Delhi High Court
Paramount Surgimed Limited vs Paramount Bed India Private Limited & ... on 25 May, 2017
Equivalent citations: AIR 2018 (NOC) 67 (DEL.), 2017 (6) ADR 245 (2017) 241 DLT 319, (2017) 241 DLT 319
Author: Indermeet Kaur
Bench: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on :19.05.2017
Judgment delivered on : 25.05.2017
+ CS(COMM) 222/2017
PARAMOUNT SURGIMED LIMITED
..... Plaintiff
Through Mr. Amit Sibal, Sr. Adv. with Ms.
Bitika Sharma, Mr. Kapil Midha, Mr.
Tahir Ashraf Siddiqui, Mr. Rahul
Kumar, Mr. Rohan and Ms. Isha
Tyagi, Advs.
versus
PARAMOUNT BED INDIA PRIVATE LIMITED & ORS
..... Defendants
Through Mr. Sudhir Chandra, Sr. Adv. with
Mr.Pravin Anand, Ms.Tusha Malhotra
and Mr. Kanak Bose, Advs.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
I.A. No.3682/2017 (under Order XXXIX Rules 1 & 2 of the Code) & I.A. No.4425/2017 (under Order XXXIX Rule 4 of the Code) in CS(COMM) 222/2017 CS (COMM) 222/2017 Page 1 of 22 1 The plaintiff Paramount Surgimed Limited is a company duly incorporated under the Indian Companies Act. The products of the plaintiff are manufactured and sold under the mark and name „PARAMOUNT‟ which is also the prominent part of the corporate name of the plaintiff company. These includes surgical blades, disposable scalpels, stitch cutters, skin graft blades etc. In para 6 of the plaint, it has been stated that the plaintiff company is also manufacturing, exporting and supplying intensive care hospital beds in India through its sister concern M/s United Poly Engineering Pvt. Ltd. which was established in the year 1980. The products of the plaintiff are being exported to over 50 countries. The word „PARAMOUNT‟ was first adopted by the plaintiff in the year 1993 as part of its corporate name. It is the registered proprietor of mark label „PARAMOUNT‟ under clause 10 (surgical, medical, dental etc.) as also in class 20 (furniture, mirrors, picture frames etc.) and its first registration dates back to 14.01.2000. The details of 15 registrations of the plaintiff are contained in para 13 of the plaint. The plaintiff company has spent a considerable amount of money in promoting and advertising its trademark „PARAMOUNT‟ and the details of the expenditure is contained in para 18. It‟s is sale turnover is given in para 19. All these submissions are supported CS (COMM) 222/2017 Page 2 of 22 by the documents. Contention of the plaintiff is that he is the prior adopted user and lawful owner of the trademark/name „PARAMOUNT‟. 2 Defendant No.1 is a company incorporated in the year 2012 under the Indian Companies Act. Defendant No.2 is a foreign company incorporated under the laws of Japan. It is engaged in manufacturing, selling, exporting hospital beds under the trademark „PARAMOUNT‟. Defendants No. 3 to 5 are the directors of defendant No.1. The defendants have recently adopted and started using trademark/label „PARAMOUNT‟ of the plaintiff as their trade name in relation to their impugned goods and are carrying out the impugned activities in India. In the month of February, 2017 when the distributors of the plaintiff addressed a letter to them information was disclosed that the plaintiff had „recently launched a range of hospital beds; this was then was inquired into. Adoption of the trade name „PARAMOUNT‟ which is the registered mark of the plaintiff by the defendant is dishonest; the defendants are riding upon the goodwill and reputation of the plaintiff which he has built over the years. 3 In the year 2012, vide a letter dated 20.03.2012, defendant No.2 was directed to file a response to the notice of opposition dated 01.04.2009 filed by the plaintiff; no response was received from the defendants. The use of CS (COMM) 222/2017 Page 3 of 22 the mark „PARAMOUNT‟ by the defendants which is identical and deceptively and confusingly similar to the plaintiff‟s mark has caused an irreparable loss and injury to him. A prima-face case is made out in favour of the plaintiff as the reputation of the plaintiff has been tarnished by this dishonest adoption of the user of his trade name by the defendants. Balance of convenience is also in his favour. He has accordingly filed the present suit and had prayed for an ad-interim ex-parte order.
