Ramaiah Life Style Cafe vs Eminent Entertainment & Ors
2017 Latest Caselaw 1384 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                        Date of decision:- 15th March, 2017.

+                            CS(COMM) 1433/2016
       RAMAIAH LIFE STYLE CAFE                        ..... Plaintiff
                    Through: Mr. Joseph Koshy, Ms. Sheetal
                              Srivastava and Ms. Divyani, Advs.
                         Versus
    EMINENT ENTERTAINMENT & ORS               ..... Defendants
                  Through: Ms. Siddhesh Kotwal,Ms. Shreya
                           Bhatnagar and Ms. Urvashi Bandhu,
                           Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

IA No.13020/2016 (u/O XXXIX R-1&2 CPC)
1.

The plaintiff has instituted this suit to restrain the three defendants (i) from infringing / using the trade mark „RASTA‟ of the plaintiff registered in Class 28 against Registration No.1875323 and in Class 43 against Registration No.1887336; (ii) from infringing the copyright of the plaintiff; and, (iii) for ancillary reliefs.

2. It is the case of the plaintiff (a) that the plaintiff, a partnership firm is engaged in the business of running a chain of cafe and restaurants and is a part of Ramaiah Group; (b) that as per the Deed dated 9 th December, 2009 of assignment of trade mark, the plaintiff owns / is authorised to use trade marks which are used by them in the course of its business in connection with the sale of their products, both in India and internationally; (c) that one of such trade mark is "RASTA (with device)" and appears on the entry gate of the plaintiff‟s cafe; (d) that the plaintiff has used the said trade mark in a unique and distinctive style, get-up, writing type and colour scheme and the

said trade mark has become associated in the mind of public and potential visitors to the cafe of the plaintiff; (e) that the said trade mark has been developed by Ramaiah Group and is being used by the said group since the year 2009; (f) that the plaintiff has also filed a trade mark registration application No.1887336 dated 23rd November, 2009 with the Trade Marks Registry, Chennai with respect to goods and services falling under Class 43;

(g) that the said trade mark is already registered in the name of M/s Ramaiah Developers & Builders (P) Ltd. in 2011 and 2013 respectively; (h) that being the assignee of the trade mark, the plaintiff has the exclusive right to use the same and has been using the trade mark extensively and over a long period of time; (i) that the defendants are engaged in the business of running services of providing entertainment and cultural activities in the form of music, live bands, live performances, discotheque and also service of providing food and drinks at the establishment of the defendants or for home delivery, with the defendants No.2 & 3 being the partners of the defendant No.1; (j) that the defendants on their website www.dineout.co.in/delhi/raasta-hauz-khas-villagesouth-delhi-286 have displayed photographs of products, the packaging whereof bears the plaintiff‟s trade mark; (k) that the defendants trade mark „RAASTA‟ appears on the entrance gate of the lounge in a style identical to the plaintiff‟s trade mark „RASTA‟; (l) that the defendants are promoting their restaurants / cyber / food cafe which are similar to that of the plaintiff‟s under the same trade name, even after knowing that the exclusive right to use the trade name belongs to the plaintiff; (m) that in or around the year 2012, the plaintiff, on coming to know about the infringing activities of the defendants, in November, 2012 issued a cease and desist notice to the defendants; no

response was received from the defendants; (n) however, the defendants filed an application for registration of the trade mark „RAASTA‟ in Class 43.

3. The suit came up first before this Court on 21 st October, 2016 when though summons of the suit and notice of the application for interim relief were issued but no ex-parte relief sought granted owing to the plaintiff having instituted the suit four years after learning of the allegedly infringing activities of the defendants.

4. The defendants have filed a common written statement pleading (i) that the trade mark seeking infringement of which the suit has been filed is not registered in the name of the plaintiff and the plaintiff is merely permitted user thereof and is barred by Section 53 of the Trade Marks Act, 1999 from instituting a suit for infringement thereof; (ii) that the suit is barred by limitation, as it could have been instituted only within three years of the plaintiff‟s learning of the allegedly infringing activities of the defendants; (iii) that the plaintiff firm is not pleaded to be registered with the Registrar of Firms and the suit is barred by Section 69 of the Partnership Act, 1932; (iv) that the defendants adopted and started using the name „RAASTA‟ for their restaurants since December, 2011; the logo of the defendants was conceptualised and designed way back in the year 1999; (v) that the defendants also host and maintain a website www.raastathestreet.in;

