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Zydus Wellness Ltd vs M S Alba Casta Pharma Solutions India & ... on 26 August, 2022

Author: Navin Chawla

Bench: Navin Chawla

                    $~22
                    *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                    +    C.O. (COMM.IPD-TM) 732/2022
                         ZYDUS WELLNESS LTD                        ..... Petitioner
                                        Through: Mr.Sagar Chandra, Ms.Shubhie Wahi,
                                                  Ms.Soumya Sehgal, Ms.Ankita Seth,
                                                  Ms.Aarushi Relan, Ms.Sanya Kapoor
                                                  & Ms.Akshita Bhaskar, Advs.

                                                versus

                             M S ALBA CASTA PHARMA SOLUTIONS INDIA & ANR.
                                                                     ..... Respondents
                                          Through: Mr.Harish Vaidyanathan Shankar,
                                                   CGSC for R-2 with Mr.Srish Kumar
                                                   Mishra, Mr.Sagar Mehlawat &
                                                   Mr.Alexander Mathai Paikaday,
                                                   Advs.

                          CORAM:
                          HON'BLE MR. JUSTICE NAVIN CHAWLA
                                                ORDER

% 26.08.2022 I.A. 13567-68/2022 (Exemptions)

1. Allowed, subject to all just exceptions.

2. These applications accordingly stand disposed of.

3. This is an application filed on behalf of the petitioner seeking leave to file additional documents, which are not in the power, possession, control, or custody of the petitioners at the moment.

4. The petitioner may file the additional documents strictly in accordance with the provisions of the law.

5. The application stands disposed of.

C.O. (COMM.IPD-TM) 732/2022 & I.A. 13565/2022

6. Issue notice. Notice is accepted by Mr.Harish Vaidyanathan Shankar, the learned counsel on behalf of the respondent no. 2. Let notice of this petition and the application be served on the respondent no. 1 through all modes, including electronically, returnable on 14th October, 2022.

7. The learned counsel for the petitioner insists for an ex-parte ad- interim order restraining the respondent no. 1 from relying upon the registration of its trade mark in the Civil Suit filed by the respondent no. 1 against the petitioner, which is pending adjudication before the learned District Court at Panchkula.

8. The present petition discloses that the parties have been in correspondence since at least 05.12.2018. The petitioner was, therefore, aware of the statutory rights of the respondent no. 1, however, took no steps to challenge the same.

9. The very maintainability of the petition is also in doubt in view of the judgment of the Supreme Court in Patel Field Marshal Agencies & Anr v. P.M. Diesels Ltd. & Ors., (2018) 2 SCC 112 and of this Court in Nippon Soda Co. Ltd. v. V.P. Goyal & Ors., MANU/DE/0838/2014. Though, the learned counsel for the petitioner submits that an application under Section 124 of the Trade Marks Act, 1999 has been filed before the learned District Court in the suit, the learned Trial Court is yet to consider the issue and reach a prima facie finding on the tenability of the submissions made by the petitioner herein in challenge to the registration granted in favour of the respondent no. 1.

10. In my view, therefore, the petitioner has not made out a case for grant of an ex-parte ad-interim order in its favour. However, the prayer of the Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:29.08.2022 18:09:44 petitioner for an ad-interim relief shall be considered once the respondent is duly served and is represented before this Court.

NAVIN CHAWLA, J AUGUST 26, 2022/rv Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:29.08.2022 18:09:44