Karnataka High Court
S.M.K.A. Enterprises vs Suchita Industries on 31 July, 2007
Equivalent citations: 2008(2)KARLJ285, 2008 (2) ABR (NOC) 244 (KAR.) = 2007 (6) AIR KAR R 433, 2008 A I H C 521, 2007 (6) AIR KAR R 433, (2008) 2 KANT LJ 285, (2007) 35 PTC 521
Author: A.S. Bopanna
Bench: A.S. Bopanna
JUDGMENT A.S. Bopanna, J.
1. The appellant in this appeal is the defendant in O.S. No. 6576 of 2005 pending before the VIII Additional City Civil Judge, Bangalore. The respondent herein who is the plaintiff in the said suit is before the Court below in a suit for permanent injunction restraining the defendants and persons claiming under them in any manner using and/or infringing upon the plaintiffs trade name mark 'Tiny care' or any other trade name which is identical to and/or deceptively and/or confusingly similar to that of the plaintiffs trade mark 'Tiny care' vide Nos. 477911B, dated 7-9-1987 and 318182B, dated 31-8-1976. The plaintiff has also further prayed to restrain the defendants in any way selling or offering to sell and/or passing off the infringed product or any other products, directly or indirectly bearing the name 'Cozy care' or any other name or any other mark which is similar to the trade name "Tiny care' of the plaintiff. That apart certain other ancillary reliefs are also claimed.
2. During the course of this judgment, for the sake of convenience, I propose to refer to the parties in the same rank as referred to before the Civil Court.
3. During the pendency of the suit, the plaintiffs in aid of their prayer made in the suit filed an application in LA. No. I under Order 39, Rules 1 and 2 read with Section 151 of the Civil Procedure Code, 1908, seeking for temporary injunction in terms of the main prayer. The defendants filed their objections to the said application. The Court below after considering the rival contentions of the parties has by its order dated 5-4-2007 allowed the said application in LA. No. I. The defendant is before this Court calling in question the order dated 5-4-2007 passed by the Court below.
4. I have heard Sri C.B. Srinivasan, learned Senior Advocate appearing for Sri D. Leelakrishna, learned Counsel for the appellant and Sri S.S. Ramdas, learned Senior Counsel appearing for Sri S.R. Shivaprakash, learned Counsel for the respondent.
5. Having heard the learned Counsel appearing for the parties, even though several decisions both of the Supreme Court and of the different High Courts across the country has been cited with regard to the aspect of trade marks, passing off and deceptively similar trade marks etc., to contend with regard to the view expressed in such matters, I am of the view that each of the decisions need not be referred to in detail and over burden this judgment for the reason that in most of the cases, the decisions are with regard to the facts obtaining in those cases where the trade mark was compared with deceptively similar one and comparisons were made on the question of passing off. In fact the Hon'ble Supreme Court in the case of Parle Products (Private) Limited v. J.P. and Company, Mysore , itself has observed that in the case of trade mark, it would not be necessary to refer to all the decisions cited at the bar since each case will have to be judged on its own features. However, the relevant decisions would be referred at the appropriate stage.
6. In the present case, the scope of this appeal is limited only to examine the correctness or otherwise of the interlocutory order passed by the Court below during the pendency of the suit and to find out as to whether there is any perversity or non-consideration of any of the aspects which are required to be considered by the Court below before the grant or refusal of injunction. This is more particularly so since both the learned Senior Counsels appearing for the parties have repeatedly emphasised the scope available at this juncture and in fact judgments in the cases of Rangamma v. Krishnappa 1968 (1) Mys. L.J. 552; Lakshminarasimhiah and Ors. v. Yalakki Gowda 1965 (1) Mys. L.J. 370 and Mis. Cadila Laboratories (Private) Limited Ahmedabad and Anr. v. Mis. Kamath Atul and Company, Kumta 1990 (4) Kar. L.J. 134 : AIR 1991 Kant. 303 were also cited to contend that the scope is only to examine the correctness or otherwise and a new view or different view cannot be substituted. It is in this back ground the order dated 5-4-2007 impugned in this appeal is being examined.
