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Kanjibhai Ishwarbhai Patel & Ors vs Jafar Ali on 9 February, 2021

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw, Sanjeev Narula

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     FAO (COMM) 6/2021 & CM No.26757/2020 (for stay)
      KANJIBHAI ISHWARBHAI PATEL & ORS.              ..... Appellants
                      Through: Mr. Amit Sibal, Sr. Adv. with Mr.
                                 Prithvi Gulati, Mr. Nilesh Nayak, Mr.
                                 Zahid K. Shaikh & Ms. Pooja
                                 Acharya, Advs.
                              Versus
      JAFAR ALI                                      ..... Respondent
                      Through: Mr. Sanjeev Sindhwani, Sr. Adv. with
                                 Ms. Kamla, Adv.
      CORAM:
      HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
      HON'BLE MR. JUSTICE SANJEEV NARULA
                ORDER

%               09.02.2021

[VIA VIDEO CONFERENCING]

1. This appeal was preferred against the order dated 30th September, 2020 of the Commercial Court, granting ex parte ad-interim injunction against the appellants/defendants, in a suit instituted by the respondent/plaintiff, for permanent injunction, to restrain the appellants/defendants from infringing the patent claimed by the respondent/plaintiff and for ancillary reliefs.

2. The appeal has been pending before this Court since 20th October, 2020 and vide order dated 10th November, 2020 it was directed that the respondent/plaintiff will not take any precipitative action against the appellants/defendants.

3. Though the impugned order, as per its terms was valid till 21st October, 2020 only but on enquiry we are informed that the ex parte ad- interim order is still continuing and the matter is listed next before the Commercial Court on 11th February, 2021 for hearing arguments, after notice, on the application of the respondent/plaintiff for interim relief.

4. The senior counsel for the appellants/defendants has argued that, though the suit was for infringement of patent but a bare perusal of the impugned order shows the Commercial Court to have granted ex parte ad- interim injunction under the impression that the suit was for infringement of trademark. It is contended that there is no analysis whatsoever in the ex parte order on the parameters of infringement of patent and thus there is a jurisdictional error committed by the Commercial Court, which requires to be corrected by this Court. Attention is drawn to the part of the impugned order where the Commercial Court has formed a prima facie opinion on comparison of photographs of the two products; it is argued that on perusal and comparison of photographs of the product of the respondent/plaintiff and the appellants/defendants, no opinion qua infringement of patent alleged could have been formed. The senior counsel for the appellants/defendants has further argued that the suit was got listed by the respondent/plaintiff before the Commercial Court to avoid the caveats preferred by the appellants/defendants in other Courts including in the High Court of Delhi. It is yet further argued that though the cause of action was pleaded to have arisen much prior to the institution of the suit and the earlier suit instituted by the respondent/plaintiff against the appellants/defendants for the same reliefs itself had remained pending before the same Commercial Court for FAO(COMM) No.6/2021 Page 2 of 4 nearly one month, with the suit in which the ex parte ad-interim injunction was granted having been filed subsequently, after withdrawing the earlier suit with leave to prefer another suit on the same cause of action, but the Commercial Court, without keeping all these facts in mind, granted ex parte injunction and also issued commission, much to the prejudice of the appellants/defendants. It is yet further argued that several other acts of concealment were committed by the respondent/plaintiff in obtaining the ex parte ad-interim injunction. It is informed that the respondent/plaintiff, on its website and elsewhere, has posted that the appellants/defendants are committing piracy, again causing damage to the reputation of the appellants/defendants.

5. Though considerable merit is found in the aforesaid contentions, particularly the parameters applied by the Commercial Court for issuing the ex parte ad-interim injunction but we are still of the opinion that since the matter is posted before the Commercial Court day after tomorrow, and the ex parte ad-interim injunction has continued for so long, perhaps because of the appellants/defendants filing this appeal and not contesting the application for interim relief before the Commercial Court, that an opportunity should be given to the Commercial Court to decide the application for interim relief after hearing the counsels for the parties.

6. Since the hearing is posted on 11th February, 2021, we direct that the Commercial Court proceeds with the hearing and decides the application for interim relief on or before 18th February, 2021.

7. With the aforesaid, the appeal is disposed of.

8. The order dated 10th November, 2020 in this appeal to continue, till the disposal of the application for interim relief.

RAJIV SAHAI ENDLAW, J SANJEEV NARULA, J FEBRUARY 9, 2021 'gsr'..