Delhi High Court

Triumphant Institute Of ... vs Aspiring Mind Assessment Pvt. ... on 13 May, 2014

Author: V.K.Shali

*                  HIGH COURT OF DELHI AT NEW DELHI
+                            C.S. (OS) No.1058 of 2014
                                            Decided on : 13th May, 2014

TRIUMPHANT INSTITUTE OF MANAGEMENT EDUCATION PVT.
LTD.                                    ...... Plaintiffs
             Through: Mrs. Pratibha M. Singh, Senior Advocate
                      with Mr. Tejveer Bhatia, Advocate.

                         Versus

ASPIRING MIND ASSESSMENT PVT. LTD. & ORS.
                                         ...... Defendants
              Through: Mr. Saikrishan Rajagopal, Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

I.A. No.8156/2014 (under Order 39 Rule 4 CPC) & I.A No.6786/2014 (under Order 39 Rule 1 & 2 CPC)

1. By this application bearing No.8156/2014 filed under Order 39

Rule 4 CPC, the defendants are seeking vacation of ex parte ad interim

injunction granted by this court in favour of the plaintiff on 16.4.2014.

2. The question to be decided by this order is as to whether the ex

parte ad interim injunction order granted in favour of the plaintiff

deserves to be continued or not once the defendant puts in appearance and

makes an allegation that the plaintiff is guilty of suppression of material

facts before they landed in court. Once this issue is decided obviously it

will take care of application under Order 39 Rule 1 & 2 CPC as well as an

application under Order 39 Rule 4 CPC. But before dealing with the rival

contentions in this regard, it may be pertinent here to give a brief

background of the case.

3. The plaintiff filed a suit for permanent injunction against the

defendants seeking a restraint against infringement of the trade mark and

domain name 'AIMCAT' as well as restraint against passing off and

rendition of accounts. Other consequential reliefs of delivery up,

damages etc. were also sought because of alleged unfair competition and

dilution of their trade mark. It was alleged that the plaintiff was the

original inventor, registered proprietor and prior user of the trade mark

'AIMCAT'. The said trade mark has been coined from the expression

'ALL INDIA MOCK CAT TEST' and it was alleged that it has been used

by the plaintiff exclusively, continuously and assertively since 2002. It

was alleged that the said mark is used by the plaintiff qua its specialized

coaching packages and test services for CAT exam.

4. It was alleged that defendants have now recently started using the

mark 'AMCAT' which is visually, structurally and phonetically similar to

the plaintiff's mark AIMCAT. It was also alleged that defendants are

also using the mark for a series of online employability assessment test

amounting to clear infringement of the plaintiff's coveted rights under the

statute as well as common laws.

5. The plaintiff had thereafter revealed about its organisation like the

year when the activities were started, the number of offices spread for its

activities in different towns. It was also stated that the forte of the

organisation has been to conduct tests for IIT-JEE. It was also stated that

turnover is from 2002-2003 gradually increasing to 10,665.74 crores in

2012-2013. The plaintiff also stated that its trade mark is registered in

Class 16 and 41 of Schedule IV of the Trade Marks Act, which are

reproduced as under :-

"16. .................. instructional and teaching material (except apparatus).............

41. Education; providing of training; entertainment; sporting and cultural activities."

6. On the basis of these averments made in the plaint and after

hearing the learned senior counsel Mrs. Pratibha M. Singh, this court

passed an ex parte ad interim injunction in favour of the plaintiff

restraining the defendants, their principal officer, family members,

servants, agents, dealers, distributors, retailers, assignees, licensees and

anyone acting for and on their behalf from using, advertising, promoting,

selling or offering for sale in any manner whatsoever its services under

the mark 'AMCAT' or any other title/name identical or deceptively

similar to plaintiff's registered trademark or to use the said mark as a part

of domain name in relation to educational services or in respect of any

goods/services in any manner whatsoever so as to result in infringement

of the plaintiffs rights in the registered trademark.

7. The application under Order 26 Rule 9 CPC read with Section 151

CPC was also allowed and local commissioners were appointed.

