Ms. Shreya Lamba, Mr. Rihitik Saha v. LOREAL SA

Judgment

1. The present petition under Article 227 of the Constitution of India was filed seeking the following reliefs: “a. Quash and set aside the impugned orders dated 05.09.2024, 20.09.2024, 27.09.2024, 19.10.2024 in CS(COMM)/128/2023 and orders dated 24.10.2024, 11.11.2024 AND 17.01.2025 in MISC DJ/3623/2024 passed by the Ld. District Judge (Commercial Court)-02, Patiala House Courts, New Delhi; b. pass any and such and further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case;”

2. On 02.05.2025, when the present matter was received on transfer

before this Court, Mr. Aditya Singla, learned counsel for the petitioners sought liberty to confine his arguments and reliefs only qua the challenge to the order dated 17.01.2025 passed by learned District Judge (Commercial Court)-02, Patiala House Courts, New Delhi1 in MISC 1 hereinafter referred to as “learned Trial Court” Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:17.05.2025 14:12:23 CM(M)-IPD 19/2025 Page 1 of 12 DJ/3623/2024 whereby, the learned Revenue Secretary, Ministry of Finance, Government of India was called upon to file an Action Taken Report2 within a period of six weeks (paragraph nos.34 and 35). Furthermore, Mr. Aditya Singla also sought to refrain from making any arguments qua challenge to the orders dated 05.09.2024, 20.09.2024, 27.09.2024, 19.10.2024 passed by the learned Trial Court in CS (COMM) 128/2023 [OLD No.-TM NO.55/2018]3 and orders dated 24.10.2024 and 11.11.2024 also passed by the same learned Trial Court in MISC DJ/3623/2024 and sought liberty to challenge the same by way of appropriate proceedings before another forum in accordance with law. 3. Thereafter, on 13.05.2025, Mr. Aditya Singla sought some time for addressing arguments on the issue of maintainability and the matter was adjourned for today i.e. 15.05.2025. 4. The issue in the present petition under Article 227 of the Constitution of India has arisen out of MISC DJ/3623/2024, which was separately opened subsequent to passing of the judgment and decree dated 19.10.2024 in CS (COMM) 128/2023 filed by the respondent/ plaintiff M/s. Loreal SA against the defendant no.1 therein M/s Oneness Enterprises & Ors., the petitioner no.1/ defendant no.2 Office of the Principal Commissioner of Customs and the petitioner no.2/ defendant no.3 Commissioner of Customs (RI&I), seeking the following reliefs: itself/themselves “a) For a decree of permanent injunction restraining the defendant no 1 individual proprietors/partners, agents, representatives, distributors, assigns, heirs, successors, stockists and all others acting for and on its behalf from using, his/their through 2 hereinafter referred to as “ATR” 3 hereinafter referred to as “CS(COMM) 130/2023” Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:17.05.2025 14:12:23 CM(M)-IPD 19/2025 Page 2 of 12 selling, soliciting, importing (in any manner or from any other port), exporting, displaying, advertising or by any other mode or in any manner using the Plaintiff's said trademarks L'OREAL (with without PARIS), MAYBELLINE and trademarks/labels/packaging and/or or any other word/mark/label/packaging which may be identical with and/or deceptively similar to the plaintiff's said trademark/label L'OREAL (with or without PARIS),MAYBELLINE, , in trading of cosmetics and toiletries, hair care products and beauty products including make-up preparations and accessories used therefore and other allied/related products and from doing any other acts or deeds amounting to or likely to:- i. Infringement of plaintiff's registered mentioned above. trademarks/labels as ii. Passing off and violation of the plaintiff's rights in the plaintiff's or without PARIS), trademark L'OREAL (with MAYBELLINE, iii. Violation of plaintiff's trade name. iv. Infringing the Copyright in the artwork of the plaintiff's trademarks/labels/packaging said viz. L'OREAL (with or without PARIS), MAYBELLINE, b) Restraining and direct the defendant no. 2 & 3 from releasing and Defendant No.1 from obtaining release of impugned goods under trademark/label L'OREAL (with or without PARIS), MAYBELLINE, and trademarks/labels/packaging and/or any other word/mark/label/packaging which may be identical with and/or deceptively similar to the plaintiff's said trademark/label L'OREAL (with or without PARIS), MAYBELLINE , presently lying in the custody of Defendant No. 2 & 3 being consignment under Bill of Entry No. 9605576 dated 08/05/2017. Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:17.05.2025 14:12:23 CM(M)-IPD 19/2025 Page 3 of 12 c) For a direction to Defendant No. 2 & 3 to absolute confiscate the impugned counterfeit goods bearing the Plaintiff's trademark/label under consignment under Bill of Entry No. 9605576 dated 08/05/2017 and liberty to the Plaintiff to destroy the said impugned goods in accordance with law. d) For an order for rendition of accounts of profits earned by the defendant no. 1 by its impugned illegal trade activities and a decree for the amount so found in favour of the plaintiff on such rendition of accounts. e) To direct the defendant no. 1 to disclose details of the exporter/supplier from where such impugned goods, have been supplied including the complete name, address, email id, contact number, bank details and other details relevant to the supplier of the Impugned goods. To direct the Defendant No.1 to disclose the details of all the entities involved in the infringement chain of the impugned goods including the details of shipping line, clearing agent, freight forwarder, mode of payment, bank transactions PAN details etc. and any other agency involved. g) Restraining the defendant No.1 from disposing of or dealing with his assets in a manner which may adversely affect plaintiff's ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff. h) To direct the Defendant No. 2 to expedite the adjudication & destruction proceedings. 1) For an order for cost of proceedings and j) For such other and further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.”

