Gujarat High Court
Shrijee Industries Through Proprietor vs Shree Laxmi Industries A Proprietory ... on 8 March, 2017
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/4444/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4444 of 2017
=============================================
SHRIJEE INDUSTRIES THROUGH PROPRIETOR....Petitioner(s)
Versus
SHREE LAXMI INDUSTRIES A PROPRIETORY BUSINESS OF....Respondent(s)
=============================================
Appearance:
MR KALPESH C PATEL, ADVOCATE for the Petitioner(s) No. 1
MR PRATIK Y JASANI, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1
=============================================
CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 08/03/2017
ORAL ORDER
1. Rule. Mr. Pratik Y. Jasani, learned advocate waives service of notice of notice of Rule on behalf of respondent.
2. With consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing.
3. By way of the present petition, the petitioner has prayed as under:
"[A] That this Hon'ble Court be pleased to issue a writ of certiorari or any other writ order or direction and be pleased to quash and set aside the impugned order dated 19.01.2017 passed by the Hon'ble Chmaber Judge, City Civil Court, Ahmedabad and be further pleased to allow the application filed by the petitioner below Exh. 21 and 22 in Regular Civil Suit No. 297 of 2014.
[B] Pending the hearing and final disposal of the petition, this Hon'ble Court be pleased to stay the order dated 19.01.2017 passed by the Hon'ble Chamber Judge, City Civil Court, Ahmedabad and be pleased to stay further proceedings of the Regular Civil Suit No. 297 of 2014. "
4. That the present petitioner filed Special Civil Suit No. 3264 of 2013 in the Court of City Civil Judge, Ahmedabad and prayed for Page 1 of 4 HC-NIC Page 1 of 5 Created On Thu Mar 30 01:50:27 IST 2017 1 of 5 C/SCA/4444/2017 ORDER permanent injunction restraining the defendant from using the identical trademark / trade name MARSHAL or any name which is deceptively similar to the trademark MARSHAL amounting to passing off of the defendants' good as those of the plaintiff.
5. During pendency of the said suit, the defendant of the said suit i.e. present respondent herein filed Regular Civil Suit No. 297 of 2014 in the Court of City Civil, Ahmedabad and prayed for permanent injunction restraining the original defendant by a perpetual injunction order of this Hon'ble Court from manufacturing, marketing, selling, stocking and advertising his flour mills and parts and fittings thereof as also in respect of any other machinery goods viz. Kandap Machine, Sewai Machine, Rasvanti Machine, Pulverizers and Masala Machineries's and other like goods by adopting and / or using the impugned mark MARSHAL in any manner and / or any other identical and / or deceptively similar name / mark containing and consisting of the word MARSHAL and thereby infringing the statutory rights of the registration in the registered trade mark MARSHAL under No. 1316586 of the plaintiff and also prayed different reliefs.
6. The petitioner, who has filed the present suit being Special Civil Suit No. 3264 of 2013, submitted an application under Section 10 read with Section 151 of the Code of Civil Procedure, 1908 requesting the trial Court to stay the subsequent suit being Regular Civil Suit No. 297 of 2014 filed by the present respondent. However, the application submitted by the present petitioner under Section 10 read with Section 151 of the Code of Civil Procedure, 1908 came to be rejected by the trial Court vide order dated 19.01.2017 passed below Exh. 21 and 22 in Regular Civil Suit No. 297 of 2014. Therefore, the petitioner filed this petition.
Page 2 of 4HC-NIC Page 2 of 5 Created On Thu Mar 30 01:50:27 IST 2017 2 of 5 C/SCA/4444/2017 ORDER
7. Mr. K.V.Shelat, learned advocate appearing for the petitioner, would submit that the trial Court has committed error in passing the order without dealing the case on hand. By taking me through the order, he would submit that the arguments advanced by the learned advocate for the respondent original defendant have been dealt with in detail and therefore, the same is required to be quashed and set aside.
8. On the other hand, Mr. Pratik Y. Jasani, learned advocate appearing for the respondent, opposed this petition and submitted that the suits have been filed under different provisions of the Trademark Act and therefore, the trial Court has rightly rejected the dealt with the suits and therefore, no interference of this Hon'ble Court is required in the impugned order dated 19.01.2017 passed by the trial Court.
9. I have heard learned advocates appearing for the respective parties and considering the use of trademark "MARSHAL" and various claiming by the respective parties of both the suits and the reasons assigned by the trial Court, I am of the opinion that the following order would meet the end of justice:
[i] The order dated 19.01.2017 passed below Exh. 21 and 22 in Regular Civil Suit No. 297 of 2014 is hereby quashed and set aside.
[ii] However, Regular Civil Suit No. 297 of 2014, which has been filed the present respondent original defendant subsequent to filing of the suit being Special Civil Suit No. 3264 of 2013 by the present petitioner, shall be transferred in the Court of the Judge, who is dealing with Civil Suit No. 3264 of 2013. The trial Court shall proceed with both the Page 3 of 4 HC-NIC Page 3 of 5 Created On Thu Mar 30 01:50:27 IST 2017 3 of 5 C/SCA/4444/2017 ORDER suits i.e. Special Civil Suit No. 3264 of 2013 filed by the present petitioner original plaintiff and Regular Civil Suit No. 297 of 2014 filed by the present respondent original defendant as well as application submitted by each of the party under Order 39 Rule 1 and 2 of the Code.
10. It is hereby made clear that this Court has not dealt with the contentions raised by the both the parties and it would be open for the either party to file appropriate application with regard to the rights arising from the Trademark Act including application under Section 124 of the Trademark Act.
11. Rule made absolute to the aforesaid extent. Direct service is permitted.
(A.J.DESAI, J.) *Kazi...
Page 4 of 4HC-NIC Page 4 of 5 Created On Thu Mar 30 01:50:27 IST 2017 4 of 5 C/SCA/4444/2017 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.4444 of 2017 [On note for speaking to minutes of order dated 08/03/2017 in C/SCA/4444/2017 ] ============================================= SHRIJEE INDUSTRIES THROUGH PROPRIETOR....Petitioner Versus SHREE LAXMI INDUSTRIES - A PROPRIETORY BUSINESS OF....Respondent ============================================= Appearance :
MR KALPESH C PATEL, ADVOCATE for the Petitioner. MR PRATIK Y JASANI, ADVOCATE for the Respondent. ========================================= ==== CORAM : HONOURABLE MR.JUSTICE A.J.DESAI Date : 29/03/2017 ORAL ORDER The present note for speaking to minutes has been filed on behalf of the petitioner stating therein that while passing the order dated 8.3.2017 by this Court, through inadvertent mistake, the name of advocate for the petitioner is mentioned as K.V. Shelat instead of Mitul K. Shelat. Hence, the same may be corrected.
I have perused the note for speaking to minutes. Accordingly, the same is allowed. Name of Mr. Mitul K. Shelat be mentioned in the order dated 8.3.2017 as advocate appearing for the petitioner instead of Mr. K.V. Shelat. Necessary correction be made in the order dated 8.3.2017 forthwith.
(A.J.DESAI, J.) Savariya Page 1 of 1 HC-NIC Page 5 of 5 Created On Thu Mar 30 01:50:27 IST 2017
5 of 5