Delhi High Court - Orders
Hulm Entertainment Pvt Ltd & Ors vs Sbn Gaming Network Private Limited & Ors on 11 October, 2023
Author: Yashwant Varma
Bench: Yashwant Varma, Dharmesh Sharma
$~53
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO (COMM) 209/2023
HULM ENTERTAINMENT PVT LTD & ORS.
..... Appellant
Through: Mr. Rajiv Nayar, Mr. Sandeep
Sethi, Mr Chander M. Lall and
Mr. Akhil Sibal, Sr. Advocates
with Mr. Sudeep Chatterjee,
Mr. Rohan Swarup, Ms. Tanya
Arora, Mr. Sanyam Suri, Mr.
Abhinav Bhalla, Ms. Yashi
Agrawal, Advs.
versus
SBN GAMING NETWORK PRIVATE LIMITED & ORS.
..... Respondent
Through: Mr. Raj Shekhar Rao, Sr. Adv.
with Mr. (Appearance not
given)
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
HON'BLE MR. JUSTICE DHARMESH SHARMA
ORDER
% 11.10.2023 CM APPL. 53051/2023 & CM APPL. 53052/2023 Exemption allowed, subject to all just exceptions. Applications shall stand disposed of.
FAO (COMM) 209/2023, CM APPL. 53050/2023(Interim Injunction), CM APPL. 53053/2023
1. This appeal is directed against an order dated 10 October 2023 in terms of which the learned Single Judge has refused to consider the grant of an ad interim injunction under Order XXXIX Rule 1 & 2 of This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/10/2023 at 14:29:51 the Civil Procedure Code, 19081 filed on behalf of the appellant / plaintiff without affording an opportunity to the respondent / defendant to respond to the said prayers. The aforesaid view has been taken primarily based upon the learned Judge's understanding of the order of the Court dated 21 August 2023 in Dabur India Limited vs. Emami Limited2.
2. The aforesaid view as expressed by the learned Single Judge appears to proceed on the assumption that Dabur India had laid down an inviolable rule that no ad interim or ex parte injunction should be granted before the respondent / defendant has been accorded a preliminary opportunity to respond. This is evident from the following observations as they appear in the impugned order: -
"4. A Division Bench of this Court has, in a recent decision in Dabur India Ltd. v. Emami Ltd. observed, in para 8 of the judgment, albeit in the context of trade marks that where the defendants have been using the impugned trademarks - in that case, the use was only for about two months before the suit was instituted - the Court should avoid passing any ad interim order without affording the defendant a chance to file a response to the interim application. This Court has been diligently following the said decision in various orders. No doubt, in cases where the Court is dealing with counterfeits, or spurious drugs, or where pre- eminent public interest not limited to the commercial interest of the plaintiff is involved, I have passed ad interim orders even ex parte. Para 8 of Dabur reads thus:
"8. Having conferred our thoughtful consideration on the rival submissions noticed above, we find that, undisputedly, the suit upon being presented on or about 02 August 2023 came up for consideration for the first time on 07 August 2023. The ad interim injunction came to be granted merely two days thereafter on 09 August 2023. Admittedly, and as per the plaintiffs / respondents own case, the product of the appellant / defendant had been introduced somewhere around May 2023. In our considered opinion, this fact alone warranted the appellants/defendants being accorded at least 1 Code 2 FAO(OS)(COMM) 171/2023 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/10/2023 at 14:29:51 a rudimentary opportunity to oppose the application which sought grant of ad interim injunction."
(Emphasis supplied)"
5. Having heard learned Senior Counsel for the parties, I am not of the opinion that the present case calls for any relaxation from the standard set by the Division Bench in para 8 of Dabur . Though learned Senior Counsel have emphasized the fact that the Cricket World Cup is presently going on and that this is the season when their business flourishes, this case cannot be compared with, for example, a case in which the games are streamed by unauthorised players without authority. This is a case in which the plaintiffs are involved in the business of internet gaming. The mere fact that the present season may be more profitable for them in view of the ongoing Cricket World Cup season, does not mean that grant of an opportunity to the defendants to respond to the plaintiffs' application would result in any irreparable prejudice to them."