8. The defendants company, on being served, filed their reply to the

application as well as an application under Order 39 Rule 4 CPC for

vacation of an ex parte ad interim stay. The reason given by the

defendants for this is that the defendants company uses the brand

'AMCAT' in relation to test the measure of job suitability, employability

of the job seekers to provide them the feedback or their job skills, connect

them to the matching jobs and also help the companies to hire appropriate

candidates in this regard. It was alleged that they have developed a

computer software programme for this purpose which evaluates skills,

language cognitive, personality and domain knowledge. This word was

coined by them in 2008 and has been used by them since then and is

registered under Class 35 of the Trade Marks Act. The full form of the

'AMCAT' was given as Aspiring Minds Computer Adaptive Test. Class

35 of Schedule IV of the Act is produced as under :-

"35. Advertising, business management, business administration, office functions."

9. I have heard the learned counsel for the defendants as well as Mrs.

Pratibha M. Singh, the learned senior counsel for the plaintiff on the

application under Order 39 Rule 4 CPC and have also gone through the

record.

10. The main contention of Mr. Saikrishna, the learned counsel for the

defendants seeking vacation of the ex parte ad interim order passed

against the defendants has been on the ground that the plaintiff has been

guilty of suppressing crucial material facts and making gross

misrepresentation. In this regard the learned counsel made the following

points :-

a) The plaintiff deliberately concealed from the court that the

defendants are registered proprietors of its trade mark 'AMCAT' in

Class 35 of the Trade Marks Act, 1999. It was alleged that it was

the duty of the plaintiff to have disclosed this crucial fact while

approaching the court seeking permanent injunction in which they

had claimed an ex parte ad interim injunction.

b) The mala fides of the conduct of the plaintiff was evident from the

fact that the plaintiff deliberately produced only online status of the

defendants' trade mark application while as they were silent on the

valid registration of the defendants' mark 'AMCAT'.

c) The plaintiff also did not point out that the defendants being a

registered trade mark holder of the word 'AMCAT' and, therefore,

by virtue of Section 28 sub-Clause 3, the plaintiff was precluded

from claiming infringement of their registered trade make

'AIMCAT'.

d) The plaintiff has failed to point out to this court that the registration

of the defendant was under Class 35 which dealt with the test of

determining the suitability of the candidate for employment of the

nice classification while as the plaintiff's trade mark was registered

under Class 16 and 41 of the said classification. It was contended

that amendment to Rule 22 of the Trade Mark Rule 2013 had

abrogated the classification in Schedule IV and adopted a nice

classification on international lines though it was a replica of the

classification given in the Schedule but nevertheless, it was the

duty of the plaintiff to have pointed out that the registration of the

two trade names were under two different classes and there was

hardly any occasion for the defendants to infringe the trade mark of

the plaintiff.

e) The plaintiff has blatantly represented to the court by making

averment that it acquired knowledge of the commercial activities of

the defendants for the first time only in November, 2013 when the

cause of action is alleged to have accrued to the plaintiff. It was

stated by the defendants specifically that as early as on 3.5.2013,

the plaintiff's representative had contacted the defendants for

discussing the potential collaboration between the plaintiff and the

defendants and an e-mail in this regard purported to have been sent

by a representative of the plaintiff from Chennai was referred to. It

was also contended that this e-mail has not been denied by the

plaintiff. All that they have stated is that this e-mail was

inconsequential and written by a person who was not dealing with

the legal matters of the plaintiff company.

11. The second argument of the learned counsel for the defendants was

that there was no confusion for deception on the general public by the

existence of both the marks in question. In this regard, a comparison of

the two trademarks was drawn in the paper book and the distinction

between the two marks was pointed out to show that there was striking

dissimilarity between the two marks with regard to their getup, spelling,

colour combination and overall visual comparison which cannot mislead

any educated person who are the perspective customers of either of the

two parties and, therefore, they would make an informed choice in their

different fields.

12. Last but not the least, the learned counsel for the defendants Mr.

Saikrishna urged that the suit filed by the plaintiff suffers from delay and

acquiescence and, therefore, an ex parte ad interim injunction ought not

to have been issued. It was contended that though the plaintiff in its

averments has stated that the cause of action has accrued to them in

November, 2013 but actually it arose to them in May, 2013 when the e-

mail was written by them to the representative of the defendants for

collaboration and after having chosen to remain silent for almost a year,

they had acquiesced to the user of the mark by the defendant and delay in

any case was fatal to the grant of any ex parte ad interim injunction.