5. In the wake of the above, Mr. Aditya Singla submits that the sole relief sought before the learned Trial Court, qua the petitioners herein, was confiscation and non-release of the impugned counterfeit goods bearing the respondent’s/ plaintiff’s trademark/ label under consignment, i.e. bill of entry number 9605576 dated 08.05.2017. Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:17.05.2025 14:12:23 CM(M)-IPD 19/2025 Page 4 of 12

6. During the course of hearing, Mr. Aditya Singla has handed over a copy of CS (COMM) 128/2023 as also the judgment and decree dated

19.10.2024 passed by the learned Trial Court, since the same have inadvertently not been filed as a part of the record before this Court. Considering the nature of the issue raised by the petitioners, as also since no relief has been claimed against the respondent herein, the said documents are taken on record. 7. As per Mr. Aditya Singla, despite passing of the judgment and decree dated 19.10.2024, the same learned Trial Court by virtue of a separate order of even date has duly acknowledged that “Vide separate detailed judgment of even date, announced in open court, the suit is decreed in favour of plaintiff and against the defendants with cost of the suit. Decree sheet be drawn up.” and proceeded with initiation of MISC DJ/3623/2024, wherein the impugned order dated 17.01.2025 has been passed. 8. Of the many grounds taken, Mr. Aditya Singla has confined his arguments qua maintainability of the petition in the present form by submitting that it is a settled position of law that neither consent nor waiver nor acquiescence can confer jurisdiction upon a Court, otherwise incompetent to try the suit. 9. Mr. Aditya Singla submits that since the judgment and decree dated

19.10.2024 had been passed by the learned Trial Court, the proceedings pending before the said Court became final and the learned Trial Court became functus officio and could not have exercised jurisdiction of issuing show cause notices and calling for Action Taken Reports especially, since no execution was filed/ is pending against the said judgment and decree Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:17.05.2025 14:12:23 CM(M)-IPD 19/2025 Page 5 of 12 dated 19.10.2024 and no fresh proceedings by way of MISC DJ/3623/2024 could have been initiated by the learned Trial Court. In order to substantiate his aforesaid submissions, he relies upon the pronouncements by the Hon’ble Supreme Court in Harshad Chiman Lal Modi v. DLF Universal Ltd.4 as also Dr. Jagmittar Sain Bhagat v. Director, Health Services5. 10. This Court has heard the submissions of the learned counsel for the petitioners and perused the documents on record as also the judgments cited at Bar. 11. The aforesaid reveals that, admittedly, the sole relief sought by the respondent before the learned Trial Court against the petitioners herein was only qua confiscation and non-release of the impugned counterfeit goods bearing the respondent’s trademark/ label under consignment, i.e. bill of entry number 9605576 dated 08.05.2017. Also, admittedly, the learned Trial Court decreed CS (COMM) 128/2023 vide its judgment and decree dated

