Rajasthan High Court - Jodhpur
M/S Chetandas Rajkumar Batra vs M/S Gulshan Enterprises on 16 August, 2018
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
S.B. Civil Misc. Appeal No. 607/2018
M/s Chetandas Rajkumar Batra
----Appellant
Versus
M/s Gulshan Enterprises
----Respondent
For Appellant(s) : Dr. Ashok Soni
For Respondent(s) : Mr. M.S. Singhvi Senior Advocate
assisted by
Mr. Hemant Dutt & Mr. G.D. Bansal
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 16/08/2018 Heard learned counsel for the parties on the stay application. The present appeal arises out of order dated 08.02.2018 passed by Additional District Judge No.2, Sri Ganganagar, whereby, the application filed by respondent under Order XXXIX, Rule 1 and 2 CPC has been accepted and the following injunction has been granted:-
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It is submitted by learned counsel for the appellant that the trial court fell in error in granting the injunction, inasmuch as, the trade mark "1482 SURYA BHOG" was only registered under the Trade Marks Act, 1999 ('the Act'), the label mark was not registered and the pleadings in the suit also did not pertain to the (2 of 4) [CMA-607/2018] label mark and/or passing off despite that the trial court granted injunction by making observations as if the label mark was also registered and/or the suit pertained to passing of and, therefore, the order impugned deserves to be stayed. It was submitted that on account of grant of injunction the appellant is suffering irreparable loss and that balance of convenience is also in favour of the appellant.
Reliance was placed on several judgments in this regard including Carlsberg India Pvt. Ltd. v. Radico Khaitan Ltd. : 2012 (49) PTC 54, Ruston & Hornsby Ltd. v. The Zamindara Engineering Co. : 1969 (2) SCC 727 to emphasis the distinction between an infringement action and a passing of action, Three-N- Products Pvt. Ltd. v. Kairali Exports & Anr. : 2018 (73) PTC 324, Sri Shivaji Balaram Haibatti v. Sri Avinash Maruthi Pawar : 2018 (1) CCC 767 (S.C.), Godfrey Phillips India Limited v. P.T.I. Private Limited & Ors. : 2018 (73) PTC 178.
Learned counsel appearing for the respondent vehemently opposed the submissions and submitted that the submissions made are factually incorrect. It was emphasized that in case the stay order against the injunction order is granted, the same would amount to granting the final relief at the interim stage. It was submitted that Hon'ble Supreme Court in Skyline Education Institute (India) Private Limited v. S.L. Vaswani & Anr. : (2010) 2 SCC142 has observed that even if an alternative view is possible, the order of injunction passed by the courts below should not be interfered with and the appellant was praying for effectively reversing the order of injunction at the interim stage.
It is further submitted that the submissions made are factually incorrect, inasmuch as, the suit filed by the plaintiff is (3 of 4) [CMA-607/2018] specifically titled as suit for infringement/passing of trade mark, permanent injunction, punitive damages & rendition of accounts and specific averments in this regard have been made in the plaint. Further submissions were made that the plaintiff has initiated similar action against other producers also, who were misusing the registered trade mark of the plaintiff and against them also injunction has been granted by the trial court and, therefore, the submissions regarding similar use by other producers are of no avail. It was prayed that the stay application be dismissed.
Reliance was placed on Rameshchandra Paliwal v. Sima & Company : 2017 (70) PTC 293 (Raj.). and Sunil Mittal & Anr. v. Darzi on Call : 2017 (70) PTC 346.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
As already noticed hereinbefore, the trial court after extensively comparing the packaging of the product marketed by the appellant as well as plaintiff has found prima facie case in favour of the plaintiff and it also came to the conclusion that balance of convenience was in favour of the plaintiff and that if injunction was not granted, the same would result in irreparable injury to the plaintiff and, consequently, granted the interim order.
Various submissions have been made by learned counsel for the appellant mainly relying on the relief clause of the plaint, to emphasize that there was no prayer with regard to alleged passing of and, therefore, merely based on the registration of the trade mark, the entire analysis made by the trial court by comparing the two label marks was wholly without jurisdiction.
(4 of 4) [CMA-607/2018] Though it is apparently true that relief in the plaint is not couched in the form, which is ordinarily found in cases of passing of, however, the averments made in the plaint and the title of the suit itself are sufficient to come to a conclusion that the case of the plaintiff in fact is based on allegations of passing of as well and, therefore, the entire submissions sought to be made by learned counsel for the appellant to emphasize that the grant of injunction in the present circumstances was on its face illegal and against the pleadings of the parties, cannot be countenanced at the stage of consideration of the stay application against grant of injunction by the trial court.
Once the trial court has prima facie found substance in the allegations made by the plaintiff and the other two ingredients i.e. balance of convenience and irreparable injury for grant of injunction have already been held in favour of the plaintiff, at present stage while considering the stay application, the injunction as granted does not call for any interference.
Even otherwise, it is well settled that injunction, which results in granting the final relief at the interim stage should not be granted unless the same is required to be granted in a mandatory form, which is not the situation in the present case.
In view of the above, the stay application filed by the appellant is dismissed.
The record of the trial court be sent back immediately.
(ARUN BHANSALI),J A.K. Chouhan/-
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