7. To briefly summarise the contentions of Sri C.B. Srinivasan, learned Senior Advocate is; that the learned Judge of the Court below has not arrived at an independent opinion but has only relied upon the opinion expressed by the authorities. Furthermore even assuming that such expert opinions could be taken note of by the Court, the Court below has not assessed the two opinions of the different authorities which was available before it and has not thereafter come to the conclusion as to which of the opinion is required to be followed. Further, the learned Counsel would contend that the Court below while considering the aspect of prima facie case ought to have placed itself in the situation of an ordinary customer and thereafter the markings and colour combinations should have been considered as to whether there is resemblance or whether it is distinctive. While doing so, it should have considered whether the trade names and the products are phonetically and visually similar. It is therefore the contention of the learned Counsel that since this has not been done, the Court below has seriously erred in the matter and as such even the opinion with regard to the prima facie case is not sustainable. It is further contended that even otherwise, the law is well-settled that the three ingredients should be satisfied before an order of temporary injunction could be granted and as such the mere making out of a prima facie case or a triable issue cannot permit the Court to jump to a conclusion to grant temporary injunction since the aspect of the balance of convenience and the irreparable injury also requires to be kept in mind. This aspect of the matter has not received consideration at all at the hands of the Court below and as such the order is not sustainable.
8. On the other hand Sri S.S. Ramdas, learned Senior Counsel appearing for the respondent would contend that the said arguments put forth by the learned Advocate for the appellant cannot be accepted for the reason that the very perusal of the order would indicate that the Court below has referred to the entire pleadings of both the parties and has considered not only the pleadings and the affidavits filed by the parties, but also has looked into the documents which was produced before the Court below. Since the lower Court records had been called for by this Court, the learned Senior Counsel with further reference to the said documents also sought to demonstrate that the product manufactured and marketed by the defendants would indicate that they have infringed the trade mark registered in favour of the plaintiffs and merely by change of a part of the trade name of the plaintiffs or by merely changing certain colour combinations, the defendant cannot contend that the product is not similar and that they are phonetically and visually not comparable. Further the learned Senior Counsel would also refer to each of the documents to indicate the similarities but the slight change brought about by the defendant only to indicate that they are different. But the very sight of it would make it clear that they are deceptively similar. Further the learned Senior Counsel would emphasise that the case of the plaintiff is not just a case of mere passing off where only the product requires to be placed side by side, compared and the aspect as to which of the product had entered the market first would assume importance. But the case of the plaintiffs is that they got their trade mark viz., "Tiny care" registered under the provisions of the Trade and Merchandise Marks Act, 1958 and thereafter under the Trade Marks Act, 1999. The process for having the trade mark registered is a long drawn process and after undergoing the same the plaintiffs had registered their trade mark as far back as on 31-8-1976. Subsequently, they have renewed the same in accordance with the procedure contemplated under the said Act and the last date of certification is on 17-6-2005. Contending so, the learned Senior Counsel referred to the definitions of 'certification', 'deceptively similar, 'trade mark' and other relevant definitions under the Act to demonstrate the statutory right that would be available to a manufacturer who obtains registration of the trade mark and it is not merely common law remedy as in the case of passing off. That apart, the learned Senior Counsel also contended that this trade mark of the plaintiffs was widely published and the plaintiffs have spent huge sums for the purpose of advertisement. As such the product with the trade name is popular in the market. It is further contended that the partner of the defendants Smt. Jayashree Sudhindra was a former employee of the plaintiff firm who had worked for 22 years until she left the service of the plaintiff on 28-7-2004. The very fact that immediately thereafter she has started similar product and has started marketing the same by a trade name which is phonetically as well as visually similar to the product would demonstrate infringement. The trade name of the plaintiff would indicate that the partner of the defendant firm has pirated the design, mode and method of manufacture and the marketing strategies. Further the learned Senior Counsel would contend that even with regard to the opinions which were available before the Court below, one was of the Police Authorities and the other was of the Competent Authority under the Trade Marks Act, 1999 and a reference to Section 115 of the Trade Marks and Merchandise Act would indicate that even Police Authorities can act only on the sanction being accorded by the Competent Authority and as such any opinion of the Police Authority is subservient to the opinion of the Competent Authority under the Act. As such the opinion of the authority concerned under the Act would have to be treated as the expert opinion. That being so, the learned Senior Counsel would contend that the Court below has rightly accepted the opinion of the authority concerned and even otherwise has come to an independent conclusion that the plaintiff had made out a prima facie case and has thereafter finding that the balance of convenience is in their favour and that irreparable injury would be caused to the plaintiff had proceeded to grant the injunction prayed for and this discretionary order of the Court below cannot be interfered with to substitute any order of this Court. All that can be examined is as to whether there is any perversity and since all the materials available before the Court has been considered by the Court below, it cannot be termed as perverse, arbitrary or capricious in any event.
