IN THE COURT OF SHRI SUNIL RANA,

Ld. ADDITIONAL DISTRICT JUDGE II,

ROOM No.317, 3rd FLOOR,
ROHINI COURTS, DELHI

Suit No. CS / 101 / 2013

In the matter of:

M/s. Fibrex Construction Chemicals Pvt Ltd

.PLAINTIFF
Versus

M/s. Onward Chemicals Pvt Ltd. & ors.

.DEFENDANTS

NDoH: 05.10.2013

INDEX

S.No. PARTICULARS PAGE No.

1. Joint Written Statement on behalf of Defendant 1 19
Nos.1 to 4
2. Affidavits in support of Written Statement 20 27
3. Reply to Plaintiffs application under Order
XXXIX Rules 1 & 2 of CPC, 1908, alongwith 28 40
supporting affidavits
4. Application on behalf of Defendant Nos.2 to 4
under Order I Rule 10 r/w Section 151 of CPC, 41 51
1908, alongwith supporting affidavits

(The sole Plaintiff has been duly served in person through counsel)

Place: New Delhi

Dated:

DEFENDANT Nos.1 to 4
Through
 IN THE COURT OF SHRI SUNIL RANA,
Ld. ADDITIONAL DISTRICT JUDGE II,
ROOM No.317, 3rd FLOOR,
ROHINI COURTS, DELHI

Suit No. CS / 101 / 2013

In the matter of:

M/s. Fibrex Construction Chemicals Pvt Ltd

.PLAINTIFF
Versus

M/s. Onward Chemicals Pvt Ltd. & ors.

.DEFENDANTS

NDoH: 05.10.2013

JOINT WRITTEN STATEMENT ON BEHALF OF DEFENDANT

Nos. 1 TO 4, RESPECTIVELY

MOST RESPECTFULLY SHEWETH:

1. THAT the present suit is not maintainable in the eyes of law and is

gross abuse of the process of this Honble Court and is therefore,

liable to be dismissed at the outset. The plaint in the present case

fails to disclose any valid cause of action which is necessary for

case of passing off under Section 27(2) of the Trademarks Act,

1999 and is liable to rejected on that short ground alone. The

Defendants reserve their right to file an appropriate application

under Order VII Rule 11 of CPC, 1908 in the course of

proceedings in the present case.

2. THAT the present suit is also not maintainable qua Defendant nos.

2 to 4 respectively, and is liable to be outrightly dismissed qua the

said Defendants. This is because the Defendant nos. 2 to 4

 respectively, are merely Directors of the Defendant No.1 Company

and have distinct legal personality from the company per se. There

is no specific averment or allegation in the plaint as to the part

played by Defendant Nos. 2 to 4 respectively, in the transaction

involved in the present case. There is neither any clear nor any

unambiguous allegation in the plaint as to how the Defendant Nos.

2 to 4 respectively, are jointly or severally responsible for the

transaction involved in the present case. It is settled law that the

description to that effect should be clear and specific in the plaint.

In the absence of any averment or specific evidence against the

Defendant Nos. 2 to 4 respectively, it is humbly submitted that the

instant suit is not maintainable against the said Defendants. The

Defendant Nos.2 to 4, respectively have also raised objections in

this regard and jointly moved an application under Order I Rule 10

r/w Section 151 of CPC, 1908 seeking deletion of their names from

the array of parties in the instant suit. The contents of the said

application have not been repeated herein for the sake of prolixity

and the same may be read as part and parcel of this written

statement.

3. THAT the present suit is also bad in the eyes of law for having

been wrongly and improperly instituted without following the

procedure established by law and is therefore, liable to be

dismissed on that short ground alone. The provisions of Sections

291 and 292 of Companies Act, 1956 and Order XXIX of CPC,

1908 have not been followed by the Plaintiff Company. First and
foremost, the purported Board Resolution dated 28.05.2013, as

filed on record by the Plaintiff, has been signed by an unidentified

person without any details as to his designation or capacity in the

Plaintiff Company and even without the identity of such person

being disclosed. Secondly, such purported board resolution is not

signed by all the Directors of the Plaintiff Company. Thirdly, the

contents of the purported Board resolution are also vague and

inconclusive as to whether Mr. M.K. Kakroo has been authorized

to file the present suit.

