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Disposafe Health And Life Care Limited vs Hindustan Syringes And Medical Devices ... on 16 March, 2021

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw, Amit Bansal

                          $~16
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +    FAO (COMM) 65/2021
                               DISPOSAFE HEALTH AND LIFE CARE LIMITED ..... Appellant
                                             Through: Mr. Arvind Nayar, Sr. Advocate with
                                                      Mr. Hemant Daswani, Mr. Anmol
                                                      Saxena and Mr. D. Banerjee,
                                                      Advocates.

                                             versus
                                HINDUSTAN SYRINGES AND MEDICAL DEVICES LIMITED
                                & ORS.                                 ..... Respondents
                                             Through: Mr. Peeyoosh Kalra, Ms. V. Mohini
                                                      and Mr. Udayvir Rana, Advocates for
                                                      R-1.
                                                      Ms. Anju Agarwal, Advocate for R-2
                                                      and R-3.

                               CORAM:
                               HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                               HON'BLE MR. JUSTICE AMIT BANSAL
                                           ORDER

% 16.03.2021 C.M. Nos.28685/2020 & 28686/2020 (for exemption)

1. Allowed, subject to just exceptions and as per extant rules.

2. The applications are disposed of.

FAO (COMM) 65/2021 & C.M. No.28687/2020 (for condonation of delay) 3 This appeal impugns the order dated 11th February, 2020 of the Commercial Judge in CS (Comm.) No.443/2019, allowing the application of the respondent/defendant No. 1 under Section 10 of the Code of Civil Procedure, 1908 (CPC) and staying further proceedings in the suit and declining to grant interim injunction sought by the appellant/plaintiff.

4 Neither is the order on the application under Section 10 of the CPC of the respondent/defendant No.1 appealable under Section 13 of the Commercial Courts Act, 2015 read with Order XLIII of the CPC nor has the appellant/plaintiff impugned the order insofar as staying the further proceedings in the suit. Rather, the senior counsel for the appellant/plaintiff specifically states that the appellant/plaintiff is not aggrieved from the order staying further proceedings in the suit. The contention of the senior counsel for the appellant/plaintiff however is that the Commercial Judge, in the impugned order, has refused to decide the application under Order XXXIX Rules 1 and 2 of the CPC. It is argued that stay of suit under Section 10 of the CPC is not a bar to deciding the application for interim relief in the suit. 5 There can be no dispute with the aforesaid proposition of law. However, what we find in the present case is that the Commercial Court, for the reasons given, has declined to allow the application of the appellant/plaintiff under Order XXXIX Rules 1 and 2 of the CPC and/or to grant any interim injunction to the appellant/plaintiff. 6 The senior counsel for the appellant/plaintiff, in this context has informed, (i) that prior to filing of the subject suit, the appellant/plaintiff had filed a suit in this Court, to restrain the respondents/defendants from passing of its goods under the mark 'DISPOSAFE', as those of the appellant/plaintiff under the same mark 'DISPOSAFE'; (ii) that the respondent/defendant No.1 filed a suit in this Court, to restrain the appellant/plaintiff from infringing the marks 'DISPOCANN', 'DISPOVAN' and all other 'DISPO' formative marks; and (iii) that it is thereafter that the appellant/plaintiff instituted the suit from which this appeal arises to restrain FAO (COMM) 65/2021 Page 2 of 5 Signature Not Verified Signed By:MAMTA ARYA Signing Date:18.03.2021 18:22:59 the respondents/defendants from passing of its goods as that of the appellant/plaintiff under the marks 'DISPOFLON', 'DISPONEO ALPHA', 'DISPOWAY' and 'DISPOWAY PLUS'.

7. The argument of the senior counsel for the appellant/plaintiff is, that in the second suit filed by the appellant/plaintiff with respect to 'DISPOFLON', 'DISPONEO ALPHA', 'DISPOWAY' and 'DISPOWAY PLUS', the appellant/plaintiff was/is entitled to consideration of the application for interim injunction inasmuch as the earlier suit filed by the appellant/plaintiff was with respect to 'DISPOSAFE' only.

8. A reading of paragraphs 11 and 34 of the impugned order shows the Commercial Judge to have reasoned, that marks 'DISPOFLON', 'DISPONEO ALPHA', 'DISPOWAY' and 'DISPOWAY PLUS' were part of pleadings of the suits pending in this Court, and it is not appropriate for the Commercial Court to pass any order, as this Court has already passed orders/judgments in respect of applications for interim relief of the parties in suits pending before this Court and there was no justification for the Commercial Court to pass an order on the interim application in the suit before it.

9. The same, as per our reading, amounts to declining the application for interim injunction by the appellant/plaintiff. Moreover, even if there is any ambiguity as to the said aspect, once from the substance of the impugned order, it is clear that the Commercial Judge has declined the interim injunction sought, though not used the expression 'dismissed the application', the present day litigation structure does not permit this Court, owing to the said ambiguity, remand the matter to the Commercial Court for FAO (COMM) 65/2021 Page 3 of 5 Signature Not Verified Signed By:MAMTA ARYA Signing Date:18.03.2021 18:22:59 a decision afresh on the injunction application. Ping pong cannot be played or permitted to be played with or by litigants.

10. We have thus asked the senior counsel for the appellant/plaintiff to address us on why the reasoning aforesaid of the Commercial Judge, of declining interim injunction, is faulty.

11. The senior counsel for the appellant/plaintiff states that he had only prepared for arguing, that stay of suit under Section 10 of the CPC does not come in the way of the consideration of the application for interim injunction and on instructions, further states that rather no grounds also in the appeal are framed with respect to denial of injunction; liberty is sought to amend the pleadings.

12. We have enquired the objection, if any, of the counsel for the respondents/defendants appearing on advance notice.

13. The counsel for the respondent/defendant No.1 states that contentions made on behalf of the appellant/plaintiff and as recorded above, are factually inaccurate.

14. In the facts and circumstances, it is felt that rather than adjourning this appeal for amendment of memorandum of appeal, it will be appropriate to dispose of this appeal with liberty to the appellant/plaintiff to, if so desires, on the same cause of action, file a fresh appeal impugning the denial of interim injunction.

15. The appeal is disposed of with liberty aforesaid.

16. It is made clear that all objections as available in law to the respondents/defendants shall remain open.

RAJIV SAHAI ENDLAW, J AMIT BANSAL, J MARCH 16, 2021 A FAO (COMM) 65/2021 Page 5 of 5 Signature Not Verified Signed By:MAMTA ARYA Signing Date:18.03.2021 18:22:59