4 On 23.03.2017, an ex-parte order had been passed in favour of the plaintiff. The said order reads herein as under:-
"The defendants, its directors, principal officers, assignees, affiliates, associates, partners, family members and anyone acting for and on their behalf, etc. are restrained till the next date of hearing from providing and offering goods, distributing, advertising directly or indirectly dealing in identical or allied/cognate goods under the impugned trade mark/trade name/corporate name or domain name comprising of the mark PARAMOUNT or any other mark which is deceptively similar to that of the plaintiffs in violation of the plaintiffs‟ right in the trade mark PARAMOUNT causing infringement/passing off in respect of any products or services whatsoever.
5 Learned senior counsel for the plaintiff points out that the defendants were restrained vide this order from dealing not only in identical but also in CS (COMM) 222/2017 Page 4 of 22 allied/cognate goods under the impugned trademark/name „PARAMOUNT‟. The conduct of the defendant however shows that he is not honest; admittedly he had been served of these proceedings on 03.04.2017 yet he chose to receive a consignment of hospital beds at the custom house at Tughlakabad on 07.04.2017 and 13.04.2017. The defendant deliberately chose to move an application seeking modification of the order dated 23.03.2017 on 13.04.2017 and the order stood modified on 21.04.2017; yet even before 21.04.2017, the defendants have flouted the interim order dated 23.03.2017 by accepting the consignment of hospital beds at the aforenoted two dates i.e. 07.04.2017 and 13.04.2017.
6 The averments contained in the application under Order XXXIX Rule 4 of the Code filed by the defendants have been perused. The contention of the defendants is that the plaintiff has obtained the ex-parte order in his favour on 23.03.2017 by concealing material facts. The submission of the plaintiff in his plaint that he has only recently learnt about the activity of the defendant for the sale of hospital beds is a complete mis-statement. The plaintiff was very much aware of the defendants and this is clear from the fact that pursuant to the trademark application filed by the defendant seeking registration of his trademark „PARAMOUNT‟ on 25.4.2007; the plaintiff CS (COMM) 222/2017 Page 5 of 22 filed his opposition which was in the year 2009. The plaintiff was thus even in the year 2009 aware that the defendant had sought registration of the trade name „PARAMOUNT‟ for the sale of hospital beds. In the year 2012, the parties were in active negotiations with one another and e-mails exchanged inter-se the lawyer of the defendant and his client in Japan as also an e-mail exchanged between the defendant and the advocate for the plaintiff clearly show that the plaintiff was well aware of the fact that the defendant was in the market for the sale of hospital beds. Thus the submission of the plaintiff that it was only in February, 2017 that he learnt about the activities of the defendant is clearly a wrong statement and the plaintiff is not entitled to any equitable relief from this Court. The defendants have been prior users of the mark „PARAMOUNT‟ which they have adopted as early as in the year 1950 and it has a registration of this trademark in over 20 countries. The plaintiff registration of the mark „PARAMOUNT‟ is in fact dishonest. The plaintiff has not come into the market for the sale of hospital beds and although he may have been registered in class 10 and class 20 but there is no document to show that he is selling hospital beds. In the context of this submission, a query has been put to the learned senior counsel for the plaintiff who has placed reliance upon invoices/sale figures which evidence that he had sold CS (COMM) 222/2017 Page 6 of 22 hospital beds. A perusal of these invoices shows that there are five sale figures which show sale of five single beds in the year 2007 in one year. These documents further show that in the year 2008, four beds have been sold; in the year 2009, five beds have been sold; in the year 2010, five beds have been sold; in the year 2017, two beds have been sold. 7 The contention of the defendant being that his presence has been widely felt; although defendant No.2 is a company incorporated under the laws of Japan but his trans-border reputation has travelled to various parts of the world i.e. Brazil, Vietnam, Singapore and India. His advertisement campaign in India is substantiated and to advance this submission, he has placed on record newspaper clipping of "The Hindu" and another regional newspaper of the year 2007. The sale of 50 beds at Lazarus Hospital, Hyderabad was effected on 02.03.2010. The defendant has also placed on record his audited balance-sheet for the year 2013-2014 to evidence his business promotions which as per these figures has escalated over the years; these business promotions are nothing but the advertisement campaign which the defendant has undertaken for the promotion for the sale of his beds. Learned senior counsel for the defendants points out that besides the expenditure incurred on business promotion, the domestic sales for the CS (COMM) 222/2017 Page 7 of 22 period from 13.01.2013 reflects that the sale figures have gone up and the initial figure of Rs.2,11,00,000/- for the year ending 31.03.2015 has now escalated to more than Rs.3.5 crores.
