GEORGE LILINGTON AND CO LTD Vs. SUBASH CHEMICALS

JUDGEMENT

(1.) THESE two applications were filed by the defendants after decree was passed in suit on 9th September, 1985. In the suit, the plaintiff, prayed: - a) For permanent injunction and order of this Hon'ble Court restraining the defendants themselves, their servants, agents, stockists and all other persons on their behalf from using the offending mark SNOWCEM/SHOWCEM in respect of cement paint or any other trade mark which is an infringement of the plaintiffs' registered trade mark no. 89847 in class 2. b) For permanent injunction and order of this Hon'ble Court restraining the defendants themselves, their servants, agents and all other persons on their behalf from infringing the plaintiffs registered "artistic copy right work Nos. A 32022/81, A32766/81, A32768/81, A32770/81 and A 32857/81." c) For permanent injunction and order of this Hon'ble Court restraining the defendants themselves, their servants, agents, stockists and all other persons on their behalf from using the offending trade mark SHOWCEM/SNOWCEM and the impugned drums and bags having the infringing colour scheme, get up and design and diagonal lines in respect of cement paint so as to pass off their cement paint as the cement paint of the plaintiff's manufacture. d) For delivery upon affidavit by the defendants to the plaintiffs all the offending stationery wrappers, shade cards, drums, bags, and other material bearing the offending trade mark SNOWCEM/SHOWCEM and the infringing get up, colour scheme and design for purposes of destruction and/or obliteration as the case may be. e) For rendition of accounts into the profits made by the defendants since the adoption of the offending SNOWCEM/SHOWCEM and for the past three years on the sale of cement paint and decree for the amount so found due to the plaintiff."

(2.) DECREE was granted to the plaintiff, as per prayer made in paras 23 (a) to (e) of the plaint. For rendition of accounts a Local Commissioner was appointed by order made on 9th September, 85 with a direction "to go into the accounts of the defendant in respect of any sale of cement paint under the trade mark SNOWCEM/SHOWCEM for the last three years." Before the Local Commissioner, controversy arose between the parties with regard to statement of accounts directed to be furnished by the defendant.

(3.) FOR a proper appreciation of the order and decree passed on 9-9-85, it is necessary to refer to proceedings in the suit upto that date. On an application of the plaintiff filed with the suit, an ex parte order was made on 18-2-85, restraining the defendant from using trade mark SNOWCEM/SHOWCEM in respect of cement paint till further orders, appointing a Local Commissioner to visit the premises of defendant and to make an inventory of goods with the trade mark SNOWCEM/SHOWCEM in drums, sacks and, jars and also to sign the account books of defendant for the last three years. The Local Commissioner visited premises of the defendant on 19th February, 1985. An employee of the defendant refused to let him prepare an inventory of the goods or to produce books of account for his signatures. The Local Commissioner saw approximately 50 drums bearing trade mark SNOWCEM. Most of the drums were filled up and sealed, while some of them were in the process of being filled up with cement paint manufactured by the defendant. After service of summons on defendant on 21.5.85, his counsel wanted time to file written statement in suit and reply to application for interim orders. Subhash Gupta was also present in Court that day. Court recorded his statement on oath. He said: -