9. Sri C.B. Srinivasan, learned Senior Advocate in reply would contend that one other aspect which requires to be looked into by this Court is, while examining the order in the light of the contentions advanced by the learned Senior Counsel for the respondent/plaintiff is that the entire dispute is at the stage of interlocutory order. Therefore, at this stage without there being evidence that the said two products are deceptively similar and a common customer has been misled, the Court by itself cannot keep the same side by side, compare the same and thereafter come to a conclusion that they are deceptively similar. Further with regard to the similar nature of the product, the learned Advocate would contend that at this stage, either the Court below or this Court cannot puncture into the same to find out the similarities and it should only be a objective assessment of the whole situation. The learned Advocate further states that since two opinions are available on record and since one authority has stated that there would be no confusion in the mind of the customers, the benefit of that opinion should be given to the appellant. Further, the perusal of the order according to the learned Advocate does not satisfy the Tripod test before granting injunction.
10. In the backdrop of the pleading put forth by the parties, the materials produced and the contentions urged by both the learned Counsel for the parties and also keeping in view the limited scope available to this Court while examining the order impugned in this appeal, the perusal of the order passed by the Court below would no doubt indicate that the Court below has adverted to each of the contentions put forth by both the plaintiff and the defendant which are almost the similar contentions which have been urged before me. The Court below has taken note of the contentions put forth by the parties more particularly with regard to the registration of the trade mark "Tiny care" and the alleged infringement by using the word 'Cozy"; the appellant herein is marketing the product as 'Cozy care' and the product of both Tiny care' as well as 'Cozy Care' being baby nappies, has examined the sticker used on the packing which was produced as a document before the Court below. Even the other documents with regard to the packing and the print available on the packing indicating the wordings on the same which has been produced have also been noticed by the Court below. While considering this, the Court has also noticed the certification of the trade mark which was produced as a document. The further examination of the order passed by the Court below would indicate that it has taken note of the contention that even the sample box which were produced before the Court reveal that the defendant firm has virtually reproduced the plaintiffs trade mark/name 'tiny care nappies' which is visually, phonetically and structurally identical and deceptively similar to that of the plaintiffs trade mark/name. The Court has noticed the contention with regard to the huge amounts which were spent by the plaintiff towards advertisement in order to popularise the product by noticing the document which was placed to establish this aspect of the matter. Similarly, the contentions of the defendant which was put forth before the Court with regard to the dissimilarities in the visual and phonetic aspect of the matter and also the contention that the product of the defendant is one of the several products manufactured for new born babies and several such products in the name of 'child care', Tcids care', 'mini care', 'mother care', "baby bee care', 'super care', 'tender care', "hallo Baby", love care' etc., are all already available in the market and as such the defendant's product and the packing cannot be held to be as infringing the product and trade mark of the plaintiff were also noticed.
11. The learned Judge of the Court below after noticing all these aspects of the matter has thereafter referred to the opinion furnished by the Registrar of Trade Marks, Chennai under Section 115 of the Trade and Merchandise Marks Act and the entire contents of the letter has been noticed by the Court below. Further, the correspondence of the Assistant Commissioner of Police on this aspect has also been considered. Thereafter the Court below has come to the finding that on perusal of the materials, the plaintiff has made out a prima facie case. Hence, on the aspect of perversity or capriciousness insofar as arriving at the conclusion with regard to the making out of the prima facie case from the events noticed above, the learned Judge of the Court below has referred to the rival contentions which was placed before it, referred to the same in detail and though the order does not indicate detailed analysis what is noticed is that the analysis made by the expert on the subject has been relied to come to the prima facie conclusion and that opinion was also a document placed before the Court. It is trite that the ingredient of perversity is either non-consideration of the material available or placing reliance on the material which is not available on record or after doing so coming to a conclusion which no reasonable person would have come to. Since these ingredients are absent, the conclusion on this aspect cannot be held to be perverse. In any event, the rival contentions would indicate that there is a triable issue and as such the opinion that a prima facie case is made out cannot be faulted.
