1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.393 OF 2009 IN SUIT NO.550 OF 2003 Ayushakti Ayurved Pvt. Ltd. & Ors. .... Plaintiffs Vs. Hindustan Lever Ltd. .... Defendant Ms Usha Chandrasekhar for the Plaintiffs. Mr. Sandeep Parikh i/b Crawford Bayley & Co. for the Defendant. CORAM: DR. D.Y. CHANDRACHUD, J. DATED: 24TH JUNE, 2009 P.C: 1. The chamber summons has been taken out for amending the plaint in a suit based on an action for passing of. Serial No.1 of the Schedule seeks a correction in the name of the defendant, which is not opposed. The corrected schedule is set out in the rejoinder. Serial No.2 seeks the addition of the word services after the word products while serial No.3 of the Schedule seeks addition of the words personal care and/or health care services . 2 The defence to the chamber summons is that when the suit was filed the plaintiffs were aware of the fact that the defendant had already commenced business using the mark in question in relation to services and that consequently the suit would be hit by the provisions of Order 2, Rule 2 of the Code of Civil Procedure, 1908 in as much as the plaintiffs had not sought leave of the Court in order to omit to sue on the foundation of the use of the mark in relation to services. The contention is based on certain news reports which have appeared in the daily newspapers - The Financial Express , The Asian Age , The Hindu and the National Herald - in June, 2002. On the other hand, it has been contended on behalf of the plaintiffs that as a matter of fact the news reports only set out what the defendant intended to do in future and it was only in August, 2003 that news reports appeared of the defendant having actually commenced the use of the mark in relation to services. The second defence is that the cause of action that is sought to be set up would be barred by limitation. 2. In my view, there should be no objection to allowing the amendment subject to certain safeguards. The question as to whether the 3 defendant had commenced the use of the mark in relation to services on the date when the suit was instituted is a question of fact. Similarly, the question as to whether the plaintiffs were aware of the aforesaid circumstance and omitted to sue on the foundation of the use of the mark in relation to services would raise a question of fact, which would have to be decided on the basis of evidence. In so far as the question of limitation is concerned, it would be appropriate if the issue of limitation is kept open, to be decided at the trial. In the circumstances, the chamber summons is allowed in terms of prayer Clause (a) expressly keeping open the question of limitation and the question as to whether the suit would be hit by the provisions of Order 2, Rule 2 of the Code of Civil Procedure, 1908, to be decided at the trial, after amendment. Amendment shall be carried out within two weeks from today. ------