The Memorandum & Articles of Association of the Plaintiff, as

filed on record by the Plaintiff, are incomplete as well as

insufficient and therefore, more shadows are cast upon the

genuineness of the purported Board Resolution. The number of

Directors in the Plaintiff Company is not mentioned anywhere and

therefore, it is doubtful whether the purported Board resolution has

been passed in accordance with the Articles of Association. It is

also unclear from perusal of the said Memorandum & Articles of

Association as to whether an individual Director in the Plaintiff

Company is vested with such powers which entitle him to

authorize another Director to institute civil suit on behalf of the

Plaintiff Company. It is well settled that unless a power to institute

a suit is specifically conferred on a particular Director, he has no

authority to institute a suit on behalf of the company. In light of the

doubts cast upon the genuineness of the purported Board resolution

dated 28.05.2013 and in the absence of sufficient documentary

 evidence on record to rebut the said doubts, it is submitted that the

present suit be dismissed as being improperly filed and instituted

without lawful authority. The Plaintiff may be put to strict proof to

establish that the instant suit has been properly instituted and filed

in accordance with law.

4. THAT the present suit is bad for misjoinder of parties in as much

as the Defendant Nos. 2 to 4 respectively have been improperly

and unnecessarily added in the array of parties. It is further bad for

misjoinder of parties since the National Internet Exchange of India

has been improperly and unnecessarily added as Defendant No.5 in

the array of parties.

PRELIMINARY SUBMISSIONS:

5. THAT the Defendant No.1 Company was incorporated in Mumbai

on 05.06.1996 having its registered address at 10-11, Creative

Estate, N. M. Joshi Marg, Lower Parel (East), Mumbai 400 011

and is limited by shares. The main object of the defendant no.1 is

to import, export, trade, market Chemical products. The incidental

or ancillary objects of the defendant no.1 company are enumerated

in its Memorandum & Articles of Association. The Defendant

Nos.2, 3 and 4, respectively are the only Directors of the

Defendant No.1 Company. Mr. Amit Tibrewala, Director has been

duly authorized and appointed by the Defendant No.1 Company

vide Board Resolution dated 25.07.2013, to act for and on behalf of

the Defendant No.1 in the instant proceedings.

6. THAT the Defendant No.1 Company owns and maintains the

domain name and website having the web address as

http://www.onwardchem.com and the said website also contains

one weblink to the following web address, i.e.

http://www.fibrex.co. The information displayed on both the said

websites shows that the Defendant No.1 Company is multi-product

multi-divisional organization offering world class quality products

& services and committed to serve the exacting and ever growing

needs of the construction sector. The Defendant No.1 manufactures

and offers a range of specialty goods and products for the

construction sector. In its endeavor to offer innovative products

and goods of the highest quality, the Defendant No.1 had

introduced the FIBREX range of Glued Steel Fibers,

Polypropylene structural fibers and FX Rock bolts.

7. THAT FIBREX is the brand of specialty structural fibers

manufactured by the Defendant No.1 Company where such fibers

are specifically suited for the growing needs of the construction

industry.

8. THAT the FIBREX GSF (Glued Steel Fibers) are cold drawn,

low carbon steel filaments with hooked ends that enhance the

physical properties of concrete, viz. ductility, tensile strength,

impact resistance, crack resistance etc. It is further stated that

FIBREX PP (Polypropylene structural fibers) are macro, non

fibrillating, high tensile structural fibers of polypropylene used for

concrete reinforcement. It is stated that the PP structural fibers

 enhance the physical properties of concrete and in addition prove

to be acid, alkali and corrosion resistant. It is also stated that

FIBREX GSF and FIBREX PP fibers are used in Slabs &

Flooring, Precast Elements, Road & Highways, Shotcrete,

Structures of strategic importance, Warehouses, Segmental Lining,

and Composite Decks & Overlays. Moreover, the FIBREX PP

fibers are also extensively used in marine applications.

9. THAT Defendant No.1 Company claims to be the sole proprietor

of the Trademark FIBREX and has been in honest and

independent use of the said Trademark for its aforementioned

specialty structural fibers used in the construction industry since

April, 2012. The Defendant No.1 is an established business house

and has its own reputation and goodwill. It is clarified that the

Defendant No.1 has never used the Trademark FIBREX as part

of its corporate name or trading name.

