ITC LIMITED Vs. BRITANNIA INDUSTRIES LTD

JUDGEMENT

(1.) The plaintiff who has approached this Court contemplating the grant of an urgent interim relief has been checkmated by the defendant, a giant in the consumer market; on a supposed plea that the suit as filed requires to be rejected on two grounds set out in the petition which is detailed herein below:

(2.) However, during the course of arguments the defendant / applicant has also questioned the Jurisdiction of the Court on the ground that the same has been filed only under Order IV Rule 1 CPC, Sec. 134 (2) of the Trade Marks Act and Sec. 62 (2) of the Copyright Act besides other Ss. of these two Acts and therefore the suit being based on cause of action the institution of the suit without obtaining leave to sue is not maintainable.

(3.) Before dilating on the application and its contents the sequence of events from the institution of the suit till the filing of the application to reject the plaint has to necessarily be set out how a clever defendant can obstruct a plaintiff from his attempts to get an interim order and then use the provision of Sec. 12 A of the Act to its advantage. The interim applications were posted as a "lunch motion" case on 22/6/2023, without filing a caveat and even before the Court could take up the applications and order notice, the learned senior counsel for the defendant had taken notice and sought time to file their counter on 30/6/2023. The plaintiff was directed to serve the papers on the defendant and the matter was posted to 30/6/2023 for counter and defendants were directed to file their counter to the original applications by 28/6/2023. The papers are also stated to have been given immediately. On 30/6/2023, once again an adjournment was requested and the matter was listed finally on 7/7/2023 which was once again adjourned to 10/7/2023. The defendant / applicant had filed their counter in the interlocutory applications and simultaneously filed this application to reject the plaint on 30/6/2023. The above narrative is placed only to put in perspective the fact the even before the Court could apply its mind to the urgency in the application or the need for interim relief, the defendant had sought two adjournments for filing its counter and has then come forward with the application. If the defendant were keen on a settlement, they could have, on the very first hearing, expressed their desire to have the matter sent to the State Legal Services Authority for mediating the dispute. Infact, nowhere in the application has the defendant expressed their desire for settlement. On the contrary, the attempt is to try to have the plaintiff's case dismissed at the threshold. The plaintiff has approached this Court with a case that the defendant who was all along wrapping a particular brand of biscuits in a different colour and get up, has now imitated the trade dress of the plaintiff's brand of biscuits.