19.10.2024 in favour of the respondent. At the same time, vide a separate order passed by the same learned Trial Court on 19.10.2024, proceeded to pass the following directions:- ”... ... … …Record further shows that Reply-cum-Affidavit dated 19-9- 2024 under the signature of concerned Deputy Commissioner of Customs, IPR Cell, Special Investigation and Intelligence Branch (Import) was filed before this Court on 20-9-2024. Thereafter, Status Report in the form of affidavit dated 26-9-2024, under the signature of concerned Commissioner of Customs was filed before the Court on 27-9- 2024 followed by another Status Report in the form of affidavit dated 14- 10-2024 under the signature of concerned Commissioner of Customs. Having gone through the record, it is noted that in the inquiry report, copy of which, is annexed with the last Status Report dated 14-10-2024, it

before this Court, Mr. Aditya Singla, learned counsel for the petitioners sought liberty to confine his arguments and reliefs only qua the challenge to the order dated 17.01.2025 passed by learned District Judge (Commercial Court)-02, Patiala House Courts, New Delhi1 in MISC 1 hereinafter referred to as “learned Trial Court” Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:17.05.2025 14:12:23 CM(M)-IPD 19/2025 Page 1 of 12 DJ/3623/2024 whereby, the learned Revenue Secretary, Ministry of Finance, Government of India was called upon to file an Action Taken Report2 within a period of six weeks (paragraph nos.34 and 35). Furthermore, Mr. Aditya Singla also sought to refrain from making any arguments qua challenge to the orders dated 05.09.2024, 20.09.2024, 27.09.2024, 19.10.2024 passed by the learned Trial Court in CS (COMM) 128/2023 [OLD No.-TM NO.55/2018]3 and orders dated 24.10.2024 and 11.11.2024 also passed by the same learned Trial Court in MISC DJ/3623/2024 and sought liberty to challenge the same by way of appropriate proceedings before another forum in accordance with law. 3. Thereafter, on 13.05.2025, Mr. Aditya Singla sought some time for addressing arguments on the issue of maintainability and the matter was adjourned for today i.e. 15.05.2025. 4. The issue in the present petition under Article 227 of the Constitution of India has arisen out of MISC DJ/3623/2024, which was separately opened subsequent to passing of the judgment and decree dated 19.10.2024 in CS (COMM) 128/2023 filed by the respondent/ plaintiff M/s. Loreal SA against the defendant no.1 therein M/s Oneness Enterprises & Ors., the petitioner no.1/ defendant no.2 Office of the Principal Commissioner of Customs and the petitioner no.2/ defendant no.3 Commissioner of Customs (RI&I), seeking the following reliefs: itself/themselves “a) For a decree of permanent injunction restraining the defendant no 1 individual proprietors/partners, agents, representatives, distributors, assigns, heirs, successors, stockists and all others acting for and on its behalf from using, his/their through 2 hereinafter referred to as “ATR” 3 hereinafter referred to as “CS(COMM) 130/2023” Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:17.05.2025 14:12:23 CM(M)-IPD 19/2025 Page 2 of 12 selling, soliciting, importing (in any manner or from any other port), exporting, displaying, advertising or by any other mode or in any manner using the Plaintiff's said trademarks L'OREAL (with without PARIS), MAYBELLINE and trademarks/labels/packaging and/or or any other word/mark/label/packaging which may be identical with and/or deceptively similar to the plaintiff's said trademark/label L'OREAL (with or without PARIS),MAYBELLINE, , in trading of cosmetics and toiletries, hair care products and beauty products including make-up preparations and accessories used therefore and other allied/related products and from doing any other acts or deeds amounting to or likely to:- i. Infringement of plaintiff's registered mentioned above. trademarks/labels as ii. Passing off and violation of the plaintiff's rights in the plaintiff's or without PARIS), trademark L'OREAL (with MAYBELLINE, iii. Violation of plaintiff's trade name. iv. Infringing the Copyright in the artwork of the plaintiff's trademarks/labels/packaging said viz. L'OREAL (with or without PARIS), MAYBELLINE, b) Restraining and direct the defendant no. 2 & 3 from releasing and Defendant No.1 from obtaining release of impugned goods under trademark/label L'OREAL (with or without PARIS), MAYBELLINE, and trademarks/labels/packaging and/or any other word/mark/label/packaging which may be identical with and/or deceptively similar to the plaintiff's said trademark/label L'OREAL (with or without PARIS), MAYBELLINE , presently lying in the custody of Defendant No. 2 & 3 being consignment under Bill of Entry No. 9605576 dated 08/05/2017. Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:17.05.2025 14:12:23 CM(M)-IPD 19/2025 Page 3 of 12 c) For a direction to Defendant No. 2 & 3 to absolute confiscate the impugned counterfeit goods bearing the Plaintiff's trademark/label under consignment under Bill of Entry No. 9605576 dated 08/05/2017 and liberty to the Plaintiff to destroy the said impugned goods in accordance with law. d) For an order for rendition of accounts of profits earned by the defendant no. 1 by its impugned illegal trade activities and a decree for the amount so found in favour of the plaintiff on such rendition of accounts. e) To direct the defendant no. 1 to disclose details of the exporter/supplier from where such impugned goods, have been supplied including the complete name, address, email id, contact number, bank details and other details relevant to the supplier of the Impugned goods. To direct the Defendant No.1 to disclose the details of all the entities involved in the infringement chain of the impugned goods including the details of shipping line, clearing agent, freight forwarder, mode of payment, bank transactions PAN details etc. and any other agency involved. g) Restraining the defendant No.1 from disposing of or dealing with his assets in a manner which may adversely affect plaintiff's ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff. h) To direct the Defendant No. 2 to expedite the adjudication & destruction proceedings. 1) For an order for cost of proceedings and j) For such other and further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.”

