SINHAL METAL INDUSTRIES PRIVATE LIMITED Vs. ROYAL ENTERPRISES

JUDGEMENT

(1.) This is an application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure filed by the plaintiff/applicant. During the pendency of the suit, the plaintiff obtained the registration of its mark 'CLASSIC' bearing No.503609B for tooth brushes, hair brushes, nail brushes in Clause-21 under the Trade and Merchandise Mark Act, 1958. The plaintiff had filed the suit for passing off. After obtaining the registration of its mark, by this application plaintiff wants to amend plaint and in addition to the relief of passing off, wants to add relief for infringement. Plaintiff wants to amend the title of the suit and paragraphs 5,11,17 and 19 of the plaint.

(2.) Amendment application has been opposed by the learned counsel appearing for the defendants/non-applicants. Mr.Ajay Sahni has contended that by proposed amendment the plaintiff wants to change the very basis and nature of the suit. Mr.Sahni has contended that action of passing off and infringement are two distinct cause of actions and plaintiff cannot be permitted to now claim the cause of action on account of infringement of trade mark after having filed a suit for passing off. Mr.Sahni has contended that if plaintiff wants to claim any damages on account of infringement then the remedy is open for it to file a separate suit on this cause of action. In support of his contentions, Mr.Sahni has relied upon a judgement of this Court in IA No.442/94 in suit No.607/85, which was delivered on 19.10.1995.

(3.) On the other hand, Mr. Praveen Anand, learned counsel appearing for the plaintiff/applicant has contended that the cause of action for maintaining the suit on account of passing off or infringement is on account of the wrong of the defendants. In cases of infringement the defendants are committing statutory wrong. Therefore, by amending the plaint and incorporating the relief on account of infringement, it is enlargement of that wrong which is claimed by virtue of filing suit for passing off. Learned counsel for plaintiff/applicant has also contended that suit of passing off can be converted into suit for infringement. In support of his contentions, he has relied upon A Abdul Karim Sahib Vs. A Shanmugha Mudaliar 1967. (2) Madras Law Journal 468 and Anglo Dutch Colour & Varnishing Works Limited Vs.Indian Trading House 1984 PTC 54. Mr.Anand has contended that if amendment is not allowed, it will lead to multiplicity of proceedings as plaintiff has to file another suit.