AMIT LALITKUMAR ASWANI Vs. SUNIL CHELANI

JUDGEMENT

(1.) Appeal from Order No.194 of 2023 is filed by the original defendants and Appeal from Order No.207 of 2023 is filed by the plaintiffs of Trade Mark suit No.2 of 2017, against the order dtd. 4/8/2023 passed by the learned 4 th Additional District Judge, Vadodara in Trade Mark Suit No.2 of 2017, by which the application filed by the original defendants under Order VII Rule 10 of Code of Civil Procedure, 1908 ('CPC' for short) is allowed, however, liberty is granted to the original plaintiffs to amend the plaint by deleting the prayer of passing off action with respect to trade mark 'Santushti' of file a fresh suit for copyright infringement within fifteen days from the date of the order.

(2.) As the facts in both the appeals are same and the contentions raised by the parties are also almost same in reference to the provisions of CPC and also the provisions of Copyright Act and Trademarks Act, the appeals are heard together and decided by this common judgment. The parties are referred to in this judgment as the original plaintiffs and original defendants for the sake of convenience.

(3.) The brief facts which are stated in the plaint are such that the plaintiffs have started business of manufacturing juices, milk shakes, thick shakes, ice-cream, fresh fruit juices etc. in the name of Santushti Shakes and More in Rajkot since the year 2009; that they have initially started business under banner Shantushti Shakes and More at P.Lal Chambers, Dr.Yagnik Road, Opp.Jagnath Police Chowki, Rajkot; that they had expanded their business in Vadodara at the address stated in Shop No.4, Ashoka Chamber, Opp.Sadar Bazar, Fatehgunj, Vadodara; that the plaintiff no.2 is a company created by plaintiff no.1 and the family members are the share holders of the said company; that under the same banner, a branch of Shantushi Shakes and More was opened in Vadodara in the year 2012 and also acquired registration of Copyright in the year 2014, whereas the trademark registration was still pending; that the defendant no.1 is their relative and old friend; that the defendant no.1 has continued the shop in Rajkot, which was established by the plaintiffs in the name of Santushti Shakes and More and was doing the business at the address mentioned in the suit; that the defendant no.2 had started a franchise in Rajkot in the name of Raj Marketing and is also doing the business of selling shakes, ice-creams and fast food etc.; that the plaintiffs filed the impugned suit being Trade Mark Suit No.2 of 2017 before the learned District Court, Vadodara against the appellants for declaration, permanent injunction and accounts of profit under Sec. 20 of the CPC, Sec. 134(1)(c) of the Trade Marks Act, 1999 and Sec. 62 of the Copyright Act, 1957. That the defendants filed application under Order VII Rule 10 of CPC for return of the plaint below Exh.64, in which the impugned order is passed, which is challenged by both the plaintiffs and defendants by filing these appeals.