5. In the wake of the above, Mr. Aditya Singla submits that the sole relief sought before the learned Trial Court, qua the petitioners herein, was confiscation and non-release of the impugned counterfeit goods bearing the respondent’s/ plaintiff’s trademark/ label under consignment, i.e. bill of entry number 9605576 dated 08.05.2017. Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:17.05.2025 14:12:23 CM(M)-IPD 19/2025 Page 4 of 12

6. During the course of hearing, Mr. Aditya Singla has handed over a copy of CS (COMM) 128/2023 as also the judgment and decree dated

19.10.2024 passed by the learned Trial Court, since the same have inadvertently not been filed as a part of the record before this Court. Considering the nature of the issue raised by the petitioners, as also since no relief has been claimed against the respondent herein, the said documents are taken on record. 7. As per Mr. Aditya Singla, despite passing of the judgment and decree dated 19.10.2024, the same learned Trial Court by virtue of a separate order of even date has duly acknowledged that “Vide separate detailed judgment of even date, announced in open court, the suit is decreed in favour of plaintiff and against the defendants with cost of the suit. Decree sheet be drawn up.” and proceeded with initiation of MISC DJ/3623/2024, wherein the impugned order dated 17.01.2025 has been passed. 8. Of the many grounds taken, Mr. Aditya Singla has confined his arguments qua maintainability of the petition in the present form by submitting that it is a settled position of law that neither consent nor waiver nor acquiescence can confer jurisdiction upon a Court, otherwise incompetent to try the suit. 9. Mr. Aditya Singla submits that since the judgment and decree dated

19.10.2024 had been passed by the learned Trial Court, the proceedings pending before the said Court became final and the learned Trial Court became functus officio and could not have exercised jurisdiction of issuing show cause notices and calling for Action Taken Reports especially, since no execution was filed/ is pending against the said judgment and decree Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:17.05.2025 14:12:23 CM(M)-IPD 19/2025 Page 5 of 12 dated 19.10.2024 and no fresh proceedings by way of MISC DJ/3623/2024 could have been initiated by the learned Trial Court. In order to substantiate his aforesaid submissions, he relies upon the pronouncements by the Hon’ble Supreme Court in Harshad Chiman Lal Modi v. DLF Universal Ltd.4 as also Dr. Jagmittar Sain Bhagat v. Director, Health Services5. 10. This Court has heard the submissions of the learned counsel for the petitioners and perused the documents on record as also the judgments cited at Bar. 11. The aforesaid reveals that, admittedly, the sole relief sought by the respondent before the learned Trial Court against the petitioners herein was only qua confiscation and non-release of the impugned counterfeit goods bearing the respondent’s trademark/ label under consignment, i.e. bill of entry number 9605576 dated 08.05.2017. Also, admittedly, the learned Trial Court decreed CS (COMM) 128/2023 vide its judgment and decree dated

19.10.2024 in favour of the respondent. At the same time, vide a separate order passed by the same learned Trial Court on 19.10.2024, proceeded to pass the following directions:- ”... ... … …Record further shows that Reply-cum-Affidavit dated 19-9- 2024 under the signature of concerned Deputy Commissioner of Customs, IPR Cell, Special Investigation and Intelligence Branch (Import) was filed before this Court on 20-9-2024. Thereafter, Status Report in the form of affidavit dated 26-9-2024, under the signature of concerned Commissioner of Customs was filed before the Court on 27-9- 2024 followed by another Status Report in the form of affidavit dated 14- 10-2024 under the signature of concerned Commissioner of Customs. Having gone through the record, it is noted that in the inquiry report, copy of which, is annexed with the last Status Report dated 14-10-2024, it