CODE OF CIVIL PROCEDURE & LIMITATION ACT

SUBMITTED BY

SUBMITTED TO

GARVIT CHAUDHARY D R. RUHI

PAUL
26LLB17

NATIONAL LAW UNIVERSITY, DELHI

2019

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 CHAPTER -1

INTRODUCTION TO THE RESEARCH PROJECT

OBJECTIVES

This research paper is aimed to analyse the case Radico Khaitan Ltd vs. M/S Devans
Modern Breweries Ltd. From the procedural point of view, It is aimed at analysing the
various stages through the suit where Provisions, rules and orders of Code of Civil Procedure
were applied in the case. The researcher in the end will also conclude by identifying the
shortcomings or which he is able to identify in the same from his analysis.

SHORT SUMMARY OF THE CASE

In the case of Radico Khaitan Ltd vs. M/s. Devans Modern Breweries Ltd., Radico Khaitan
Ltd. (”Radico”) filed a suit seeking permanent injunction against Devans Modern Breweries
Ltd. (“Devans”) at the Delhi High Court. It stated that Devans’s mark ‘ELECTRA’ was
identical to and infringing upon Radico’s registered trademark ‘ELECTRA’ in class 33.
Radico has also opposed the Devans’s application for trademark registration of the mark in
class 32. It is noteworthy that Class 32 and Class 33 are classes with cognate/ related goods.
Devans contended that it was the honest and bonafide adopter of the marks ‘GODFATHER’
and ‘ELECTRA’ for its brand ‘GODFATHER ELECTRA’ in relation to Beer and other
goods. It also contended to be the prior user as it was using the marks since 2014. It stated
that though Radico had obtained registration for the mark in 2007, it actually started using the
mark only in 2016, therefore Radico’s mark was liable to be removed from the records of the
Trade Marks Registry.

Radico however established its prior use by way of evidence of its test launch in 2004 and
placing on record invoices and agreements related to its various activities involving the brand
‘ELECTRA’ in the following years . The Court relied upon Hardie Trading Ltd. and Anr. Vs.
Addisons Paint and Chemicals Ltd. to elaborate that the ‘use’ may not be limited to use on
the goods or to sale of goods bearing the trade mark. The Court observed that the trademark
law permits registration of a second application for the same mark only if prior continuous

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use of the mark is proved by the applicant. Also, relying upon M/s Gujarat Bottling Co. Ltd.
and others v. Coca Cola Company and others it observed that protection of a registered trade
mark is not dependent on its use. The Court therefore ruled in favour of Radico since it
satisfied the primary grounds for granting of injunction, that is, it made out a prima
facie case, the balance of convenience was in its favour and it successfully proved that
irreparable injury would be caused to it if the permanent injunction is not granted. Devans
was thus restrained from using the mark ‘ELECTRA’ or any mark deceptively similar to it.

CHAPTER-2

BRIEF OF WRITTEN STATEMENT

The written statement has been signed by Mr. K.G. Bansal who is the Authorized Signatory
of the Defendant and is authorized to institute the present suit and sign and verify pleadings
on behalf of the Defendant.

BRIEF OF PRILIMINARY OBJECTIONS

 The present suit is liable to be dismissed at the threshold and is not maintainable
against the defendant. Neither the plaintiff nor defendant uses the trademark
ELECTRA as word mark alone in relation to their respective goods.

 The plaintiff is very recent user (allegedly since June, 2015) of the trademark MAGIC
MOMENT ELECTRA in relation to ready to ready to drink alcoholic beverage
whereas defendant has been using the trademark GODFATHER ELECTRA in
relation to beer and other goods falling in class 32 since April, 2013.

 It is stated that the acts of the Defendant of using the mark ELECTRA amounts to
infringement of Trade Mark as well as passing off for the reason that the Defendant is
using an identical trade mark in the course of trade for similar goods which is already
registered in favour of the Plaintiff.

PRAYER

It was prayed before the court to grant the following orders in favour of the plaintiff and
against the defendants:

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  Decrees of Permanent Injunction restraining the defendants, from dealing with the
trademark ELECTRA, from passing off the goods and services of the Defendants as
those of the Plaintiff, amounting to unfair competition and amounting to dilution of
the goodwill and reputation of the Plaintiff’s trademark ELECTRA.
 Decree for delivery up of all the bottles with the mark of ELECTRA to the
authorized representative of the Plaintiff for the purposes of destruction and erasure.
 Decree for rendition of accounts of profits illegally earned by the defendant on
account of the sale of the products bearing the mark of ELECTRA and a decree of the
amount so found to be passed in favour of the plaintiff.
 Decree for damages for damages to the tune of Rs. 1,00,05,000/- or for the amount
determined by the court.
 An order for the costs of the proceedings.