12. While on this aspect itself, the contention of Sri C.B. Srinivasan, learned Senior Advocate with regard to the two different opinions available on record and therefore the benefit of doubt should have been given to the defendant also requires to be considered. In this regard, the perusal of the correspondence would indicate that the Police Authorities viz., the Assistant Commissioner of Police in this case has initially formed an opinion that the product and market survey does not indicate confusion or infringement. The Competent Authority viz., the Assistant Registrar of Trade Marks is the authority under the Act with regard to the trade marks and its infringement and violations. That apart, as clear from Section 115 of the Act more particularly the proviso to Sub-section (4) of Section 115, it is with the opinion of the Registrar on facts involved that the Police Officer can take any action. This would only indicate that the opinion of the Competent Authority would prevail over the prosecuting authority and as such on this aspect of the matter also, I do not find any error.
13. Having considered the above aspect of the matter, the next endeavour would be to examine as to whether the Court below has correctly applied itself to consider the two other aspects viz., balance of convenience and irreparable injury before proceeding to grant the injunction in the present case. In this regard, at the outset, it is necessary to refer to the decision of the Hon'ble Supreme Court in the case of Midas Hygiene Industries (Private) Limited and Anr. v. Sudhir Bhatia and Ors. , wherein the Hon'ble Court while considering the issue of interim injunction with regard to the infringement of trade mark or copyright has held that the law on the subject is well-settled that in case of infringement either of trade mark or of copyright normally an injunction must follow. However, the said case was a case of infringement of the copyright and passing off wherein the plaintiff asserted ownership of copyright in the packaging containing the words 'Laxman Rekha' and complained of the same being infringed by the defendant by using the words Magic Laxman Rekha'.
14. Having noticed the view taken by the Hon'ble Supreme Court, I now propose to dilate on the aspect of grant of temporary injunction relating to the trade mark and trade name. Several aspects would have to be considered and weighed since the words trade mark, registered trade mark', 'trade description' and 'register proprietor' are defined and the procedure for registration is also contemplated under the Trade Marks Act, 1999. In this regard the Act and Rules made thereunder would indicate that before a trade mark is registered, a detailed procedure is contemplated including public notice and thereafter the trade mark is registered in favour of the applicant of which the applicant becomes the registered proprietor. Thus in respect of the trade mark or trade description, the owner of the same acquires a statutory right to own the same and a right to protect the same against infringement. Therefore, this statutory right given to such person would have to be now considered along with a common law remedy such as injunctions, damages etc. It is, in this context, the same requires a deeper analysis.
15. As such, considering" that there is a public notice and thereafter one becomes the registered proprietor of the trade mark or trade description, in law, the registration after following the procedure is in itself an injunction in rem against all persons from infringing or copying the same. That being so, the infringement or violation of the trade mark itself in its exact form or nearly similar would stand on a different footing. Hence, if a particular trade mark or trade description is violated and if it is clearly visible to the naked eye, when an action against the same is brought before a Civil Court seeking relief in that regard and in such a suit if an order of temporary injunction is sought. On the satisfaction of the Court prima facie that the very mark itself or description itself has been infringed on the face of it, nothing more requires to be looked into before granting an order of injunction since it is merely an act of formalising the statutory injunction granted by way of registration and making it an injunction in personam by exercising the discretion available under Order 39, Rules 1 and 2 of the Code of Civil Procedure, 1908. However, insofar as the injunctions being sought for in the case of infringements of a registered trade mark on the contention that the trade mark or description used by the defendant is deceptively similar, an element of common law remedy also creeps into the situation inasmuch as the infringement or violation would not be exactly similar but would be deceptively similar either visually or phonetically which would have to be decided based on evidence. But at the prima facie stage, the Court examining that aspect should also be satisfied that though not similar, it is deceptively similar to the infringed mark. In such an event though the Court may initially come to a prima facie conclusion that there is a triable issue yet there are chances that ultimately on trial, there could be a possibility of the Court coming to the conclusion that it is not deceptively similar based on the detailed consideration of the evidence available. That being so, in such a case, the view that it is a triable issue being only a prima facie view, the next two aspects with regard to the balance of convenience and irreparable injury requires a detailed consideration by the Court since the rival claims would have to be balanced out, at that stage, keeping in view the ultimate result which may go one way or the other. Hence in every individual case, a clear distinction will have to be drawn. For example, if a trade mark or description or name relating to a particular service, let us assume a courier service is registered and if the infringer also starts another courier service or related service with a similar trade mark, description or name or even the case of 'Laxman Rekha' and 'Magic Laxman Rekha' which was before the Hon'ble Supreme Court, a mere comparison is enough to grant an injunction since as noted above, in such case, the statute itself has injuncted any other person from using the same trade mark, description or name. On the other hand, if the trade mark registered is of a packed product being sold across the shelf and in such a case, no doubt if the trade mark, name and description are exactly similar, even in such a case, the statutory injunction only requires to be formalised. However, if the product is packed and both the product as well as packing are deceptively similar inasmuch as if the owner of the trade mark contends that it is phonetically and visually similar and if the same is denied by the defendant/alleged infringer, in such an event the statutory right of registration would no doubt come to the aid of registered proprietor of a trade mark for indicating a triable issue and the act of injuncting by the Court is not merely limited to formalising the statutory injunction but plaintiff would have to establish the other two aspects as well, namely, balance of convenience and irreparable injury to secure an order of temporary injunction. In such a case all the three aspects of the matter would require detailed consideration by the Court before either granting or refusing an order of injunction.