8 Learned senior counsel for the defendants additionally points out that the conduct of the plaintiff is reflective of his dishonesty and this he has tried to demonstrate by certain documents allegedly downloaded from the website of the plaintiff. It is pointed out that in the documents downloaded on 11.04.2017, the articles which were being sold by the plaintiff company have all been detailed but there is no mention of „hospital beds‟; he has changed the sale products on his website and the downloaded a document on 22.04.2017 which shows that apart from the aforenoted articles which the plaintiff was selling on 11.04.2017, he has added „hospital beds‟; this is only to overcome the query which had been raised by the Court on 21.4.2017 which was as to whether the plaintiff was really in the sale of hospital beds or not.
9 On behalf of the plaintiff, arguments have been addressed by Mr. Amit Sibal, learned senior counsel. Learned senior counsel for the plaintiff has placed reliance upon a judgment of the Division Bench of this Court RFA (OS) 62/2016 Prius Auto Industries Ltd and Others Vs. Toyota Jidosha CS (COMM) 222/2017 Page 8 of 22 Kabushiki Kaisha. It is pointed out that where the mark of the plaintiff is registered as is so in the instant case, unless and until, the defendant is able to prima-facie show that he has a trans-border reputation and his reputation and goodwill built up in a foreign country has travelled to India, he cannot dislodge the plaintiff‟s registered trademark; in the instant case, he has failed to do so. There is no trans-border reputation of the defendant which has travelled to India; the defendant has failed to show any document to the said effect. Reliance has been placed upon a judgment of this Court titled as Roca Sanitario S.A. Vs. Naresh Kumar Gupta in CS (OS) No.626/2006 delivered on 15.03.2010. This is also to support the same submission that the defence of a travel of transborder reputation is not made out by the defendant. Reliance has also been placed upon MANU/MH/1162/2007 M/s Kores (India) Limited Vs. M/s Whale Stationery Products Ltd. to support the same submission.
10 Learned senior counsel for the defendant submits that what would be relevant in the facts of the instant case would be as to who had first entered into the market; submission is that the defendant has shown that he has been in this market since the year 1993; he has been selling his products in India since the year 2007 and has made his presence felt since then. The CS (COMM) 222/2017 Page 9 of 22 newspaper articles as also the advertisement campaign of the defendants shows that he has been recognized as a name as way back as in the year 2007 and the plaintiff was well aware of his presence and this is clear from the fact that he has filed his opposition to the application seeking registration of the defendant as way back as in the year 2009; the suit filed in 2017 averring that it was only in February, 2017 that the plaintiff learnt about the presence of the defendant in the market is a clear case of suppression of material facts for which the plaintiff is not entitled to any equitable relief. Reliance has been placed upon Columbia Sportwear Company Vs. Harish Footwear & Anr in CS (COMM) 1611/2016 decided on 28.04.2017 to support a stand that unless and until the plaintiff comes to the Court with honest hands and where he is guilty of suppression of material facts, he is not entitled to any relief. Learned senior counsel for the defendants has also placed reliance upon 2004 (28) PTC 585 (SC) Milment Oftho Industries and Others Vs. Allergen Inc. as also Intex Technologies (India) Ltd & Anr. Vs. M/s AZ Tech (India) & Another in FAO (OS) No.1/2017 delivered on 10.03.2017. Submission being that in this case also where the plaintiff had a registered mark and the defendant was un-registered yet the business of the defendant having grown over the years and the plaintiff not having objected to the CS (COMM) 222/2017 Page 10 of 22 same, it was a clear case of acquiescence and the interlocutory injunction had been refused to the said plaintiff.