An Affidavit was also attached and verified on 12th March, 2018 by the representatives of the
plaintiff, Mr. Satish Chandra.

REPLICATION ON BEHALF OF THE PLAINTIFF TO THE WRITTEN

STATEMENT FILED ON BEHALF OF THE DEFENDANT

 Defendant cannot rely on the Written Statement as it was not filed in compliance of
Order VIII Rule 3A of the Code of Civil Procedure, 1908.
 Defendant cannot rely on the Written Statement as evidence or any of the matters set
out therein have not been verified under Sub rule (1) of Order VI Rule 15A of the
Code of Civil Procedure, 1908.
 Defendant’s usage for the mark ELECTRA is since 2014 according to him, whereas
plaintiff’s registration for the mark is dated 23-12-2004, therefore defendant can’t
contend prior usage.
 Usage of the word GODFATHER is completely irrelevant for usage of the word
ELECTRA in itself amounts to trademark infringement.

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  Defendant is using the trademark for Beer, which is allied and cognate to Plaintiff’s
product.
 It is stated that the Defendant has admitted that there exist element of passing off,
which means the Defendant has admitted that there exists likelihood of
confusion/association in the present case.

BRIEF REPLY ON MERITS

 It is denied by the Plaintiff that he abandoned the trademark ELECTRA and used the
mark MAGICAL MOMENTS.
 Research was conducted with respect to the trademark ELECTRA.
 It is denied that the registration of the trademark was obtained by fraud & the plaintiff
made a false claim of proprietorship.
 From the sales figures it is clear that Plaintiff has actual use of the trademark
ELECTRA prior to 2015.

A Short Written Submissions on behalf of the Plaintiff was filed by the plaintiff’s
representative providing a list of dates, a brief of facts, and Defendant’s defences were
replied.

Further a statement of Admissions or denials of defendant’s documents on behalf of

plaintiff along with supporting affidavit.

ORDERS PASSED BY THE COURT

 Order 29-10-18 I.A. No. 3483/2018 in CS(COMM) 724/2018

Arguments heard in part. List of further documents on 4th December, 2018.
 Order 04-12-18 I.A. No. 3483/2018, 4354/2018 and 4355/2018 in CS(COMM)
724/2018
Heard in part. List for further documents on 7th January, 2019.
 Order 07-01-19 I.A. No. 3483/2018, 4354/2018 and 4355/2018 in CS(COMM)
724/2018
At the request of learned counsel for the plaintiff, adjourned to 01 st February,
2019.
 Order 01-02-19 I.A. 3483/2018, 4354-4355/2018

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 List for arguments on 04th February, 2019
 Appeal against the Order passed on 13-03-18 I.A. No. 3485/2018 in CS(COMM)
724/2018 was filed by the defendant and according to the Order XXXIX Rule 4
CPC the appellant is allowed to sell the stock in Delhi but has to file the affidavit
for providing the details of the sale.
 Order 04-02-19 I.A. No. 3483/2018, 4354-4355/2018
At joint request, adjourned to 05th February, 2019.
 Order 05-02-19 I.A. No. 3483/2018, 4354-4355/2018
At the request o learned cunsel of the plaintiff, re-notify on 11 th of February, 2019
at the end of the Board.
 Order 11-02-19 I.A. No. 3483/2018, 4354-4355/2018
Arguments heard. Judgement reserved.
 Order 07-03-19 I.A. No. 3483/2018, 4354-4355/2018
By way of a separate detailed judgement, I. As. 3483/2018, 4354/2018 and
4355/2018 have been disposed of. List before the joint registrar on 16 th May, 2019
for admission and denial of documents. It is made clear that this matter need not
be treated as part heard any before.
 Order 10-07-18 learned senior counsel for the defendant has handed over his
written submissions. The same are taken on record.
 Order 16-05-19 I.A. No. 3483/2018, 4354-4355/201
From the perusal of record, it appears that vide order dated 06.07.2018, the
proceedings of admission / denial of documents has already been over. The
document schedule in terms of Chapter VII, Rule 7A of Delhi High Court
(Original Side) Rules be filed by the parties within 30 working days from today.
The matter be placed before the Hon'ble Court for further directions on
12.07.2019.

