Karnataka High Court
Amica Financial Technologies Pvt. Ltd vs Jupiter Capital Pvt. Ltd on 10 October, 2023
Author: G.Narendar
Bench: G.Narendar
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NC: 2023:KHC:36874-DB
COMAP No. 359 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE G.NARENDAR
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
COMMERCIAL APPEAL NO. 359 OF 2023
BETWEEN:
AMICA FINANCIAL TECHNOLOGIES PVT. LTD
HAVING ITS REGISTERED OFFICE
AT 32, 3RD FLOOR, VIRAJ BUILDING,
PLOT NO.124, ABOVE HDFC BANK,
Digitally signed SV ROAD, KHAR WEST,
by YAMUNA K L
Location: High
MUMBAI-400052
Court of THROUGH ITS AUTHORIZED
Karnataka REPRESENTATIVE
MS. JUHI PUNTAMBEKAR
...APPELLANT
(BY SRI. DHYAN CHINNAPPA, SR. ADV. FOR
SRI. RISHAB D DESAI, ADVOCATE)
AND:
JUPITER CAPITAL PVT. LTD.
HAVING ITS REGISTERED OFFICE
AT PRESTIGE SIGMA, 5TH FLOOR,
NO.03, VITTAL MALLYA ROAD,
BENGALURU-560025
REPRESENTED BY ITS AUTHORISED
SIGNATORY ABHAY MAHESHWARI.
...RESPONDENT
(BY SRI. NIYATHA P. SRINIVASA., ADVOCATE)
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NC: 2023:KHC:36874-DB
COMAP No. 359 of 2023
THIS COMAP IS FILED UNDER SECTION 13(1-A) OF THE
COMMERCIAL COURTS ACT, 2015 R/W ORDER XLIII RULE 1(r)
OF THE CPC, 1908, PRAYING TO SET ASIDE THE EX-PARTE AD
INTERIM ORDER DATED 03/08/2023 PASSED ON IA NO.
1/2023 IN COM.O.S.NO.861/2023, BY THE LD. LXXXIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT
BENGALURU (COMMERCIAL COURT) (CCH-90) PRODUCED AT
ANNEXURE-A ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
G.NARENDAR J., DELIVERED THE FOLLOWING:
JUDGMENT
1. Heard Sri. Dhyan Chinnappa, learned Senior counsel along with Sri. Rishab D. Desai, learned counsel for the appellant and Smt. Niyatha P. Srinivasa, learned counsel for the respondent.
2. The appellant is before this Court being aggrieved by the ex-parte interim order of injunction dated 03.08.2023 passed on I.A.No.1/2023 in Com. O. S. No.861/2023 by the LXXXIX Addl. City Civil and Sessions Judge, Bengaluru (Commercial Court) whereby, the appellant has been restrained from using the alleged infringing Trade Marks 'J', 'JUPITER', 'J JUPITER -3- NC: 2023:KHC:36874-DB COMAP No. 359 of 2023 CAPITAL...in today walks tomorrow', 'J JUPITER', 'JUPITER Capital...in today walks tomorrow' and the Logo(s).
3. The short statement of facts necessary for disposal of the appeal are that the appellant runs a mobile application named 'Jupiter Money', which is a Trade Mark registered with the Registrar of Trade Marks and is extending services to its retail consumers to access services and products of various banks on a single platform and that the mobile application caters to the needs of the customers, who desire to do business with NBFCs registered with the Reserve Bank of India. The nature of services performed by the appellant includes opening of savings bank account, purchase of mutual funds, saving and investments, making of utility payments, UPI payments etc. and that the appellant has on board seven lakh customers registered with it.
4. That the respondent is a NBFC by itself and is carrying on business as a private equity investment company, providing capital to shares and debentures to institutions and corporate -4- NC: 2023:KHC:36874-DB COMAP No. 359 of 2023 investors and in general, the respondent does not deal with retail services or individual customers and that the nature of the respondent's business is in the nature of B to B (business to business) transaction unlike the appellant, who caters to individual customers of various NBFCs.
5. Learned counsel for the respondent submitted that legal proceedings were necessitated on account of there being several complaints about irregularities by the appellant and that the respondent was getting docked by the authorities and it was also tarnishing the fair image of registered trade mark.