PARA WISE REPLY:

10. The contents of Para.1 are denied as being false, incorrect and

wrong to such extent where it is stated that the plaintiff is among

top manufacturers and traders of epoxy flooring, floor hardeners,

grouts, tile adhesives, repair compounds, anti-corrosion protection,

admixtures, curing and sealing compounds etc. The plaintiff may

be put to strict proof of the said averment. It is apposite to point

out that the product range alleged to be manufactured and offered

by the Plaintiff does not include specialty structural fibers such as

Glued Steel Fibers and Polypropylene Structural fibers. The

 remaining contents of this paragraph are neither admitted nor

denied for want of knowledge on part of the answering

Defendants.

11. The contents of para.2 are a matter of record and need no reply. It

is submitted that Defendant Nos.2, 3 and 4, respectively are the

only Directors of the Defendant No.1 Company. The Defendant

No.1 Company was incorporated in Mumbai on 05.06.1996 and is

limited by shares. It is vehemently denied that defendant nos.2 to 4

are jointly and severally responsible for the day-to-day affairs of

the Defendant No.1. The defendant no.1 company is a separate

legal entity and has distinct personality from its Directors and the

decision making powers of the defendant no.1 company vest in its

Board of Directors, as per its Memorandum & Articles of

Association.

12. The contents of para.3 are denied in toto as being false, wrong and

incorrect. It is denied that Plaintiff is leader in manufacturing and

delivery of construction chemical solutions, technical support,

excellent customer service, innovation for construction industry. It

is apposite to point out that the Plaintiff has not averred or claimed

to manufacture specialty structural fibers such as Glued Steel

Fibers and Polypropylene Structural fibers. It is denied that

Plaintiff has gained potential to be one of the major players in the

domestic market. It is denied that Plaintiff has in-depth knowledge

which has purportedly helped it in setting up strong foothold in the

market. The Plaintiff may be put to strict proof of the said

 averments. It is vehemently denied that Plaintiff is serving

industries since decades and has been able to set a benchmark in

the industry. It is submitted that the Plaintiff was incorporated only

as late as on 03.08.2007 and therefore, the averments made in this

paragraph by the Plaintiff are completely false, bogus and

incorrect.

13. The contents of para.4 are denied as being false, wrong and

incorrect to such extent where it is stated that after establishing

themselves leaders in the domestic market, the Plaintiff has now

successfully entered into international markets. The Plaintiff may

be put to strict proof of the said averments. The remaining contents

of this paragraph are neither admitted nor denied for want of

knowledge on part of the answering Defendants. It is apposite to

point out that while averring that it offers products in the

construction sector, the Plaintiff has not stated anywhere that it

manufactures specialty structural fibers such as Glued Steel Fibers

and Polypropylene Structural fibers, like the Defendant No.1

Company. It is in any case clarified that the Defendant No.1

Company is not representing or selling its goods as the goods of

Plaintiff. Non-specific and vague averments made to the extent that

the Plaintiffs products are offered in the construction industry do

not yield anything.

14. The contents of para.5 are denied in toto as being false, wrong and

incorrect. It is denied that the Trademark FIBREX is the coined

mark and has been used by the Plaintiff in respect of service,

 manufacturing, marketing etc. continuously, extensively and

uninterruptedly since the last more than ten years. It is submitted

that such averment is patently incorrect and false since, the

Plaintiff was incorporated on 03.08.2007, i.e. nearly 6 (six) years

before the filing of the present suit and therefore, could not have

purportedly used the Trademark FIBREX continuously,

extensively and uninterruptedly for more than ten years. It is

submitted that the Plaintiff has not specifically averred about the

nature of goods, services and products etc. in relation to which it

claims to have been using the Trademark FIBREX. It is in any

case clarified that the Defendant No.1 Company is not representing

or selling its goods as the goods of Plaintiff. The remaining

contents of this paragraph are neither admitted nor denied for want

of knowledge on part of the answering Defendants.