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APPLICATIONS FILED BY THE PLAINTIFF

 I.A. No. 3483/18 Under Order 39 Rules 1 & 2 read with Section 151 of the
Code of Civil Procedure, 1908.
It was prayed that this Hon'ble Court may be pleased to pass an ex parte ad
interim injunction restraining the Defendants, their partners, proprietors,
Companies, Sister Concerns, directors, executives, as the case may be, its officers,
servants and agents or anyone acting for and on their behalf from manufacturing,
exporting, marketing, offering for sale, selling, advertising or in any manner
dealing with any Alcoholic Beverages including but not limited to Beer and Ready
to Drink Beverages under the trademark 'ELECTRA' or from adopting any other
mark or label which is identical or deceptively similar to the Plaintiffs registered
trade mark ELECTRA thus amounting to infringement of trade mark, and/or do
any other thing which may lead to passing off of the goods and/or services of the
Defendants as that of the Plaintiff and/or do any other thing which may lead to
dilution of the Plaintiffs marks and unfair competition.
 I.A. No. 3484/18 Application under Order 11 Rule 1(4) (As Amended by the
Commercial Courts, Commercial Division And Commercial Appellate
Division of High Courts Act, 2015) Read with Sec. 151 of the Code Of Civil
Procedure, 1908. it is respectfully prayed before this Hon'ble Court that this
Hon'ble Court may be pleased to pass an order Granting leave to the Plaintiff to
rely on/file additional documents, over and above the documents already filed
along with the Plaint.
 I.A. No. 3485/18 Application under Section 151 of the CPC on behalf of the
plaintiff, It is prayed that an exemption may kindly be granted to the Plaintiffs
from filing clearer, typed, translated copies, vernacular and originals of certain
documents.
 I.A. No. 4354/18 Reply on Behalf of plaintiff to application under Order
XXXIX Rule 4 on behalf of the Defendant.
The Plaintiff denies the contents of the present application to the extent that they
are inconsistent with the submissions made hereinafter in the present reply. It is
submitted that any averment contained in the present application, which is not
specifically admitted is deemed to be denied.

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 The Plaintiff claims that the Defendant has failed to make out a case in fact or in
law for vacation of ex- parte order.
It was prayed before the court that an order dismissing the present application
with exemplary costs.
 I.A. No. 9243/18 an application under Order 23 Rule 3 read with Section 151 of
the Code of Civil Procedure, 1908 has been filed seeking recordal of the terms of
settlement.
Mainly three applications were filed by the plaintiff along with his pleadings:-
 Application under Order 39 Rules 1 & 2 of CPC, seeking injunction.
 Application under Order 11 Rule 1(4) of CPC, seeking a leave to rely on/ file
additional documents.
 Application under Section 151 of CPC seeking an exemption.

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 CHAPTER- 3
APPLICATION OF CPC PROVISIONS IN THE PRESENT CASE: ANALYSIS
PLEADINGS:
 Under Order III Rule 4(1) Only that person can act on behalf of any person who has
been appointed by a document signed by such person. The Vakaalatnama is filed by
the plaintiff under this rule.
 Under Order VI Rule 1 Pleadings consist of the plaint and the written statement. In
the present case, the Plaint was filed by the Plaintiff.
 Under Order VI Rule 2(1); Rule2(2); Rule 2(3) The Pleadings (Written Statement
for the defendant) have to contain only the material facts and not the evidence. It is
divided into paragraphs, and the dates, sums and numbers are indicated in numbers as
well as figures. The Plaintiff has strictly adhered to this, he has not attached any
evidence as part of the Plaint, however the rule regarding dates and numbers has been
adhered to.
 Under Order VI Rule 14 Each pleading shall be signed by the party and his pleader.
In the present case, the Plaint has been signed by both the pleader and the party.
 Under Order VI Rule 14A Every pleading shall be accompanied by a statement
regarding the address of the party, the plaintiff has adhered to this in his pleadings.
 Under Order VI Rule 15 Every pleading shall be verified at its foot by a person
acquainted with the facts of the case. The person shall also specify what he verifies of
his own knowledge and what he verifies upon information received and believed to be
true. The verification shall also state the date and place at which it was signed. (This
rule was amended in 1999 and took effect from 1st July 2002 to provide that such
verification shall also be accompanied by an affidavit.) The plaintiff has adhered to
this rule also.
APPLICATIONS
 Order XXXIX Rules 1 & 2 In I.A. No. 3483 Where the property in dispute in a
suit is in danger of being wasted, damaged or alienated by any party, or the
defendant threatens to remove the property to defraud the creditors, or dispossess
it, the Court may grant a temporary injunction until the disposal of the suit. The
Court can also grant a temporary injunction to restrain the defendant from
committing a breach of contract. In the present case, the Plaintiff has filed an
application requesting the Court to grant a temporary injunction to restrain the

