1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.849 OF 2009 IN SUIT NO.757 OF 2008 Raymond Apparel Limited & Anr. ..... Plaintiffs. V/s Zapp India Limited ..... Defendants. Ms. Alpana Ghone alongwith Nishad Nadkarni, Avantika Mehta i/b Legasis Partners for plaintiffs. Mr. Rahul Chitnis i/b M/s Crawford Bayley & Co. for defendants. CORAM: V.M. KANADE, J. DATE : 4TH AUGUST, 2009 P.C.: 1. Heard the learned Counsel appearing on behalf of the plaintiffs and the learned Counsel appearing on behalf of defendants. 2. This Chamber Summons is taken out for deleting paragraph No.3 from the Written Statement. Paragraph No.3 of the Written Statement reads as under:- 2 “3. The Defendants submit that, the suit filed by the Plaintiffs is misconceived inasmuch as the trade mark of the plaintiff upon which they seek to injunct the Defendants is dissimilar from that of Defendants and bears no similarity what so ever with the mark of the Defendants. The Defendant further submits that, the products manufactured by the Defendant are different from those of the Plaintiff in as much as the Plaintiff manufactures clothing for children between the age group 4 to 12 years, where as the Defendant manufactures clothes exclusively for women of all ages. Thus, the customers of the Plaintiff and those of the Defendants are different.” 3 3. It is submitted that the said paragraph was typed in the draft Written Statement and was to be deleted from the final draft. However, inadvertently, the said paragraph was not deleted in the final draft. It is submitted that the defendants would like to give up the plea that the mark in question is dissimilar. It is submitted that the principal plea taken by the defendants in the Written Statement is that they are prior users in respect of the said mark. It is submitted that no prejudice would be caused to the plaintiffs if the said paragraph is deleted from the Written Statement since the defendants now are giving up their defence of dissimilarity of the mark. 4. The learned Counsel appearing on behalf of plaintiffs, on the other hand, vehemently opposed the Chamber Summons. She submitted that a right had accrued in favour of plaintiffs on account of the pleadings made by defendants in paragraph No.3 of their Written Statement. She invited my attention to Exhibit-Q and submitted that this was a mark used by defendants and they were trying to imitate the registered trade mark of plaintiffs. She submitted that, therefore a right which had accrued in favour of plaintiffs could not be taken away since defendants, as an afterthought, were malafidely trying to make an attempt to delete paragraph No.3 from their 4 Written Statement. In support of the said submission, the learned Counsel appearing on behalf of plaintiffs has relied upon the judgment of the Apex Court in Modi Spinning & Weaving Mills Co. Ltd and Anr. vs. Ladha Ram & Co. reported in AIR 1977 SC 680. 5. In my view, ratio of the judgment in Modi Spinning & Weaving Mills Co. Ltd and anr. (supra) will not apply to the facts of the present case. In the said case, admission was given by defendants in their Written Statement and the said admission was sought to be resiled by making amendment in the Written Statement by seeking leave of the Court to delete the said portion from the Written Statement. In that context, the Apex Court has held that once the right accrues in favour of the party on account of admission in the pleadings, subsequently permission cannot be granted to that party to delete the said portion from the pleadings. In the present case, it is the case of defendants that, inadvertently, paragraph No.3 in the Written Statement which was deleted from the draft Written Statement was again typed in the final draft. Though, in my view, defendants are always at liberty to give up one of the defences raised in the Written Statement, they can always do so at the time when the issues are framed by the Court or by adding an 5 additional paragraph in the Written Statement state the said paragraph had inadvertently been typed in the final Written Statement, though it was deleted from the draft. However, since the plaintiffs have now contended that right had accrued in their favour as a result of the said averment, the said question whether, in fact, right has accrued or not will have to be considered at the subsequent stage and, therefore, at this stage, defendants are not granted leave to delete paragraph No.3 from their Written Statement. Liberty, however, is granted to defendants to add one paragraph pointing out the circumstances under which the said paragraph had inadvertently appeared in the final draft. Hence, at this stage, defendants are not permitted to delete the said paragraph No.3 from the Written Statement. Liberty, however, is granted to defendants to take out fresh Chamber Summons for addition of the para as mentioned hereinabove, if they are so advised. 6. Chamber Summons is accordingly disposed of in the aforesaid terms. (V.M. KANADE, J.)