Bombay High Court
Anand Gopal Patel vs Marico Limited on 2 December, 2025
Author: M. S. Sonak
Bench: M.S. Sonak
2025:BHC-OS:23606-DB 16-I-COMAPL-31704-24-OS-F.DOCX
Deshmane
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL APPEAL (LODGING) NO.- 31704 OF 2024
Anand Gopal Patel and Others ...Appellants
Versus
Marico Limited ...Respondent
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Mr Alankar Kirpekar, a/w. Shekhar Bhagat i/b. Rai Vijendra
Girish Narain for Appellants.
Mr. Hiren Kamod, a/w. Nisha N. Ms. Khushboo J, Ms. Jaanvi
Chopra and Ms. Rakshita Singh i/b. Khaitan & Co. for
Respondent.
______________________________________________________
CORAM: M.S. Sonak &
Advait M. Sethna, JJ.
DATED: 02 DECEMBER 2025
ORAL JUDGMENT:- (Per M. S. Sonak, J.)
1. Heard the learned Counsel for the parties.
2. By a separate order, we have restored this Appeal which was dismissed for non-clearance of office objections. With the consent of the learned Counsel for the parties, we have taken up this Appeal for consideration because the same challenges the order dated 23 July 2024, by which the learned Single Judge has dismissed the Appellants (Defendants) Interim Page 1 of 6 ::: Uploaded on - 05/12/2025 ::: Downloaded on - 05/12/2025 23:39:37 ::: 16-I-COMAPL-31704-24-OS-F.DOCX Application seeking a recall of the ex parte ad-interim order dated 08 March 2024 granted in the Suit.
3. The learned Counsel for the Appellants submits that the ad- interim ex parte order dated 08 March 2024 was obtained based on the following averments in paragraph 21 of the Plaint:-
"21. The Plaintiff states that it takes the services of various third party investigative agencies which conduct routine market survey on behalf of the Plaintiff, to identify the products in the market which are infringing the Plaintiff's well-known products. The Plaintiff states that in last week of February 2024, an investigating officer of one such agency came across the Defendants' hair oil under the name "PRINCE" being openly sold in the market of Mumbai. The hair oils were being sold in infringing packaging (hereinafter referred to as "the impugned label mark 1/artistic work 1/impugned trade dress 1/ impugned bottle 1"). The Plaintiff says and submits that the impugned label mark 1/artistic work 1/impugned trade dress 1/ impugned bottle 1 of the Defendants has identical colour scheme, artwork, trade dress, device of broken coconuts as that of the Plaintiff's said PARACHUTE registered trade marks/labels/artistic works/trade dress/Parachute bottle. Despite conducting enquiries about the Defendants in the market, the investigating officer could not come across any information regarding the period since when the Defendants have commenced its infringing activities in relation to the impugned label mark 1/artistic work 1/impugned trade dress 1/ impugned bottle 1."
4. The learned Counsel for the Appellants submitted that the most important and material fact, namely that on 02 December 2015 the Plaintiffs had issued a cease-and-desist notice to the Defendants, was completely suppressed. He submitted that an impression was sought to be created that, despite inquiries about the Defendants in the market, the Page 2 of 6 ::: Uploaded on - 05/12/2025 ::: Downloaded on - 05/12/2025 23:39:37 ::: 16-I-COMAPL-31704-24-OS-F.DOCX Investigating Officer could not come across any information regarding the period since when the Defendants had commenced their infringing activities in relation to the impugned label mark 1/artistic work/impugned trade dress 1/impugned bottle 1. The learned Counsel submitted that suppression of such a vital and material fact is a good ground to vacate an ad-interim ex parte order obtained from the Court. He relies on the provisions of Order XXXIX Rule 4 of the Code of Civil Procedure (CPC) to support this contention.
