Bombay High Court
M/S Mysore Deep Perfumery House, ... vs Sunilkumar A. Jain, Sole Prop. M/S ... on 23 August, 2021
Bench: S. M. Modak
Order 6 ao 14-2021
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
APPEAL AGAINST ORDER NO.14/2021
M/s. Mysore Deep Perfumery House, Thr. Its Power of Attorney Holder Mr. Pradeep Kala,
-VS-
Sunilkumar Amrutlal Jain.
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
Shri Harshit Tolia, Advocate with Rajendra H. Bhansali and Nitin Khambolkar,
Advocates for appellant.
CORAM : S.M. MODAK, J.
DATE : AUGUST 23, 2021.
Heard Shri Harshit Tolia, learned Advocate assisted by Shri
Bansali and Shri Khambolkar, Advocates for the appellant.
2. Court of Adhoc District Court No.1, Nagpur has passed
impugned order dated 18/06/2021. He was pleased to reject the
application Exhibit-5 and 5-A for temporary injunction pending suit. As
per the same order, the Trial Court has taken on record the additional
written statement cum reply-affidavit at Exhibit-39 filed by the
defendants. The said order is challenged by way of this appeal.
3. Issue notice before admission to respondent returnable on
14/9/2021.
4. The appellant to remove office objections within a period of
two weeks.
CIVIL APPLICATION NO.21/2021
Heard Shri Harshit Tolia, learned Advocate assisted by Shri
Bansali and Shri Khambolkar, Advocates for the appellant.
2. It is contention of the appellant-plaintiff that while filing reply
to amended paragraph i.e. newly added paragraph no.14-A in the plaint,
Order 6 ao 14-2021
apart from filing reply to that amended portion, the defendant has
exceeded the limits. No doubt, the defendant can file reply to the
amended portion and can also give his explanation. But the grievance is
that while doing that exercise, the defendant has pleaded altogether new
case. In paragraph no.14-A, the plaintiff has only brought on record the
new development about the registration of the trademark applied under
application No.3960747 (page no.399 of the paper book) however, while
filing additional written statement, the defendant has pleaded about the
business transaction with one Astha Sales of proprietary concern through
proprietor Ram Kumar Aggrawal. The defendant has pleaded that he is
father of partner/proprietor of plaintiff firm. The said proprietary firm
Astha Sales is having office at 144, Ranipura, Indore i.e. the same address
on which the plaintiff carried on business till the year 2007. My attention
is brought to paragraph no.XXXVI page no.506. According to the appellant,
this averment is not only false but contrary to the original pleadings in the
written statement.
3. My attention is also brought to page no.482 paragraph no.12 of
the original written statement. The defendant has pleaded about the
adoption and use of all the trademarks by name Shriphal firstly in the year
1992 in the name and style as Shriphal Gruh Uddyog and Shriphal
Industries and Astha Sales. So grievance is that the amended portion is
contrary to the original pleadings. My attention is also brought to
paragraph no.126 of the impugned order. The Trial Court on one hand has
accepted the case of prior user, reputation and likelihood of deception in
favour of the plaintiff. However when the issue of acquiescence had come,
it was answered against the plaintiff. While answering that the Trial Court
has considered the certain documents filed by the defendant which
includes the invoices and GST tax paid receipt. In those documents, the
address of alleged sister concern of plaintiff Astha Sales is shown as 144,
Ranipura, Indore.
Order 6 ao 14-2021
4. Though, the plaintiff has objected for these documents while
arguing Exhibit-5 and 5-A, the plaintiff has restricted them in opposing
rather than filing new documents. The plaintiff bonafidely believed that
the Trial Court will only consider the amended portion of the written
statement which is restricted to paragraph no.14-A of the plaint. There are
also objecting to the conduct of the Trial Court while taking the additional
written statement of record by passing the impugned order only. Their
grievance is that as the additional written statement was taken on record
by the same order by which their Exhibit-5 and 5-A were rejected caused
them prejudice.
5. After the impugned order was passed against them, they made
correspondence with concerned person of Astha Sales by writing the legal
notice and having a reply from the said Astha Sales thereby making a
grievance about the forged invoices. The contention is that the invoices
which the defendant has filed before the Trial Court contains Shriphal
loose camphor number of quantity as one of the product sold by the
defendant to M/s Astha Sales. Whereas the Astha Sales while replying to
plaintiff has supplied invoices which does not contend Shriphal loose
camphor as one of the product. The defendant wants to suggest that they
have sold the product in the name of Shriphal to the plaintiff in the year
2014 or there about and as such plaintiff is aware of the trademark of the
defendant and inspite of that the plaintiff has not taken action up to the
time of filing the suit amounts to acquiescence.