11 Arguments have been heard. Record has been perused.
12 Record shows that defendant No.1 was a company incorporated in India in the year 2012. Defendant No.2 was incorporated under the laws of Japan and since 1987 is in the business of manufacture, sale and export of hospital beds under the trademark „PARAMOUNT‟. Defendant No.1 company commenced business in India i.e. sale of hospital beds after its incorporation in the year 2012; yet the record shows that the presence of the defendant was recognized as way back as in the year 2007 when amongst other publications the article in the "New Indian Express" having a 60,000 circulation and "The Hindu" having a countrywide circulation reflected the commendable work of the defendant. The letter written by the Lazarus Hospital (30.10.2002) to defendant no.2 was a provisional order for these beds as way back as in the year 2002. The invoices of the defendant placed on record one of which is for a supply of 50 beds to Lazarus Hospital, Hyderabad in the year 2010 also advances this submission. These substantiate the submission of the defendant that he had been proposing his business of the sale of hospital beds under the name of PARAMOUNT in CS (COMM) 222/2017 Page 11 of 22 India since the year 2002; his publicity campaign dates back to the year 2007; his actual sales were effected from the year 2010 onward. The business promotion campaign of the defendant which had an expenditure of Rs.4.45 lacs in the year 2013 had also expanded to more than Rs.4.35 lacs in the year 2013 and was escalating over the years. The revenue from its domestic sales which in the year ending 31.3.2015 was more than Rs.2.2 crores had jumped to more than Rs.3.5 crores in the year ending 31.3.2016. PARAMOUNT had become a recognized figure in India; the goodwill and reputation of PARAMOUNT selling beds to hospitals in the Indian territory had become recognized. Its trans-border reputation had permeated into this country. The negative covenant expressed by the plaintiff on this count, in the view of this Court at this stage would not operate in his favour as the documents of the defendant prima facie weigh heavier in the scale of balance; the submissions of the plaintiff that he was prior seller of hospital beds not being borne out from any document of substance this submission can only be decided at the time of trial.
13 The fact that the plaintiff had filed an opposition IN THE YEAR 2009 to the trademark application of the defendant (25.04.2007) seeking registration of the trademark „PARAMOUNT‟ is also a matter of record. CS (COMM) 222/2017 Page 12 of 22 This substantiates the fact that the plaintiff was well aware that the defendant was proposing to get itself registered with the trade name „PARAMOUNT‟ for the sale of hospital beds. This was in the year 2009. The e-mail communications exchanged inter-se between the Advocate of the plaintiff and defendant No.1 followed by another e-mail communication dated 20.10.2012 further reflect that the lawyer of the plaintiff himself was also in active negotiation with the defendant on the possibility of a settlement qua the defendant‟s application seeking registration of his trade name „PARAMOUNT‟. Plaintiff was thus fully aware of the presence of the defendant in the Indian market.
14 The submission of the plaintiff in his plaint that it was only in February, 2017 that he learnt about the presence of the defendant in the Indian market is thus clearly a mis-statement of fact. Plaintiff has not come to the Court with clean hands.
15 A statement has been made by the learned senior counsel for the plaintiff that delay and acquiescence by itself may not be a ground for an owner of a registered trademark to get his claim defeated; this Court being conscious of this fact is yet of the view that this is not a case simplicitor of delay in approaching the Court. This is a case where the plaintiff by his CS (COMM) 222/2017 Page 13 of 22 conduct has expressly displayed that he has approached the Court with a dishonest mind. His submissions in the plaint to say the least are prima-facie incorrect. The knowledge that the plaintiff had of the defendant being in the Indian market on the admitted record dates back to the year 2009 and not in February, 2017 as has been stated by him in the plaint. Equitable considerations have to be weighed on the same balance qua a registered mark holder in contrast to an un-registered mark holder. These considerations would necessarily change if the Court prima-facie concludes that the conduct of the plaintiff is lacking in fairplay. This Court holds this argument against the plaintiff.
16 The additional submission of the defendant on this count is that the plaintiff is guilty of dishonesty and such a litigant is not entitled to any discretionary relief. To substantiate this argument the defendant points out that the plaintiff to overcome a query raised by this Court on 21.04.2017 had changed the items sold by him on his website (downloaded on 11.04.2017) and was qualified by the additional feature of the sale of the hospital beds on the subsequent downloaded document of 22.04.2017. This submission has not really been denied by the plaintiff. The plaintiff has not denied that on 11.04.2017, his website showed the sale of various items relating to CS (COMM) 222/2017 Page 14 of 22 healthcare products yet the sale of hospital beds was conspicuously absent. On 21.04.2017, this Court in its order had raised a categorical query to the plaintiff as to whether he was in sale of hospital beds, he had stated that he would take appropriate instructions from his client. A document downloaded from the website of the plaintiff on 22.04.2017 showed that hospital beds was added as a feature which was not there in the earlier downloaded document of 11.04.2017 (from the website of the plaintiff). This is reflective of the unsavoury conduct of the plaintiff.
