Calcutta High Court
Shree Ganesh Besan Mill And Ors vs Ganesh Grains Limited on 7 April, 2021
Author: I. P. Mukerji
Bench: I. P. Mukerji, Md. Nizamuddin
OC - 2
ORDER SHEET
APOT 62 OF 2021
WITH
CS 92 OF 2020
GA 1 OF 2021
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
(Commercial Division)
SHREE GANESH BESAN MILL AND ORS.
Versus
GANESH GRAINS LIMITED
BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI
The Hon'ble JUSTICE MD. NIZAMUDDIN
Date : 7TH April, 2021.
Appearance:
Mr. Manish Biala, Adv.
Ms. J. Chowdhury, Adv.
Mr. A. Upadhyay, Adv.
Ms. R. Seal, Adv.
...For the appellant
Mr. Ranjan Bachawat, Sr. Adv.
Mr. D. Ghosh, Adv.
...For the respondent
The Court : Leave is granted to the advocate-on-record for the appellants to incorporate in the Memorandum of Appeal the certified copy of the order dated 17th March, 2021 correcting the impugned judgment and order dated 15th March, 2021.
Leave sought by the appellants to file a supplementary affidavit bringing on record some additional papers is refused. The request to entertain those documents can only be considered if a proper application under Order 41 Rule 27 of the Civil Procedure Code is made before the Court upon notice to and service upon the respondent.
This appeal from the judgement and order dated 15th March, 2021 made by a learned single judge of this Court in an interim application taken out by the respondent/plaintiffs, restraining the appellants/defendants from using the mark "GANESH", is formally admitted.
2
We are of the opinion that the appeal should be expeditiously heard out dispensing with all formalities.
As the respondent is appearing by learned counsel, issuance and service of the notice of appeal are dispensed with.
Let informal paper books be filed by learned advocate-on-record for the appellants by 20th April, 2021, serving a copy thereof upon the advocate-on-record for the respondent at least seven days before the date of hearing of the appeal.
We find that in the impugned judgement and order, the learned single judge giving reasons has held that the respondent is the owner of the registered word mark "GANESH" and that the appellants could not show prior use of this mark to make any claim of concurrent user of this mark with the respondent.
At the interim stage, these findings are undoubtedly prima facie. Normally, the appeal Court does not interfere with such prima facie reasoned findings of fact arrived at by the Court below, unless, the findings are absolutely perverse. Far less is the scope of the Appeal court to interfere with those findings at this stage of admission of the appeal.
In those circumstances, we decline to pass any order of stay. All observations are prima facie.
The stay application (GA No.1 of 2021) is, accordingly, disposed of.
List the appeal (APOT No.62 of 2021) "For Hearing" on 5th May, 2021.
(I. P. Mukerji, J.) (Md. Nizamuddin, J.) A Dey