Delhi High Court - Orders
Star Impact Private Limited vs Vishula Guliani & Ors on 22 March, 2021
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Amit Bansal
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO (COMM) 22/2021 & CMs No.1237/2021 (for ex parte interim
injunction) & 1238/2021 (for appointment of LC)
STAR IMPACT PRIVATE LIMITED ..... Appellant
Through: Mr. D.K. Yadav, Adv.
Versus
VISHULA GULIANI & ORS ..... Respondent
Through: Ms. Akanksha Singh and Mr. Rahul
Kumar, Advs. for R-1&2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE AMIT BANSAL
ORDER
% 22.03.2021
1. The appeal impugns the orders dated 19 th October, 2020 and 4th November, 2020 of the Commercial Court in a suit filed by the appellant/plaintiff against the respondents/defendants; though from a reading of the impugned orders, it appears that the said suit is only for permanent injunction to restrain infringement of trademark and for ancillary reliefs but the counsel for the appellant/plaintiff states that the suit is also for permanent injunction to restrain passing off and infringement of copyright and for ancillary reliefs.
2. Vide the impugned order dated 19th October, 2020, the Commercial Court only declined ex-parte injunction to the appellant/plaintiff and posted the matter to 4th November, 2020 for further hearing including on maintainability. A perusal of the order dated 4th November, 2020 shows that the counsel for the appellant/plaintiff took adjournment on that date.
3. The counsel for the appellant/plaintiff, on enquiry, states that the FAO (COMM) 22/2021 Page 1 of 2 matter is now listed before the Commercial Court on 31st March, 2021.
4. There is some ambiguity in the order, as to whether the application of the appellant/plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, has been dismissed or is still pending.
5. The counsel for the respondents/defendants, appearing on advance notice states that the application for interim relief is still pending.
6. Once that is the understanding of the counsel for the respondents/defendants also and the suit is coming up next before the Commercial Court on 31st March, 2021, it is not deemed appropriate to entertain this appeal, particularly when the denial is only of ex-parte ad- interim relief. It is appropriate that the matter is left to be adjudicated by the Commercial Court first.
7. The counsel for the appellant/plaintiff has contended that a suit for permanent injunction to restrain infringement of trademark, though may be required to be stayed under Section 124 of the Trademarks Act, 1999 but the application for interim relief is still to be considered. Reference is made to Clinique Laboratories LLC Vs. Gufic Limited 2009 SCC OnLine Del 751.
8. It will be open to the appellant/plaintiff to raise all arguments before the Commercial Court and the respondents/defendants also shall be entitled to raise all pleas in opposition thereto.
9. The appeal is disposed of.
RAJIV SAHAI ENDLAW, J.
AMIT BANSAL, J.
MARCH 22, 2021/'bs'..
FAO (COMM) 22/2021 Page 2 of 2