17 In 155 (2008) DLT 56 Warner Bros. Entertainment Inc. & Anr. Vs. Harinder Kohli & Others a Bench of this Court, in this context, had held as under:-
"29. It is the settled position both in law and in equity that a deliberate suppression of material facts, viewed singularly or coupled with blatantly false assertions, so far as the grant of equitable relief of injunction is concerned, is fatal. The plaintiffs in the instant action have attempted to lightly brush off their intentional non-disclosure by feigning oversight, contending that they had nothing to gain from the aforesaid non-disclosure. What has been lost sight of is that it is a cardinal principle of law that a person who seeks the equitable relief of injunction must come to the Court with clean hands. In Udai Chand v. Shankar Lal and Ors.
MANU/SC/0391/1978 : [1978]2SCR809 , it was held by the Hon'ble CS (COMM) 222/2017 Page 15 of 22 Supreme Court that the Court would be justified in revoking the leave to appeal if the same was obtained by making mis-statement of a material fact which was of decisive importance in the case. It was held that a party who approaches the Court invoking the exercise of its overriding discretions must come with clean hands. If there appears on his part any attempt to over reach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of discretion, the Court would be justified in refusing to exercise the discretion or, if the discretion has been exercised, in revoking the leave to appeal granted even at the time of hearing of the appeal. Again, in the cases of Satish Khosla v. Eli Lilly Ranbaxy Limited MANU/DE/0763/1998 :
71(1998)DLT1 and Anand Swarup v. Municipal Corporation of Delhi 36 (1998) DLT 304, this Court reiterated the legal principle that a person approaching the Court must disclose all relevant facts if he seeks an injunction. In a recent decision of this Court in the case of Micolube India Ltd. v. Maggon Auto Centre and Anr. MANU/DE/0180/2008 :
150(2008)DLT458 , it was again held that the plaintiff cannot be let off by accepting its plea of feigned ignorance.
18 This would be relevant in the facts of the instant case. 19 The plaintiff has placed on record certain invoices to show sale of hospital beds. As noted supra, these are miniscule sales. In the year 2008, five beds had been sold by the plaintiff. In the year 2009, four beds had been sold. There was five beds again sold in the year 2010 and thereafter in the CS (COMM) 222/2017 Page 16 of 22 next seven years, there appears to be no sale for hospital beds. In the year 2017, two beds had been sold. A perusal of these documents also show that these documents may not be quite genuine. This has been highlighted by the learned senior counsel for the defendant. One of these sample invoices show that one medical foldable bed (not under the brand name „PARAMOUNT‟) has been sold by the plaintiff to Ms.Lata at Karnal (Haryana) for which a VAT @ 4% has been charged. As rightly pointed out by the learned senior counsel for the defendant, a VAT is a tax which is charged only within the State where the sale is effected; for an outside State sale, it would be Central Sales Tax (CST) and not a VAT which would be chargeable. As rightly pointed out by the learned senior counsel for the defendant this document become suspicious.
20 The sale figures of the defendant as is reflected in paras 45 & 46 of his written statement shows that since the year 2014-2015, his initial sale figure of Rs.2.2 crores plus has escalated to more than Rs.3.5 crores in the year ending 2015-16. The defendant‟s marketing promotions for the purpose of advertisement show that he has spent more than Rs.75 lacs in the current year 2016-2017. His documents also establish his submission that he had supplied hospital beds to various hospitals in India. The defendant appears CS (COMM) 222/2017 Page 17 of 22 to have built up a huge reputation and goodwill for the supply of hospital beds in the Indian market. The business of the defendant as already noted supra has grown in year ending 2016; it has escalated to more than Rs.3.5 crores, the plaintiff on the other hand is not selling any hospital beds; no such document has been placed on record except certain stray sales of 4 to 5 beds in one year and in the intervening period between 2010 to 2017 there was absolutely no sale of any hospital bed under the name of PARAMOUNT by the plaintiff. The invoices dated 01.12.2016 reflecting supply of 70 beds at Jaipur (NOIDA) for an amount of 1,05,00,140 USD; the shipment bill dated 25.7.2016 reflecting a supply of 15 beds at the Apolo Hospital Enterprise Limited, Hyderabad for an amount of 28,500 USD; the invoice dated 05.5.2016 for the supply of 33 beds again to the Apolo Health Centre, Hyderabad for an amount of 62,700 USD as also another invoice dated 22.3.2016 for the supply of 34 beds to the ARTEMIS Medical Services Limited, Gurgaon for a sum of 63,784 USD again reflects upon the growing and expanding business of the defendant.
