Delhi High Court - Orders
Black Diamond Trackparts Private ... vs Black Diamond Motors Private Limited on 1 March, 2021
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Amit Bansal
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO (COMM) 41/2021
BLACK DIAMOND TRACKPARTS
PRIVATE LIMITED & ORS. ..... Appellants
Through: Mr. Nishant Dutta, Mr. Praveen
Chaturvedi, Ms. Jyoti Chaturvedi, Mr.
Pradeep Bhardwaj and Mr. Abhisar
Vidyarathi, Advocates.
Versus
BLACK DIAMOND MOTORS PRIVATE LIMITED ..... Respondent
Through: Mr. Shravan Bansal, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE AMIT BANSAL
ORDER
% 01.03.2021 [VIA VIDEO CONFERENCING] CM No.6429/2021 (for exemption)
1. Allowed, subject to just exceptions and as per extant rules.
2. The application is disposed of.
FAO (COMM) 41/2021 & CM No.6428/2021 (for stay)
3. The appeal impugns the order dated 25th September, 2020 of the Commercial Court, of grant of ex-parte ad-interim injunction, and post notice, confirming the same, thereby restraining the appellants/defendants from using the mark 'BLACK DIAMOND' with respect to its business, in the same goods as that of the respondent/plaintiff.
4. It is inter alia the case of the appellants/defendants, that the FAO (COMM) 41/2021 Page 1 of 3 respondent/plaintiff had earlier invoked the territorial jurisdiction of the Court at Bilaspur, Chhattisgarh, for the same relief and which Court had declined the interim relief to the respondent/plaintiff and the appeal of the respondent/plaintiff to the High Court of Chhattisgarh against the said order also stood dismissed; the respondent/plaintiff thereafter withdrew that suit with liberty to file again and thereafter filed the suit in the Courts at Delhi and an ex-parte injunction was granted vide order dated 20th July, 2020 and which has also been confirmed by the impugned order.
5. It is significant that the Commercial Court, in dealing with the grant of injunction, neither in the ex-parte order nor in the after notice order, has dealt with the factum of the respondent/plaintiff, in the earlier round, having not succeeded in getting interim injunction.
6. The counsel for the respondent/plaintiff appears on advance notice and first sought for an adjournment on the ground of Mr. Akhil Sibal, Senior Advocate briefed in the matter having suddenly taken ill. However, since we found the facts to be gross and insisted on hearing, on the request of the counsel for the respondent/plaintiff, the matter was passed over and the respondent/plaintiff, in the interregnum has also emailed to us the order dated 25th September, 2020 of the Commercial Court on the application of the appellant/defendant under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC), on the same grounds.
7. However, we do not find anything in the order on the application under Order VII Rule 11 of the CPC also, to justify the impugned orders which undoubtedly are without consideration of the aforesaid relevant fact and without giving any reason as to why denial of interim injunction by the High Court of Chhattisgarh was required to be interfered with.
FAO (COMM) 41/2021 Page 2 of 38. We have suggested to the counsel for the respondent/plaintiff and the counsel for the respondent/plaintiff agrees, that for the purposes of proper hearing of the matter on merits, the impugned order be suspended and the appeal be posted for hearing.
9. Accordingly, the appeal is posted for hearing on 25th March, 2021.
10. The impugned orders, in the meanwhile, to remain in abeyance and we clarify that till the next date, there is no restraint on the appellant/defendant using the mark.
11. At the request of the counsel for the respondent/plaintiff, the date is changed to 8th April, 2021.
RAJIV SAHAI ENDLAW, J.
AMIT BANSAL, J.
MARCH 1, 2021 'bs' FAO (COMM) 41/2021 Page 3 of 3