(vi) that the restaurants of the defendants under the name of „RAASTA‟ have gained great popularity; (vii) that the plaintiff runs a restaurant "Rasta One Place" in the State of Karnataka and the restaurant of the plaintiff and the restaurants of the defendants cater to and attract completely different crowds and it is impossible for either party to encroach upon the customer base and market of the other party; (viii) that it is rather the plaintiff who in order to

take advantage of the success of the defendants‟ restaurants changed the theme of its restaurants to as that of the defendants; (ix) that the plaintiff cannot claim any exclusivity over the term „RASTA‟ as the term „RASTA‟ is publici juris and is a generic term which in Hindi language means a „Road or Route‟; (x) that the defendants adopted the mark „RAASTA‟ inspired from the Rastafrain Religion of Jamaica; the theme of the defendants restaurants is Caribbean; (xi) that the trade mark registration of the plaintiff is that of a label and logo and not the word „RASTA‟; (xii) that the label of the plaintiff does not bear any similarity to the label of the defendants; (xiii) that the essential features of the two marks are different.

5. The counsels have been heard.

6. The counsel for the defendants at the outset has contended that the plaintiff is not entitled to any interim relief on the ground of laches, acquiescence and waiver.

7. The counsel for the plaintiff had on 21 st October, 2016 relied on (i) Hindustan Pencils (P) Ltd. Vs. India Stationery Products Co. AIR 1990 Delhi 19; (ii) Win-Medicare Pvt. Ltd. Vs. Galpha Laboratories Ltd. 226 (2016) DLT 711; and, (iii) Midas Hygiene Industries P. Ltd. Vs. Sudhir Bhatia (2004) 3 SCC 90 to contend that delay does not come in the way of grant of injunction. However on that date ex-parte injunction was denied to the plaintiff observing that the said judgments may be relevant at the after notice stage but were not relevant for the ex-parte stage.

8. The counsel for the defendants has next contended that the plaintiff not being the registered proprietor is not even entitled to maintain a suit for infringement and for this reason also, the question of granting any interim relief to the plaintiff does not arise. Attention in this regard is drawn to

pages 23 & 24 of the plaintiff‟s documents being Certificate of Registration of Trade mark bearing No.1887336 and 1875323 dated 23rd November, 2009 and 22nd October, 2009 of the label „RASTA‟ in Class 43 and in Class 28 respectively in the name of M/s Ramaiah Developers & Builders (P) Ltd. It is further contended that though the plaintiff has at page 21 of its documents filed a photocopy of a Deed of Assignment dated 9th December, 2009 of the trade mark aforesaid executed by M/s Ramaiah Developers & Builders (P) Ltd. in favour of the plaintiff but it is not the plea of the plaintiff that the said assignment has been registered with the Registrar of Trade Marks or that the name of the plaintiff appears as registered proprietor of the subject trade marks. It is contended that the plaintiff, without being the registered proprietor cannot maintain a suit for infringement of trade mark and in fact this suit is liable to be dismissed.

9. The counsel for the plaintiff has referred to Modi Threads Limited Vs. Som Soot Gola Factory AIR 1992 Delhi 4 and T.I. Muhammad Zumoon Sahib Vs. Fathimunnissa alias Bibijan AIR 1960 Mad 80 (DB) to contend that registration of assignment with the Registrar of Trade Marks is not essential for maintaining a suit for infringement.

10. The counsel for the plaintiff during the hearing, to show mala fides on the part of the defendants, handed over in the Court copies of the applications dated 14th January, 2013 and 26th April, 2013 made by the defendants No.2&3 for registration of the label mark „RAASTA‟ in Class 43 and the objection raised by the Registrar of Trade Marks thereto citing inter alia the registered trade mark in favour of the M/s Ramaiah Developers & Builders (P) Ltd. On the basis thereof it was argued that the defendants have throughout been aware of the registration in favour of the plaintiff and for

this reason only had abandoned their applications.

