Signature Not Verified

Digitally Signed
By:DEVANSHU JOSHI
Signing Date:17.05.2022
12:00:55

$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th May, 2022
+ CS(COMM) 126/2022 & I.A. 3037/2022
M L BROTHER LLP ..... Plaintiff
Through: Mr. Vishal Patel, Advocate (M-
9711023307)
versus

MAHESHKUMAR BHURALAL TANNA ..... Defendant

Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J.(Oral)

1. 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

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 Signature Not Verified
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present suit was filed.

5. An ex parte ad interim injunction was granted on 23rd 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 16th 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

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 Signature Not Verified
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By:DEVANSHU JOSHI
Signing Date:17.05.2022
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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

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Signing Date:17.05.2022
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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”

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 Signature Not Verified
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Signing Date:17.05.2022
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7. The Local Commissioner thereafter served copies of the paperbook

and the order dated 23rd 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 th
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

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 Signature Not Verified
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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.
XXX XXX XXX

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 Signature Not Verified
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By:DEVANSHU JOSHI
Signing Date:17.05.2022
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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 23rd 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 & Ors. Mansukhlal & Ors. v. A. S.
Shaik Fathimal & Ors., 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:

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“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 & Estate
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

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Signing Date:17.05.2022
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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.

PRATHIBA M. SINGH
JUDGE
MAY 12, 2022/Rahul/SK

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