13. Mrs. Pratibha M. Singh, the learned senior counsel for the plaintiff

has denied that there was any concealment or suppression of material

facts or there was any gross misrepresentation made by the plaintiff on

the basis of which an ex parte ad interim injunction was granted in their

favour. In this regard, it was contended by her that the letter dated

3.5.2013 written by an official or a representative of the plaintiff

stationed in Chennai wherein a proposal was given to the defendants for

the purpose of having collaboration is totally inconsequential as it was

not followed upto its logical end. It was further stated that at best the

disclosure of this letter would have only shown that the cause of action

has accrued to the plaintiff in May, 2013 instead of November, 2013 and

if it is assumed that the cause of action would have accrued in May, 2013

then, the argument of delay would have been raised by the plaintiff. Such

an argument would and could not have got any benefit to the defendant.

14. In this regard, the learned senior counsel contended that the

Supreme Court in Midas Hygiene Industries Pvt. Ltd. Vs. Sudhir Bhatia

& Ors.; (2004) 3 SCC 90 has held that mere delay in bringing an action is

not sufficient to defeat the grant of an injunction if the grant of such

injunction becomes necessary and it is prima facie shown that the

adoption of the trade mark by the defendants is identical and dishonest. It

has been contended in the light of the judgment in Midas Hygiene's case

(supra) ex facie the adoption of the mark by the defendants which is

'AMCAT' and is appearance wise and phonetically similar to the trade

mark of the plaintiff in itself shows that there is not only infringement but

also possibility of deception and confusion in the mind of public at large

especially the perspective customers of the plaintiff.

15. So far as the question of registration of the trade mark of the

defendants is concerned, the explanation which has been given by the

learned senior counsel was that they had made online inquiries with

regard to the status of the 'AMCAT' from the office of the Registrar of

Trade Mark and such inquiries to the best of their knowledge revealed

that the trade mark was not registered and their application was pending.

The details of the application which were downloaded by the plaintiff had

been placed on record. It has been contended that for want of this

information, the plaintiff could not have known as to whether the trade

mark of the defendant was registered in class 35 or not and consequently

no such averment was made before this court. With regard to Section 28

sub-clause 3, it was contended by Mrs. Singh, the learned senior counsel

that as they were not aware of the registration of the mark of the

defendant and, therefore, there was no question of Section 28 sub-clause

3 coming into operation.

16. So far as the abrogation or repeal of the classification given in

Schedule IV of the Trade Marks Act, 1999 by nice classification is

concerned, it was contended by the learned counsel that this is also

inconsequential inasmuch as nice classification neither changes the class

nor the principle but on the contrary it is only a replica of the earlier

classification and, therefore, this at best can be attributed to be an

inadvertent bona fide mistake on the part of the plaintiff which is of no

consequence.

17. It was contended by the learned senior counsel that merely because

pictorially there happens to be some difference in the two trade names,

does not give a right to the defendant to use the trade name 'AMCAT' by

them which is phonetically, spell wise and presentation wise similar to

the trade name of the plaintiff as it is likely to cause confusion in the

mind of the public. It was also stated that the distinction which is sought

to be drawn by the learned counsel for the defendants on account of the

two programs being conducted by the plaintiff and the defendants on the

ground that the program of the defendants is for determination of

suitability of a candidate for employability is not different than training

and the mock test which is being conducted by the plaintiff for the benefit

of entrance to the management courses of Indian management institutes

and since it is likely to cause confusion, therefore, the defendants deserve

to be restrained and in any case, the defendants have adopted the mark

much later than the registration of the plaintiff's mark and, therefore,

under common law, the plaintiff is entitled to protection.

18. Lastly, with regard to delay and acquiescence, the learned senior

counsel for the plaintiff has stated that there is no inordinate delay in

coming to the court and moreover, in view of the judgment of the

Supreme Court in Midas Hygiene's case (supra), delay cannot be treated

to defeat the right of the plaintiff to get an ad interim injunction only on

the ground of coming belatedly in court when the plaintiff is able to

satisfy this court that the defendants are misusing the trade name of the

plaintiff.