11. Before proceeding further, I may notice that the plaintiff in the present suit has not claimed any relief on the ground of passing off and though has claimed relief, besides on the ground of infringement of trade mark also on the ground of infringement of copyright but no case for infringement of copyright is made out, as the trade mark (label) of the plaintiff and the defendants though have the word „RASTA‟ or „RAASTA‟ in common but otherwise are as distinct as day and night. The same would be obvious from the comparison herein below:

Trade Mark (Label) of Plaintiff Trade Mark (Label) of Defendants

12. Thus, the first question to determine is, whether the plaintiff is entitled to maintain a suit for infringement or to interim relief therein, without its name on the register of the Registrar of Trade Marks as proprietor of the mark of which infringement is claimed.

13. The counsel for the plaintiff, on enquiry, whether the plaintiff has made an application to the Registrar of Trade Marks for registration of the assignment, states that it has not been filed so far, as need was not felt, the plaintiff being part of a closely held group but the application will now be

filed.

14. I, in Sun Pharmaceuticals Industries Limited Vs. Cipla Limited 2009 (108) DRJ 207 had an occasion to deal with the question. The counsel for the defendant therein relied on Soundarapandian Match Works Vs. M. Jayarama Chetty (1950-2000) (Suppl) (2) PTC 145 (Mad) and Shaw Wallace & Co. Ltd. Vs. Superior Industries Ltd. 2007 (35) PTC 782 (Del). In the first of the said judgments, a learned Single Judge of the Madras High Court held that having regard to the rigour of Section 44 of the Trade and Merchandise Marks Act, 1958, as long as the registration of the assignment has not been completed, the assignee cannot seek to exercise any right. It was reasoned that the Registrar is entitled to refuse to register the assignment and till the assignment is registered, it cannot be known whether the registration would be effected or not. It was further held that without registration, the document of assignment is inadmissible to prove the title to the trade mark by assignment and thus till such registration, there is no right in the assignee to prevent anyone. In Shaw Wallace & Co. Ltd. supra, this Court held that till the time the Registrar, Trade Marks does not record the title in favour of the assignee, the deed of assignment cannot be admitted in evidence. I of my own referred to Ratansi Mulji Vs. Vinod Ratilal Gandhi AIR 1991 Bom 407 quashing the prosecution for unauthorised use of trade mark at the instance of a person assignment in whose favour had not been registered, holding that without registration of assignment, no rights can be pleaded on the ground of the trade mark having assigned or transmitted. Per contra, the counsel for the plaintiff in Sun Pharmaceuticals Industries Limited supra relied on Modi Threads Limited supra and Grandlay Electricals (India) Ltd. Vs. Vidya Batra 1998 PTC (18) Delhi holding that

even if the application for getting transferred the registered trade mark in the office of the Registrar of Trade Marks is pending, that does not debar the party from protecting the violation of the trade mark at the hands of unscrupulous persons by filing an action in Court of law for injunction. It was reasoned that during the interregnum period when the application is kept pending for consideration by the Registrar of Trade Marks, dishonest persons cannot be allowed to make use of the said trade mark and to illegally enrich themselves. It was further held that title accrues on the execution of the assignment deed and all other follow up actions which are required to be taken under the Trade Marks Act do not change the title already acquired in this respect. It was yet further reasoned that if in spite of the party having applied to the Registrar of Trade Marks, no action is taken by the Registrar, the party cannot be blamed therefor.

15. I, in Sun Pharmaceuticals Industries Limited supra, on consideration of the aforesaid judgments held (i) that the reasoning which prevailed with the Madras High Court in Soundarapandian Match Works supra had not been considered in Modi Threads Limited supra and Grandlay Electricals (India) Ltd. supra; (ii) however another learned Single Judge of this Court in Astrazeneca UK Ltd. Vs. Orchid Chemicals and Pharmaceuticals Ltd. (2006) 32 PTC 733 had also taken the same view and held that the rights in the trade mark come on the basis of assignment deeds and the plaintiffs cannot be denied the rights in the trade mark which they had got on the basis of the assignment deeds in their favour on the ground that in the records of the Registrar of Trade Marks, the trade mark was still shown in the name of the assignor; (iii) the Supreme Court in Collector of Central Excise Ahmedabad Vs. Vikshara Trading and Investment (P). Ltd. 2003 (27) PTC