5. The learned Counsel for the Respondent points out that the Interim Application under Order XXXIX, Rule 1A of the CPC was premised on the alleged suppression of specific other facts and circumstances, which the Appellants now style as vital and material. He submits that there was no reference to the cease-and-desist notice of 02 December 2015 in the Interim Application under Order XXXIX Rule 4 of CPC. He submits that this cease-and-desist notice of 02 December 2015 is sought to be relied upon for the first time before the Appeal Court without disclosing that the same was not a part of the record before the learned Single Judge.
6. The learned Counsel for the Respondent submits that the arguments about alleged suppression have been considered in detail in paragraph Nos. 29 to 31 of the impugned order, and there is no perversity involved in such consideration. He submitted that the main Interim Application for interim relief is yet to be decided. He submitted that this is Page 3 of 6 ::: Uploaded on - 05/12/2025 ::: Downloaded on - 05/12/2025 23:39:37 ::: 16-I-COMAPL-31704-24-OS-F.DOCX a discretionary order and therefore, this Court should not entertain this Appeal.
7. The learned Counsel for the Appellants, when faced with the above arguments, tried to seek some time to obtain instructions about whether the cease-and-desist notice of 02 December 2015 was referred to in the Interim Application made under Order XXXIX Rule 4 of CPC. On further instructions, the learned Counsel for the Appellants admits that the notice of 02 December 2015 was not a part of the record before the learned Single Judge.
8. With the assistance of the learned Counsel for the parties, we have perused the Application under Order XXXIX Rule 4 of CPC taken out by the Appellants herein. Neither in the body of the Interim Application nor in the annexures in the Interim Application do we find any reference to the notice of 02 December 2015.
9. As noted earlier, neither the Application nor its annexures referred to this notice. Even the impugned order does not refer to any argument based on this notice. If indeed this notice, which was advanced at the very outset in this Appeal and projected as the star argument, then the Appellants should have taken immediate steps to correct the record and point out that the arguments were advanced based on this notice and they do not reflect in the impugned order. No complaint can be made before the Appeal Court regarding the record of the learned Single Judge. Besides, we are Page 4 of 6 ::: Uploaded on - 05/12/2025 ::: Downloaded on - 05/12/2025 23:39:37 ::: 16-I-COMAPL-31704-24-OS-F.DOCX surprised that this notice finds no reflection in the Interim Application under Order XXXIX, Rule 4 of the CPC, or in its annexures.
10. We have perused the discussion in paragraphs Nos. 29, 30 and 31 of the impugned order. The learned Single Judge has observed that the requirement of disclosures must be pragmatically construed in the sense that a Plaintiff is required to disclose all material that could have been obtained by it on a best effort basis. The learned Single Judge, having regard to the averments in the Interim Application under Order XXXIX Rule 4 of the CPC and the arguments advanced before the Court, has held that the materials were duly disclosed and that this was not a case of suppression. Neither the reasoning nor the conclusion can be said to be vitiated by any perversity. The scope of such Appeals against interim orders is also quite limited, and in the absence of any perversity as explained by the Hon'ble Supreme Court in the case of Ramakant Ambalal Choksi Vs. Harish Ambalal Choksi and Others1, we do not think that the impugned order calls for any interference in this Appeal.
11. However, though we are dismissing this Appeal, we add that the observations in the impugned order or this order would be construed in the context, and such observations need not influence the decision on the Interim Application seeking interim relief in the suit.
1(2024) 11 SCC 351 Page 5 of 6 ::: Uploaded on - 05/12/2025 ::: Downloaded on - 05/12/2025 23:39:37 ::: 16-I-COMAPL-31704-24-OS-F.DOCX
12. For the above reasons, we dismiss this Appeal without any costs order. Interim Applications, if any, in this Appeal do not survive and are disposed of.
(Advait M. Sethna, J) (M.S. Sonak, J) PRADIPKUMAR PRAKASHRAO DESHMANE Digitally signed by PRADIPKUMAR PRAKASHRAO DESHMANE Date: 2025.12.05 19:02:05 +0530 Page 6 of 6 ::: Uploaded on - 05/12/2025 ::: Downloaded on - 05/12/2025 23:39:37 :::