15. The contents of para.6 are denied as patently incorrect and false to

such extent where it is stated that Plaintiff is using the Trademark

FIBREX since 2004. It is submitted that the Plaintiff was

incorporated on 03.08.2007, i.e. nearly 6 (six) years before the

filing of the present suit and therefore, could not claim to be using

the Trademark FIBREX since 2004. It is not denied that Plaintiff

applied for registration of Trademark Fibrex, vide application

no.1376568 and application no.1904833, respectively. Both the

said applications were filed under Class 19 before the Registrar of

Trademarks. It is submitted that in so far as application

no.1376568 is concerned, the same has not been allowed and the
Trademark FIBREX has not yet been registered in the name of

the Plaintiff. In so far as application no.1904833 is concerned, the

same has been objected to and hence, Trademark FIBREX has

not been registered in the name of the Plaintiff. It is further

submitted and clarified that reference to application no.1860006 in

relation to Trademark FIB is superfluous, unnecessary and

extraneous since, the said Trademark is not even the subject-matter

of the instant suit. The answering defendants therefore, do not find

it necessary to respond to the averments made in this paragraph in

so far as such averments pertain to the Trademark FIB. However,

it may be noted that the Registration Certificate for the Trademark

FIB has been issued in respect of exactly the same goods and

under the same Class 19 for which the earlier application

no.1376568 was filed by the Plaintiff. It appears that the Plaintiff

has abandoned its earlier application no.1376568 seeking

registration of Trademark FIBREX under Class 19 in respect of

goods mentioned in the said application.

It is also submitted that Defendant No.1 Company has applied for

registration of Trademark FIBREX under Class 19 vide

application no.2371531 before the Trademarks Registry and the

said application has also been objected to. The Defendant No.1

Company also applied for registration of Trademark FIBREX

under Class 17 vide application no. 2371532 and the same has

been marked for examination. The Defendant No.1 Company also

applied for registration of Trademark FIBREX under Class 06

 vide application no. 2371532 and the same has been advertised in

the Trademarks Journal No.1579 dated 11.03.2013 at page no.436.

16. The contents of para.7 are denied as being patently incorrect,

wrong and false. It is denied that plaintiff is the honest and prior

user and proprietor of the Trademark FIBREX and name M/s.

Fibrex Construction Chemicals Pvt Ltd with respect to its product

and business. It is denied that plaintiff has acquired common law

rights in addition to statutory rights under the Trademarks Act,

1999. It is submitted that in the absence of any registration

certificate with respect to the Trademark FIBREX in its name,

the Plaintiff has no statutory right under the Trademarks Act, 1999.

It is vehemently denied that plaintiffs trademark and name have

become well-known and that the same are solely and exclusively

associated with the plaintiff by the members of trade and public. It

is clarified that the Trademark FIBREX is the brand of specialty

structural fibers manufactured by the Defendant No.1 Company

and the Defendant No.1 Company is the honest user and proprietor

of the said Trademark. It is submitted that the Trademark

FIBREX is solely and exclusively associated with the Defendant

No.1 Company by the members and customers in the construction

sector. It is clarified that the Defendant No.1 Company is in honest

and genuine use of the Trademark FIBREX, and is the sole and

exclusive proprietor of the said mark in relation to its specialty

structural fibers in the construction sector. It is in any case clarified

that the Defendant No.1 Company is not representing or selling its

 goods as the goods of Plaintiff. It is denied that Trademark

FIBREX and name M/s. Fibrex Construction Chemicals Pvt

Ltd have become distinctive of plaintiffs products and services. It

is vehemently denied that plaintiff is known and widely referred as

FIBREX and the Plaintiff may be put to strict proof of such

averment.

17. The contents of para.8 are denied in toto as being misconceived,

incorrect, false and frivolous. The Plaintiff has not averred or

alleged that it is the registered proprietor of the Trademark

FIBREX. Therefore, it is patently erroneous to say that

unauthorized use of Trademark FIBREX, in any manner

whatsoever, would constitute blatant infringement of Plaintiffs

Intellectual Property Rights under the Trademarks Act, 1999.