603 though not directly concerned with the issue had held that once it was not in dispute that there was an assignment, the mere fact that the assignment was not registered could not alter the position; (iv) that the learned Single Judge of the Madras High Court in Soundarapandian Match Works supra had not considered the earlier judgment of the Division Bench of that Court in T.I. Muhammad Zumoon Sahib supra; (v) that registered trade mark is different from registered proprietor; (vi) that assignment under Section 2(b) is an assignment in writing by an act of parties concerned and does not require registration; (vii) that for assignment to be complete, the Registrar is not involved; (viii) that from the language of Section 45(1) of the Trade Marks Act also, the assignee acquires title to the registered trade mark on assignment and not by registration; (ix) that registration is of title acquired by assignment; (x) that a dispute as to assignment can be raised by the assignor or by some person claiming prior assignment and not by strangers or by persons claiming adversely to the assignor; (xi) that thus the assignee immediately on assignment acquires title to the registered trade mark and title to the registered trade mark exists in assignee even before registration under Section 45(1); (xii) that what prevailed with the Madras High Court in Soundarapandian Match Works supra was the inaction of the plaintiff therein to even apply to the Registrar of Trade Marks; (xiii) that however the plaintiff in Sun Pharmaceuticals Industries Limited supra had applied for registration of the assignment as far back as in the year 2000 and there was nothing to show that the plaintiff was in any way to blame for the Registrar having not decided the application either way; the plaintiff could not be made to suffer for the actions of the Registrar; (xiv) that Section 45(2) of the Trade Marks Act prohibiting admission into evidence of any assignment till

registered was in the nature of Section 35 of the Indian Stamp Act, 1899 prohibiting the Courts from admitting into evidence documents not duly stamped i.e. to ensure registration of assignments; (xv) thus the plaintiff, notwithstanding being not registered was held entitled to exercise rights as registered proprietor of the trade mark.

16. I have wondered whether the reasoning which prevailed with me in Sun Pharmaceuticals Industries Limited supra should prevail in the facts of the present case also, where the plaintiff inspite of assignment claimed in its favour as far back as on 9th December, 2009 and inspite of knowledge of infringement of the said trade mark by the defendants as far back as in 2012, has till date not taken any steps for registration of the assignment in its favour.

17. Section 45 as it existed at the time of Sun Pharmaceuticals Industries Limited supra as under:

"45. Registration of assignments and transmissions - (1) Where a person becomes entitled by assignment or transmission to a registered trade mark, he shall apply in the prescribed manner to the Registrar to register his title, and the Registrar shall, on receipt of the application and on proof of title to his satisfaction, register him as the proprietor of the trade mark in respect of the goods or services in respect of which the assignment or transmission has effect, and shall cause particulars of the assignment or transmission to be entered on the register:

Provided that where the validity of an assignment or transmission is in dispute between the parties, the Registrar may refuse to register the assignment or transmission until the rights of the parties have been determined by a competent court.

(2) Except for the purpose of an application before the

Registrar under sub-section (1) or an appeal from an order thereon, or an application under section 57 or an appeal from an order thereon, a document or instrument in respect of which no entry has been made in the register in accordance with sub- section (1), shall not be admitted in evidence by the Registrar or the Appellate Board or any court in proof of title to the trade mark by assignment or transmission unless the Registrar or the Appellate Board or the court, as the case may be, otherwise directs."

has w.e.f. 8th July, 2013 been substituted by the Trade Marks

(Amendment) Act (40) of 2010 as under:

"45. Registration of assignments and transmissions--(1) Where a person becomes entitled by assignment or transmission to a registered trade mark, he shall apply in the prescribed manner to the Registrar to register his title, and the Registrar shall, on receipt of the application, register him as the proprietor of the trade mark in respect of the goods or services in respect of which the assignment or transmission has effect, and shall cause particulars of such assignment or transmission to be entered on the register.

(2) The Registrar may require the applicant to furnish evidence or further evidence in proof of title only where there is a reasonable doubt about the veracity of any statement or any document furnished.

(3) Where the validity of an assignment or transmission is in dispute between the parties, the Registrar may refuse to register the assignment or transmission until the rights of the parties have been determined by a competent court and in all other cases the Registrar shall dispose of the application within the prescribed period.

(4) Until an application under sub-section (1) has been filed, the assignment or transmission shall be ineffective against a person acquiring a conflicting interest in or under the

registered trade mark without the knowledge of assignment or transmission."

18. It needs to be considered whether Section 45 as it now stands requires re-consideration of the view taken in Sun Pharmaceuticals Industries Limited supra.