6. The plaintiff wants to file on record these documents and that
is why this application under order 41 Rule 27 of the Code of Civil
Procedure. Issue notice to respondents.
CIVIL APPLICATION 20/2021
Heard Shri Harshit Tolia, learned Advocate assisted by Shri
Order 6 ao 14-2021
Bansali and Shri Khambolkar, Advocates for the appellant.
2. My attention is brought to two orders passed by Hon'ble
Supreme Court. The order passed by this Court on 21/09/2019 was
challenged before Hon'ble Supreme Court by the defendant. While
disposing of Special Leave Petition, the Hon'ble Supreme Court directed
the Trial Court to dispose of the injunction application and the interim
protection granted by this Court on 21/09/2019 was extended for a
period of two months or till the disposal of the application whichever is
earlier. This direction was extended by Hon'ble Supreme Court as per the
order dated 09/04/2021. It was extended for three months period. The
Trial Court decided the Exhibit-5 and 5-A on 18/06/2021. As such, the
temporary relief granted by Hon'ble Supreme Court came to an end on
that date.
3. There is a prayer for grant of injunction made by way of this
application.
4. The main trust of the argument of learned Advocate for the
appellant is on following grounds:
a) Taking the additional written statement on record
contending the particulars which are pleaded by the
defendant exceeding his limits without taking leave of this
Court as contemplated under the Order VIII Rule 9 of the
Code of Civil Procedure.
b) Taking such additional written statement on record by
passing the same order thereby causing prejudice to the
plaintiff.
c) The claim of acquiescence by the defendant about selling
their product to Astha Sales is based on forged documents
(which is affirmed by Astha Sales and the documents to
Order 6 ao 14-2021
that effect are sought to be produced as per the Civil
Application No.21/2021).
d) the plea of acquiescence taken by the defendant does
not have any effect on the claim of plaintiff. It is for the
reason that the registration of trademark was not applied
in good faith and the registration if asked for by the person
who has acted as an agent for the plaintiff.
e) There is reliance of provision of Section 216 of the
Indian Contract Act which entitles the plaintiff to claim
benefit from the agent which he has gained by doing an
independent business rather than the business as an agent
on behalf of the principal.
5. There is a reliance on the judgment reported in (1994) 2
Supreme Court Cases 448 in the case of M/s Power Control Appliance and
others Vs. Sumeet Machines Pvt. Ltd. particularly paragraph no.27.
CONCLUSION
6. I have perused the impugned order with the assistance of the
learned Advocates. It is true that the trinity test the plaintiff has satisfied c
the Trial Court. The findings are in paragraph no.110, paragraph no.122 of
the impugned order. It deals with the prior user, reputation and likelihood
of deception. I am inclined to grant temporary injunction in favour of the
plaintiff-appellant. It is true that yet the additional documents sought to be
produced by the appellant are yet not taken on record. It does not mean
that it prevents the Court from considering them at an interim stage if the
facts and circumstances otherwise warrant. Even though it is true that the
appellant has admitted about carrying on business on the address 144,
Ranipura, Indore till the year 2007 and eventhough it may be true that
the defendant has supplied the goods to the firm Astha Sales, they have
the office at the same address still the defendant has not produced
Order 6 ao 14-2021
documents to show how the appellant firm is connected to Astha Sales.
There is no one more reason. During the post order correspondence, Astha
Sales had come with the case of forged documents in the invoices. That is
to say by adding the product Shriphal loose camphor in the list of products
sold by the defendant to Astha Sales. So this Court prima facie feels that
the temporary injunction can be granted as the claim of the defendant is
based on forged documents.
7. It is submitted that the prayer made in this application is
nothing but the similar prayer made in Exhibit-5 and 5-A. Hence interim
relief is granted in terms of prayer Clause-1 and 2 of the application till
appearance of the respondents.
8. Issue notice to the respondent in usual mode. The appellant to
comply with the provisions of Order 39 Rule 3 by sending the documents
to the respondent by RPAD and to file an affidavit.
9. The matter be kept on 14/09/2021.
JUDGE
R.S. Sahare
