One critical aspect of litigation is the ability to make amendments to pleadings
as new information or strategies emerge. However, as a recent case before the Hon'ble Delhi High Court demonstrates, such post trial amendments require due
diligence to be considered admissible and effective. In this case, the plaintiff
sought to amend their complaint post-trial, but the court rejected the
application on the grounds of a lack of due diligence.
Background of the Case:
The lawsuit in question aimed to secure a permanent injunction against the
defendants, preventing them from using the mark "KROSS" for any product or
service. Initially, the suit was brought against three defendants: Hero Eco
Group (Defendant 1), Mr. Vijay Munjal (Defendant 2), and Hero Eco Tech Limited
(Defendant 3). However, by an order dated 20 February 2014, Hero Eco Group was
removed from the list of parties, leaving only Mr. Vijay Munjal and Hero Eco
Tech Limited as the defendants.
In a surprising turn of events, the plaintiff, around 15 February 2021, filed an
application to amend the complaint by adding VR Holdings, Ms. Rekha Munjal, Mr.
Naveen Munjal, and Mr. Gaurav Munjal as Defendants 3A to 3D. Notably, the
application for amendment occurred after the trial had commenced.
The Court's Observations:
During the trial, the Hon'ble Delhi High Court made a significant observation.
The Hon'ble Single Judge noted that the plaintiff had only sued the user of the
"KROSS" mark and not the proprietor. Consequently, the proprietor of the mark,
VR Holdings, remained free to continue using the mark. In light of this, the
plaintiff filed an application under Order 6 Rule 17 of the Code of Civil
Procedure (CPC) seeking to add VR Holdings and others as additional defendants,
an application that was clearly made after the trial stage.
The Court's Decision:
The court, however, rejected the plaintiff's application for amendment. The
rejection was primarily based on the absence of due diligence exhibited by the
plaintiff. The court highlighted that the application failed to plead that the
plaintiff had exercised due diligence before the trial began. It did not
establish that, despite diligent efforts, it was impossible to include the
proposed defendants, Defendants 3A to 3D, or to introduce the arguments now
sought to be raised through the amendment before the trial commenced.
The court also considered the plaintiff's replication, which asserted that the
suit was not flawed due to misjoinder of parties or the non-joinder of a
necessary party. The plaintiff maintained that Mr. Vijay Munjal had already been
included as Defendant No. 2, as he was both the chairman of Hero Eco Group and a
partner in VR Holdings, which filed the "KROSS" mark. Therefore, there was no
misjoinder of parties.
However, it became apparent that the plaintiff was aware of the trademark's
ownership by VR Holdings when filing the replication. Yet, VR Holdings had not
been included as a defendant until the final argument stage. This lack of
diligence on the part of the plaintiff in filing the application under Order 6
Rule 17 CPC played a significant role in the court's decision to dismiss the
The Concluding Note:
This case serves as a reminder of the importance of due diligence in the legal
process, particularly when seeking to make post-trial amendments. In litigation,
parties must actively investigate and address relevant issues promptly. In the
absence of diligence, courts may be hesitant to entertain late-stage amendments
that could disrupt the proceedings. The decision underscores the necessity of
careful and proactive legal strategy throughout the litigation process.
The Case Law Discussed:
Case Titled: Kross S.A. Vs Vijay Munjal
Date of Judgement/Order:10/10/2023
Case No. CO Comm IPD TM 358 of 2021
Neutral Citation No: 2023: DHC:7461
Name of Hon'ble Court: High Court of Delhi
Name of Hon'ble Judge: C Hari Shankar, H.J.
Information and discussion contained herein is being shared in the public
Interest. The same should not be treated as substitute for expert advice as it
is subject to my subjectivity and may contain human errors in perception,
interpretation and presentation of the fact and issue involved herein.
Written By: Advocate Ajay Amitabh Suman
, IP Adjutor - Patent and
Email: [email protected]
, Ph no: 9990389539