18. The contents of para.9 are denied in toto as being misconceived,

incorrect, false and frivolous. It is vehemently denied that

defendant no.1 with mala fide intention of putting into the market

place an instrument of fraud are operating their business under the

trade name Fibrex, which is similar to Plaintiffs prior registered

corporate name M/s. Fibrex Construction Chemicals Pvt Ltd and

the Trademark FIBREX, wherein the word Fibrex is used in an

identical manner. It is clarified that the Defendant No.1 is

operating its business under the corporate name M/s. Onward

Chemical Pvt Ltd, and the word / mark FIBREX doesnt even

appear in the said corporate name. It is correct that the defendant

no.1 is running the website www.fibrex.co but it is vehemently

denied that such act amounts to infringement of Plaintiffs

trademark. It is again clarified that plaintiff has no right to claim

infringement in any manner whatsoever in the absence of any

registered trademark in its favor. It is vehemently denied that

operation and use of name FIBREX is leading to dishonest

passing off of defendant business and services as those of

plaintiff by creating confusion and deception in the market and

resulting in false association with the plaintiff. It is yet again

clarified that the Trademark FIBREX is the brand of specialty

structural fibers manufactured by the Defendant No.1 Company

and the Defendant No.1 Company is the honest user and proprietor

of the said Trademark. It is submitted that the Trademark

FIBREX is solely and exclusively associated with the Defendant

No.1 Company by the members and customers in the construction

sector. It is submitted that the goods sold in the market by the

Defendant No.1 Company under the brand name FIBREX do not

lead the customers / purchasers to believe that they are Plaintiffs

goods. This is because the goods so sold are specialty structural

fibers manufactured by the Defendant No.1 Company whereas the

Plaintiff is not even known to manufacture such goods. As per the

information displayed on Plaintiffs own website (www.fibrex.in)

and (http://fibrexchem.com/products.php), the plaintiff has claimed

to be an acclaimed formulating and supplying company of high

grade construction additives and construction chemicals. In the

instant suit, the Plaintiff has also claimed to be among top

 manufacturers and traders of epoxy flooring, floor hardeners,

grouts, tile adhesives, repair compounds, anti-corrosion protection,

admixtures, curing and sealing compounds etc. However, neither

on the said website nor in its plaint, has the Plaintiff alleged to

manufacture or sell goods in the construction sector being similar

to specialty structural fibers. The Defendant No.1 Company, on the

other hand, has created its goodwill and reputation in the

construction sector through manufacture and sale of such specialty

structural fibers, which are sold under the brand name FIBREX

by the Defendant No.1 Company.

19. The contents of para.10 are denied in toto as being misconceived,

incorrect, false and frivolous. It is vehemently denied that Plaintiff

has priority in use and adoption of the trademark FIBREX and it

is accordingly denied that the plaintiff is the proprietor of the said

trademark. The remaining contents of this paragraph are denied

and averments made therein have already been replied to in the

foregoing paragraphs of this written statement.

20. The contents of para.11 are denied in toto as being misconceived,

incorrect, false and frivolous. It is vehemently denied that

Defendants website / e-mail id www.fibrex.co, sales@fibrex.co

comprise and use plaintiffs trademark FIBREX. It is clarified

and reiterated that Defendant No.1 is the honest and prior user as

well as the proprietor of the brand FIBREX which is used by it

for manufacture and sale of its specialty structural fibers in the

construction sector. It is accordingly denied that Defendants use of

trademark FIBREX is causing confusion in the market and false

association with plaintiff. Plaintiff is put to strict proof of such

averments. It is denied that the domain name www.fibrex.co is

deceptively similar to plaintiffs domain name

www.fibrexchem.com and accordingly, remaining contents of

this paragraph are also denied as wrong and baseless. It is

submitted that the present case is not for the passing-off of website

name but for infringement and passing off of the brand FIBREX

in the construction sector. Without prejudice to the submissions

made herein, it is worth noting that searching the word FIBREX

on www.google.com yields as many as 703,000 results as on

29.08.2013 and as an example set, the following websites all over

the world are shown to use the domain name containing the word

FIBREX:

(i) www.fibrex.ae
(ii) www.fibrex.com
(iii) www.fibrex.co.uk
(iv) www.fibrexgroup.com
(v) www.fibrex.co.ao
(vi) www.fibrexhellas.gr
(vii) www.fibrexhightemp.com
(viii) www.fibrex-galati.ro
(ix) www.patiosfibrex.com etc.

The word FIBREX is used all over the world in catena of

products, goods and services in different sectors ranging from food

products to retail nurseries. Therefore, to allege damages on basis

of passing off of domain name is absurd, frivolous and nothing but

mere figment of plaintiffs imagination. The remaining contents of

this paragraph are accordingly denied as being wrong and baseless.