3. Having heard learned senior counsels for respective parties, we find that the view as taken clearly appears to proceed on an apparent and incorrect understanding of the purport of the observations appearing in paragraph 8 of Dabur India. In Dabur India, the appellant / defendant had assailed the grant of ad interim relief in the backdrop of the fact that its product had been in the market since 2006 itself. It had also been urged in Dabur India that since the product of the respondent / plaintiff had been launched only recently, there existed no justification for the grant of ad interim injunctive reliefs.
4. On a consideration of the aforesaid, the Court in paragraph 11 of Dabur India had observed as follows: -
"11. All that we deem necessary to observe is that in light of the contentious issues which stood raised, the ends of justice would have warranted the learned Single Judge affording an opportunity to the appellant / defendant to oppose the application for grant of ad interim injunction by placing all relevant material on the record. This would have enabled the learned Single Judge to obtain a more holistic view of the dispute that arises. We are thus of the opinion that the circumstances merit the matter being remanded to the learned Single Judge for consideration of the ad interim injunction application afresh and after affording an opportunity to the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/10/2023 at 14:29:52 appellant / defendant to file a reply in opposition. Consequently, the impugned order would merit being set aside on this short ground alone."
5. As is manifest from the above, paragraphs 8 and 11 of Dabur India cannot possibly be construed as interdicting a court from considering the grant of ad interim or ex parte reliefs, if circumstances and the facts of that particular case so warrant. The conclusion of the learned Judge that Dabur India bids courts to "avoid" passing an ad interim order prior to the defendant being afforded an opportunity is clearly incorrect. This Court in Dabur India neither propounds such a rule nor does it enunciate such a "standard" as observed by the learned Single Judge. The learned Judge also appears to have erred in understanding Dabur India enunciating a rule that injunction must be refused if it be found that the infringing product has been on the market for some time. The observations made in this regard were liable to be appreciated bearing in mind the stand of the appellant there who had asserted that its product had been in the market since 2006.
6. The Court was constrained to interfere with the order which formed the subject matter of challenge in Dabur India in the facts that obtained therein and upon it coming to the conclusion that the learned Single Judge had clearly failed to ascribe or record reasons which would have justified the grant of ad interim injunction. One cannot possibly dispute or question the requirement of reasons being recorded in support of the imperatives underlying the grant of ex parte or ad interim injunctions. As the learned Judge rightly observes in the order impugned before us, there may be myriad situations such as counterfeiting, marketing and distribution of spurious drugs, harm to This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/10/2023 at 14:29:52 public interest or detriment to the commercial interests of a plaintiff, to name a few, which may warrant the issuance of ex parte or ad interim injunctive reliefs. Ultimately, the grant of an injunction would have to be evaluated on the facts and circumstances of each case. All that need be observed is that Dabur India neither propounds a "test" nor did it lay down a "standard" against the grant of injunction, ex parte or ad interim.
7. In view of the above and since we are of the considered opinion that the order of the Division Bench in Dabur India has been clearly misconstrued, we set aside the order dated 10 October 2023 and remit the injunction application to the learned Single Judge for considering the issue afresh and in light of the observations appearing hereinabove.
8. List the application under Order XXXIX Rule 1 & 2 of the Code before the learned Single Judge on 12.10.2023. The date already fixed i.e., 06 November 2023 shall stand cancelled.
9. The appeal along with pending applications, if any shall consequently stand disposed of on the aforesaid terms.
10. All rights and contentions of respective parties are kept open.
11. Dasti YASHWANT VARMA, J.
DHARMESH SHARMA, J.
OCTOBER 11, 2023 neha This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/10/2023 at 14:29:52