19. I have thoughtfully considered the submissions made by the

respective sides and have gone through the judgments. There is no

dispute about the fact that the grant of an injunction is an equitable relief

and before a party claims an equitable relief, he must show not only to the

court that he has come to the court with clean hands but also that there

has to be a complete disclosure of facts in the plaint. This duty is further

enhanced on account of the fact where a prayer is made by the plaintiff

for grant of an ex parte ad interim injunction. The importance of full

disclosure of facts or rather the consequences of concealment and

suppression of material facts has been underscored by the courts

repeatedly. One of the judgment which has been cited by both the parties

is from our own High Court in case titled Rana Steels vs. Ran India Steels

Pvt. Ltd.; 2008 (4) AD (Delhi) 46 where the learned single judge of this

court in para 30 observed as under :-

"It has been submitted on behalf of the defendant that the plaintiff had deliberately withheld and suppressed the factum of the defendant's registration from this Court and that had the full facts been disclosed, this Court would not have granted the ex parte ad interim injunction to the plaintiff. Suppression of facts is undoubtedly a good ground for refusal of the equitable relief of injunction. That is a principle which is well engrained in our judicial system. But, the question is -- was there any suppression

on the part of the plaintiff? First of all, the plaintiff's explanation is that the defendant's registration was in an entirely different class of goods with which the plaintiff is not concerned. Secondly, the plaintiff was not aware of the defendants registration under class 19. It, apparently, came to know of the same through the defendant's written statement filed in the present suit. Prima facie, I would tend to believe the plaintiff. There are reasons for this. It must be remembered that in 2005 the defendant had also filed and application for registration of the mark RANA turn under class 6. The plaintiff filed an opposition to the same. In the counter-statement to the plaintiff's said opposition, the defendant made no mention that it had applied for the same mark in relation to goods falling under class 19. The plaintiff was interested in goods and services under class 6 and not under other classes including class 19. Therefore, it is not unreasonable for the plaintiff to have not known about the defendant's registration under class 19. Moreover, after the filing of the written statement, from which the plaintiff allegedly derived knowledge of the defendant's registration, the plaintiff has filed a rectification application under Section 57 of the said Act before the Intellectual Property Appellate Board, Chennai seeking cancellation/removal of the defendant's registration on various grounds. These actions, the filing of the opposition to the defendant's application in relation to class 6 goods and the filing of the rectification application, clearly demonstrate that the plaintiff is quick to guard its rights flowing from its registration. The sequitur is that the plaintiff was unaware of the defendant's said registration and could not have reasonably been expected to have known about it."

20. It may be pertinent here to mention that in this case, the plaintiff

was a registered proprietor of the mark 'RANA' in relation to steel rolled

products, C.T.D. bars, angles, flats, rounds, channels and girders falling

under Class 6 and it had chosen to file a suit against the defendant who

was the registered proprietor of a mark 'RANA tor' in respect of

'building material (steel)' falling under Class 19. The plaintiff filed a suit

that the defendant had recently started using trade mark 'RANA tor' in

respect of identical products in which an ex parte ad interim injunction

was granted. The defendant filed an application for vacation of the ex

parte ad interim injunction claiming that as the mark of the defendant

was registered trade mark by virtue of Section 28 sub-clause 3 of the Act,

there was a complete bar in respect of filing of a suit by one registered

proprietor of a trade mark against another registered proprietor of the

same or similar mark. In this case, the court ruled in favour of the

plaintiff that there was no concealment in obtaining an ex parte ad interim

order.

21. The maxim that 'he who seeks equity must do equity' meaning

thereby that a plaintiff in his dealings with persons against whom relief is

sought must act in a fair and equitable manner only then he is entitled to

injunction. The necessary corollary of this is that the plaintiff must

disclose to the court complete and true facts especially the facts which

may disclose the probable defence of the defendants or the plus points of

the defendants. If these details are withheld by a party or a plaintiff and

an ex parte injunction is obtained then it is going to be only short-lived

and the party must be penalized for such misconduct by discontinuing the

injunction granted in its favour.

22. Coming back to the facts of the present case, the defendants have

made serious allegations against the plaintiff regarding suppression and

concealment of material facts which, if disclosed, would have been

perhaps considered by the court to be sufficient enough to disentitle the

plaintiff to the benefit of grant of an ex parte ad interim injunction.

