Delhi High Court
Levi Strauss & Company vs Ankit Sharma Anr on 19 September, 2016
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Delivered on: 19th September, 2016
+ FAO(OS) 107/2016
LEVI STRAUSS & COMPANY ..... Appellant
Versus
ANKIT SHARMA ANR .....Respondents
Advocates who appeared in this case:
For the Appellants: Mr Sudhir Chandra, Senior Advocate, Mr Sanjeev Sindhwani, Senior Advocate
with Ms Gunjan Paharia, Mr N. Nawab & Mr Himanshu Deora, Advocates
For the Respondents: Mr Sandeep Sethi, Senior Advocate with Mr S.K.Gandhi, Ms Manjula Gandhi,
Mr Shivanshu Kumar, Mr Aditya Kapoor, Ms Nishtha Gupta & Ms Medha
Tandon, Advocates
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J
1. The appellant/plaintiff has impugned order dated 25.02.2016
whereby the Suit has been adjourned by the learned single judge to
12.07.2016 as there was no time left to hear the arguments and the
interim order passed by the Division Bench has been directed to
continue till further orders.
2. The contention of the appellant is that the division bench had
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disposed of the appeal (FAO (OS) 603/2015) directing the listing of
the respondent/defendant's application under Order XXXIX Rule 4 of
the Code of Civil Procedure (CPC for short) for hearing before the
learned single judge on 19.11.2015 and directed that the interim order
passed by the Division Bench would continue till 19.11.2015, on
which date it was open to the learned single judge, after hearing
parties, to pass appropriate orders. It is contended that the application
was not taken up for hearing and the interim order passed by the
Division Bench has been directed to continue till further orders.
3. The appellant/plaintiff has filed the suit for declaration,
permanent injunction, restraining infringement of trademarks and
passing off etc. The appellant/Plaintiff contends that the Plaintiff owns
inter alia the Arcuate Stitching Design Trademark and the Tab Design
Trademark, which are registered trademarks. The appellant/Plaintiff
contends that the respondents/defendants have infringed their
registered trademarks.
4. The learned single judge on 31.07.2015 granted an ex - parte
ad - interim injunction restraining the Respondents/defendants from
using the tab device trademark and the arcuate stitching design
trademark.
5. The respondent filed an appeal (FAO (OS) 556/2015), which
was withdrawn on 05.10.2015 with liberty to file an application under
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Order XXXIX Rule 4 CPC within a week.
6. Application (I.A. 21510 of 2015) under Order XXXIX Rule 4
CPC was filed on 09.10.2015 and was adjourned to 19.01.2016
without the interim order dated 31.07.2015 being modified.
7. The Respondent thereafter filed another appeal (FAO (OS)
603/2015) on the ground that the said application was not disposed of.
8. The Division Bench by an ad-interim order dated 06.11.2015
stayed the operation of the ex-parte ad-interim order dated
31.07.2015.
9. On 17.11.2015, the Division Bench passed the following order:
The appeal is disposed of by directing that the application
under Order XXXIX Rule 4 of the Code of Civil Procedure,
1908 being IA No.21510/2015 be placed before the learned
Single Judge for hearing on 19.11.2015 instead of
19.01.2016. The interim order passed by us shall continue
till the next date of hearing, i.e., 19.11.2015, on which date
it shall be open to the learned Single Judge, after hearing
counsel for the parties, to pass appropriate orders.
We are making it clear that we have not expressed any
opinion on the merits of the matter.
10. On 19.11.2015, when the suit was placed before the learned
single judge in terms of our order dated 17.11.2015, the single judge
passed the following order:
1. The present suit has been placed before the Court in
terms of the order dated 17.11.2015 passed by the Division
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Bench, where under the appeal preferred by the defendants
against order dated 31.07.2015 was disposed of with a
request made to this Court to hear I.A. 21510/2015 on
19.11.2015, instead of 19.01.2016.
2. The Board of this Court is very heavy today with 53
matters listed and it is not in a position to hear arguments
in the application today itself.
3. List on 7th December, 2015.
4. Mr. Sandeep Sethi, learned Senior Advocate
appearing for the defendants states that in view of the
above, the interim order dated 06.11.2015 passed by the
Division Bench may be continued till the next date of
hearing.
5. Ordered accordingly. The interim order dated
06.11.2015 passed in FAO(OS) 603/2015 shall continue till
the next date.
11. The suit was thereafter adjourned to 16.12.2015 and thereafter
to 23.12.2015 on which date the parties wanted to explore the
possibility of settlement through mediation. On 28.01.2016 the suit
was adjourned to 25.02.2016.
12. On 02.02.2016, the Appellant/Plaintiff filed an application for
early hearing, however the same was dismissed on 04.02.2016. On
25.02.2016 (order impugned herein), the learned single judge passed
the following order:
No time left to hear the arguments today.
List on 12.07.2016. Interim order passed by the Division
Bench to continue to operate till further orders.
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13. Perusal of the various order passed by us in the two appeals
filed by the Respondents/Defendants clearly show that we had
intended that the application of the appellant/plaintiff under order
XXXIX Rules 1 & 2 and the application of the Respondent/Defendant
under order XXXIX Rule 4 be disposed of expeditiously. We had on
17.11.2015 remitted the matter to the learned single judge to
expeditiously dispose of the said application and had only continued
the interim order granted by us till 19.11.2015, on which date, it was
open to the learned single judge, after hearing counsel for the parties,
to pass appropriate orders.
14. Our order dated 17.11.2015 was clear that the interim order
grated by us was to continue till 19.11.2015 and if the interim order
was to be continued, the same could be continued after hearing the
parties. On 19.11.2015, no hearing took place, the interim order was
continued. On 25.02.2016, the interim order passed by us has been
continued by the learned single judge till further orders, without a
hearing. The suit was adjourned to 12.07.2016. The records of the suit
reveal that the suit also has been further adjourned on 12.07.2016 to
18.10.2016 on the ground "no time left".
15. Though before us the parties had also addressed on the merits
of the matter, since we had in the earlier two rounds of appeals made
it clear that the learned single judge in the first instance should hear
and dispose of the application of the appellant/plaintiff under order
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XXXIX Rules 1 & 2 and the application of the Respondent/Defendant
under order XXXIX Rule 4, we deem it appropriate not to deal with
the contention of the parties on merits and to remit the matter to the
learned single judge to dispose of the applications on an early date.
16. The interim order granted by us was to continue till the date
fixed by us before the learned single judge. The matter has not been
taken up because of exigencies of the heavy board of the learned
single judge and the interim order has been extended without a
hearing.
17. We accordingly dispose of this appeal by directing that the
application of the appellant/plaintiff under order XXXIX Rules 1 & 2
and the application of the Respondent/Defendant under order XXXIX
Rule 4 be listed before the learned single judge in the first instance for
directions on 22.09.2016. The learned single judge is requested to
dispose of the applications by 30.11.2016. In case the applications are
not disposed of by 30.11.2016, the interim order dated 06.11.2015
granted by us in FAO (OS) 603/2015 shall stand vacated.
18. There shall be no orders as to costs.
SANJEEV SACHDEVA, J.
SEPTEMBER 19, 2016 BADAR DURREZ AHMED, J.
st
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