Prathiba M. Singh, J. (Oral):— This hearing has been done through hybrid mode.
2. None appears for the Defendant.
3. This is a suit filed by the Plaintiff for permanent injunction restraining infringement, passing off of trade mark, copyright, unfair competition, rendition of accounts, delivery up etc. The suit has been filed seeking protection of the mark ‘UBON’ which was adopted by the Plaintiff in the year 2005 through its predecessor in respect of several goods including electronic goods. The Plaintiff has various registrations for the mark ‘UBON’ under classes 9 and 44. The first registration of the Plaintiff is of the year 2008 with user claim of the year 2005.
4. In March, 2018, an application bearing no. 2482938 for the registration of the mark ‘UBON THAI SPA’ in class 44 was filed by the Defendant. The Plaintiff further got to know that a number of spas were running in Goa under the name and style ‘UBON THAI SPA’ by the Defendant. The same were accepting booking through websites. Thus, the present suit was filed.
5. An ex parte ad interim injunction was granted on 23 February, 2022 in the following terms:
“20. Accordingly, till further orders, defendant, its proprietor, partners, agents, assigns, representatives, heirs, servants, dealers, distributors, franchisees and/or anyone acting for and on its behalf are restrained from using the trademark/trade name/device UBON/UBON THAI SPA or any other mark/name, which is identical or deceptively/confusingly similar to the plaintiffs trademark UBON falling in Class-44 or other classes in any manner whatsoever, so as to result in infringement of the said registered trademark/artistic work of the plaintiff or its passing off.
21. Provisions of Order XXXIX Rule 3 of the Code of Civil Procedure be completed within ten days from the execution of proceedings by the Local Commissioner/Court Commissioner.”
6. By the said order, a Local Commissioner was also appointed to visit the Defendant's premises in Goa and submit a report. The Local Commissioner - Mr. Deepak Kumar visited three premises of the Defendant in Goa, and has filed a report as per which, the Commission was executed on 16 March, 2022. As per the said report, the Defendant has sold the spas to one Mr. Vansh Chandra and Mr. Chandra had agreed to remove the mark ‘UBON’ from the hoardings and replace the name ‘UBON’ with another mark. The relevant paragraphs of the report are set out below:
“4. On 16.03.2022 at about 10.30 A.M., we assembled at the Calangute police station. I had given a request letter along with copy of order dated 23.2.2022 to the SHO of police station in the above mentioned case for providing police assistance with women police staff. SHO Mr. Laxi Amonkar took around one hour to provide police assistance due to non availability of women staff in PS. During meeting with SHO we came to know that there are some saloon and spa center which are using the name UBON in the jurisdiction of police station. SHO further told that UBON saloons are owned by Mr. Mahesh Kumar Bhura Lal Tanna and he was taken into custody by Andhra Pradesh Police some time back, due to his indulgence in some illegal activities.
5. That SHO told us to start with the nearest UBON Saloon from the Police Station. At about 12.15 P.M. I along with counsels for plaintiff, AR of plaintiff, two women police staff and one male police man visited at the UBON SPA CENTRE situated at Branch no. 2 Calanguate branch. At the reception counter we met with one person in-charge of branch he introduce himself as Aditya Gupta. I asked him about the owner of UBON SPA CENTRE. He told us that Mr. Vansh Chandra is taking care of SPA centre he immediately made a call to Vansh Chandra and within few minutes he arrived at the spot. I shown him copy of order and purpose of our visit.
6. Mr. Chandra told us that he had purchased the branches of UBON from Mr. Mahesh Kumar Bhura Lal Tanna. He further told that he entered with agreements for two branches of UBON the other branch is located at Shop no 5 Behind St. Anthony Chapel Calangute Goa. That centre was situated at a walking distance of 200-300 metres away from the first centre. When we visited at the address and noticed that UBON Mark Boards were affixed at the premises. Some photographs were taken from the spot which are annexed herewith the report.
