Zen Industries Pvt Ltd vs M/S Red Chillys Product on 17 October, 2012

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Karnataka High Court

Zen Industries Pvt Ltd vs M/S Red Chillys Product on 17 October, 2012

Bench: L.Narayana Swamy

                             1


IN THE HIGH COURT OF KARNATAKA AT BANGALORE

   DATED THIS THE 17TH DAY OF OCTOBER, 2012

                        BEFORE

  THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY

              R.F.A. NO. 2139/2011(IPR)

BETWEEN:

Zen Industries Pvt Ltd.,
Opposite Lapkaman lake,
At and post Lapkaman,
Taluka Dascroi,
Ahmedabad district
Represented by its
Director.                                 ... Appellant

(By Sri.Venkatesh D Pastay, Adv. for M/s Pastay Law
Assts.)

AND:

M/s Red Chilly's Product
A proprietary concern
At House No.5, 992/13,
Yadulla Colony,
Roza-K, Gulbarga-585104,
Represented by proprietor.              ...Respondent

(Notice to respondent d/w v/o dated 17/10/12)

                           ****

      This Regular First Appeal is filed under Section 96
of CPC., against the judgment and decree dated
15.09.2011 passed in O.S.No.25045/2009 on the file of
the XVIII Addl. City Civil Judge, Bangalore, dismissing
the suit for injunction.
                               2


     This appeal is coming on for Orders this day, the
Court delivered the following:-

                    JUDGMENT

The memo is filed by the appellant praying for dispensation of notice to respondent. The submission is that the respondent was placed exparte by the Court below. Hence, no fresh notice is required. The memo is filed under Order XLI Rule 14(4) of CPC. The memo is allowed.

2. The plaintiff had filed a suit in O.S.No.25045/2009 for the relief of injunction and damages for infringement of its trade mark. While passing the order of temporary injunction under Order 39 Rule 1 & 2 of CPC and on I.A.No.2 dated 07.02.2009, the trial court has recorded a finding to the effect that the mark 'mauj' adopted by the respondent is identical to the trade mark 'mauj' of the appellant".

3. In the evidence of PW.1 on behalf of the plaintiff, he has clearly deposed that "the product of the defendant No.1 is produced" which proves that the 3 plaintiff has produced the same trade mark. Which is alleged to have infringed his trade mark. The main ground on which the suit as against defendant No.1 is dismissed on the ground that trade mark of the defendant No.1 is not produced.

4. Under these circumstances, the order of the trial Court dated 15.09.2011 passed in so far as defendant No.1 in O.S.No.25045/2009 is liable to be set aside and the matter requires remittance for fresh consideration. The trial Court is directed to proceed on the basis of the documents already marked and to pass orders in accordance with law.

Sd/-

JUDGE Pv

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