Caravan Electricals Private ... vs Deb Chandra Shukla & Anr
2021 Latest Caselaw 1888 Cal

S/L 14
11.03.2021

GB C.O. 491 of 2021

Caravan Electricals Private Limited Vs.

Deb Chandra Shukla & Anr.

(Through Video Conference)

Mr. Shiba Prasad Mukherjee, Mr. Debanjan Mukherjee, Mr. Rohit Das.

... for the Petitioner.

Mr. Jahar Lal Ray, Ms. Kavita Rani.

... for the Opposite Parties.

This revisional application has been filed

challenging an order dated January 28, 2021 passed

by the learned Additional District Judge, 13th Court at

Alipore in Title Suit No.24 of 2017.

By the order impugned the learned court below

refused to extend the ad interim order which was

passed originally in the suit on January 6, 2018.

According to the learned court below the ad interim

order which was passed on January 6, 2018 and

extended upto January 30, 2019 had merged with the

order dated June 30, 2019, by which the suit was

dismissed along with an application for injunction.

Thus, the learned court below refused to extend the ad

interim order on the ground that when the High Court

allowed the appeal preferred from the order dated

January 30, 2019, being FAT No.371 of 2019, the High

Court simpliciter set aside the order dated January

30, 2019 and directed the trial court to dispose of the

application for temporary injunction, afresh.

The relevant portion of the order impugned is

quoted below:

"As per the law laid down by the Hon'ble Kerala High Court at Para-27(c) since the interim order passed on 06.01.2018 merged with the final order dated 30.01.2019 the interim order cannot be said revived automatically. From the plain reading of the order dated 20.08.2019 it also appears to me that it is the direction of the Hon'ble High Court to hear the injunction application afresh. That means whether the plaintiff is at all entitled to any interim protection that has to be decided afresh and after giving an opportunity to the defendant for filing objection.

In view of the aforesaid detailed discussion, in my considered opinion the order passed on 06.01.2018 came to an end when the suit was dismissed on merit and the same has been revived because of the Hon'ble High Court has simply set aside the order dismissing the suit.

In view of such fix 26.02.2021 for hearing of injunction application, W.O if any in the mean time."

This matter has a chequered history. A suit was

filed sometime in 2017 under the Trade Mark Act. By

an order dated January 6, 2018 an ad interim

injunction was passed restraining the

defendants/opposite parties and their men and agents

from passing off its product by using the trade mark

'NIFI CALCUTTA' which was deceptively similar to the

mark 'CALCUTTA' used by the plaintiff company. The

said interim order was extended from time to time

upto January 30, 2019. On January 30, 2019 the

learned court below dismissed the suit itself instead of

disposing of the application for temporary injunction.

It appears from the records that an application

for extension of interim order had been filed, which

was still with the record.

Aggrieved by the dismissal of the suit and

dismissal of the order of injunction, FAT 371 of 2019

was filed before this Court by the plaintiff. The said

appeal was allowed and this Court directed that the

order impugned be set aside and the suit be restored

and the matter be remitted back to the trial court for

disposal of the application for temporary injunction

afresh. The connected application filed in the appeal

was also accordingly disposed of as infructuous.

Thereafter, it is a fact that there was an incident of fire

in the court of the learned Additional District Judge,

13th Court at Alipore, where the suit was pending and

some records were destroyed. It is also a fact that no

activities were carried on in the court due to the

pandemic situation until the matter came up before

the learned court below on January 28, 2021, when

the petitioner renewed the prayer for extension of the

interim order.

The learned court below observed that

restoration of the suit by the High Court by setting

aside the order dated January 30, 2019 would not

automatically revive the ad interim order and the

prayer for extension of the ad interim order was

rejected on the assumption that without a specific

direction from the High Court for revival of the ad

interim order, the learned court below could not

extend the interim order.

