Lupin Ltd. vs Sun Pharma Laboratories Limited & ...
2014 Latest Caselaw 5238 Del

$~17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO(OS) 446/2014

      LUPIN LIMITED                                      ..... Appellant
                         Represented by:     Mr.Rajiv Nayyer, Sr.Advocate,
                                             Ms.Pratibha Singh,
                                             Sr.Advocate instructed by
                                             Mr.Adhesh Nargotker,
                                             Mr.Mohit Abraham, Mr.Arvind
                                             Kr.Ray, Advocates

                         versus

      SUN PHARMA LABORATORIES
      LIMITED & ANR                                      ..... Respondents
                    Represented by:          Mr.Sudhir Chandra,
                                             Sr.Advocate with Mr.Sachin
                                             Gupta, Ms.Dipika Prasad and
                                             Ms.Yamini Pant, Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

                         ORDER

%                        17.10.2014
Caveat No.918/2014

Counsel as above appeared for the respondent/caveator and hence the caveat is discharged CM No.17280/2014 Allowed, subject to just exceptions FAO(OS) 446/2014

1. The appellant is a defendant in the suit filed by the respondent. The FAO(OS) 446/2014 page 1 of 3 apparent grievance is to an order dated August 01, 2014 granting ad-interim injunction to the plaintiff - respondent, restraining appellant from selling pharmaceutical preparations under the trade mark Tri-Vobit or any other trade mark which is deceptively similar to the plaintiff's trade mark Trivolib.

2. The appellant took resort to the remedy granted by law i.e. under Order 39 Rule 4 of the Code of Civil Procedure and filed IA No.20124/2014 praying that the ad-interim injunction granted on August 01, 2014 be vacated.

3. The application in question was listed before the Court on October 14, 2014. The learned Presiding Judge of the Court was on leave. The Court Master simply adjourned the matter to December 10, 2014.

4. The mandate of law is to make an endeavour to decide an application filed under Order 39 Rule 4 of the Code of Civil Procedure within 30 days of the application being filed.

5. Learned counsel for the appellant, when indicated by this Court that the correct thing to do would be to direct listing of IA No.20124/2014 before the learned Single Judge on October 29, 2014, makes a request that the impugned order would at least require a slight modification. The modification would be to enable the appellant to exhaust the existing stock available for the reason the product is tablets. The issues concerning payment of excise duty etc. would arise if the existing stock with the stockist or in the market or lying with the appellant, has to be repackaged in strips with new trade mark.

6. Learned counsel for the respondent fairly concedes that subject to the FAO(OS) 446/2014 page 2 of 3 appellant disclosing on an affidavit the existing stock, said stock may be permitted to be liquidated with the offending trade mark within a period of six months.

7. We dispose of the appeal passing two directions:-

(i) IA No.20124/2014 shall be listed before the learned Single Judge on October 29, 2014 and an endeavour would be made by the learned Single Judge to decide the same as expeditiously as possible and preferably within a period of one month thereof.

(ii) Upon the appellant filing an affidavit in the suit enclosing therewith the stock statement, duly certified as authentic by a responsible officer of the appellant company, existing stock under the trade mark Tri-Vobit can be liquidated by the appellant within a period of six months from today.

8. No costs.

CM No.17279/2014

Dismissed as infructuous.

PRADEEP NANDRAJOG, J.

MUKTA GUPTA, J.

OCTOBER 17, 2014
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FAO(OS) 446/2014                                                   page 3 of 3