19. Sub-section (4) of Section 45 of the Trade Marks Act as it now stands is new. It makes the assignment ineffective against a person acquiring a conflicting interest in or under the registered trade mark without the knowledge of assignment or transmission. The defendants herein have however not acquired any conflicting interest in or under the registered trade mark.

20. There are certain other differences in Section 45 pre and post the amendment thereof w.e.f. 8th July, 2013. While under the sub-section 45(2) as it stood prior to the amendment w.e.f. 8 th July, 2013, a document or instrument in respect of which no entry had been made in the register in accordance with the sub-section (1) was to be not admitted in evidence by any Court in proof of title to the trade mark by a assignment or transmission unless the Court otherwise directed, in the amended Section 45 such impediment on the Court has been removed. The amended Section 45 also grants liberty to the Registrar, Trade Marks to require the applicant to furnish evidence or further evidence in proof of title if entertains any doubt. It follows that while the prohibition contained on admission into evidence of a deed of assignment if not entered in the register has been removed, power has been given to the Registrar to ask applicant to furnish evidence or further evidence in proof of title under the deed of assignment or transmission of a

registered trade mark.

21. The said changes in Section 45 however do not call for a change in the view taken in Sun Pharmaceuticals Industries Limited supra. I may however record that the Division Bench of the High Court of Bombay in Parksons Cartamundi Pvt. Ltd. Vs. Suresh Kumar Jasraj Burad 2012 SCC OnLine Bom 438 has held that though prior to the amendment registration of assignment under Section 45 could not be said to be a mere formality but is so after the amendment.

22. One thing which is however clear as a day light on a reading of Section 45 is that registration of assignment under Section 45 is mandatory. This is evident from the use of the word „Shall‟ in Section 45(1).

23. Thus it is mandatory for a assignee of a registered trade mark to apply in the prescribed manner to the Registrar, Trade Marks to register his title thereto.

24. Seen in this light what distinguishes the present case from Sun Pharmaceuticals Industries Limited supra and the judgments relied upon therein is that while in all those cases the plaintiff had applied to the Registrar, Trade Marks for registration of his title to the trade mark by assignment or transmission and non-registration was not attributable to any default on the part of the plaintiff therein, the plaintiff herein for the last nearly eight years from the date of the claimed assignment and for the last nearly five years since the admitted knowledge of claimed infringement has not even applied to the Registrar of the Trade Marks for registering the assignment of trade mark in its favour. The possibility of the plaintiff not doing so for reasons not spelled out before this Court cannot be ruled out.

The fact that the plaintiff has not chosen to make M/s Ramaiah Developers & Builders (P) Ltd. as a party to this suit also raises doubt as to the validity of the assignment, on the basis whereof this suit for infringement has been filed.

25. Even otherwise, I am of the opinion that if this Court inspite of such delays and neglect on the part of the plaintiff grants to the plaintiff all the benefits and privileges to which a registered proprietor is entitled to, the same would amount to this Court allowing mandatory provisions of the statute to be flouted and/or not penalising the plaintiff therefor, making the statutory provisions otiose.

26. I may in this regard notice that Section 2(1)(v) of the Trade Marks Act defines a registered proprietor in relation to a trade mark as meaning the person for the time being entered in the register as proprietor of the trade mark and Section 28, on registration of a trade mark, gives to the registered proprietor of the trade mark right to obtain relief in respect of infringement of the trade mark. The words „registered proprietor‟ in Section 28 would take their meaning from Section 2(1)(v) meaning the person for the time being entered in the register as proprietor of the registered trade mark. The plaintiff till date is neither the person for the time being entered in the register as proprietor of the trade mark for infringement of which the suit has been filed nor has applied therefor.

27. I have also enquired, whether there is any time limit for applying under Section 45 of the Trade Marks Act.

28. The counsel for the plaintiff states that there is none.

29. Chapter IV of the Trade Marks Rules, 2002 deals with assignment and

transmission and Rule 72 thereunder provides for impounding of instruments not properly or sufficiently stamped. From the copy of the Deed of Assignment filed by the plaintiff, it does not appear to be stamped. It would thus be liable to be impounded, if presented for registration of assignment.

30. Another thing which may be taken note of is that the assignment claimed is of a date, though after the date of the application for registration but prior to the date of registration. The Deed of Assignment filed shows the assignment to be otherwise than in connection with the goodwill of the business in which the mark was used. Per Section 42 of the Trade Marks Act, where the assignment of trade mark is made otherwise than in connection with goodwill of business, the assignment shall not take effect unless the assignee not later than the expiration of six months from the date of assignment applies to the Registrar for advertisement of assignment and advertises it in such form and manner as the Registrar may direct. Rule 79 also prescribes a period of six months for registration of such an application. The said period of six months has long since lapsed.