 The Plaintiff is put to strict proof of such bald and frivolous

averments as are made by it in this paragraph.

21. The contents of para.12 are denied in toto as being misconceived,

incorrect, false and frivolous.

22.The contents of para.13 are denied in toto as being misconceived,

incorrect, false and frivolous. The Plaintiff is put to strict proof of

such bald and frivolous averments as are made by it in this

paragraph.

23. The contents of para.14 are admitted as a matter of record;

however, it is denied that the Defendants replied to the plaintiffs

legal notice on flimsy and baseless excuses.

24. The contents of para.15 are denied in toto as being misconceived,

incorrect, false and frivolous. The Plaintiff is put to strict proof of

such bald and frivolous averments as are made by it in this

paragraph.

25. The contents of para.16 are denied in toto as being misconceived

and incorrect. The Plaintiff has failed to show a valid cause of

action for passing off and is therefore, not entitled to any relief, as

prayed for in the present case. The various pleas of cause of action,

as put forth in this paragraph, are denied at the outset as the same

are misconceived and baseless. The Plaintiff has failed to

demonstrate that the Plaintiffs goods or services have acquired a

goodwill or reputation in the market and are known by some

distinguishing feature. The Plaintiff has further failed to

demonstrate any misrepresentation by the Defendants to the public

 leading or likely to lead the public to believe that goods offered by

the Defendant No.1 Company are the goods of the Plaintiff. The

Plaintiff has also failed to demonstrate that he suffers or is likely to

suffer damage as a result of the erroneous belief engendered by the

Defendants said misrepresentation. The contents of this paragraph

are therefore vehemently denied as false and misconceived.

26.The contents of para.17 are denied in toto as being misconceived,

incorrect, false and frivolous.

27.The contents of para.18 are denied in toto as being misconceived,

baseless, false and frivolous. It is submitted that the reliefs prayed

for are grossly undervalued. The suit has arbitrarily and

whimsically been valued for the purpose of court fees and

jurisdiction at Rs.400/- (Rupees Four hundred only). In the absence

of any foundation in the plaint, the Plaintiff cannot have a right to

value the suit in an arbitrary manner, merely to confer jurisdiction

upon a civil court. The Plaintiff has deliberately undervalued the

present suit without any material whatsoever to avoid paying ad-

valorem court fees on the actual value of the suit and with an

attempt to confer jurisdiction upon this Honble Court by merely

adding two sub-paragraphs in para.18 of the plaint. The Plaintiff

may be put to strict proof of the averments in this paragraph.

28. The Defendants say that the reliefs, as prayed for in various sub-

clauses (a) to (f) of the prayer clause, are not maintainable, devoid

of any merit or basis and are accordingly, liable to be dismissed.

 PRAYER

Wherefore, in light of the foregoing facts and circumstances and the

submissions made hereinabove and in the interest of justice, it is humbly

prayed that this Honble Court may be pleased to dismiss the instant suit

with costs ordered in favor of the answering Defendants and against the

Plaintiff.

Place: New Delhi

Dated:

DEFENDANT No.1

DEFENDANT No.2

DEFENDANT No.3

DEFENDANT No.4

Through

VERIFICATION:

Verified on this day of , 2013 at New Delhi that the

contents of Paragraphs 5 to 26 are facts as per the record and true and
correct to the best of my knowledge and belief. The contents of

paragraphs 1 to 4, 27 and 28 have been drafted by the counsel under my

instructions and are believed to be true on basis of the advice received

and believed to be correct. Last paragraph is the prayer to this Honble

Court.

DEPONENT No.1

DEPONENT No.2

DEPONENT No.3

DEPONENT No.4
 IN THE COURT OF SHRI SUNIL RANA,
Ld. ADDITIONAL DISTRICT JUDGE II,
ROOM No.317, 3rd FLOOR,
ROHINI COURTS, DELHI

Suit No. CS / 101 / 2013

In the matter of:

M/s. Fibrex Construction Chemicals Pvt Ltd

.PLAINTIFF
Versus

M/s. Onward Chemicals Pvt Ltd. & ors.