7. Mr. Vansh Chandra undertook to remove the Mark UBON from the Hoardings within one day he further told us that he is going to replace the name UBON with other one. He further undertook to replace the name UBON from the all materials available in the SPA centre. I handed over copy of court order of this hon'ble court to vansh Chandra. I prepared on - spot proceeding and taken signature on it. It is annexed as Annexure-A-1(four pages) with true typed copy of same as Annexure A-2 (three)
8. After completing all the formalities I along with the persons accompanying as mentioned above visited the second branch located at opposite pizza hut/Behind ST. Anthony Chapel, Calanguate, Goa. During the course of inspection Mr. Vansh Chandra told me that He took the both premises on lease from Mr. Anthony Menezes. He further disclosed that the rent agreement is to be signed today and copy of order is to be send within two days to the undersigned. Till today no copy of agreement is send to the undersigned.
9. We visited at the third branch at the instance of Vansh Chandra at the address mentioned in the order. Mr. Vansh Chandra disclosed that this Spa Saloon is also owned by Defendant and that premise was taken on lease by the defendant from owner Tito Proence. Now he is under process to take that premise from the landlord. He further under took to remove the mark ubon from the hoardings, articles/goods like towels etc. which was found inside the Spa Centre within 15 days. I also seized six towels bearing the mark ubon and one catalogue also bearing the mark UBON and same are I took some photographs from the premises and articles were handed over to Mr. Vansh Chandra on Supurdari. with the condition to keep in safe custody not to temper the article and produce as and when required by this honble court original supurinama is annexed as Annexure B-1 and true typed copy is annexed as annexure-B-2 photo graphs are annexed as annexure-C (11 photographs) visiting card was given by Mr. Vansh Chandra which is annexed as annexure-D”
7. The Local Commissioner thereafter served copies of the paperbook and the order dated 23 February, 2022 to Mr. Vansh Chandra. The Registry's report also shows that an email was sent to the Defendant by the Registry. The Plaintiff has also filed the affidavit of service. In these circumstances, this Court is of the opinion that the service on the Defendant has been adequately effected.
8. No written statement has been filed by the Defendant till date. Considering the fact that the Local Commission was executed on 16 March, 2022, the initial 30 days period for filing the written statement has also lapsed. The Defendant is, accordingly, proceeded ex parte.
9. From the record, it is clear that the Plaintiff is the registered owner of the marks ‘UBON’, ‘UBON PLANET’ and ‘UBON PRIME’ since 2008. The word ‘UBON’ was adopted by the Plaintiff in 2005. The mark is registered in class 44 in respect of medical services, veterinary services, hygienic and beauty care for human beings or animals, agriculture, horticulture and forestry services. The Defendant was running spa and salon centres in Goa. As per the Local Commissioner's report, there are at least three centres which were opened by the Defendant in Goa. However, the same have been purchased by one Mr. Vansh Chandra from the Defendant. From the record of the Local Commissioner, it is also clear that Mr. Chandra does not wish to contest the matter and had agreed to change the name from ‘UBON’ to some other name. Moreover, the application filed for the registration of the mark ‘UBON THAI SPA’ has been abandoned by the Defendant.
10. Order 26 Rule 10(2) CPC stipulates that the report of the Commissioner and the evidence taken by the Commissioner shall be evidence in the suit and shall form part of the record. The said provision reads as under:
10. Procedure of Commissioner.— (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
(2) Report and depositions to be evidence in suit. Commissioner may be examined in person.— The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.”
11. In Levi Strauss & Co. v. Rajesh Agarwal, 2018 IAD (Delhi) 622, this Court examined the said provision and held that once the Commissioner has filed the evidence along with his report, it becomes evidence in the suit itself. Under Order 26 Rule 10(2) CPC it is not mandatory to examine the Commissioner to admit the report of the Commissioner as evidence in the suit. The relevant observations are as under:
8. The Local Commissioner is in fact a representative of the Court itself and it is for this reason that Order 26 Rule 10(2) of CPC clearly provides that once the Commissioner has filed the evidence along with his report the same shall be treated as evidence in the suit and shall form part of the record.
