Gujarat High Court
Cadila vs Gemini on 11 June, 2008
Author: K.M.Thaker
Bench: K.M.Thaker
SCA/8010/2008 6/ 6 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8010 of 2008 ========================================================= CADILA HEALTHCARE LTD - Petitioner(s) Versus GEMINI PHARMACEUTICALS LTD - Respondent(s) ========================================================= Appearance : SINGHI & CO for Petitioner(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 11/06/2008 ORAL ORDER
The petition is directed against the order dated 27/05/2008 passed by the learned Fast Track Court No. 2, Ahmedabad (Rural) below an application for interim injunction in Civil Suit No. 26/2008. Alongwith the said suit, an application for interim relief was preferred wherein the petitioner herein prayed for interim relief in terms of paragraph 22(a), which reads as under;
ýS(a) That the Hon'ble Court may be pleased to pass an Order of ad-interim injunction against the defendant restraining it from selling, manufacturing and marketing the product under the trade mark ýSOMCIDýý and/or any other trade mark which is deceptively similar/or imitation of the plaintiff's registered trade mark ýSOCIDýý amounting to infringement and passing off of the plaintiff's mark, either directly or through its proprietor partners, directors, employees, agents, stockists, distributors, dealers and retailers throughout the Union of India or any part thereof.ýý The learned Fast Track Court by the said order dated 27/05/2008 was pleased to issue urgent notice against the defendents and the same was made returnable on 4th June, 2008, however, no ex parte ad-interim relief was granted by the learned trial Court at that stage.
It is against the said decision and the order of the learned trial Court of not granting ex parte ad-interim relief that the petitioner is aggrieved and has approached this Court by way of the subject petition.
This Court after hearing Mr. Thakore, Senior Advocate with Mr. A.M. Hawa for petitioner on 30/05/2008, considered it appropriate to wait until 04/06/2008 when the learned Court was to consider the interim relief application on the returnable date i.e 04/06/2008 and pass appropriate orders. For the said purpose, the proceeding of the subject petition was adjourned to 05/06/2008.
On 05/06/2008, this Court was informed that nobody has entered appearance in the suit proceedings and no further orders have been passed. On behalf of the petitioner, however, it was also submitted that the petitioner was not sure as to whether the service of notice was effected on the respondents or not. So as to enable the petitioner to ascertain the aforesaid aspect the proceedings were adjourned to 6.6.2008 and then to today.
Today, Mr. Mihir Thakore appearing with Mr. A.M. Hawa for Singhi & Co. submits on behalf of the petitioner that the respondents have been duly served, however, no appearance has been filed before the learned Court and no further orders have been passed and the suit proceeding is adjourned, without granting any relief, to 17.6.2008.
He has tendered a compilation of about 15 different orders passed in favour of petitioner in respect of the very same product wherein injunctions have been granted against different companies which are said to be the manufacturer of the product, which is in question in the present petition i.e. ýSOCIDýý. He has also relied on an order dated 21/02/2008 passed by the Court (Coram: Hon'ble Mr. Justice Akil Kureshi) in Special Civil Application No. 2876/2008, which is also in respect of the very same product. According to Mr. Thakore, the fact situation in the said matter i.e. Special Civil Application No. 2876/2008, (which was with regard to Civil Suit No. 1/08), is identical to this case in as much as the trial Court had, in that case also, not granted ex parte ad-interim relief and the petitioner had approached this Court and the product was also same and then the said order dated 21/02/2008 was passed, which reads as under;
ýSUnder the circumstances, so as to balance equities, this petition is disposed of by giving following directions:
Relief in terms of para 4(B)of this petition by way of interim measure is granted in favour of the petitioner to enure till 31st March, 2008.
In the meantime, it will be open for the petitioner to urge the learned Judge taking up Exh. 5 application in the pending suit to pass further order in this regard.
It is clarified that the learned Judge shall consider all aspects of the matter and the objection of the defendant if so placed on record, before passing any further order in this regard.ýý Taking into account the aforesaid order and also the orders, copies of which have been submitted on record by Mr. Thakore today, and on considering the fact that even after issuance of notice by the learned trial Court, which has been served on the respondent, appearance has not been entered (as submitted by Mr. Thakore) and no further orders have been passed, I am of the view that it would not be proper to enter into the merits or greater details of the case and/or make any observation with regard to justification or otherwise of the interim relief and/or validity of the contentions because the learned trial Court is seized of the matter and the issue of interim relief is yet to be decided, but at this stage it would suffice to note that in the facts of the case, prima facie, it appears that atleast on the returnable date, the learned trial Court could have considered the case for granting appropriate interim relief, when the respondent failed to enter appearance. It appears that in the facts of the case and in light of the order dated 21/02/2008 passed in Special Civil Application No. 2876/2008 and other orders, it is appropriate and necessary to balance the equity until the learned trial court takes up the matter for hearing and passes the order, which it considers necessary and proper. With a view to balancing the equity, the following directions are passed;
(a) The ad-interim relief in terms of paragraph 22(a) of the application for interim relief in Civil Suit No. 26/2008 (considering that the interim relief prayed for in the present petition is slightly larger than the interim relief prayed for before the learned trial Court), is granted by way of an interim and ad hoc measure, which will operate until 18/06/2008.
(b) In the meantime, the petitioner may request the learned trial Court to take up the interim relief application for hearing and for appropriate order.
(c) It would be open for the respondent to immediately enter appearance and request the learned trial Court to take up the interim relief application for hearing and pass necessary orders after hearing the respondent and after making such a request before the learned trial Court, the respondent may approach this Court to vacate or modify the present order in case of need. The learned trial Court will hear and decide the present petitioner's interim application on its merits and without being influenced in any manner by this order or by the fact that this Court has granted the aforesaid ad-interim relief. The learned trial Court shall consider all the details and all the aspects of the matter as well as the objections and reply of the defendant if the same is placed on record, while passing an order on interim relief application. The interim relief application shall be decided independently and on merits by the learned trial Court.
S.O. to 18th June, 2008.
(K.M. THAKER, J.) rmr.