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I.A.No.2842/2014 (under Order XXXIX Rules 1 & 2 of the CPC) 1 Present suit has been filed by the plaintiff (M/s KRBL Limited) against the defendants under the Trade Marks Act, 1999 and the Copy Right Act, 1957; relief of permanent injunction restraining infringement, passing off, rendition of accounts, delivery etc. has been prayed for. 2 The plaintiff is a company incorporated under the Indian Companies Act, 1956. It has a registered office at Lahori Gate, Delhi. It is engaged in the business of processing, marketing and exporting of rice including basmati rice. In January, 2013, it had bonafidely and honestly adopted and started using the trademark/label „INDIA GATE‟ with the device of „INDIA GATE‟ and the said trade name includes both the trademark label as also the device both individually, collectively and as a whole. The trademark/label bears original artistic features of placement, distinctive get up and make up and is protected under the Copy Right Act as well.

8 Admittedly no ex-parte order had been passed in favour of the plaintiff. Submission of the learned counsel for the plaintiff is that this is for the reason that the defendants were on caveat and as such since now the pleadings have been completed, the matter is ripe for hearing. This Court notes that the suit was filed on 20.01.2014.

9 The plaintiff is admittedly not the registered owner of the trademark „INDIA GATE‟. The application seeking registration of the trade mark „INDIA GATE‟ is pending adjudication before the Competent Authority. The plaintiff in support of its case has placed reliance upon invoices (page 102 onwards of the documents of the plaintiff) dated as early as 11.06.1993 to substantiate its stand that basmati rice under the brand name „INDIA GATE‟ was being exported by the plaintiff to USA even at that point of time. Submission being reiterated that there has been a continuous sale and marketing of the product of the plaintiff under the brand name „INDIA GATE‟ since 1993. However the documentary evidence to show that the plaintiff started business in India i.e. sale of basmati rice under the brand name of „INDIA GATE‟ is of the year 2000. (These documents start at page 44 of the list of documents filed by the plaintiff on 05.05.2014). These invoices show that the plaintiff company was selling rice to various traders in Rajasthan, Madhya Pradesh and Delhi indicating the presence of the plaintiff in this country which as per the documentary evidence filed by the plaintiff was from March, 2000. Learned counsel for the plaintiff has also drawn attention of this Court to his advertisement campaign (w.e.f. 15.02.2005) to substantiate this submission that the plaintiff has spent lacs of rupees on this advertisement campaign and his trademark/label „INDIA GATE‟ with the device of „GATE‟ has established goodwill and reputation qua this trademark/label. Attention has also been drawn to certain orders which have been passed by the Courts where the plaintiff had come up in opposition against the use of mark „BOMBAY GATE‟, „ROYAL GATE‟ etc. and the plaintiff had obtained injunctions. Admittedly, these were injunctions which had been obtained ex-parte. Learned counsel for the plaintiff has not been able to point out a single instance where in a contested matter, he has been granted an injunction order.

14 It is not in dispute that the defendant was earlier a company incorporated under the name of "Shiv Nath Rai Har Narain India Limited" which had subsequently changed its name to "Lal Mahal Ltd." This was vide certificate of incorporation dated 04.03.2009. The invoices and bills of the defendant ranging from April, 2004 to the year 2014 showing sales of „CHURCH GATE‟ long grain rice in the Indian Market in New Delhi have been placed on record. These are not stray documents but from continuous periods of time ranging from April, 2004 up to 2008 and thereafter from 2008 up to 2014. The invoices reflect that the newly incorporated company Lal Mahal Limited (which had been substituted for Shiv Nath Rai Har Narain India Limited) was marketing Lal Mahal Basmati rice in huge quantities in the Indian market. These documents are in fact almost 160 in number showing the sale of basmati rice by the defendant under its brand name „CHURCH GATE‟.

22 In 2008 (38) PTC 185 (Del) Warner Bros Entertainment Inc. And Another Vs. Harinder Kohli and Others while dealing with an interim application under Order XXXIX Rules 1 & 2 of the CPC in an action of passing off, the Court had noted that delay in approaching the Court is fatal; an application seeking interim relief on this ground alone is liable to be rejected.

23 Noting all the aforenoted parameters and the guidelines laid by the Court, this Court is of the view that not only has there been an inordinate delay on the part of the plaintiff in approaching the Court, there also appears to be an active concealment on the part of the plaintiff. That plaintiff has also not disclosed that two of his applications No.1580377 and 1436477 seeking registration of the trademark „INDIA GATE‟ with the device of „GATE‟ had been refused. This was liable to be disclosed. He did not do so for the reasons best known to him. The inordinate delay in approaching the Court on the part of the plaintiff knowing fully well about the continuous and extensive use by the defendant of the trade name/label „CHURCH GATE‟ for sale of basmati rice since 2005 is also unexplainable. Admittedly proceedings are pending before the Trademark Authority since 2005 and the plaintiff having approached the Court in January, 2014 and on the other hand, the documentary evidence filed by the defendants showing that he also has the sale figures running into several lacs of the sale of his product i.e. basmati rice under the trade name Lal Mahal since the year 2005 and there also being no argument addressed by the learned counsel for the plaintiff that there has been a dip in his sale or his business has been effected by the sale being carried out by the defendant, this Court is of the view that at this stage, it would not be proper to restrain the defendant from using the impugned trademark/label. Balance of convenience is not in favour of the plaintiff. He has not been able to make out a prima-facie case in his favour. Irreparable loss and injury would in fact be suffered by the defendant in case he is not permitted to use trademark/label „CHURCH GATE‟ which even as per the admitted evidence is being used by him since 2005. Otherwise case of the defendant is that he is a user since 1991.