31. I may also record that High Court of Madras in Nico Quality Products Vs. N.C. Arya Snuff and Cigar Co. MANU/TN/2680/2013, after considering the amendment of Section 45 and relying inter alia on a judgment of the Division Bench of the High Court of Madras in Orchid Chemicals & Pharmaceuticals Ltd. Vs. Wockhardt Limited MANU/TN/0391/2013 has held that where assignment of trade mark is made without goodwill of business, filing of application to the Registrar of Trade Marks for the advertisement of assignment is mandatory and a condition precedent for assignment to take effect. Holding so, the application for

interim relief was dismissed. Though appeals being O.S.A. Nos.28-29/2014 thereagainst were preferred to the Division Bench but were on 18 th March, 2015 disposed of as not pressed.

32. All the said facts raise a doubt as to the entitlement of the plaintiff to sue for the relief of infringement and are enough to deny to the plaintiff the equitable relief of interim injunction.

33. The aforesaid facts also show the lackadaisical conduct of the plaintiff qua the trade mark. This Court while dealing with the applications for interim injunction is not to come to the rescue of a person who is found to be not diligent in protecting its rights.

34. In Hindustan Pencils (P) Ltd. supra cited by the counsel for the plaintiff to contend that delay, laches, acquiescence and waiver would not disentitle the plaintiff to the relief of permanent injunction, what was held was that inordinate delay would not defeat an action for grant of temporary injunction where the use by the defendant of the mark was found to be fraudulent. It was also held in the facts of that case that the delay on the part of the plaintiff was not inordinate. Similar was the reasoning in Midas Hygiene Industries P. Ltd. supra and in Win-Medicare Pvt. Ltd. supra.

35. On perusal of the label mark of the plaintiff and the defendants I am unable to at this stage hold the conduct of the defendants to be dishonest or fraudulent to hold that, notwithstanding the admitted delay of four years on the part of the plaintiff in approaching the Court after knowledge of use of mark by the defendants, the defendants are not entitled to set-up the plea of laches, acquiescence and waiver. The defendants though were made aware by the Registrar of the Trade Marks of the registration in favour of the

plaintiff, cannot be said to have practised any fraud in adoption of the subject mark. In this regard the nature of the business for which the plaintiff as well as the defendants are using the mark also assumes significance. The use of the mark by both is for a stand-alone restaurant / eatery as distinct from restaurants in a chain of hotel. The goodwill and reputation of such stand- alone restaurant is mostly territorial i.e. confined to the city in which it is situated and at least at this stage no possibility can be fathomed of the patrons confusing between restaurants in far of cities even if of the same name. In fact some of the names like Quality, Embassy, Sher E Punjab, Pindi are common to restaurants in different cities.

36. Moreover a perusal of the two label marks also belies any fraud or dishonesty on the part of the defendants in incorporating the word „RAASTA‟ on their label mark. Label mark of the plaintiff as well as of the defendants are entirely different.

37. Yet another interesting factor which one has experienced in recent times in relation to eateries / restaurants / bars / lounges catering to the youngsters is that such restaurants have a limited shelf life with the patrons thereof desiring different experience and not wanting to repeat the experience. Recent years have witnessed the same owner / proprietor of a restaurant at the same premises, changing the name decor, Cuisine etc. of the restaurant to take advantage of the novelty factor, looking wherefor the patrons throng a new restaurant.

38. For all the aforesaid reasons I am of the view that the plaintiff has been unable to establish a prima facie case for grant of interim relief.

39. In the facts aforesaid, the balance of convenience is also not in favour

of the plaintiff and is rather in favour of the defendants. The loss to the defendants from the grant of interim injunction would certainly be incalculable in the event of the plaintiff being ultimately not found to be entitled to the relief, while the loss which the plaintiff will suffer from non- grant of injunction if ultimately is to succeed in the suit can always be compensated.

40. IA No. 13020/2016 is accordingly dismissed.

RAJIV SAHAI ENDLAW, J.

MARCH 15, 2017 bs/pp (Corrected and released on 26th April, 2017).