Aura Synergy India Ltd & Anr vs M/S New Age False Ceiling Co Pvt Ltd & Anr

MANMOHAN, J.

I.A. 2894/2017 in CS(COMM) 799/2017

Present application has been filed under Order 6 Rule 17 CPC seeking leave of this Court to amend the plaint.

It is pertinent to mention that the present suit has been filed for permanent and mandatory injunction restraining passing off of trade mark along with

damages. Along with the suit, an injunction application was also filed. Â

Initially, the learned Predecessor of this Court passed an ex parte ad interim injunction order dated 02nd November, 2015. Â

However, the said injunction order was vacated on 10th February, 2016 on the ground that plaintiffs had indulged in gross suppression and mis-

statements in the suit.

Upon the matter being carried forward in appeal, the Division Bench agreed with the conclusion of the learned Single Judge and held that as the

plaintiffs were guilty of suppression and/or concealment of facts, they were not entitled to any ad interim injunction.

In the present amendment application that has been filed, the plaintiffs amongst other amendments seek to now overcome the case of suppression

by disclosing the business relationship between the plaintiffs and the defendants. No reason has been given in the amendment application as to why

the said relationship had not been disclosed in the first instance i.e. when the suit had been filed.

It is settled law that by way of an amendment, the plaintiffs cannot “rob the defendant†of a defence that had already accrued in its favour,

namely, the defence of suppression. It is pertinent to mention that both the learned Single Judge as also the Division Bench have already reached a

prima facie conclusion that the plaintiffs have indulged in suppression.  Consequently, this Court is of the view that if the present application is

allowed, it would amount to “whitewashingâ€​ the allegation of suppression.

In M/s. Kelwyn Door Cares (India) & Anr. Vs. M/s. Janson Enterprises & Anr., 2017 SCC OnLine Del 9998; Ramjas Foundation and anotherÂ

Vs. Union of India and others, Civil Appeal No. 6662 of 2004, decided on November 9, 2010 at paras 14 and 15; G. Narayanaswamy Reddy (Dead)

by LRs. and Another Vs. Government of Karnataka & Another, (1991) 3 SCC 261 at para 2; K.D. Sharma Vs. Steel Authorities of India

Limited and Others, (2008) 12 SCC 481; and S.P. Chengalvarya Naidu (Dead) by LRs Vs. Jagannath (Dead) by LRs. and Others, (1994) 1 SCC 1, at

para 5 etc., it has been recognised that a party which fails to approach the Court with clean hands by suppressing and/or fabricating material facts

ought to be disentitled from any relief in limine.

A Coordinate Bench of this Court in Huntsman International (India) Private Limited Vs. Abiss Textile Solutions Private Limited & Ors. 2018 SCC

OnLine Del 7545 has even held that, “The plaintiff when caught on the wrong foot, if permitted to change its stand, the same would amount to

giving premium on dishonesty and will send a message that the Court can be approached and the defendant harassed, by misrepresenting facts and the

stand can be changed if caught and would sound the death knell of litigation.â€​

Accordingly, present application is dismissed with costs of Rs.25,000/-.

I.A. 24550/2015Â in CS(COMM) 799/2017

Learned counsel for defendants-applicants wishes to withdraw the present application.

Consequently, the same is dismissed as withdrawn.

CS(COMM) 799/2017

Parties are given liberty to file additional documents, if they so desire, within a period of four weeks.

List the matter before the Joint Registrar for admission/denial of documents on 26th September, 2018.