Aura Synergy India Pvt Ltd & Ors vs M/S New Age False Ceiling Co Pvt Ltd ...
2016 Latest Caselaw 6989 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 18.11.2016

+       FAO(OS) 177/2016

AURA SYNERGY INDIA PVT LTD & ORS                              ... Appellants

                                       versus

M/S NEW AGE FALSE CEILING
CO PVT LTD & ORS                                              ... Respondents

Advocates who appeared in this case:
For the Appellants           : Mr Sanjeev Sindhwani, Senior Advocate with
                               Mr Harsh Kaushik, Mr Abhay Chattopadhyay and
                               Gaurav Sharma
For the Respondents          : Mr Saif Khan with Mr Manish Biala


CORAM:
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE JAYANT NATH

                                  JUDGMENT

BADAR DURREZ AHMED, J (ORAL) CM 22329/2016(condonation of delay) The delay in filing the appeal is condoned.

The application stands disposed of.

FAO(OS) 177/2016 & CM 22330/2016 & CM 22331/2016

1. This appeal has been preferred against the judgment and/or order

dated 10.02.2016 passed by a learned Single Judge of this Court, whereby

he has dismissed IA 23095/2015, being an application under Order 39

Rules 1 and 2 CPC, filed by the appellants/plaintiffs and allowed

IA 26213/2015 (under Order 39 Rule 4 CPC) which had been filed by the

respondents/defendants.

2. The entire battle is with regard to the trade mark 'AURA'. The

plaintiffs claimed exclusivity over the said trade mark in respect of

metallic false ceilings. The suit that has been filed is one of passing off in

which the plaintiffs claimed that the defendants were passing off their

products as those of the plaintiffs/appellants by using the mark 'AURA'.

3. Initially, the learned Single Judge had granted an ex parte ad

interim injunction restraining the defendants from using the mark 'AURA'

in respect of metallic false ceilings. As mentioned above, the

respondents/defendants filed the application under Order 39 Rule 4 for

vacation of the ex parte ad interim injunction that had been granted. One

of the main grounds raised in the application for vacation of the injunction

was that the plaintiffs/appellants had not come to Court with clean hands

and, therefore, had disentitled themselves for the relief of injunction being

an equitable relief. In the first instance, it was contended that the plaintiffs

had not disclosed the earlier relationship between the plaintiffs/appellants

on the one hand and the defendants/respondents on the other, whereby the

plaintiffs/appellants, under an agreement dated 20.04.2012, functioned as

an agent of the defendants/respondents in respect of metallic false ceilings.

The plaintiffs/appellants have clearly marketed metallic false ceilings

manufactured by the defendants during the subsistence of the said

agreement dated 20.04.2012.

4. The learned Single Judge has examined the matter in great detail

and particularly on the allegation that the plaintiffs/appellants had

suppressed and/ or concealed material facts and based on such suppression

and concealment, the plaintiffs/appellants had approached this Court for

the ex parte ad interim injunction which it did get.

5. We have also heard the learned counsel for the parties at length and

have examined the papers before us. We are in full agreement with the

conclusions arrived at by the learned Single Judge with regard to

suppression and concealment. Insofar as the merits of the matter are

concerned, any findings in the impugned order are obviously only of a

prima facie nature and would be subject to the conclusions in the trial after

evidence is led.

6. Insofar as the present appeal is concerned, we have only to focus on

the issue of suppression and concealment. The learned counsel for the

appellants has placed before us two decisions of the Supreme Court :-

(i) S.J.S. Business Enterprises (P) Limited v. State Bank of Bihar and Others: (2004) 7 SCC 166; and

(ii) Mayar (H.K.) Limited and Others v. Owners and Parties, Vessel M.V. Fortune Express and Others: (2006) 3 SCC 100

7. In S.J.S. Business Enterprises (supra), the Supreme Court had

observed that as a general rule, suppression of a material fact by a litigant

disqualifies such litigant from obtaining any relief. It was also observed

that the said rule has been evolved out of the need of the courts to deter a

litigant from abusing the process of court by deceiving it. However, the

Court also noted that the suppressed fact must be a material one in the

sense that had it not been suppressed it would have had an effect on the

merits of the case. The learned counsel for the appellants relies on this

latter observation of the Supreme Court to submit that the fact that the

agreement and the earlier relationship between the appellants and the

respondents was not mentioned, was not a material one and, therefore, this

could not have been regarded as a case of suppression/concealment.

8. The learned counsel for the appellants, as noted above, had also

placed reliance on Mayar (H.K.) Limited (supra), where, once again, the

Supreme Court noticed the provisions of Order 6 Rule 2 of the Code of

Civil Procedure and observed that the expression 'material facts' though

not defined anywhere would mean those facts upon which a party relies

for his claim or defence. The Supreme Court also observed that which

particular fact would be a material fact that was required to be pleaded by

a party would obviously depend on the facts and circumstances of each

case. The Supreme Court in Mayar (H.K.) Limited (supra) also placed

reliance on its observations in S.J.S. Business Enterprises (supra), to

which we have already alluded above.

9. On going through the impugned judgment and/or order, it is evident

that the learned Single Judge felt that the suppression/non-disclosure of

the agreement and the earlier relationship between the appellants as agents

of the respondents would amount to a 'material fact' and would impinge

on the merits of the case. We agree with this conclusion of the learned

Single Judge. Had the appellants/plaintiffs mentioned the earlier

relationship between the parties, the ex parte ad interim order may have

been entirely different. We also note that the learned Single Judge has

examined other materials also which were not placed before the Court in

the first instance and after considering the entire documents and material

which were brought to the notice of the Court by the

defendants/respondents, the learned Single Judge, in his wisdom, has

arrived at the conclusion that the plaintiffs/appellants were guilty of

suppression and/or concealment of material facts. This by itself would

disentitle the appellants from any equitable relief including that of an

interim injunction.

10. In view of the foregoing discussion, we are not inclined to interfere

with the impugned judgment. The respondents/defendants shall be

permitted to withdraw the amount of Rs 2 lacs deposited with the

Registrar General of this Court pursuant to the order dated 02.06.2016.

11. We are making it clear, once again, that any observations or

findings contained in the impugned judgment and our order are only prima

facie in nature and are subject to the final conclusions that may be arrived

in the suit after trial.

The appeal is dismissed.

BADAR DURREZ AHMED, J

JAYANT NATH, J NOVEMBER 18, 2016 SR