Lotus Herbals Limited vs Chief Commissioner Of Custom & Ors

Manmohan, J

Present suit has been filed for permanent injunction restraining infringement of trade mark, copyright, passing off, rendition of accounts, directions

etc.

Learned predecessor of this Court vide order dated 19th September, 2013 had restrained the defendants from selling any goods under the trademark

LOTUS or any mark bearing the word LOTUS either as a suffix or prefix.

Today learned counsel for defendant no.2 reiterates that defendant no.2 had placed an order for unbranded goods with defendant no.3. She admits

that in the import consignment, certain branded goods bearing the marks LAKME, MAC and LOTUS have been found. She however states that the

defendant no.2 has not got any branded goods released from the customs. She points out that the goods bearing the marks LAKME and MAC have

been confiscated by the custom authorities. In support of her contentions, she has handed over a copy of the order dated 29th October, 2014 passed

by the Commissioner of Customs (Preventive).

Learned counsel for defendant no.2 further states that defendant no.2 is not interested in taking delivery of the LOTUS goods and has no objection

if the same are confiscated and/or destroyed by the custom authorities in accordance with law.

She emphasis that defendant no.2 has not imported any goods bearing the mark LOTUS and she undertakes that even in future no goods bearing

the said mark shall be imported without taking specific permission/authorization of the plaintiff.

In view of the aforesaid statements/undertakings, learned counsel for the plaintiff does not wish to press for any other relief qua defendant no.2

from this Court.

The statements/undertakings given by learned counsel for the defendant no.2 are accepted by this Court and the plaintiff and defendant no.2 are

held bound by the same.

Consequently, the suit is decreed qua defendant no.2 in accordance with the aforesaid statements. Registry is directed to prepare a decree sheet

accordingly. Defendant no.1 is permitted to confiscate and/or destroy the seized goods bearing the mark LOTUS.

A perusal of the file reveals that defendant no.3 has already been proceeded ex parte vide order dated 17th August, 2015.

At this stage, learned counsel for the plaintiff states that he is confining his relief to prayer 30(ii) and 30(iii) of the plaint against defendant no.3.

A Coordinate Bench of this Court Satya Infrastructure Ltd. & Ors. Vs. Satya Infra & Estates Pvt. Ltd., 2013 SCC OnLine Del 508, has held as

under:-

“4. The next question which arises is whether this Court should consider the application for interim relief and direct the plaintiffs to lead

ex parte evidence. The counsel for the plaintiffs states that the plaintiffs are willing to give up the reliefs of delivery, of rendition of

accounts and of recovery of damages, if the suit for the relief of injunction alone were to be heard today.

I am of the opinion that no purpose will be served in such cases by directing the plaintiffs to lead ex parte evidence in the form of

affidavit by way of examination-in chief and which invariably is a repetition of the contents of the plaint. The plaint otherwise, as per the

amended CPC, besides being verified, is also supported by affidavits of the plaintiffs. I fail to fathom any reason for according any

additional sanctity to the affidavit by way of examination-in-chief than to the affidavit in support of the plaint or to any exhibit marks being

put on the documents which have been filed by the plaintiffs and are already on record. I have therefore heard the counsel for the plaintiffs

on merits qua the relief of injunction.â€​

Keeping in view the aforesaid mandate of law and the fact that the defendant no. 3 has no real prospect of defending the claim as it has neither

entered appearance nor filed its written statement or denied the documents of the plaintiff, this Court is of the view that there is no need to relegate

the plaintiff to lead ex-parte evidence.

Accordingly, the present suit is decreed qua defendant no.3 in accordance with prayer 30(ii) and 30(iii) of the plaint along with actual costs. The

costs shall amongst others include the lawyers’ fees as well as the amounts spent on purchasing the court fees. The plaintiff is given liberty to file

on record the exact cost incurred by it in adjudication of the present suit, if not already filed. Registry is directed to prepare a decree sheet

accordingly.

Consequently, the present suit stands disposed of.