Bombay High Court
Nagpur Distillers Pvt Ltd Through ... vs Karamveer Shankarrao Kale ... on 22 September, 2017
Bench: R.V. Ghuge
WP/9317/2017
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9317 OF 2017
WITH
WRIT PETITION NO. 9318 OF 2017
Nagpur Distillers Pvt. Ltd
Kamtee Road, Nagpur
Through its authorized signatory /
Shri Gurmeet Singh
s/o Virsa Singh Mulla ..Petitioner
Versus
Karmveer Shankarao Kale Sahakari
Sakhar Karkhana Limited (Formerly
known as Kopargaon Sahakari
Sakhar Karkhana Ltd.) having its
office at Gautam Nagar, Post Kolpewadi,
Taluka Kopargaon, Dist. Ahmednagar. ..Respondent
...
Advocate for Petitioner : Shri Yadkikar Amit A
Advocate for Respondent : Shri Gaware Niteen V.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: September 22, 2017
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the
petition is taken up for final disposal.
WP/9317/2017
4.. In both these matters, the petitioners and the respondents
are identical. These petitioners are aggrieved by the identical
order both dated 6.7.2017, passed by the trial Court, by which
the prayer of the petitioners to frame proper issues has been
rejected. It is informed that only one substantive issue has been
framed and issue No.2 is as regards whether relief can be
granted and issue No.3 is as regards what order is to be passed in
RCS Nos.8 of 2011 and 7 of 2011, respectively.
5. I have considered the strenuous submissions of the
learned Advocates for the respective sides and I have gone
through the petition paper book and the affidavit-in-reply.
6. The dispute in between the litigating sides is with regard
to the label and the design used by the original defendant and
which is branded by the original plaintiff to be in violation of the
trade mark and copyright of the plaintiff.
7. The core issue framed by the trial Court reads as under:-
" Does plaintiff prove that defendant is using the label, for
selling country liquor which, is deceptively similar?"
WP/9317/2017
8. The petitioner / original defendant has proposed ten
issues, pertaining to the limitation, jurisdiction of the Court,
infringement of Section 2(c), 13 and 17 of the Copyright Act,
design and colour, exclusivity of the label etc. The trial Court has
has considered the identical application filed in both the suits
under Order XIV Rule 5 of the CPC and has passed the following
order (in verbatim) :-
" The issues framed by this Court at Exhibit 42 has covered
the entire dispute between the parties, defendant is
intending to protract litigation by filing applications hence
rejected."
9. I have considered the proposed issues in both these
matters, keeping in view the earlier issue framed by the trial
Court. With the assistance of the learned Advocates for the
respective sides, the additional issues that the trial Court shall
frame would be in terms of issue Nos. 1, 2, 3, 8 and 9, of the
proposed issues.
10. The impugned order is, therefore, set aside and the above
numbered proposed issues will be added to the issues already
framed by the trial Court.
WP/9317/2017
11. Learned Advocates inform that this Court had directed the
adjournment of the proceedings before the trial Court by it's
order dated 7.8.2017. On 14.9.2017, this Court again permitted
the litigating sides to inform the trial Court by requesting it to
adjourn the matters. On 16.9.2017, it is informed that the trial
Court refused to adjourn the proceedings and rejected the joint
application filed by the parties seeking an adjournment. I find
that the trial Court has not acted judiciously and despite the
order of this Court, has chosen to ignore the order and reject the
application for adjournment filed by the parties. Such a conduct
from the trial Court was not expected and it calls for an
explanation.
12. It is further informed that before passing the impugned
order on application Exhibit 54 and Exhibit 51, in both the suits
respectively, the trial Court had first ordered, "Other side to say".
The said order was signed. Thereafter, the said order was scored
out by vertical lines and the impugned order was passed on the
last page of the two applications on the same day. Certified
copies of the said documents are before me and I can notice that
what is conveyed by the learned Advocates for the parties,
appears to be correct. Once the trial Court had written an order,
WP/9317/2017
"Other side to say" and signed it, the said order could not have
been scored out in such a fashion.
13. It is further informed that in these two matters, as the
defendants wanted to adopt the written say to the application for
injunction as their written statement, a purshis was tendered for
adopting the written say as the written statement and an
application for condonation of delay was also filed by the
defendants for seeking condonation and to permit adoption of
the written say as the written statement. The trial Court has not
yet passed an order on the application for condonation of delay,
though an Exhibit number has been granted to the purshis.
14. Considering the above, both these petitions are partly
allowed. The impugned order is quashed and set aside and
applications Exhibits 54 and 51 are partly allowed in RCS Nos.8
and 7 of 2011, respectively. As noted above, the said issues shall
be added by the trial Court.
15. Rule is made partly absolute in above terms.
16. Learned Advocates pray for expeditious disposal of the
proceedings. They are at liberty to cooperate the trial Court and
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make such a request.
16. The learned Registrar (J) is directed to place a copy of this
order before the learned Principal District Judge, Ahmednagar.
The learned Principal District Judge, Ahmednagar shall call for
an explanation from the learned District Judge - 2, Kopargaon,
who has passed the impugned order, in view of the observations
of this Court in paragraph Nos.11 and 12. He shall thereafter
invite the concerned learned Judge for counselling and shall
submit the report to this Court, preferably within eight weeks.
( RAVINDRA V. GHUGE, J. )
...
akl/d
