Delhi High Court
Siel Edible Oils Limited (Seol) vs M/S Khemka Sales (P) Ltd. on 4 March, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: January 19, 2010
Date of Order: March 04, 2010
+ IA No. 16898 of 2009 in CS(OS) 1093/2009
% 04.03.2010
SIEL EDIBLE OILS LIMITED (SEOL) ...Plaintiff
Through: Mr. Sandeep Sethi, Sr. Advocate with Ms. Ekta Kapil,
Advocates
Versus
M/s Khemka Sales (P) Ltd. ...Defendant
Through: Mr. Anil Goel, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the
judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
1. By this application under Order 47 Rule 1 CPC, the plaintiff/
applicant has sought review of the order passed by this Court on 7th
December, 2009 on the ground that this Court while adjourning the
present suit sine die had observed that the Court cannot proceed with
the interim application for injunction and the application for injunction
has also to be stayed. It is submitted that this observation of the Court
was contrary to the settled legal position and the judgments
pronounced by Division Bench of this Court and, therefore, there was
CS(OS) 1093/2009 SIEL EDIBLE OILS LTD.(SEOL) v. M/s Khemka Sales (P) Ltd. Page 1 Of 3
an error apparent on the face of the order and the order needs review.
The plaintiff relied upon Clinique Laboratories LLC & Anr. v. Gufic
Limited and another 2009(41) PTC 41 (Del) wherein this Court
observed as under:
"14. I thus conclude that a suit for infringement of
registered trademark is maintainable against another
registered proprietor of identical or similar trademark
and in such suit, while staying the further
proceedings pending decision of the registrar on
rectification, an interim order including of injunction
restraining the use of the registered trademark by
the defendant can be made by the court, if the court
is prima facie convinced of invalidity of registration
of the defendant‟s mark".
2. A similar view was taken by the Division Bench of this Court in
Rhizome Distilleries P. Ltd. and others v. Pernod Ricard S.A. France and
ors. FAO(OS) No.484 of 2008 decided on 23rd October, 2009 whereby
this Court observed as under:
"21. Section 124(5) preserves the power of the
Court to make any interlocutory order including (a)
granting an injunction (b) directing account to be
kept, (c) an order appointing a Receiver or 9d) an
order attaching any property. Plainly, the parenthesis
in this Sub-section is superfluous. The last nine words
dispel any doubt as to the power of the Court staying
proceedings before it as it specifically contemplates
that interlocutory orders could be made „during the
period of the stay of the suit".
CS(OS) 1093/2009 SIEL EDIBLE OILS LTD.(SEOL) v. M/s Khemka Sales (P) Ltd. Page 2 Of 3
3. This legal position is not controverted by the respondent. I,
therefore, consider that the order regarding staying of proceedings on
an application for interim injunction is required to be recalled and is
therefore hereby recalled. It is, therefore, directed that while the suit
shall remain stayed, the interim injunction granted by this Court vide
order dated 29th May, 2009 restraining defendant from manufacturing
and selling washing soap under the trade name DCM No.1 shall
continue.
4. In the result, the application is allowed and the order dated 7th
December 2009 is recalled to the above extent. The application stands
disposed of.
CS(OS) 1093/2009
1. The matter be listed before the Regular Bench on 8th April, 2010,
subject to orders of Hon'ble The Acting Chief Justice, for disposal of
interim application for injunction on merits and for further directions.
March, 2010 SHIV NARAYAN DHINGRA J.
rd
CS(OS) 1093/2009 SIEL EDIBLE OILS LTD.(SEOL) v. M/s Khemka Sales (P) Ltd. Page 3 Of 3
