Chotiwala Food and Hotels Private Limited and Anr. Vs Chotiwala & Ors. (Delhi High Court)
Summary: The Delhi High Court, in Chotiwala Food and Hotels Private Limited and Anr. Vs Chotiwala & Ors., considered applications seeking amendment of the plaint and impleadment of three online service providers in a commercial suit alleging trademark and copyright infringement. The plaintiffs sought to add Zomato Limited, Samast Technologies Private Limited and Just Dial Limited as Defendants No. 10, 11 and 12, respectively. The plaintiffs contended that Defendants No. 1 to 7, against whom infringement allegations had been made, were listed on the platforms operated by these service providers. The order was passed by Justice Sanjeev Narula on 8 February 2023.
The plaintiffs filed I.A. 2455/2023 for amendment of the plaint and I.A. 2473/2023 for impleadment of additional defendants. Counsel representing Justdial, the proposed Defendant No. 12, objected to its impleadment on the ground that Justdial was merely an intermediary and was therefore not a necessary party to the proceedings. The Court considered the applications in light of the early stage of the commercial suit and the nature of the proposed amendments.
The High Court observed that the amendments sought were formal in nature and that the suit was still at its initial stage. Accordingly, it allowed both applications and took the amended plaint and amended memorandum of parties on record. This permitted the proposed online service providers to be included in the proceedings at that stage. The Court did not adjudicate upon the substantive allegations of trademark or copyright infringement while allowing these procedural applications.
During the subsequent consideration of the main suit, counsel for Defendant No. 12 stated that Justdial did not wish to file a written statement and sought deletion from the array of parties. Counsel submitted that Justdial would comply with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and/or directions of the Court concerning removal of the impugned listings from its website, as applicable. The request was based on the limited nature of the relief sought against the online intermediary.
The High Court accepted the statement made on behalf of Justdial and observed that the relief sought against Defendant No. 12 was confined to compliance with court directions, which its counsel had agreed to observe. On that basis, the Court granted the request for deletion. Importantly, the deletion was expressly made binding upon Defendant No. 12 in terms of the statement made by its counsel. Thus, Justdial was removed from the array of parties without being relieved of its undertaking to comply with the relevant directions.
The Court also addressed the procedural position of the remaining defendants. Counsel for Defendant No. 5 sought time to file a reply or written statement and obtain instructions. The Court directed Defendant No. 5 to file its written statement within the timelines prescribed under the Code of Civil Procedure, 1908, as amended by the Commercial Courts Act, 2015. The Court further recorded that the service reports concerning the remaining defendants had not been received because dispatch of summons had been delayed by the plaintiffs’ failure to remove registry objections within time.
Consequently, the High Court directed that fresh summons be issued to the remaining defendants upon filing of the requisite process fee. Service was permitted through all legally available modes, including electronic service and dasti. The matter was directed to be listed again on 17 April 2023. The order therefore dealt principally with procedural applications, party impleadment, deletion of an intermediary on the strength of a compliance undertaking, written-statement timelines and service of summons. It did not finally determine infringement, intermediary liability or entitlement to injunctive relief.
FULL TEXT OF THE ORDER OF DELHI HIGH COURT
I.As. 2455/2023 (for amendment of plaint) and 2473/2023 (for impleadment of additional Defendants)
1. The Plaintiff seeks to implead Zomato Limited, Samast Technologies Private Limited and Just Dial Limited as Defendants No. 10, 11 and 12, respectively. It is contended that afore-said online service providers have listed Defendant Nos. 1 to 7, who are infringing Plaintiff’s trademark and copyright, on their platform.
2. Ms. Nidhi Mohan, counsel for Defendant No. 12, objects and states that Justdial is only an intermediary and hence, not a necessary party. Considering the fact that the suit is at the initial stage and nature of amendments sought in the applications are formal in nature, both the applications are allowed. Amended plaint as well as amended memo of parties are taken on record.
3. The applications are disposed of.
CS(COMM) 33/2023
4. Ms. Parashar states that she does not wish to file a written statement. She seeks deletion of Defendant No. 12 from the array of parties stating that Defendant No. 12 shall comply with Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and/or directions of the Court pertaining to removal of impugned listings from its website, as the case may be. Considering the statement of the counsel, and since the relief sought against Defendant No. 12 is limited to compliance with court directions, which they have agreed to, the request is granted.
5. Accordingly, binding Defendant No. 12 to the statement made by its counsel, they are deleted from the array of parties.
6. Counsel for Defendant No. 5 seeks time to file reply/ written statement and take instructions. Defendant No. 5 shall file its written statement in accordance with timeliness prescribed under Code of Civil Procedure, 1908 as amended by the Commercial Courts Act, 2015.
7. The report of service of summons to the remaining Defendants has not been received yet, as dispatch was delayed due to the Plaintiff’s inability to remove the objections raised by the registry, in a timely manner.
8. Upon filing of process fee, let fresh summons be issued to remaining Defendants, by all permissible modes including electronically and dasti, returnable on the next date of hearing.
9. Re-notify on 17th April, 2023.