.DEFENDANTS

NDoH: 05.10.2013

REPLY ON BEHALF OF DEFENDANT Nos. 1 TO 4 TO THE

PLAINTIFFS APPLICATION UNDER ORDER XXXIX RULES 1
& 2 OF CPC, 1908

MOST RESPECTFULLY SHEWETH:

1. THAT the contents of the accompanying written statement have

not been repeated herein for the sake of prolixity and the

Defendants crave liberty to refer and rely upon the same for the

purpose of addressing this application.

2. THAT the present application under Order XXXIX Rules 1 & 2 of

CPC, 1908 is not maintainable since, the reliefs prayed for herein

are exactly the same as the final reliefs prayed for in the main suit.

Allowing the present application would amount to decreeing the

suit filed by the plaintiff and such exercise of discretion by this

Honble Court will be contrary to the settled practice and

procedure.
 3. THAT various applications for registration of Trademark

FIBREX have been filed by the plaintiff as well as the defendant

no.1company and the same are presently pending adjudication

before the Trademarks Registry. The details of the said application

filed by either of the parties are already given in the accompanying

Written Statement and are not repeated herein for the sake of

brevity.

4. THAT in light of the aforesaid facts and circumstances, it will be

appropriate if no injunction order is passed in favor of the Plaintiff

and against the Defendants since, the Registrar of Trademarks is

seized with the matter which governs the rights of the parties. The

decision of the Honble Supreme Court of India in Uniply

Industries Ltd vs. Unicorn Plywood Pvt Ltd [(2001) 5 SCC 95] is

squarely applicable to the facts and circumstances of instant case.

5. THAT in any case, the plaintiff is not entitled to any ad-interim

injunction, given the frivolous nature of the suit. The present suit is

an abuse of the process of this Honble Court and this application

is devoid of any merit.

PARA WISE REPLY:

6. Para.1 needs no reply.

7. The contents of para.2 are denied as being baseless and patently

false. The Plaintiff has failed to demonstrate any prima facie case

of irreparable damage being caused to it. Without any material

placed on record to even prima facie demonstrate that the plaintiff

 suffers irreparable damages or is likely to suffer the same, the

ingredients for grant of an ad-interim injunction are not satisfied.

8. The contents of paras.3, 4 and 5 are denied as being baseless,

incorrect and patently false. The Plaintiff has failed to demonstrate

that its goods or services have acquired a goodwill or reputation in

the market and are known by some distinguishing feature. The

Paintiff has further failed to show any prima facie proof of alleged

huge amounts of money which it claims to have invested in the

advertisement, manufacturing and production of its goods under

the Trademark FIBREX or domain name

www.fibrexchem.com. In fact, the goods manufactured and sold

by the Defendant No.1 Company are not even manufactured by the

Plaintiff. There is no likelihood of any confusion being caused in

the mind of purchaser in the construction sector to believe that the

goods (i.e. specialty structural fibers) sold by the Defendant No.1

Company are goods of the Plaintiff. There are scores of websites

and businesses using the word FIBREX in their trade names, as

is demonstrated by the Defendant No.1 Company. In any case, the

plaintiffs claim is not with respect to domain names but is rather,

with respect to the brand FIBREX which it claims to be the

proprietor of. Moreover, the Plaintiff has failed to prima facie show

that it is the honest and prior user of the mark FIBREX. The

Plaintiff was formed in the year 2007 whereas the Defendant No.1

Company has been in the construction sector since the year 1996.

Clearly, the goods manufactured and sold by the Defendant No.1

 Company being in the nature of specialty structural fibers are

associated with specific distinctiveness and indentifying get-up, as

being its own goods and not as Plaintiffs goods, in so far as the

purchasers in the construction industry are concerned.

9. The contents of para.6 are denied as being baseless, incorrect and

patently false. The plaintiff has failed to make out any prima facie

whatsoever and the entire plaint is nothing but figment of

plaintiffs imagination and based on speculation.

10.The contents of para.7 are denied as being baseless, incorrect and

patently false. The balance of convenience also does not lie in

favor of the Plaintiff. The Defendants are using the Trademark

FIBREX for selling its specialty structural fibers since April,

2012 and have been maintain the information in relation thereto on

its website. However, quite surprisingly, the Plaintiff has suddenly

woken up in July, 2013 to bring passing off action against the

Defendants without any material on record to show goodwill or

reputation or even demonstrate the damages suffered by it during

the said period. Clearly, the present suit is a coercive tactic

deployed by the plaintiff with mala fide intention to make the

Defendants succumb to its illegal demands. The Plaintiff hasnt

come to the court with clean hands and is not deserving of any

relief including temporary injunction.

