[Cites 4, Cited by 0]
Bombay High Court
Harikishan Pandurang Mundada H U F ... vs Yash Industries And Another on 12 December, 2025
2025:BHC-AUG:34836
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO.34 OF 2022
WITH
CIVIL APPLICATION NO.9230 OF 2022 IN AO/34/2022
Harikishan Pandurang Mundada, H.U.F.
represented by its Karta
Shri Harikishan Pandurang Mundada,
Age - 48 years, Occupation - business,
carrying on business in the name and style of
'Mundada Foods', having its principal place
of business at G-12, M.I.D.C. area,
Latur - 413531, Maharashtra, India. ... Appellant
(Ori. Plaintiff)
Versus
1. Yash Industries having its address/office
at Nagar Road, Tintarwani, Taluka Shirur,
District Beed, Maharashtra - 431130, India.
2. Mahadeo Sadashiv Khedkar having
his address at Nagar Road, Tintarwani,
Taluka Shirur, District Beed,
Maharashtra - 431130, India. ... Respondents
(Ori. Defs)
...
Advocate for Appellant : Mr. Hiren Kamod a/w Mr. Vaibhav
Keni, Ms. Neha Iyer and Proutima Ray i/b Ashwin V. Sakolkar.
Advocate for Respondent No.1 : Mr. Rahul R. Totala a/w Mr.
Swapnil V. Lohiya and Mr. Sidhant Somani.
...
CORAM : SHAILESH P. BRAHME, J.
RESERVED ON : 05.12.2025
PRONOUNCED ON : 12.12.2025
JUDGMENT :
1. Heard both sides finally with their consent.
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2. Appeal is directed against order dated 25.03.2022 below
Exh.5 rejecting application for temporary injunction preferred
in Special Civil Suit No.1 of 2021, pending before District
Judge-4 Beed.
3. Appellant has filed Special Civil Suit No.1 of 2021
against the respondents to restrain them from infringement of
appellant's ;
(i) registered trade mark and label mark as "SUNRICH"
(ii) registered design
(iii) copy right
(iv) committing tort of passing of the good products.
Application Exh.5 was filed under Order 39 Rule 1 and 2
of CPC. Respondents have contested the proceedings. The Trial
Court had granted ad-interim relief vide order dated
28.02.2022. By impugned order, application Exh.5 was
rejected. The suit is still pending before the Trial Court.
4. The controversy pertains to registered trade mark, label
mark, design of the appellant as "SUNRICH". It is contended
that since 2004-2005, the trade mark was being adopted and
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thereafter variants were introduced. Appellant is stated to be
in business since 2004-2005 in packaged aerated drinking
water. It is pleaded that there is huge turn over, business and
goodwill of the appellant. It is alleged that respondents have
infringed the statutory rights of the appellant by their sale of a
product YashRich. They also ventured in mineral aerated
packaged drinking water. It is stated that respondents have
dishonestly adopted impugned trade mark which is closely and
deceptively similar to the appellant's trade mark. That is the
cause shown for filing suit.
5. Respondents have contested the suit on the ground that
SUN, RICH and AQUA are generic words. The appellant cannot
claim any monopoly or exclusivity. The respondents are stated
to have registered trade mark which is neither phonetically or
visually similar to the trade mark and label of the appellant. All
the allegations of appellant are denied.
6. Learned counsel Mr. Hiren Kamod made elaborate
submissions relying upon various judgments of High Court and
Supreme Court. He has also referred to Commercial
Miscellaneous Petition No.40094 of 2022 and the interim order
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passed therein. He tried to demonstrate from the colour photo
copies of the trade mark and the label, the mischief of the
respondents. According to him, Trial Judge committed patent
illegality in rejecting the application and the decision is against
law laid down by Supreme Court in the matters of Amritdhara
Pharmacy Vs. Satyadeo Gupta [AIR 1963 SC 449] and Hiralal
Parbhudas Vs. Ganesh Trading Company and others [1984 (4)
PTC 155 (Bom.)]. Impugned order is contended to be against
the settled principles of law.
7. According to him, the principles of wonderment are
overlooked. It is an error of jurisdiction to conduct microscopic
examination. It is further submitted that respondents
strategically and deliberately adopted the trade mark, the label
and the design to mislead the customer for causing huge loss to
the appellant. Besides above submissions, learned counsel
strenuously canvassed various submissions to make out a case
of temporary injunction.