16. Thus keeping these aspects in view, what requires to be noticed in the instant case is, it is not a case of infringement of the trade mark itself, but is a case of using a trade mark which is allegedly deceptively similar. The expression 'deceptively similar1 is defined in Section 2(h) of the Trade Marks Act, 1999 to mean that a mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion. Hence in this background, no doubt the Court has come to a conclusion in the affirmative on the issue of prima facie case and I have also affirmed the same while discussing that aspect. Further, the Hon'ble Supreme Court in the case of Ramdev Food Products (Private) Limited, v. Arvindbhai Rainbhai Patel and Ors. has held:
In an action for infringement where defendant's trade mark is identical with the plaintiffs mark, the Court will not inquire whether the infringement is such as likely to deceive or cause confusion. The test therefore is as to likelihood of confusion or deception arising from similarity of marks, and is the same both in infringement and passing off actions.
In the said case, it was also held that it is equally settled that a person cannot use a mark which would be deceptively similar to that of a registered trade mark. However, in the said case the interpretation of the MOU was also involved.
17. In the case on hand, like in all other cases of interlocutory stage, the prima facie case is necessarily not after a mini trial but is only a conclusion that the plaintiff has made out a triable case. Therefore, such a case is not one of certainty as in the case of infringement of the trade mark or the copyright itself, but is a case of there being likelihood of causing confusion and deception. This aspect of the matter could be concluded only after a full dress trial. Hence, necessarily in a case of this nature, the Court would have to consider the issue of balance of convenience and iiTeparable injury keeping in view the statutory right, the greater chance of success of the plaintiff and balancing it with the harm that may be caused to the defendant if ultimately the plaintiff does not succeed.
18. On this aspect of the matter, the Hon'ble Supreme Court in the case of Wander Limited and Anr. v. Antox India Private Limited 1990 Supp. SCC 727, while considering the issue of discretion to be exercised by the Court while granting interlocutory injunction in a case of trade mark and passing off and also with regard to the scope of interference by the Appellate Court with regard to such exercise of discretion by the Court below, has held that usually the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The Court, at this stage, acts on certain well-settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The interlocutory remedy is intended to preserve in status quo, the rights of the parties which may appear on a prima facie case. The Court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations is somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted. The said observation of the Hon'ble Supreme Court would clarify that even after a prima facie case is made out, the well-settled principles of granting injunction such as balance of convenience and irreparable injury is to be adverted to in detail by the Court of first instance and if such discretion is exercised in the proper manner, the Appellate Court cannot interfere with the same lightly.
