regarding these
products. Therefore, let the above-mentioned
direction be complied with within a week from
today.”
Signature Not Verified
Digitally Signed FAO (COMM) 239/2024 Page 7 of 11
By:NEELAM
Signing Date:26.12.2024
15:30:15
10. From a reading of the Impugned Order, it is apparent that the
learned Trial Court had directed the handing over of the goods bearing
the impugned trademark to the respondent as the appellant was found
selling the goods bearing the impugned trademark in violation of the
Interim order passed in the suit. After hearing the learned counsels for
the parties, we found no reason to interfere with the direction passed
by the learned Trial Court.
11. On 17.12.2024, when the present appeal was listed before this
Court, we were not inclined to interfere with the Impugned Order in
view of the conduct of the appellant as recorded by the learned Trial
Court in its Impugned Order. At that stage, however, the learned
Senior Counsel appearing for the appellants submitted that the
appellants be at least granted some more time to remove the infringing
mark from the goods rather than handing over the goods bearing the
said mark to the respondent for safe custody.
12. It is only on basis of the above submission, and at the request of
the learned Senior Counsel appearing for the appellants, and with the
consent of the learned counsel for the respondent, that we disposed of
the appeal of the appellants on 17.12.2024 with the following
directions, which were issued with the consent of the parties:-
“3. The learned senior counsel appearing for
the appellant, after some arguments, prays
that the Impugned Order be not implemented
for the next three days, within which time the
appellant shall ensure that the trademark
„IGLYTE‟ or any other mark deceptively
similar to the mark „IGLYTE‟ is removed
from all goods and/or packaging material,
including adhesive tapes, gunny bags, and
cartons. The learned senior counsel for theSignature Not Verified
Digitally Signed FAO (COMM) 239/2024 Page 8 of 11
By:NEELAM
Signing Date:26.12.2024
15:30:15
appellant submits that the appellant
undertakes not to, in any manner, remove or
transport the goods bearing the above
trademarks during the interregnum. The
appellant will allow the representative of the
respondent to be present while undertaking the
above process of removal of the mark.
4. The learned counsel for the respondent, who
appears on advance notice, does not oppose
the above prayer.
5. Accordingly, the present appeal is disposed
of, binding the appellant to the submissions
recorded hereinabove and to his undertaking.
In case the appellant is able to remove the
infringing trademark from his
goods/packaging materials to the satisfaction
of the respondent, the Order dated 12.12.2024
shall, by its own operation, remain un-
operative thereafter.
6. The above exercise shall commence
tomorrow, that is, 18.12.2014 at 11:00 AM, at
the premises of the appellant.”
13. The Review Petitioner alleges that when its representative
reached the premises of the appellants on 18.12.2024, he was
informed that the goods bearing the mark “IGLYTE” had already been
sold. On inspection, only a negligible amount of stock was seen on the
ground floor of the appellants‟ premises. When an inventory of the
said products was sought to be made, suddenly, the appellant no. 1
pretended that he was not feeling well because of which the further
inventory taking process was not allowed to be undertaken. The
Review Petitioner alleges that, however, later the Review Petitioner
discovered that the goods were being removed from the shop of the
appellant. Photographs showing the same have been placed on record.
14. The Review Petitioner further alleges that despite the learned
Trial Court not allowing the appellants to use the mark “BRIGLYTE”,
Signature Not Verified
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By:NEELAM
Signing Date:26.12.2024
15:30:15
goods bearing the said mark were also found at the premises of the
appellants, clearly evidencing that the appellants have no respect for
the orders passed by the Courts.
15. The learned counsel for the appellants produces before us a
prescription and states that the appellant no. 1 has been admitted to a
hospital. He, however, is not in a position to dispute the assertion of
the learned counsel for the respondent that at the time of inspection on
18.12.2024, only a negligible amount of stock bearing the impugned
mark was present at the appellant‟s premises.
16. Having considered the submissions made, we find from the
repeated conduct of the appellants that they have shown no respect for
the orders passed by the Courts. In fact, our Order dated 17.12.2024
was passed with the consent of the parties. As noted hereinabove, at
that time, we were about to dismiss the appeal and were in the process
of dictating the order, when it was at the request of the learned Senior
Counsel appearing for the appellants that we disposed of the appeal on
consent terms.
17. We, during the course of submissions, were also informed by
the learned Senior Counsel for the appellants on that day that goods
worth more than Rs. 5,00,000/- are lying at the appellants‟ premises.
Clearly, these goods were removed post our Order and before the
inspection on 18.12.2024 was carried out.
18. Prima facie, as we find that the appellants have breached the
consent terms, we deem it proper to recall our Order dated 17.12.2024.
The appellant cannot be allowed to retain the benefit of its
contemptuous conduct.
Signature Not Verified
Digitally Signed FAO (COMM) 239/2024 Page 10 of 11
By:NEELAM
Signing Date:26.12.2024
15:30:15
19. Accordingly, the Review Petition is allowed. The Order dated
17.12.2024 is recalled. The appeal shall be treated as dismissed.
20. As far as the prayer of the respondent to proceed against the
appellants in contempt jurisdiction is concerned, it shall be open to the
respondent to avail of its remedies in accordance with the law.
NAVIN CHAWLA, J
SHALINDER KAUR, J
DECEMBER 20, 2024/ss/sk/SJ
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Signature Not Verified
Digitally Signed FAO (COMM) 239/2024 Page 11 of 11
By:NEELAM
Signing Date:26.12.2024
15:30:15
