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Jindal Rolling Mills Limited vs Shree Ganesh Rolling Mills India ... on 7 August, 2020

Author: Hima Kohli

Bench: Hima Kohli, Subramonium Prasad

$~1
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     FAO(OS) (COMM) 93/2020
      JINDAL ROLLING MILLS LIMITED              ..... Appellant
                   Through:      Mr. C. Aryama Sundaram, Senior
                   Advocate with Mr. Mr. Arjun Narayan, Mr. Vidur
                   P. Bhatia and Mr. Abhishek Gupta, Advocates.

                          versus

      SHREE GANESH ROLLING MILLS INDIA LIMITED
                                                .... Respondent
                   Through: Mr. Jayant K. Mehta, Ms. Geetanjali
                   Viswanathan, Ms. Kruttika Vijay and Ms. Kaveri
                   Jain, Advocates
      CORAM:
      HON'BLE MS. JUSTICE HIMA KOHLI
      HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

                          ORDER

% 07.08.2020 HEARD THROUGH VIDEO CONFERENCING C.Ms.No.18297-98/2020 & 18301/2020(exemption) Allowed, subject to all just exceptions.

C.M.No.18300/2020(exemption from court fee) Subject to the appellant depositing the requisite court fee within two weeks, the application is allowed and disposed of.

FAO(OS) (COMM) 93/2020 & C.Ms. No.18296/2020(stay) & 18299/2020(direction)

1. This appeal is directed against an order dated 10.06.2020, passed by the learned Single Judge in CS(COMM) 360/2020, allowing an application moved by the respondent/plaintiff under Order XXXIX Rule 1 and 2 of the FAO (OS) (COMM) 93/2020 Page 1 of 5 CPC (IA.4680/2016) whereby, the appellant/defendant has been restrained from using the mark "JINDAL" in any manner and in any media whatsoever, including as a domain name or as an email or in advertising or for embossing the same or on letterheads etc w.e.f 60 days reckoned from the date of passing of the said order. However, the appellant/defendant has been entitled to use the mark "Y.R.Jindal" and the court has observed that use of the said mark shall not constitute as a violation of the injunction order. Further, by the very same order, the learned Single Judge has also allowed an application (I.A.780/2016), moved by the appellant/defendant under Section 10 of the CPC praying inter alia for staying the proceedings in the subject suit on the ground that it had instituted a suit against the respondent/plaintiff being OS 781/2015, before the Xth Addl. Chief Judge, City Civil Court at Hyderabad, for the same relief, prior in time. Further proceedings in the suit have been adjourned sine die.

2. Mr. Sundaram, learned Senior Advocate appearing for the appellant/defendant submits that besides the fact that the respondent/plaintiff has not been able to demonstrate a prima facie case in its favour or show how the balance of convenience lies in its favour, it has failed to demonstrate prior user of the subject trade mark. The second submission made on behalf of the appellant/defendant is that once the learned Single Judge had decided to allow the application moved by the appellant/defendant for staying the suit proceedings in the light of the fact that a suit had been instituted by the appellant/defendant against the respondent/defendant at Hyderabad in the year 2015, which was prior in time, there was no good reason for hearing the stay application or granting any interim order in favour of the respondent/plaintiff.

3. Learned Senior Counsel appearing for the appellant/defendant informs this court that in December, 2015, the appellant/defendant has instituted a suit against the respondent/plaintiff before the City Civil Court, Hyderabad praying inter alia for a decree of permanent injunction for restraining infringement of its registered trade mark and for an injunction restraining the respondent/plaintiff from passing off its products by using the mark "JINDAL" on it and the respondent/plaintiff was duly served with the summons in the suit well before it had filed the subject suit on the Original Side of this court in April, 2016 but it has continued to pursue the same. The respondent/plaintiff did not succeed in persuading the court to grant it any interim relief though the stay application was pressed by it and after almost three years, arguments were addressed on the stay application and judgment was reserved in May, 2019, whereafter the impugned order came to be passed after one year. It is contended that the learned Single Judge has observed in para 17 of the impugned order that it is difficult for the court to take a prima facie view in the matter relating to the respective claims of the parties and ordinarily, in such a situation when no prima facie case can be found in favour of the plaintiff, such an application ought to be dismissed, but thereafter, has proceeded to refer to the records and observed that both the parties are using an identical product i.e. steel rock with the word „JINDAL‟ embossed thereon in identical font and fashion, making the goods of the parties indistinguishable from each other.

4. On enquiring from learned Senior Counsel appearing or the appellant/defendant as to the status of the suit instituted by the appellant/defendant and pending before the City Civil Judge, Hyderabad, he states that pleadings in the said suit could not be completed as the FAO (OS) (COMM) 93/2020 Page 3 of 5 respondent/plaintiff had filed an application under Order VII Rule 10, CPC which was dismissed on 30.11.2018. Aggrieved by the said order, a Civil revision petition was preferred by the respondent/plaintiff, which is still pending before the High Court of Andhra Pradesh, though no interim order has been passed in its favour. It is stated that only thereafter, could the suit instituted by the appellant/defendant proceed further and the stay application moved by the appellant/defendant is now listed for arguments on 17.08.2020. Mr. Sundaram, learned Senior Advocate states that in the light of the impugned order passed by the learned Single Judge, nothing is left for a decision by the City Civil Judge in the pending stay application and the respondent/plaintiff is bound to rely on and refer to the observations made therein.

5. Issue notice.

6. Mr. Mehta, learned counsel for the respondent/plaintiff accepts notice and confirms that the paperbook has been furnished to the respondent. He disputes the submission made by the other side and supports the impugned order. Reply to the stay application be filed within four weeks. Rejoinder, if any, be filed within two weeks thereafter.

7. Till the next date of hearing, operation of the impugned order shall remain stayed. It is clarified that the pendency of this appeal will not be a ground for either party to seek an adjournment before the learned City Civil Court, Hyderabad on 17.08.2020, for addressing arguments on the stay application moved by the appellant/defendant (plaintiff therein). It is also clarified that the learned City Civil Court, Hyderabad shall be entitled pass an order on the basis of the pleadings and the arguments advanced by the parties, uninfluenced by the observations made in the impugned order.

8. List on 29.09.2020, in the category of 'After Notice Misc. Matters'.

HIMA KOHLI, J SUBRAMONIUM PRASAD, J AUGUST 07, 2020 pst/rkb FAO (OS) (COMM) 93/2020 Page 5 of 5