* HIGH COURT OF DELHI AT NEW DELHI
+ C.S. (OS) No.1293/2014
Decided on: 19th May, 2014
DRS LOGISTICS (P) LTD. & ANR ...... Plaintiffs
Through: Mr. Pradyuman Dubey, Advocate.
Versus
SANDEEP CHOHAN @ SANDEEP KUMAR & ORS. ...... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
IA Nos.9552/2014 ( Order VI Rule 17 CPC)
1. This is an application under Order VI Rule 17 read with Section 151 CPC, seeking amendment of plaint. I have heard the learned counsel for the plaintiff and gone through the averments made therein. Since the case is at the threshold, therefore, the amendment is allowed and the amended plaint be taken on record.
2. The application stands disposed of.
IA No.9553/2014 (Order 39 Rules 1&2 CPC) & CS(OS) No.1293/2014
1. This is an application under Order XXXIX Rules 1 & 2 CPC for grant of ex-parte ad-interim injunction. It is the case of the plaintiff that the plaintiff is a registered proprietor and the owner of the trade mark Agarwal Packers and C.S. (OS) No.1293/2014 Page 1 of 4 Movers Ltd., dealing with goods and services of the transporters, goods carriers, packers and storage of goods and travel arrangement services in various Classes, which are mentioned hereunder:
Trade Mark No. Class Date Goods/ Services
Agarwal Packers & 1275683 39 31.03.2004 Transporters and goods
Movers carriers, packers and
storage of goods and
travel arrangement
services.
Agarwal Packers & 1358619 17 20.05.2005 Packing, stopping and
Movers insulating materials
included in Class 17,
etc.
Agarwal 1358621 39 20.05.2005 Transporters,
Domestic/International packaging and storage
Packers & Movers of goods, travel
arrangements
Agarwal Household 1358618 39 20.05.2005 Transport, packaging
Packers & Logistic and storage of goods,
travel arrangements
Agarwal Relocations 1422042 39 16.02.2006 Transport, packaging
and storage of goods,
travel arrangements.
2. It is alleged by him that the defendants are using the trademark of the plaintiff and they have also created the domain name, which gives the impression that as if the domain name registered by them or created by them is belonging to the plaintiff. It is prayed that an ex-parte ad-interim injunction may be granted as the plaintiff has a prima facie good case and the balance of convenience is also in favour of the plaintiff and the plaintiff will suffer irreparable loss if an ex-parte ad-interim injunction is not granted. C.S. (OS) No.1293/2014 Page 2 of 4
3. The attention of the plaintiff was drawn to the amended plaint, wherein it is stated that the cause of action accrued to the plaintiff to file the suit first time in the month of March, 2014. From March, 2014, nearly two months have elapsed and still the suit has been filed only in the month of May, 2014, i.e., almost after 40-50 days from the date of knowledge of the user of the trade name or the domain name of the plaintiff being misused. One of the conditions for grant of ex-parte ad-interim injunction is that the plaintiff may suffer an irreparable loss in the event of an injunction is not granted. The learned counsel for the plaintiff was suggested that since there is so much of gap between the date of knowledge and the date, when the suit has been filed, therefore, it would be better, in case, the plaintiff serves the notice in the first instance on the defendant so that the Court has an advantage of hearing the other side also.
4. The learned counsel for the plaintiff has placed reliance on two cases of the Supreme Court in Midas Hygiene Industries (P) Ltd. & Anr. Vs. Sudhir Bhatia & Ors., (2004) 3 SCC 90 and Laxmikant V. Patel Vs. Chetanbhai Shah & Anr., (2002) 3 SCC 65 to contend that mere delay in filing the case is not sufficient to defeat the grant of injunction in case of infringement. I have gone through both these judgments. No doubt, mere delay in bringing the action is not sufficient to defeat grant of injunction in case of infringement but the Court C.S. (OS) No.1293/2014 Page 3 of 4 has not held that in every case, where there is a delay, the stay must be granted irrespective of the facts of that particular case.
5. In the instant case, prima facie, I am of the view that when the plaintiff had known about the infringement of their trade name as well as the user of a domain name akin or similar to their domain name for the last 40-50 days, it is not going to cause any irreparable loss to the plaintiff in case they wait for a week or ten days or so till the defendants are served. Therefore, I am of the considered opinion that the grant of ex-parte ad-interim injunction, at this stage, which rarely gets decided ultimately within 30 days in terms of Order XXXIX, has a potential of doing greater mischief and damage to the defendants rather than not grant of ex-parte ad-interim injunction to the plaintiff.
6. Accordingly, I disallow the prayer of the plaintiff for grant of ex-parte ad-interim injunction, at this stage. Let notice of the application and the summons of the suit by all modes be issued to the defendants for 30th May, 2014. Dasti as well.
V.K. SHALI, J.
MAY 19, 2014 'ss' C.S. (OS) No.1293/2014 Page 4 of 4