6. Per contra, learned Senior counsel appearing on behalf of the appellant would submit that though both the parties are holders of registered mark yet the nature of business carried out by the parties is completely different and their businesses do not entrench upon the field of operation of one another. That the appellant has about 25.6 lakh customers, 7 lakh active users and about 624 full time employees and the application has been downloaded 86 lakh times and the appellant's website has 2.068 million visits every month compared to 10699 visits on the respondent's website.
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NC: 2023:KHC:36874-DB COMAP No. 359 of 2023
7. The case of the appellant is that even as per the pleadings, the respondent/plaintiff became aware of the concurrent use of the registered trade mark in 2021 itself. Despite the same, the appellant remained dormant and did not raise a little finger. Despite long passage of time and despite the appellant being the holder of registered mark, the Trial Court erred in granting ex-parte order without considering either the fact of delay in approaching the Court or the fact that the appellant was also a holder of a registered Trade Mark which was very much in the public eye. Lastly, he would submit that the order suffers from inherent lacuna as there is no compliance with the provisions of Rule 3 of Order XXXIX of CPC and he would contend that there are no reasons recorded as to why notice should be dispensed with prior to granting the injunction. He would submit that a Co-ordinate Bench of this Court has upheld the mandatory nature of Rule 3 of Order XXXIX of CPC.
8. Per contra, learned counsel for respondent would submit that no detailed orders or reasoning are required for compliance with Rule 3 of Order XXXIX of CPC. -6-
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9. Though several arguments have been advanced, we deem it unnecessary to delve upon the same in view of the settled position in law. A Co-ordinate Bench of this Court in COMAP No.460/2022 to which one of us is a member, has clearly held that the provisions of Rule 3 of Order XXXIX of CPC are mandatory in nature and non-compliance vitiates the order. In the above background, the short question that arises for determination is whether the order impugned is legally sustainable.
10. We have perused the order impugned. The order impugned is merely reproduction of the pleadings. It is seen that the Trial Court is aware of the use of Mark by the defendant since 2013. It is also forthcoming in the pleadings that the respondent has been aware of the concurrent usage of the mark in 2021 itself. That apart, it is also fairly admitted that a rectification application has been filed before the Hon'ble High Court of Madras exercising appellant jurisdiction under the Trade Marks Act, 1999, which by itself implies that the appellant is a holder of a registered mark. Mere observing that issuance of notice would defeat purpose of the application, in -7- NC: 2023:KHC:36874-DB COMAP No. 359 of 2023 our opinion, would not amount to suffice reason as required under Rule 3 of Order XXXIX of CPC. Rule 3 of Order XXXIX of CPC reads as under:-
"3. Before granting injunction, Court to direct notice to opposite party.- The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:
[Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-
(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-
i. a copy of the affidavit filed in support of the application;
ii. a copy of the plaint; and iii. copies of documents on which the applicant relies, and -8- NC: 2023:KHC:36874-DB COMAP No. 359 of 2023
(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent."
11. From a reading of the above provision, it is apparent that the Court shall record reasons for forming an opinion that the object of granting injunction would be defeated by delay i.e., the Court is required to record reason as to why the object of granting injunction would get defeated if there is any delay in granting the injunction. In other words, the Court is required to form a prima facie opinion with regard to the damage that may be caused if granting of injunction is delayed. We do not find any such reason being recorded or opinion being formed.
12. As noted supra, mere reproduction of the provision would not tantamount to recording of reasons. That apart, the Trial Court has also failed to appreciate the provisions of Section 28 (3) of the Trade Marks Act, 1999, which bars grant of injunction in respect of a person, who is also a holder of registered mark. In that view of the matter, we are of the considered opinion that the order impugned is unsustainable. -9-
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13. Accordingly, the appeal is allowed in part. The order dated 03.08.2023 passed on I.A.No.1/2023 in Com. O. S. No.861/223 by the LXXXIX Addl. City Civil and Sessions Judge, Bengaluru (Commercial Court) is hereby set-aside. The matter is remitted back to the Trial Court for consideration of I.A.No.1/2023 afresh, after hearing the parties.
Sd/-
JUDGE Sd/-
JUDGE DN/List No.: 1 Sl No.: 15