11.The contents of para.8 are denied as being baseless, incorrect and

patently false.
 12. The prayer clause of this application is misconceived and not

maintainable and hence, liable to be dismissed.

PRAYER

13. Wherefore, in light of the foregoing submissions and the facts &

circumstances of the instant case, it is humbly prayed that this

Honble Court maybe pleased to dismiss the present application

with exemplary costs.

Place: New Delhi

Dated:

DEFENDANT Nos.1 to 4
Through
 IN THE COURT OF SHRI SUNIL RANA,
Ld. ADDITIONAL DISTRICT JUDGE II,
ROOM No.317, 3rd FLOOR,
ROHINI COURTS, DELHI

Suit No. CS / 101 / 2013

In the matter of:

M/s. Fibrex Construction Chemicals Pvt Ltd

.PLAINTIFF
Versus

M/s. Onward Chemicals Pvt Ltd. & ors.

.DEFENDANTS

APPLICATION ON BEHALF OF DEFENDANT Nos. 2 TO 4

UNDER ORDER I RULE 10 r/w SECTION 151 OF CPC, 1908
SEEKING DELETION OF NAMES FROM THE ARRAY OF
PARTIES

MOST RESPECTFULLY SHEWETH:

1. THAT the contents of the accompanying written statement have

not been repeated herein for the sake of prolixity and the

Defendants crave liberty to refer and rely upon the same for the

purpose of addressing this application.

2. THAT the Defendant nos. 2 to 4 respectively, are merely Directors

of the Defendant No.1 Company and have distinct legal personality

from the company per se. There is no specific averment or

allegation in the plaint as to the part played by Defendant Nos. 2 to

4 respectively, in the transaction involved in the present case.

There is neither any clear nor any unambiguous allegation in the

plaint to demonstrate as to how the Defendant Nos. 2 to 4

 respectively, are jointly or severally responsible for the transaction

involved in the present case. It is settled law that the description to

such effect should be clear and specific in the plaint. In the absence

of any averment or specific evidence against the Defendant Nos. 2

to 4 respectively, it is humbly submitted that the instant suit is not

maintainable against the said Defendants.

3. THAT it is the case of the Defendants that the Defendant No.1

Company is the sole and exclusive proprietor and honest user of

the Trademark FIBREX. Moreover, the averments and

allegations made in the plaint indicate that the relief sought for by

the Plaintiff is qua the Defendant No.1 Company only.

4. THAT as a matter of practice and procedure, Directors of a

company are neither necessary nor proper parties in a civil suit

especially when the cause of action in such civil suit is claimed to

lie against such Company. In the present case, in the absence of

any specific allegation in the plaint which may be said to impute

fraudulent motive or mala fide or misrepresentation against the

Directors of the Defendant No.1 Company, the said Directors are

neither necessary nor proper parties to the present case.

5. THAT to effectually and completely adjudicate upon and settle all

the questions involved in the suit, the presence of Defendant Nos.1

to 4 is not necessary before this Honble Court. Accordingly, this

Honble Court may exercise powers under Order I Rule 10(2) to

strike out the name of Defendant Nos.1 to 4 respectively, from the

array of parties in the present case.

 6. THAT it is abundantly clear and quite apparent that Defendant

Nos.1 to 4, respectively have been impleaded as defendants in the

instant case for the purpose of unnecessary harassment and causing

undue hardship since, they are residing in Mumbai. The instant suit

is still at nascent stage and it may be just and proper for this

Honble Court to direct the plaintiff to strike out the name of

Defendant Nos.1 to 4 from the array of parties. The present

application, may therefore, be also allowed to prevent miscarriage

of justice and abuse of process of this Honble Court.

PRAYER

7. Wherefore, in light of the foregoing submissions and the facts &

circumstances of the instant case, it is humbly prayed that this

Honble Court maybe pleased to:

i) Pass necessary orders/directions for striking out the name of

Defendant Nos.1 to 4, respectively from the array of parties

in the instant suit; and to

ii) Consequentially, direct the plaintiff to file the amended

memo of parties in the instant case.

Place: New Delhi

Dated:

DEFENDANT Nos.1 to 4
Through