*1* chs.443.10.s.370.10.907.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.443 OF 2010 IN SUIT NO.370 OF 2010 Surat Goods Transport Pvt.Ltd. and others. ..Plaintiffs -Versus- Total Logistics India Pvt.Ltd. and others. ..Defendants .......... Ms.Madhuri Sakpal i/b Thodur Law Associates, for the Plaintiffs. Mr.Manish Saurastri i/b Krishna & Saurastri Associates, for the Defendants. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 16th December, 2010. P.C. 1 This Chamber Summons seeks amendment to the plaint in terms of the schedule. The Plaintiffs have filed this suit seeking inter-alia permanent injunction and a decree against the Defendants from in any manner using the trade mark comprising a logo of a globe superimposed on a stylized letter “S” with a slogan “Making Things Happen” inscribed in a distinctive font between two bold stripes of blue and red colour underlining the name of Plaintiff No.1 Company shown in Exhibit-A to the plaint or any part thereof, either by itself, or in combination with any other mark, or any other deceptively similar mark, so as to infringe the Plaintiffs’ trade mark. Prayer clause (b) is a restraint against passing off. 2 The Plaintiffs state that an application has been made for interim reliefs and during the course of same, the Plaintiffs realized that there is inadvertent error which has crept in the second line of paragraph No.4 of the plaint, instead of the year “2000-2001” it has been erroneously stated as “2003-2004”. Paragraph No.4 of the plaint reads thus:- *2* chs.443.10.s.370.10.907.sxw “4. Plaintiff No.1 Company has been in continuous use of the said trademark since the year 2003-2004, much prior to it’s registration in the year 2008, and continues to do so till date. The business carried on by the Plaintiffs in respect of which the said trademark is used increased greatly and the turnover of the said business in recent times is as follows: (a) for the period ending March 2004 the turnover was Rs. 46.68 Crores. (b) for the period ending March 2005 the turnover was Rs. 115.40 Crores. (c) for the period ending March 2006 the turnover was Rs. 166.39 Crores. (d) for the period ending March 2007 the turnover was Rs. 239.02 Crores. (e) for the period ending March 2007 the turnover was Rs. 339.85 Crores. (f) for the period ending March 2009 the turnover was Rs. 395.35 crores. The Plaintiffs crave leave to refer to and rely upon the audited accounts as and when produced.” 3 The affidavit in support of the Chamber Summons states that if paragraph No.4 is perused in its entirety, in addition to mentioning the year of use, the Plaintiffs also craved leave to refer to and rely upon the audited accounts as and when produced. Therefore, the amendment is to correct an inadvertent error in the interest of justice. It is submitted that these Plaintiffs have a very good case on merits and the Plaintiffs will suffer hardship if the inadvertent error is not allowed to be corrected. 4 This Chamber Summons is vehemently opposed by the Defendants. In their affidavit in reply, they urge that when the Plaintiffs had moved the application for interim reliefs it was brought on record by the Defendants vide their affidavit in reply that their use of mark in question is from 2001. After noticing this defence of the Defendants, now *3* chs.443.10.s.370.10.907.sxw the Plaintiffs are attempting to improve their case. The Plaintiffs are altering the very basis of the claim of use of the suit mark. This is not correction of an inadvertent error but is a deliberate attempt to wriggle out of an admission made in the plaint itself. Once such an admission creates vested rights in favour of the Defendants and particularly under Section 34 of the Trade Marks Act, 1999, then, the Chamber Summons must be dismissed. It must also be dismissed because an attempt made to amend the plaint at this stage shows that the amendment is not bonafide but to get over a binding statement in the plaint. For all these reasons, this Chamber Summons may be dismissed. 5 In the rejoinder affidavit of the Plaintiffs, they have pointed out that the amendment is bonafide and to correct an inadvertent error. The Draftsman was provided with all details by the Plaintiffs. He was also informed that the period of user is 2001. The relevant documents with regard to user so as to prove it were also forwarded to the Advocate/Draftsman. However, since accounting information was provided by the Plaintiffs only from the year 2003-2004, the Advocate assumed the user from 2003 and committed an error. The error was pointed out to the Plaintiffs’ Advocate by the Plaintiffs by forwarding a copy of statement of Balance-sheet and the profit & loss account for the year 2000-2001. In such circumstances, the request to correct the error as above is made and that on account of Draftsman’s mistake, the Plaintiffs should not suffer, is the submission. 