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 defendant from selling the stock of the Trademark in question ELECTRA in
Delhi.
 Section 151 of CPC In I.A. No. 3483 Saving of inherent powers of the code:-
Nothing in this code shall be deemed to limit or otherwise affect the inherent
powers of the court to make such orders as may be necessary for the ends of the
justice or to prevent abuse of the process of the court. In this case also applications
were moved to ask for reliefs to be granted under the inherent powers of the court.
 Order XI Rule 1 In any suit the plaintiff or defendant by leave of the Court may
deliver interrogatories in writing for the examination of the opposite parties or any
one or more of such parties and such interrogatories when delivered shall have a
note at the foot thereof stating which of such interrogatories each of such persons
is required to answer : Provided that no party shall deliver more than one set of
interrogatories to the same party without an order for that purpose : Provided also
that interrogatories which do not relate to any matters in question in the suit be
deemed irrelevant, notwithstanding that they might be admissible on the oral
cross-examination of a witness. In I.A. No. 3484/18, it was requested for the
permission of further filing the documents at a later date.
 Order XXXIX Rule 4 In I.A. 4354/18 Any order for an injunction may be
discharged, or varied, or set aside by the Court, on an application thereto by any
party dissatisfied with such order :Provided that if in an application for temporary
injunction or in any affidavit supporting such application a party his knowingly
made a false or misleading statement in relation to a material particular and the
injunction was granted without giving notice to the opposite party, the Court shall
vacate the injunction unless, for reasons to be recorded, it considers that it is riot
necessary so to do in the interests of justice :Provided further that where an order
for injunction has been passed after giving to a party an opportunity of being
heard, the order shall not be discharged, varied or set aside on the application of
that party except where such discharge, variation or setting aside has been
necessitated by a change in the circumstances, or unless the Court is satisfied that
the order has caused undue hardship to that party. In this case also the plaintiff has
denied through his reply the grounds on which the defendant is moving an
application under this rule.
 Order XXIII Rule 3 In I.A. No. 9243/18 Withdrawal & Adjustment of Suits
Where the Court is satisfied,— (a) that a suit must fail by reason of some formal

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 defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute
a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms
as it thinks fit, grant the plaintiff permission to withdraw from such suit or such
part of the claim with liberty to institute a fresh suit in respect of the subject-
matter of such suit or such part of the claim. This was done by the plaintiff for
bringing into Court’s notice about the settlement terms between him and the
defendant.

DECISIONS & ORDERS

 Section 2(14)-Order
It is a formal expression of any decision of a civil court which is not a decree.
 Section 27 read with Order 5 Rule 1- Summons to the Defendant
After the institution of the suit, summons was issued to the defendants for the
appearance before the court to file written statement.
 Order XVII Rule 1- Court may grant time and adjourn hearing
The court may, if sufficient cause is shown, grant time to the parties and may from
time to time adjourn the hearing of the suit. The reason has to recorded in writing. The
provision clearly states that an adjournment may not be given to a party more than 3
times during the hearing of a suit. This provision has been used in the present case in
an Order 10-09-18 Learned senior counsel for the plaintiff is stated to be unwell.
Adjournment was asked for and allowed.

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REMARKS BY THE RESEARCHER

 In Order XXXIX Rule 3 Before granting injunction, Court to direct notice to

opposite party— The Court shall in all case, except where it appears that the object of
granting the injunction would be defeated by the delay, before granting an injunction,
direct notice of the application for the same to be given to the opposite party,
provisions relating to recording of reasons are obligatory and the same were not duly
performed. In Shiv Kumar Chadha vs. Municipal Corporation of Delhi reported
in 1993 (3) SCC 161 the Supreme court mentioned that the proviso to rule 3 is
mandatory.
 In the filing of the Written Statement by the Defendant the Statement of Truth was not
attached along with the affidavit and even then the Written Statement was allowed in
the court.
 Defendant cannot rely on the Written Statement as it was not filed in compliance of
Order VIII Rule 3A of the Code of Civil Procedure, 1908.
 Defendant cannot rely on the Written Statement as evidence or any of the matters set
out therein have not been verified under Sub rule (1) of Order VI Rule 15A of the
Code of Civil Procedure, 1908.

These shortcomings were identified by the Researcher in respect to the part of Plaintiff.

CONCLUSION

The Researcher has analysed all the Applications filed by the Plaintiff and has also studied
the orders passed by the court pertaining to the plaintiff. It has provided better understanding
of how the case proceeds in High Courts and the huge amount of paperwork involved in it. It
has helped the Researcher develop better practical understanding of the Code of Civil
Procedure.

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