M/S Laxmi Agro Impex India vs M/S Ladli India Commodities
2019 Latest Caselaw 6028 Del

$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Date of decision: 27th November, 2019
+      FAO(OS) (COMM) 341/2019 & CM APPLs.51071-72/2019
       M/S LAXMI AGRO IMPEX INDIA                 ..... Appellant
                    Through: Mr. Anil Sapra, Sr. Adv. with Mr.
                              Satish Kumar, Mr. Umesh Mishra,
                              Mr. Vishal Patel, Ms. Akansha and
                              Mr. Sarthak Katyal, Advs.
                          versus

       M/S LADLI INDIA COMMODITIES                ..... Respondent
                      Through: Ms. Kiran Suri, Sr. Adv. with Ms.
                               Prem Lata and Ms.Aishwarya
                               Kumar, Advs.
       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE C. HARI SHANKAR

                          ORDER

% 27.11.2019

D.N. PATEL, CHIEF JUSTICE (ORAL)

CM APPL.51072/2019 (exemption)

1. Exemption allowed, subject to all just exceptions.

2. The application is disposed of.

FAO(OS) (COMM) 341/2019

1. This appeal has been preferred by the appellant who is the original plaintiff in CS (COMM) 86/2019.

2. The appellant initially had preferred an IA 2317/2019 for an ex- parte ad interim relief which was granted by the learned Single Judge vide order dated 14th February, 2019.

3. Thereafter, an application was preferred under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 for vacating the stay by the respondent (original defendant), being IA No. 4741/2019.

4. The aforesaid applications were adjudicated vide order dated 8th November, 2019 (Annexure A to the memo of this appeal) whereby the learned Single Judge dismissed the applications modifying the interim order passed in terms of the reasonings and directions contained therein.

5. The following are the trademarks used by the plaintiff as well as defendant which were to be compared by the learned Single Judge, prima facie, for grant or otherwise of the stay:

„A‟ „B‟

6. During the course of hearing, the defendant pointed out that the following trade-mark will be used by it, because now it has been registered in favour of the defendant on 18th March, 2019:

„C‟

7. The learned Single Judge instead of comparing „A‟ with „B‟, the comparison has been made between „A‟ and „C‟.

8. Looking to the contentious issue raised by the learned counsel for this appellant, this appeal is admitted.

9. Registry is directed to list this appeal in the category of "final disposal" on 20th January, 2020.

CM APPL.51071/2019 (stay)

10. This application has been preferred for getting stay against the order dated 8th November, 2019 (Page-36) passed by the learned Single Judge in IA Nos. 2317/2019 & 4741/2019 in CS(COMM) 86/2019, whereby ex-parte ad interim order earlier granted by the learned Single

Judge on 14th February, 2019 in favour of the appellant (original plaintiff), has been modified in terms of the judgment dated 8th November, 2019.

11. Prima facie, it appears that the plaintiff has obtained ex-parte ad interim relief vide order dated 14th February, 2019. Moreover, as stated herein, the comparison was to be made between the manner of use/presentation by the plaintiff and manner of use/presentation by the defendant i.e. comparison with „A‟ and „B‟.

12. Now, the learned Single Judge has made a comparison „A‟ with „C‟, which is a new method of use or presentation by the defendant, and it is allowed by the learned Single Judge.

13. Moreover, the mark „C‟ has been equated with „A‟, which was never mentioned in the application preferred under Order XXXIX Rule 4 CPC.

14. Thus, the learned Single Judge instead of comparing „A‟ with „B‟ has compared „A‟ with „C‟ and allowed the mark „C‟ to be used by the original defendant (respondent herein).

15. Thus, there is a prima facie case in favour of the appellant (original plaintiff). Balance of convenience is also in favour of the appellant and if the stay is not granted to this appellant, great irreparable loss would cause to this appellant.

16. We, therefore, stay the operation, implementation and execution of the order dated 8th November, 2019, passed by the learned Single Judge in IA Nos. 2317/2019 & 4741/2019 in CS(COMM) 86/2019.

17. The stay will remain in operation till the pendency and final disposal of this appeal.

18. The application stands disposed of accordingly.

CHIEF JUSTICE

C.HARI SHANKAR, J.

NOVEMBER 27, 2019 dsn