9911796707
TMI Blog2022 (12) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... neral), Air Cargo Complex, Sahar, Andheri (East), Mumbai -400009 seeking impleadment in the present suit as a proper party. 2. The application is premised on the infringement of the intellectual property rights of the plaintiff in terms of the Custom Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 (hereinafter referred to as 'IPR Enforcement Rules'), on account of the import of goods by the defendant. The applicant had passed a seizure memo dated 2nd May, 2018 in respect of 9,644pieces of the goods imported by the defendant under Section 110(1) of the Customs Act, 1962. It is also the case of the applicant that goods which have been imported into India are in violation of paragraph 2.3 of the Foreign Trade Policy, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. 6. In Kasturi v. Iyyamperumal, (2005) 6 SCC 733, the Supreme Court laid down the tests to determine as to who is a necessary party and proper party in a suit. The relevant portions are set out below: "7*. In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 sub-rule (2) CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are : 1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit. 2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court. 3. A proper party is a person whose presence would enable the court to completely, effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the present application seeks impleadment only on the basis of the applicant being a proper party. 10. In terms of the legal position discussed above, for a person to be a proper party to a suit, it is to be seen whether the presence of such person would enable the Court to completely, effectively and properly adjudicate upon the issue in the case. 11. At this stage, a reference may be made to Rule 11 of the IPR Enforcement Rules, the relevant portion is set out below: "11. Disposal of infringing goods. - (1) Where upon determination by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, it is found that the goods detained or seized have infringed intellectual property rights, and have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on above, the applicant is neither a necessary party nor a proper party for the adjudication of the suit. There is no merit in the present application and the same is dismissed.
15. Needless to state this is without prejudice to any other statutory rights/remedy of the applicant.
CS(COMM) 835/2018
16. In the order dated 5th July, 2019, the submission of the counsel for the plaintiff has been recorded that the present suit is a fit case for the Court to proceed to pass a summary judgment under Order 13A of the Code of Civil Procedure, 1908.
17. In terms of the aforesaid order, both sides have filed their respective written submissions along with judgments in support thereof.
18. List for hearing on 21st March, 2023. X X X X Extracts X X X X X X X X Extracts X X X X
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