Delhi High Court - Orders
S. S. Industries vs Pavan Kumar Gupta Trading As Vapnr ... on 9 October, 2023
Author: C. Hari Shankar
Bench: C.Hari Shankar
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M)-IPD 12/2023
S. S. INDUSTRIES ..... Petitioner
Through: Mr. Nishant Mahtta and Mr. S.
Hijhin, Advs.
versus
PAVAN KUMAR GUPTA TRADING
AS VAPNR TRADERS ..... Respondent
Through: Mr. Sandeep Bisht, Adv.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 09.10.2023 CM(M)-IPD 12/2023, CM 112/2023 (Order XLI Rule 5 of the CPC) and CM 113/2023 (Order XLI Rule 27 of the CPC)
1. I have heard learned Counsel for both sides for sometime in this matter.
2. The respondent is the plaintiff, and the petitioner is the defendant, before the learned Commercial Court, from whose order the present petition emanates.
3. The impugned order dated 18 August 2023 disposes of an application filed by the respondent-plaintiff under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (CPC) for appointment of a Local Commissioner. The learned District Judge (Commercial Court) ("the learned Commercial Court") appointed an advocate as a Local Commissioner to visit the premises of the petitioner-defendant and to CM(M)-IPD 12/2023 Page 1 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/10/2023 at 22:24:20 inventorize and seize goods which, according to the said order, are infringing in nature. The order has been passed ex parte, without giving the petitioner-defendant any chance to respond.
4. It is not in dispute that the respondent had also filed, with the suit an application under Order XXXIX Rules 1 and 2 of the CPC, seeking interim injunction, which is still pending and on which only notice has been issued. Thus, even without passing any interlocutory injunctive order in favour of the respondent-plaintiff, the learned Commercial Court has, vide the impugned order, virtually brought the petitioner-defendant's business to standstill, by directing seizure of goods by the learned Local Commissioner.
5. The dispute pertains to alleged design infringement. Mr. Mahatta, learned Counsel for the petitioner submits that it is admitted, more than once in the plaint, that the suit design of the respondent was, in fact, prior published. He has drawn my attention to paras 6 and 13 of the plaint. Para 6 sets out the sale figures in respect of goods sold under the suit design from 2018. Para 13 specifically avers that the respondent has been using the suit design since 2017.
6. Mr. Sandeep Bisht, learned Counsel for the respondent submits that the reference to 2017 user in para 13 of the plaint was a typographical error. He, however, has no satisfactory explanation to offer with respect to the sales figures which are reflected in para 8 of the plaint. He only seeks to draw attention in para 4 of the plaint, in which it is averred that the suit design was conceptualized in 2021.
7. Even if Mr. Bisht's submissions with respect to para 4 were to CM(M)-IPD 12/2023 Page 2 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/10/2023 at 22:24:20 be accepted, it would result in contradictory averments in the plaint. The impugned order does not seem to notice the averments contained either in para 8 or para 13 of the plaint.
8. That apart, in a recent decision in Dabur India Ltd v. Emami Ltd1, albeit in the context of trade mark infringement, the Division Bench of this Court has observed, in para 8, thus:
"8. Having conferred our thoughtful consideration on the rival submissions noticed above, we find that, undisputedly, the suit upon being presented on or about 02 August 2023 came up for consideration for the first time on 07 August 2023. The ad interim injunction came to be granted merely two days thereafter on 09 August 2023. Admittedly, and as per the plaintiffs/respondents own case, the product of the appellant / defendant had been introduced somewhere around May 2023. In our considered opinion, this fact alone warranted the appellants/defendants being accorded at least a rudimentary opportunity to oppose the application which sought grant of ad interim injunction."
(Emphasis supplied)
9. The observation of the Division Bench is also in tune with the following passage from the judgment of the Supreme Court in Wander Ltd. v. Antox India P. Ltd2:
"9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated "...is to protect the plaintiff against injury by violation of his rights for which he could not adequately be 1 Order dated 21 August 2023 in FAO(OS)(COMM) 171/2023 2 1990 Supp SCC 727 CM(M)-IPD 12/2023 Page 3 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/10/2023 at 22:24:20 compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the 'balance of convenience' lies."
The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. 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.
(Emphasis supplied)"
10. This Bench has, following the afore-noted observation of the Division Bench in Dabur1, been consistently following a policy of granting an opportunity to the defendant to file a reply before passing any interlocutory orders, where the defendant has been using the mark, or design in question, except where public interest dictates otherwise. There is no dispute about the fact that, even as per the averments in the plaint, the petitioner-defendant was using the suit design prior to institution of the suit. That being so, in view of the principle contained in para 8 of the order passed by the Division Bench in Dabur1, the correctness of the impugned order, insofar as it directs seizure of goods from the petitioner's premises may be seriously open to doubt.
11. In order to enable Mr. Bisht to equip himself with a response to CM(M)-IPD 12/2023 Page 4 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/10/2023 at 22:24:20 these issues and other issues which may arise for consideration, renotify as part heard for disposal on 10 October 2023.
C. HARI SHANKAR, J.
OCTOBER 9, 2023 rb CM(M)-IPD 12/2023 Page 5 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/10/2023 at 22:24:20