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10. The rationale behind Order 26 Rule 10(2) of CPC is clear i.e. the Commissioner is appointed as a representative of the Court and evidence collected by the Commissioner along with the report of the Commissioner would be evidence in the suit, subject to any objection raised by any party. If any party has any objection to Commissioner's report or to the evidence, such party has an option to examine the Commissioner personally in open Court. Such examination is however, neither compulsory nor required especially in cases where the party does not challenge the report. In the present case, a perusal of the written statement filed by the Defendant clearly reveals that the Defendant does not challenge the Commissioner's report. Para of the written statement is set out below…”
12. This position of law has been reiterated by this Court in Vinod Goel v. Mahesh Yadav [RFA 598/2016 decided on 23 May, 2018] wherein the Court observed as under:
“7. It is the settled proposition in law that when a Commissioner is appointed, he acts as the officer of the Court and it is not necessary for the Commissioner to be examined. This is clearly laid down by the Supreme Court in Misrilal Ramratan Mansukhlal v. A.S. Shaik Fathimal, 1995 Supp (4) SCC 600, wherein the Court held as under:
“It is now settled law that the report of the Commissioner is part of the record and that therefore the report cannot be overlooked or rejected on spacious plea of non-examination of the Commissioner as a witness since it is part of the record of the case.”
8. Even this Court, recently in Levis Strauss v. Rajesh Agarwal [RFA 127/2007 decision dated 3rd January, 2018], held as under:
“11. The rationale behind Order 26 Rule 10(2) of CPC is clear i.e. the Commissioner is appointed as a representative of the Court and evidence collected by the Commissioner along with the report of the Commissioner would be evidence in the suit, subject to any objection raised by any party. If any party has any objection to Commissioner's report or to the evidence, such party has an option to examine the Commissioner personally in open Court. Such examination is however, neither compulsory nor required especially in cases where the party does not challenge the report.”
9. Mr. Prag Chawla clearly concedes that there may be no requirement to examine the Local Commissioner once the Commissioner is appointed by a Court.
10. Under these circumstances, since the Commissioner had visited the suit property and had submitted the report, it is deemed appropriate that the matter is remanded back to the Trial Court to decide the matter afresh after taking into consideration the report of the Local Commissioner, Mr. Y.D. Nagar dated 5th January, 2000 in Suit No. 2198/1999.
13. In view of Order 26 Rule 10(2) CPC and the judgments discussed above, the settled legal position that emerges is that the report of the Local Commissioner can be treated as evidence in the suit where it is not challenged by any party. Accordingly, in the present case the report of the Local Commissioner and the contents therein can be relied upon by the Court as evidence as the same is unchallenged.
14. Furthermore, in view of the provisions of the Commercial Courts Act, 2015 and the judgment in Satya Infrastructure Ltd. v. Satya Infra & Estates Pvt. Ltd., (2013) 54 PTC 419 (Del) this Court is of the opinion that there is no need for filing further evidence in the present matter. The relevant observations in Satya Infrastructure (supra) read as under:
“4. I am of the opinion that no purpose will be served in such cases by directing the plaintiffs to lead ex parte evidence in the form of affidavit by way of examination-in chief and which invariably is a repetition of the contents of the plaint. The plaint otherwise, as per the amended CPC, besides being verified, is also supported by affidavits of the plaintiffs. I fail to fathom any reason for according any additional sanctity to the affidavit by way of examination-in-chief than to the affidavit in support of the plaint or to any exhibit marks being put on the documents which have been filed by the plaintiffs and are already on record. I have therefore heard the counsel for the plaintiffs on merits qua the relief of injunction.”
15. In these facts and circumstances, the suit stands decreed in terms of paragraph 31(a) and (b) of the plaint.
16. The suit is at the initial stage and the Defendant appears to have abandoned the mark immediately upon service itself and chosen not to contest the suit. Therefore, this Court is of the opinion that nominal costs of Rs. 3 lakhs ought to be awarded to the Plaintiff.
17. No damages are being awarded in the facts and circumstances of the case.
18. The suit along with all pending applications are disposed of in the above terms. Decree sheet be drawn accordingly.
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