Himalya International Ltd v. Himalaya Drugs Compay

RAJIV SAHAI ENDLAW, J. DECEMBER 07, 2017 'gsr'.. (Corrected & released on 4th January, 2018)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 7th December, 2017 + CS(COMM) 1066/2016 HIMALYA INTERNATIONAL LTD. ..... Plaintiff Through: Mr. V. Shankara, Adv. Versus HIMALAYA DRUGS COMPANY ..... Defendant Through: Ms. Prachi Agarwal & Ms. Mrinali Menon, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff has instituted this suit for recovery of damages in the sum of Rs.1 crore from the defendant, pleading that the plaintiff has suffered commercial, business and market loss and damage to its brand name and reputation on account of defendant's carelessness and negligence in filing CS(OS) No.1105/2010 of this Court and obtaining an ex parte injunction order on absolutely misconceived facts and notions and the defendant has thereby subjected the plaintiff to mala fide and vexatious litigation. It is further pleaded that owing to the said ex parte injunction obtained by the defendant in CS(OS) No.1105/2010, the plaintiff lost the market share of its product '1DAILY' intended to be launched in 2010 and launch whereof was delayed till 2012. 2. Though the plaint is replete with incomprehensible language and obvious typographical / grammatical errors but a perusal of the order dated 2nd June, 2010 in CS(OS) No.1105/2010, filed along with the documents, shows that thereby summons of the said suit filed by the defendant against the plaintiff were ordered to be issued and vide ex parte injunction the plaintiff was restrained from using the word 'HIMALYA' in relation to its product nutraceuticals or other products of whatsoever nature till the next date of hearing; it was however clarified that the said order will not preclude the plaintiff herein from legitimate use of the mark 'HIMALYA' in respect of food and frozen food products for which the plaintiff had been using the mark 'HIMALYA' till then. 3. This suit was entertained and summons thereof ordered to be issued. The defendant is contesting the suit by filing a written statement inter alia pleading i) that CS(OS) No.1105/2010 in which defendant obtained ex parte injunction against the plaintiff is still pending consideration; ii) that there can be no claim for damages on the basis of an order of the Court; and, iii) that the ex parte order dated 2nd June, 2010 in CS(OS) No.1105/2010 was confirmed on 18th September, 2013. 4. The plaintiff chose not to file the replication. 5. The suit is listed today for framing of issues. 6. Being prima facie of the opinion that a suit as the present one does not lie, particularly when CS(OS) No.1105/2010, since re-numbered as CS(COMM) No.535/2017, on account of interim injunction wherein damages are claimed is still pending and is also listed today and in which separate orders have been passed, I have enquired so from the counsels. 7. Neither the counsel for the plaintiff has looked into the said aspect nor has the counsel for the defendant. 8. I have drawn the attention of the counsels to Section 35A and Section 95 of the Code of Civil Procedure, 1908 (CPC) which are as under: "35A. Compensatory costs in respect of false or vexatious claims or defences.— (1) If in any suit or other proceedings, including an execution proceeding but excluding an appeal or a revision any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if, thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, if it so thinks fit may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of cost by way of compensation. (2) No Court shall make any such order for the payment of an amount exceeding three thousand rupees or exceeding the limits of it pecuniary jurisdiction, whiche