18.1 Similar view is also expressed in a judgment of this Court in the case of Mis. Cadila Laboratories. No doubt, that was a case of passing off. The said decision referred to by Sri Ramdas, learned Senior Counsel would also indicate that the discretion exercised by the Trial Court cannot be interfered with unless the same is either unreasonable or capricious or perverse. While saying so, the Court had also noticed another judgment of this Court in the case of Sri Gowrishankara Swamigalu v. Sri Siddhaganga Mutt . In the said decision, this Court had held that the existence of a prima facie case in the matter of granting injunction is really the harbinger or all clear sign to go ahead in investigating other aspects and questions governing the grant or refusal of injunction. This Court after saying so had said that the existence of prima facie case or even a very strong prima facie case does not permit leap frogging by the plaintiff directly to an injunction without crossing the other hurdles in between. The above decisions cited by the learned Counsel have been referred to by me only to consider as to whether the Court below has considered all the aspects before granting the injunction. Since, if there has been consideration of the same in view of the decisions cited supra there would be no discretion to this Court to interfere merely because it can do so. In that background, if the order impugned is perused, it is noticed that the Court below has not framed the points regarding balance of convenience and irreparable injury for its consideration except stating that the point that arises for consideration is whether the plaintiff is entitled for the relief as prayed in LA. No. I. Thereafter in conclusion the Court has merely stated that on perusal of the certificate produced by the plaintiff and other materials, it is crystal clear that the plaintiff has made out a. prima facie case and balance of convenience is also in favour of the plaintiff and thereafter has stated that if temporary injunction is not granted, the plaintiff will suffer irreparable loss. The order does not indicate any discussion as to how the Court has come to the conclusion that considering the prima facie case made out, the balance of convenience and irreparable injury are also in favour of the plaintiff. This aspect assumes importance in view of the judgments cited supra.
19. In the instant case, as already noticed the grievance is not with regard to the violation of trade mark itself but using deceptively similar trade mark. In this regard, the plaintiff has referred to several aspects to indicate regarding the popularity of their product, the amounts incurred towards advertisement and the reputation gained in the market. In this regard, even the report of the authority under the Trade Marks Act which has been looked into by the Court below indicates that in the prefix of the words 'tiny" and 'cozy1 even though the first two letters are different, the ending two letters are similar in pronunciation. Hence, there is likelihood of causing confusion and deception between the two marks because its trade mark, name, logo etc., are deceptively similar. Thus keeping in view the chance of this ultimately being-established whether the defendant should be injuncted during the pendency of the suit would also be relevant if the defence of the defendant is taken into consideration wherein they have sought to contend that even otherwise apart from the product of 'cozy care' of the defendant, there are several similar products such as 'child care', 'kids care', 'mini care', 'mother care' etc. This also forms one of the basis to, consider as to whether the balance of convenience is in favour of the plaintiff. Among other things one other aspect is that the suit itself was filed in the year 2005 and the order came to be passed on 5-4-2007. The Court can also assess to certain extent by seeking materials from both the paities with regard to the status which existed then and the present status which can also form a basis for issuing necessary orders during the pendency of the suit. I have only referred to these aspects to indicate that these aspects have not been gone into by the Court below and no discussion has been made with regard to the issue of balance of convenience or irreparable injury and is not an indication from this Court that it should be decided one way or the other. Therefore, on these aspects, there is nothing indicated in the order for this Court to examine as to whether such a conclusion is just and proper or as to whether there is perversity with regard to the finding on this aspect. Further, this being a miscellaneous first appeal against an interlocutory order; as already discussed in detail the scope being limited, this Court cannot for the first time assess the material on record and render a finding on this aspect and this would have to be done by the Court of the first instance alone. Hence, there being no discussion and analysis with regard to the question of balance of convenience and irreparable injury, the conclusion that the balance of convenience and irreparable injury is in favour of the plaintiff is without application of mind and the Court below has jumped to the conclusion which cannot be sustained. This aspect of the matter therefore requires to be reconsidered by the Court below, though I have agreed with the finding and conclusion of the Court below that a prima facie case and a triable issue is made out.
20. In the result, the following.--
ORDER
(i) The order dated 5-4-2007 passed on LA. No. 1 in O.S. No. 6576 of 2005 is set aside though the finding on prima facie case is affirmed. The appeal is accordingly allowed in part;
(ii) The matter is remitted to the Court below to restore LA. No. 1 on file and render its finding and conclusion on the balance of convenience and irreparable injury and thereafter pass orders on LA. No. 1;
(iii) All contentions of the parties in this regard are left open and the Court below shall consider that aspect on its own merit not being influenced by any of the observations made herein;
(iv) The learned Counsel for the parties shall appear before the Court below on 10-8-2007 without further notice. The Court below shall complete the exercise within two months thereafter. Registry to return the LCR forthwith;
(v) Parties to bear their own costs incurred in this appeal.