Delhi High Court - Orders
Marion Biotech Pvt. Ltd vs Brawn Laboratories Limited on 1 February, 2022
Author: Vipin Sanghi
Bench: Vipin Sanghi, Jasmeet Singh
$~2.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO (COMM) 6/2022
MARION BIOTECH PVT. LTD. ..... Appellant
Through: Mr. Vivek Singh, Mr. Rahul Kumar
and Mr. Anuj Mirdha, Advocates.
versus
BRAWN LABORATORIES LIMITED ..... Respondent
Through: Ms. Garima Gupta and Mr. Aakash
Aggarwal, Advocates.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 01.02.2022 CM No. 2997/2022
1. Issue notice. Learned counsel for the respondent appears and accepts notice. She fairly does not object to condonation of delay in filing the present appeal. Accordingly, the delay is condoned. FAO (COMM) 6/2022
2. The appellant/ plaintiff has preferred the present appeal to assail the order dated 01.10.2021 passed by the Learned District Judge, Central District, Tis Hazari Courts, Delhi in CS (COMM) No. 1053/2021, whereby the learned District Judge has disposed of the interim application preferred by the appellant/ plaintiff under Order XXXIX Rules 1 and 2 CPC without granting the ad-interim injunction sought by the appellant/plaintiff against Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:03.02.2022 16:14:02 the respondent /defendant.
3. The dispute relates to the drug „CINEPAR' being marketed by the appellant/ plaintiff, and the corresponding drug „DIKLOPAR' being marketed by the respondent/ defendant in Turkmenistan.
4. A perusal of the impugned order shows that there is a fundamental error of law in the matter of the approach of the learned District Judge in dealing with the aforesaid application of the appellant/ plaintiff. In the impugned order, the learned District Judge recorded the submissions of the appellant/ plaintiff till paragraph 22, whereafter the submissions of the respondent/ defendant were recorded up to paragraph 28. Thereafter, the learned District Judge has observed in the impugned order as follows.
"29. A number of other arguments have also been taken by Ld. Counsel for defendant, but I am restraining from delving into any details of the said arguments as they are pot required at this stage of the matter for disposal of the present application.
30 I have carefully perused the record.
31. At the outset I may state that from the submissions made by Ld. Counsel for both parties, it is clear that the nature of the packaging / trade-dress being used by plaintiff with respect to its product CINEPAR or the packaging / trade-dress being used by the defendant with respect to its product DICLOPAR Is not in dispute. However, from the submissions of the parties and the nature of packaging/ trade-dress being used by both the parties It is prima facie clear that a number of triable issues exists in the present matter which can more appropriately be dealt with only after both the parties are given an opportunity to prove their respective claims by leading evidence. Any analysis of the claims of both parties at this stage of the matter Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:03.02.2022 16:14:02 may also prejudice them during the course of trial.
32. Thus, at this stage, keeping in view the overall facts and circumstances of the case. I am of the considered opinion that it will not be in the interest of justice to grant any ad-interim injunction in favour of plaintiff and against the defendant unless the two parties first get an opportunity to lead their evidence to prove their respective claims.
The present application accordingly stands disposed off "
5. A perusal of the above extract would show that the impugned order does not divulge any reasoning or appreciation of the arguments and facts, even at a prima facie stage for the view that the learned District Judge has taken in the matter.
6. In our view, it is completely erroneous for the learned District Judge to say that any analysis of the claims of both parties at this stage of the matter, may prejudice them during the course of trial.
7. While dealing with an application under Order XXXIX Rules 1 and 2 CPC, the Court is obliged to apply the classical test of the plaintiff making out, or failing to make out, a prima facie case; the balance of convenience in granting or not granting a particular relief, and the irreparable loss and injury that the plaintiff, or the defendant may suffer, if the interim relief sought is declined or granted. None of these aspects find consideration for perusal of the impugned order.
8. We, therefore, set aside the impugned order and remand the case back to the learned District Judge to re-hear the counsels and render a reasoned order on the appellant‟s application under Rule XXXIX Rules 1 and 2 CPC.
Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:03.02.2022 16:14:029. We make it clear that we have not examined the merits of the claim of either of the parties, and learned District Judge will arrive at its own conclusions and also provide the reasons therefor in the order that he may pass, after hearing the parties.
10. The appeal stands disposed of in the aforesaid terms.
VIPIN SANGHI, J JASMEET SINGH, J FEBRUARY 01, 2022 kd Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:03.02.2022 16:14:02