6 I have heard the learned counsel at great length and with their assistance, I have perused the record. In support of his submissions, the Defendants’ Advocate has placed reliance on the judgment of a learned Single Judge of this Court in case of Rasiklal Manikchand Dhariwal & others v/s Kishore Washwani & Nitesh Ashok Wadhwani, dated *4* chs.443.10.s.370.10.907.sxw 02.02.2005 in Chamber Summons No.1/2005 in Suit No.574/2004 (2005(31) PTC 401 (Bom)). Mr.Saurastri submits that this judgment squarely applies to the facts of this case. There the amendment to the extent of correcting the date of user was rejected by the learned Single Judge by holding that vested rights accruing by virtue of the pleadings and the stand taking by the Plaintiffs therein, cannot be defeated by permitting the amendment to the plaint. Mr.Saurastri has relied upon the observations of the learned Single Judge in paragraph Nos.16 to 18 and has contended that relying upon this decision, the present Chamber Summons may be dismissed. 7 At the outset, this is an application for amendment to the plaint. What is being argued is that there is admission in the plaint by the Plaintiffs by virtue of which there is vested right accruing in favour of the Defendants particularly under Section 34 of the Trade Marks Act, 1999. If the amendment is allowed, this right will be defeated. 8 To appreciate this submission, one must notice the Order VI Rule-17 of the Civil Procedure Code, which reads thus:- “Order-VI Rule-17 “17. Amendment of pleadings:- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” As far as the Bombay Amendment is concerned, it reads thus:- *5* chs.443.10.s.370.10.907.sxw “High Court Amendments (Bombay):- In Order VI, for the existing rule 17 and its marginal note, substitute the following as rule 17 and marginal note:- 17. Amendment of pleadings:- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. Where, however, an application for amendment is made by the plaintiff in a suit in which the defendant has not appeared, though served with a summons, and where in the opinion of the Court the amendment applied for is a material one, the Court shall give notice of the application to the defendant before allowing the amendment; and where in the absence of the defendant the Court grants any amendment in a form materially different from that of which notice has been given to the defendant, a copy of the amended plaint shall be served on the defendant.” 9 Thus, the Court at any stage of the proceedings may allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments may be made as may be necessary for the purpose of determining the real questions in controversy between the parties. 10 The object and purpose of the Order VI Rule 17 has been considered recently by the Hon’ble Supreme Court in a decision reported in AIR 2006 SC 1647 (Rajesh Kumar Aggarwal & others v/s K.K.Modi & others). It is held in this decision that first part of the provision gives discretion to the Court to consider the application for amendment of the pleadings. That is a discretion in the Court whereas the amendments which are necessary for the purpose of determining the real question in controversy between the parties have to be granted and that part of the *6* chs.443.10.s.370.10.907.sxw provision is held to be mandatory. Something which assists the Court in resolving the controversy and is necessary for that purpose, must be before the Court and therefore, the amendments which enable the Court to determine the real question in controversy have to be necessarily allowed. This distinction cannot be lost sight of, while considering the application for amendment. In this behalf the following observations are pertinent:- 15. This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought before the commencement of the trial. 16. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 17. Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 19. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an *7* chs.443.10.s.370.10.907.sxw amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 20. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case. 23. We shall now consider the judgments cited by learned senior counsel for the appellants:- 1. M/s Ganesh Trading Co. vs. Moji Ram (1978) 2 SCC 91 (AIR 1978 SC 484). This Court held that the main rules of pleadings in Order 6, CPC, 1908, show that provision for the amendment of pleadings subject to such terms as to costs and giving to all parties concerned necessary opportunities to meet exact situations resulting from any amendment, are intended for promoting the ends of justice and not for defeating them. This Court further held that the amendment only sought to give notice to the defendant on facts which the plaintiff would and could have tried to prove in any case. Such notice was given only by way of abundant caution so that no technical objection can be taken that what was sought to be proved was outside the pleadings. 2. Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon, 1969 (1) SCC 869 (AIR 1969 SC 1267). It was held that a party cannot be refused just *8* chs.443.10.s.370.10.907.sxw relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting malafide, or that by his blunder he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. 3. Ragu Thilak D. John vs. S. Rayappan and Others (2001) 2 SCC 472 (2001 AIR SCW 342): Sethi, J. speaking for the Bench has observed that the amendment sought would change the nature of the suit originally filed was not a reason for refusing application for amendment and that the dominant purpose of Order VI Rule 17 was to minimise litigation and that the plea that the relief sought for by way of amendment was barred by time is arguable in the circumstances of the case. This Court further observed in para 5 as under: "5. After referring to the judgments in Charan Das v. Amir Khan, AIR 1921 PC 50, L.J. Leach & Co. Ltd v. Jardine Skinner & Co., AIR 1957 SC 357, Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393, Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91 and various other authorities, this court in B.K. Narayana Pillai v. Parameshwaran Pilla, (2000) 1 SCC 712 held: (SCC p.715, para 3): "3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should *9* chs.443.10.s.370.10.907.sxw not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled- for multiplicity of litigation." 11 In the instant case, what the Plaintiffs have pleaded in paragraph No.4 of the plaint is about user. At the same time, the Plaintiffs stated that they crave leave to refer to and rely upon the audited accounts as and when produced. It may that the year has been mentioned but at the same time, audited accounts are also referred. Therefore, it is the Plaintiffs’ case that not only the year as mentioned in the pleadings but the audited accounts together would prove the case of their prior user of the subject mark. What Mr.Saurastri’s argument overlooks, is this part of the pleadings. The evidence is not to be pleaded. However, the matter is to be decided together that is by the pleadings and evidence led by the parties. On the pleadings the issues are to be framed and at that stage, the real question arising for determination between the parties will be formulated. That is on the pleadings. In the instant case, the written statement of the Defendants is yet to be filed. Therefore, what the Plaintiffs are seeking to do is to correct the year mentioned in the plaint with regard to their user. I do not see how this error which has crept, according to the Plaintiffs, cannot be corrected by them. It is only correction in the year and by virtue of correction made it is not as if the Court has concluded that the year of user is not 2003-04 as urged earlier but 2000-01. Therefore, the merits of this change/alteration are not to be gone into at this stage. The Defendants can always file their Written Statement and controvert this position. The arguments of Mr.Saurastri ignores the basic principle that the amendment is to the plaint. A plaint sets out the Plaintiffs’ case which will be proved by them or else they may not succeed. By merely setting out a case they cannot succeed. Therefore, *10* chs.443.10.s.370.10.907.sxw the year may have been mentioned but if there is no proof furnished, then, whether the original pleading or otherwise, they cannot succeed. 12 The Court will have a proper picture with regard to user after the parties complete the pleadings. There is no question of vested rights being affected in the facts and circumstances of the present case. The Plaintiffs have explained on affidavit that their Draftsman was given complete details including the balance-sheet, profit & loss accounts, however, while providing the information the accounting year was erroneously mentioned and that is how the Draftsman has proceeded to incorporate 2003-04 as the year in paragraph No.4 of the plaint. The Plaintiffs now desire to correct that inadvertent error, according to them, committed by the Draftsman. I do not see how they are prevented from doing so. It is equally well settled in a decision reported in AIR 1979 SC 1666 (Concord of India Insurance Company v/s Nirmala Devi) of the Hon’ble Supreme Court that the mistake of a Lawyer should not prejudice the case of a litigant. The client should not suffer on account of Draftsman’s error and mistake. 