The Polo Lauren Co Lp vs Royal Classic Mills Pvt Ltd & Ors
2012 Latest Caselaw 3722 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                   Date of Judgment:01.06.2012

+     CM(M) 702/2012 & CM Nos.10616-18/2012

THE POLO LAUREN CO L.P.                                ..... Petitioner
                 Through             Mr. Neeraj Kishan Kaul, Sr.
                                     Advocate with Mr. S.K. Bansal,
                                     Adv.
             versus
ROYAL CLASSIC MILLS PVT LTD & ORS      ..... Respondents
                    Through Mr. Kiran Soni, Adv.
    CORAM:
    HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

CAV No. 595/2012

Caveator has appeared. Caveat stands discharged.

CM(M) 702/2012 & CM Nos.10616-18/2012

1 Impugned order is dated 28.04.2012; the trial Court which had

granted an ex-parte injunction in favour of the plaintiff on 07.04.2012

on his application under Order XXXIX Rules 1 & 2 of the Code of Civil

Procedure (hereinafter referred to as the 'Code') had set aside this

conditional order holding that compliance under Order XXXIX Rule 3

of the Code has not been made.

2 Record shows that the present suit is a suit for permanent

injunction, infringement and passing of; the petitioner claims himself to

be the registered owner of the trademark/trade name POLO/POLO

RALPH LAUREN; his contention is that the defendants are using the

impugned trademark/label CLASSIC POLO and Device of Polo Player

which is infringing the trademark of the plaintiff.

3 Certain dates are relevant. On 07.04.2012, an ex-parte order was

passed in favour of the plaintiff on his application under Order XXXIX

Rules 1 & 2 of the Code; the defendant was restrained till the next date

of hearing from dealing with the aforenoted trademark/label which the

defendant was using and which as per the plaintiff was infringing his

trademark/trade name. This order was passed subject to the compliance

of Order XXXIX Rule 3 of the Code which compliance has to be

effected within one week. On 27.04.2012, the plaintiff had moved an

application seeking clarification in the order as there appeared to be an

error in the mark described of the defendant which had been described

as POLO RALPH LAUREN instead of CLASSIC POLO and Device of

Polo Player. The Local Commissioner had been intimated about the

order dated 07.04.2012 where again the wrong name of the

trademark/trade name of the defendant had been mentioned. This

rectification was informed by a subsequent letter to the Local

Commissioner only on 10.05.2012; it is also not in dispute that on

18.05.2012 and 19.05.2012 when the Local Commissioner had gone to

visit the premises of the defendant, he could not execute the local

commission. On 21.05.2012, the plaintiff had moved two applications

before the trial Court; first application had sought amendment in his

plaint whereas the second application had sought extension of time for

compliance of provisions of Order XXXIX Rule 3 of the Code;

contention being that compliance of Order XXXIX Rule 3 of the Code

could not be effected only for the reason that there was an error which

had crept in the order dated 07.04.2012 for which an application had

been filed seeking its rectification but was taken up subsequently on

28.04.2012.

4 Submission of the petitioner is that the whole purpose of the

appointment of the Local Commissioner would have been defeated if the

defendant would have known of this ex-parte order which had been

passed in favour of the plaintiff and it was in these circumstances that

compliance of Order XXXIX Rule 3 of the Code could not be made

within the time span given in the order dated 07.04.2012.

5 The counter submission of the learned counsel for the respondent

is that the impugned order had vacated the conditional stay also for the

reason that there was suppression of material fact by the plaintiff;

attention has been drawn to the order dated 28.04.2012 wherein this

submission of the defendant has been noted but the interim relief

granted on 07.04.2012 had been vacated only for the reason that there

was no compliance of Order XXXIX Rule 3 of the Code within time

span afforded; primarily this was because of the error in the order of the

Court dated 07.04.2012 and this was a glaring error which needed to be

corrected.

6 Admittedly the application under Order XXXIX Rules 1 & 2 of

the Code is yet pending before the trial Court. It is also not the case

where the defendant had moved an application under Order XXXIX

Rule 4 of the Code.

7 In this background, interim relief granted in favour of the plaintiff

on 07.04.2012 is restored. Petition disposed of.

INDERMEET KAUR, J JUNE 01, 2012 A