Shree Ganesh Besan Mill And Ors vs Ganesh Grains Limited
2021 Latest Caselaw 361 Cal/2

OC - 2

                            ORDER SHEET
                           APOT 62 OF 2021
                                 WITH
                            CS 92 OF 2020
                             GA 1 OF 2021
                   IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURISDICTION
                             ORIGINAL SIDE
                          (Commercial Division)


                 SHREE GANESH BESAN MILL AND ORS.
                             Versus
                      GANESH GRAINS LIMITED


BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI
The Hon'ble JUSTICE MD. NIZAMUDDIN
Date : 7TH April, 2021.

                                                                      Appearance:
                                                           Mr. Manish Biala, Adv.
                                                           Ms. J. Chowdhury, Adv.
                                                            Mr. A. Upadhyay, Adv.
                                                                  Ms. R. Seal, Adv.
                                                               ...For the appellant

                                                     Mr. Ranjan Bachawat, Sr. Adv.
                                                                Mr. D. Ghosh, Adv.
                                                              ...For the respondent

The Court : Leave is granted to the advocate-on-record for the

appellants to incorporate in the Memorandum of Appeal the certified

copy of the order dated 17th March, 2021 correcting the impugned

judgment and order dated 15th March, 2021.

Leave sought by the appellants to file a supplementary affidavit

bringing on record some additional papers is refused. The request to

entertain those documents can only be considered if a proper application

under Order 41 Rule 27 of the Civil Procedure Code is made before the

Court upon notice to and service upon the respondent.

This appeal from the judgement and order dated 15th March,

2021 made by a learned single judge of this Court in an interim

application taken out by the respondent/plaintiffs, restraining the

appellants/defendants from using the mark "GANESH", is formally

admitted.

We are of the opinion that the appeal should be expeditiously

heard out dispensing with all formalities.

As the respondent is appearing by learned counsel, issuance and

service of the notice of appeal are dispensed with.

Let informal paper books be filed by learned advocate-on-record

for the appellants by 20th April, 2021, serving a copy thereof upon the

advocate-on-record for the respondent at least seven days before the date

of hearing of the appeal.

We find that in the impugned judgement and order, the learned

single judge giving reasons has held that the respondent is the owner of

the registered word mark "GANESH" and that the appellants could not

show prior use of this mark to make any claim of concurrent user of this

mark with the respondent.

At the interim stage, these findings are undoubtedly prima facie.

Normally, the appeal Court does not interfere with such prima facie

reasoned findings of fact arrived at by the Court below, unless, the

findings are absolutely perverse. Far less is the scope of the Appeal court

to interfere with those findings at this stage of admission of the appeal.

In those circumstances, we decline to pass any order of stay. All

observations are prima facie.

The stay application (GA No.1 of 2021) is, accordingly, disposed

of.

List the appeal (APOT No.62 of 2021) "For Hearing" on 5th May,

2021.

(I. P. Mukerji, J.)

(Md. Nizamuddin, J.) A Dey