21 This is also not a case where the plaintiff was unaware that the defendant was about to commence the sale of its product. It was well known to the plaintiff long back and even as per the showing of the plaintiff CS (COMM) 222/2017 Page 18 of 22 dating back to the year 2009 when he had filed his opposition to the trade mark registration application of the defendant. The defendant has in fact been in the market with a fair amount of publicity; this also entitles defendant to the discontinuation of the interim order in favour of the plaintiff.
22 The plaintiff on the other hand although has a registration for „PARAMOUNT‟ yet has not been selling hospital beds under the said trade name. The miniscule sales of five single beds in one current year and there being a gap of almost seven years between 2010 to 2017 when there was no sale effected of any hospital bed by the plaintiff clearly reflect that the plaintiff is not really into the business of sale of hospital beds. The medical foldable beds which had been sold by the plaintiff were even otherwise not under the brand name „PARAMOUNT‟.
23 Learned senior counsel for the defendant further points out that although admittedly the plaintiff has a registration in his favour but the Court is not precluded from examining the validity of this registration even at the interlocutory stage. This submission was made by the learned senior counsel for the defendant is to answer the submission of the plaintiff that he being a registered trade mark holder the defendant has no defense. For this CS (COMM) 222/2017 Page 19 of 22 proposition, the defendant has placed reliance upon a judgment of a Division Bench of this Court reported in (2010) 174 DLT 279 (DB) Marico Limited Vs. Agro Tech Foods Limited, relevant extract of which reads herein as under:-
"14. In view of the aforesaid legal position, the first issue which arises is whether the learned Single Judge was justified in holding that he was entitled to look into the validity of registration of the trademark. Of course, we must hasten to add we are doing so and so has the learned Single Judge done, only for the purpose of deciding the interlocutory application for grant or refusal of injunction and as envisaged in Section 124(5)."
24 Submission being that if this plea is taken in the written statement, such a plea can well be examined by the Court at this stage. Submission on this count is that the defendant in his written statement has categorically stated that he has filed rectification proceedings qua the registration of the plaintiff. The application of the defendant seeking registration of his mark dated 25.04.2007 is also pending before the Competent Authority. 25 The principles for the grant of an interlocutory injunction have been culled out by the Courts on various occasions. Usually the prayer for grant of an interlocutory injunction is at the stage where the existence of legal right asserted by the plaintiff and its violations are contested and if they remain uncertain, they should be permitted to be established by way of evidence at CS (COMM) 222/2017 Page 20 of 22 the stage of trial. The object of an interlocutory injunction is to protect the plaintiff against an injury which may not be adequately compensated in damages recoverable in action at a later point of time. This need of the plaintiff must be weighed against the corresponding need of the defendant to be protected against any injury; need of one must be weighed against the other to determine whether balance of convenience lies. 26 In this context, the observations of the Apex Court in 1990 (Supp) Supreme Court Cases 727 Wander Ltd. and Another Vs. Antox India P. Ltd. would be relevant. They read as under
"The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted."
27 In the facts of the instant case, this Court is of the view that the plaintiff has failed to establish a prima-facie case in his favour. Balance of convenience is in fact in favour of the defendant. If an injunction is granted, at this stage, the business which the defendant has built up over the years of CS (COMM) 222/2017 Page 21 of 22 which the plaintiff was well aware would be brought to a stand-still; irreparable loss and injury would be suffered by the defendant which may not be able to be compensated at a later stage.
28 Accordingly, the ex-parte order dated 23.03.2017 is set aside. Prayer made in application under Order XXXIX Rule 4 of the Code is allowed. 29 Applications disposed of in the above terms.
INDERMEET KAUR, J MAY 25 , 2017 A CS (COMM) 222/2017 Page 22 of 22