8. Per contra, learned counsel for the respondents relied on
affidavit-in-reply to repel the claim of the appellant. He
supported impugned order. It is submitted that appellant
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suppressed that it learnt about the trade mark, label and
design of the bottle of the respondents in December 2021. It is
further submitted that a false suit has been filed to create
monopoly in the business. The trade mark, label and the design
of the respondents is stated to be legal and as per settled
practices. It is submitted that a threadbare analysis of the
matter is not permissible at the interlocutory stage.
9. It is predominantly canvassed by learned counsel Mr.
Totla that there was possibility of the settlement between the
parties. My attention is adverted to interim orders passed on
09.10.2024 and 24.10.2024 in the present appeal to buttress
that in pursuance of the talks of the compromise, the
respondents stopped the production of the bottle of the old
design and adopted a new design. During the course of a
hearing, learned counsel has made candid statement that in a
collateral proceeding before the principal seat also it was
disclosed the change of design of the bottle and the label. It is
demonstrated before me by showing the colour photo copy of
old label and the changed label. The changed design of the
bottle is also shown to me. In view of the submissions, I called
upon the respondents to submit the affidavit disclosing the
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supervening events. Accordingly, additional affidavit/
undertaking was tendered on 04.12.2025.
10. The affidavit tendered by the respondents is countered
by written submissions-cum-rejoinder filed by the appellant.
The purport of the rejoinder is that subsequent changes do not
defeat cause of action, and it still survives. The subsequent
changes fortify appellant's case and the validity of the
impugned order needs to be tested independently.
11. The affidavit tendered by the respondents categorically
discloses the change of design of the bottle and the label as
well as stoppage of production of the old bottle. The following
statements in the affidavit are relevant :
"6. It is also pertinent to note that during the course of the
hearings of the present appeal, the Respondents have handed
over to this Hon'ble Court the changed design of the bottle along
with the new label of the bottle to the Appellants which is also
duly recorded in order dated 09.10.2024 and 24.10.2024 passed
in the captioned Appeal. The order dated 24.10.2024 also
recorded that the Respondents have also stopped the production
of bottle having old design."
"7. The Respondents since has already changed the design and
label of the bottle which is already stated by me in reply
Affidavit dated 5.07.2023 filed in rectification proceedings
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before Hon'ble Bombay High Court, which is within the
knowledge of the Appellants and since Respondents are not
using the impugned design of the bottle and impugned label of
the bottle since 01.02.2023, it also undertakes additionally that
it shall in future also not use, sale, manufacture, produce the
impugned design and impugned label."
12. In view of the candid statements referred above, I find
that it is not necessary to decide the controversy between the
parties. Special Civil Suit No.1 of 2021 is still pending. Due to
supervening events and the statements made by the
respondents on affidavit, no immediate loss is likely to be
caused to the business and the goodwill of the appellant. Both
parties have raised intricate questions of law and facts which
can be better dealt with after the full-fledged trial. The
irreparable loss apprehended by the appellant has been taken
care of by the affidavits referred above.
13. The subsequent events and the undertaking tendered by
the respondents have reduced pressing urgency in the matter.
Already four years are over and suit has not been progressed
much. For in-depth inquiry into the the intricacies, full-fledged
trial is the only solution. I find no merits in the objections
raised by the appellant to the affidavit or undertaking.
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14. This Court is guided by the principles laid down by the
Supreme Court in Wander Ltd. and Anr. Vs. Antox India P. Ltd.
[1990 (Supp) SCC 727]. The submissions of both the parties
cannot be answered unless there is re-assessment of the
material. In the given facts and circumstances of the case, I
find it appropriate to relegate the parties for the full-fledged
trial, instead of interfering in the impugned judgment and
order.
(i) Appeal from order is disposed of and learned
District Judge-4, Beed shall expeditiously decide
Special Civil Suit No.1 of 2021 within a period of
eight (8) months from today.
(ii) The affidavit shall be treated to be undertaking of
the respondents.
(iii) In view of disposal of Appeal from Order, pending
civil application does not survive. Civil
application as such is disposed of.
(SHAILESH P. BRAHME, J.)
...
vmk/-