These facts are firstly, that the plaintiff in the cause of action clause has

specifically stated that they learnt about the commercial activities of the

defendants only in the month of November, 2013 for the first time that

the defendants are using the trade mark 'AMCAT' which is deceptively

similar to their trade name of 'AIMCAT' and, therefore, they were

constrained to issue a notice of cease and desist to which reply was given

by the defendants without stopping the user of their trade name but as a

matter of fact the defendants have placed on record an e-mail purported to

have been sent by a representative of the plaintiff from Chennai office

requiring the defendants to have a collaborative agreement with regard to

user of the trade name. It is, in my view, an important document which

ought to have been disclosed by the plaintiff to the court as it not only

discredits the averment made by the plaintiff that they acquired the

knowledge only in the month of November, 2013 but also shows that they

had knowledge about the user of the trade name 'AMCAT' way back in

the month of May, 2013 itself. The explanation which is sought to be

given by the plaintiff that even if the knowledge of the plaintiff is

assumed from the date of the letter at best instead of stating in the plaint

that cause of action would have accrued to them in November, 2013, it

would have been urged by the plaintiff that the cause of action accrued to

them in the month of May, 2013 and the knowledge would have been pre-

dated by another five/six months or so and that difference of six months

not having acquired the knowledge, could not have defeated the right of

the plaintiff in terms of the Apex Court in Midas Hygiene's case (supra),

does not convince the court.

23. I do not accept this explanation given by the learned senior counsel

for the plaintiff that the withholding of the letter dated 3.5.2013 is as

simple as is sought to be presented by seeking the extension of date of

knowledge only. This is only one of the pieces of information which, if

seen in the background of other relevant facts, changes the complexion of

the case of the plaintiff.

24. These facts are that the plaintiff has averred in the plaint that the

defendants have simply applied for registration of their trade name

'AMCAT' while as the defendants in reply to the show cause notice sent

to the plaintiff had specifically stated that the area of operation of the

plaintiff and the defendants is totally different as they are meeting the

requirements of different segments. The plaintiff was conducting training

and mock tests in respect of candidates who were seeking admission to

the management courses by way of CAT examination with their trade

mark 'AIMCAT' which was registered in Class 41 as against the

registration of defendants trade mark in Class 35 where they were

conducting mock computer adaptive test in order to determine the

suitability of a candidate for employment. The defendants were not

conducting any training programmes for this. These tests are undertaken

by the perspective candidates seeking employment or for and on behalf of

various organizations intending to recruit fresh candidates for

employment and thus, their area of operation or what the defendants call

as 'industry' was totally different and it is unbelievable that after having

received the reply from the defendants that they were operating in a field

of conducing the mock test in order to determine the suitability of a

candidate for his employability that they would not have been able to find

out the category or the class in which they were registered. The

plaintiffs, in my view, were feigning ignorance deliberately to induce the

court to pass an ex parte order. If they would have done a bit of effort,

they would have known that the defendants are registered in Class 35. If

they have not done so then they have done it at their own peril or

otherwise the only probable inference which a reasonable person could

try in such all circumstances that they were aware of the fact that the

defendants were registered in Class 35 which was altogether a different

class than the Class of 41 in which the plaintiff was registered. If we

attribute this deemed knowledge to the plaintiff then obviously this

information has been withheld by them which has to be seen in the

context of withholding of the letter dated 3.5.2013 that it acquires

importance and thus, it becomes suppression of material facts by the

plaintiff only with a view to score a march over the defendant.

25. The another aspect which becomes important as to why the

withholding of registration by the plaintiff of the defendants in Class 35

acquires significance is because of Section 28 sub-clause 3 of the Trade

Marks Act, 1999 which reads as under :-

"28. Rights conferred by registration.--

(1) ...........

(2) ............

(3) Where two or more persons are registered proprietors of trade marks, which are identical with or nearly resemble each other, the exclusive right to the use of any of those trade marks shall not (except so far as their respective rights are subject to any conditions or limitations entered on the register) be deemed to have been acquired by any one of those persons as against any other of those persons merely by registration of the trade marks but each of those persons has otherwise the same rights as against other persons (not being registered users using by way of permitted use) as he would have if he were the sole registered proprietor."

26. A perusal of the aforesaid Section clearly shows that if an action

for violation or infringement of a trade mark is brought about by a party

against another person or a defendant claiming infringement whose trade

mark is also registered though in a different class, such an action would

not lie. Reliance in this regard is placed on P.M. Diesels Pvt. Ltd. Vs.

Thukral Mechanical Works; PTC (Suppl.) (2) 863 (Delhi) which also

deals with the concept of trafficking in trade mark by getting the trade

mark AIMCAT registered the plaintiff cannot be permitted to scuttle the

genuine and legitimate commercial activity of the defendant in a different

field on the basis of perceived infringement of their trade mark when

there contemporaneous conduct does not match their conduct, for

example, no action for revocation of the trade mark of the defendant is

initiated. It is stated during the course of argument and in the reply to the

application the plaintiff reserves the right to initiate such an action.