13 In these circumstances, I do not see any substance in the contentions of the Defendants that the Chamber Summons for amendment is not bonafide. The Plaintiffs have fully explained as to in what circumstances the amendments are necessitated and I have no reason to doubt their bonafides after the affidavits are perused by me. Merely because the Defendants have taken a plea in the affidavit in reply to the Notice of Motion for interim reliefs and the Plaintiffs have been allowed to amend the plaint; does not mean that serious prejudice is caused to the Defendants or they have lost any vested right. All that they have done is to set out their stand in their affidavit in reply to the Notice of Motion for interim relief, that stand together with the version of *11* chs.443.10.s.370.10.907.sxw Plaintiffs will be tested at the prima facie stage. Merely because the plaint is allowed to be amended, will not mean that any vested right has been defeated. 14 The facts in case of Rasiklal Manikchand Dhariwal (supra) before the learned Single Judge are not identical to this case. There the Court was shown that the amendment cannot be allowed because the Plaintiffs in plaint have admitted that the user of mark is since 1961 and the Defendant No.2 having claimed the user from 1959, they are prior user and not the Plaintiffs. The Plaintiffs by making averments in the plaint, as made in paragraph Nos.5, 6 and 22 of the plaint, admitted that the user of trade mark “Manikchand” in respect of the tobacco product was only from 1961. Once this averment is made it was not open for them to go back on the said averment and contend that it is not from 1961 but much prior thereto. Additionally, the Court found that the proposed Defendant in the suit filed in the District Court, Mandaleshwar (Madhya Pradesh) has specifically made a plea that the user by them is from 1959 i.e. prior in point of time than the Plaintiffs. In the light of the averments made by the proposed Defendant, the Plaintiffs in that case were seeking to amend the plaint, by further going back to the year 1958. In these circumstances and finding that the claim defeats the vested rights created in favour of the Defendant No.2, so also, it lacking in bonafides, that Court disallowed the amendment. Further, the attention of the learned Single Judge was not invited to Sections 17 to 21 of the Evidence Act, 1872 and also Section 31 thereof. Before a statement can be construed as an admission, it must be shown that it is so clear and unambiguous as could be termed as conclusive unless explained. The implication of a statement, to be termed as admission, must be clear and conclusive. (See AIR 1956 SC 593 Nagubai v/s Shamrao and AIR 1971 SC 1542 Koteswara *12* chs.443.10.s.370.10.907.sxw v/s Sabbarao). A sentence in one of the paras of the plaint, seen in isolation, can hardly be conclusive, without anything more, as in the instant case. 15 I do not see how this decision is of any assistance to the Defendants in this case. It is for the Court on the basis of the pleadings to decide as to whether any vested right is created and in whose favour, to what extent and since when. Ultimately, the Court has to determine the real question about the user of mark. Therefore, the Court must have a full picture so as to enable it to resolve the controversy and determine it effectively. In such circumstances, I am unable to accept the submissions of the learned counsel for the Defendants and in my view the reliance placed on the judgment of the learned Single Judge is misplaced. 16 As a result of the above discussion, this Chamber Summons is made absolute in terms of prayer clauses (a) and (b). The plaint is allowed to be amended in terms of the schedule. Since I am of the view that no prejudice is caused to the Defendants by this amendment, there will be no order as to costs. However, it is clarified that the Court has not gone into merits of the amended pleas and merely by virtue of this amendment being allowed, it should not be concluded that the Plaintiffs are prior user of the suit mark since 2000-01 and all contentions of both sides in that behalf are kept open. Subject thereto, this Chamber Summons is allowed. The amendments be carried out within two weeks from the date of receipt of this order. 17 At this stage, the learned counsel for the Defendants prays for stay of this order. The stay is refused. (S.C. Dharmadhikari, J)