Mr. Mukherjee, learned advocate appearing on

behalf of the petitioner submits that the plaintiff has

been using the trade mark since 1995. Records have

been shown in justification of such contention. It is an

admitted position that the defendants have been

restrained from January 6, 2018 from passing off its

product in the market under its trade mark.

Unfortunately, at the time of hearing of the application

for injunction, the court in gross violation of the

principles of law dismissed the suit as not

maintainable. The High Court had taken note of such

a shocking order of the learned court below and

allowed the appeal thereby setting aside the order

impugned. The order of the High Court was passed on

August 20, 2019. Thereafter, the fire broke out

sometime in July 2020 and the business of the court

did not allow disposal of the application for temporary

injunction as directed by this Court, due to the

pandemic situation. The litigant cannot be held

responsible for the above situation.

Mr. Ray, learned advocate appearing on behalf

of the opposite parties submits that the court did not

have any occasion to extend the ad interim order as

the ad interim order had expired long ago. He further

submits that setting aside of the order of dismissal of

the suit and restoration of the suit would not

automatically revive the interim order. He further

submits that the suit was dismissed on contest on

merits and setting aside of the order of dismissal

would not revive the ad interim order, as it was not a

case where the suit was dismissed for default. He

further submits that the petitioner should approach

the Hon'ble Division Bench for clarification of the

order and pray for further interim orders before the

Hon'ble Division Bench which disposed of the appeal.

His next contention is that the judgment [Vareed

Jacob Versus Sosamma Geevarghese & Ors.

reported in (2004) 6 SCC 378] relied upon by Mr.

Mukherjee will not apply in the facts of this case.

Having heard the contentions of the learned

advocates for the respective parties, in my opinion by

the order impugned the learned court below has

rejected the prayer for extension of the interim order

on the ground that the revival of the suit by the order

of this Court would not amount automatic revival of

the ad interim order. In this case, the petitioner had

specifically prayed for extension of the interim order,

which had already been passed earlier. The interim

order had merged with the order of dismissal of the

suit. The suit was restored and the order of dismissal

of the suit was set aside with a direction upon the

learned court below to hear out the application for

temporary injunction afresh. In the meantime, the ad

interim order which was passed merged with a

patently erroneous order of dismissal of the suit. The

said order was set aside with observations. During the

intervening period from the order of this Court and till

the matter was taken up on January 28, 2021, the

pandemic situation interrupted the business of the

Court and the petitioner was precluded from praying

for an extension of the interim order, earlier. However,

it appears that the High Court directed the learned

court below to hear out the application for temporary

injunction. There is no quarrel with the contention of

Mr. Ray that the application for temporary injunction

should be heard out expeditiously.

I now consider whether the learned court below

was wrong in not extending the interim order. This

Court in exercise of power under Article 227 of the

Constitution of India finds that in the facts as

narrated hereinabove, an interim protection should be

granted to the petitioner. Irreparable loss and injury

would be suffered especially because the said order of

injunction was enjoyed by the petitioner since January

6, 2018 and till the illegal dismissal of the suit. The

intervening pandemic situation and the litigation

which the petitioner had to initiate before the High

Court did not permit extension of the said interim

order. For that, the litigant should not suffer. It is also

on record that the petitioner had enjoyed the trade

mark since 1995.

Under such circumstances, the defendants are

restrained from selling their product upto March 19,

2021. The application for temporary injunction shall

be decided by the learned court below within a period

of two months from the next date fixed.

It is made clear that the petitioner shall be at

liberty to pray for an ad interim order before the

learned court below on the next date, which shall be

considered in accordance with law. The opposite

parties shall file their written objection within March

19, 2021, when the matter is fixed in the learned court

below.

It is also made clear that as the issue involves

business transactions of the parties and comparative

financial loss, the learned Judge-in-Charge of the

Court should take up the matter, in case, the court of

the learned Additional District Judge, 13th Court at

Alipore is vacant.

The revisional application is disposed of.

There will be, however, no order as to costs.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on priority basis.

(Shampa Sarkar, J.)