27. Mrs. Singh, the learned senior counsel for the plaintiff has referred

to an order passed in R.F.A. (OS) No.77/2014 to contend that an

infringement action may lie against another registered proprietor if the

conditions as stipulated in Section 124 of the Trade Mark Act, 1999 are

satisfied.

28. I have gone through Section 124 of the Act. I feel that the only

condition when the said section may come in operation is envisaged in

Section 124 (1) (b) (ii) but that is also conditioned with the court forming

a prima facie view that the registration of the trade mark of either party is

invalid while as in the instant case, it is neither the case of the plaintiff

not that of the defendants that the trade mark of the opposite side is

invalid. So Section 124 does not come into operation at all.

29. The aforesaid facts clearly show that the plaintiff has been prima

facie guilty of suppression and concealment of material facts. Firstly,

non-disclosure of letter dated 3.5.2013 purported to have been written by

their official from Chennai and consequently wrongly making an

averment in the cause of action clause that they got the knowledge about

the activities of the defendants only in November, 2013 while as they had

knowledge from May, 2013; secondly, non-disclosing the fact that the

defendants were dealing in a different industry of taking Computer

Adaptive Mock Test for determining the suitability of candidates for

employment which falls in Class 35 of Schedule IV and not conducting

any training program or taking tests for admission to CAT etc. as done by

the plaintiff. Thirdly, non-disclosure of the registration of the trade mark

of the defendants despite having the knowledge about the same and if not

having knowledge of the same, they will be deemed to have the

knowledge, as it was their responsibility to have conducted the complete

search thoroughly and placed the facts before the court and in taking any

contemporaneous action of initiating any action for revocation of the

trade mark of the defendants. Fourthly, the adoption of trade mark by the

defendants cannot be said to be dishonest. Because of these reasons, I

feel that the ex parte ad interim injunction granted in favour of the

plaintiff deserves to the vacated.

30. In addition to the vacation of the ex parte ad interim injunction

granted in favour of the plaintiff even on merits also if one sees the

trademarks of the plaintiff and the defendants, there are distinctive

features which have been reproduced by the defendants in their reply

which go to show that as the conure of services of both the plaintiff and

the defendants are educated people and there is no likelihood of any

prospective customer being mislead so as to associate the trade mark of

the defendants with that of the plaintiff. In this regard, the comparison of

the true trademarks and their distinctive features are being reproduced as

under :-

 Srl.    Particulars Plaintiff                             Defendants
No.
 1.     Trademark



 2.       Services       Under the mark AIMCAT,           Under       the      mark

the plaintiff provides special AMCAT, the defendant study packages and provides a series of classroom programmes for tests that are used to students aspiring for the measure job skills of a CAT exams. graduate and to get them recruited in jobs.

It has no connection whatsoever with the CAT exams.

                         The      plaintiff  provides     The defendant does not
                         coaching      and    training    provide any coaching
                         classes.                         or training classes.
                         The plaintiff's services are     The defendants tests
                         available online and are         are only accessible
                         accessible from any place        from the Test Centres
                                                          organized by it and is
                                                          not directly accessible
                                                          online.
 3.      Customers       The plaintiff's customers are    The          defendants'
                         students aspiring to crack the   customers              are
                         CAT      exams      and    get   graduates looking for
                         admissions in MBA colleges.      employment            and
                                                          Corporations like HCL,
                                                          Accenture Wipro, etc.
                                                          seeking to hire.

31. The aforesaid facts would clearly show that even on merits, the

plaintiff does not have a prima facie case and if it does not have the

prima facie case obviously there is no question of balance of convenience

being in favour of the plaintiff rather the balance of convenience is in

favour of the defendants. Both the plaintiff as well as the defendants are

operating in their own spheres. The plaintiff cannot be assumed to be

suffering any irreparable loss in case stay is not granted as it can always

be compensated in terms of money if it ultimately succeeds. It may also

be stated that on merits also, the plaintiff is not entitled to any stay. I,

therefore, vacate the ex parte ad interim stay dated 16.4.2014 even on

merits.

32. The application of the plaintiff under Order 39 Rule 1 & 2 CPC