Delhi High Court
Pawan Kumar Mittal Proprietor, Salasar ... vs Vijay Gupta & Ors on 7 July, 2025
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~48
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO (COMM) 170/2025, CM APPL. 39059/2025, CM APPL.
39060/2025, CM APPL. 39061/2025 & CM APPL. 39062/2025
PAWAN KUMAR MITTAL PROPRIETOR,
SALASAR DEV BASMATI HOUSE .....Appellant
Through: Mr. Shravan Kumar Bansal,
Adv.
versus
VIJAY GUPTA & ORS. .....Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE AJAY DIGPAUL
ORDER (ORAL)
% 07.07.2025
C. HARI SHANKAR, J.
1. The order passed by the learned District Judge (Commercial
Courts), by which the appellant is aggrieved, reads thus:
" CS (COMM.) 331/25
Pawan Kumar Mittal Proprietor Of Salasar Dev Basmati House
Vs. Vijay Gupta And Ors.
14.05.2025
Present: None.
Earlier Sh. Vibhor Garg, ld. Counsel for the plaintiff
appeared.
At this stage, the Court is not inclined to ex parte ad interim
injunction order. Subject to just exceptions, issue summons for
settlement of issues to the defendants through all permissible
modes i.e. RC/Speed Post/ Courier/E-mail/Whatsapp and FAX etc.
of filing of PF and soft copy of complete paper book of the suit in
PDF format. For service through electronic mode, plaintiff to file
affidavit with respect to the correctness of the address and contact
details.
Steps for service and process fee be filed within one week.
Directions:
1. service of defendants;
2. written statement along with statement of truth, admission
and denial of documents, list of documents as well as the
documents etc. be filed by defendants within statutory period of 30
days from the date of service.
Advance copy be given;
3. replication be filed by plaintiff along with affidavit of
admission and denial of documents, within statutory
FAO (COMM)-170/2025
period of 45 days of receipt of copy of written statement, if any.
Advance copy be given.
Put up for 23.07.2025.
Anurag Sain
District Judge (Commercial Court)-01
Patiala House Court, New Delhi.
07.05.2025"
2. It is clear that the impugned order is completely unsustainable
in law, as it adduces no reasons for the view for disinclination to issue
any ex parte ad interim order.
3. While it is open to the Court to take a view as to whether any ex
parte ad interim injunction should or should not be granted, either
way, some reason is required to be given.
4. In cases of trademark infringement, following judgments of the
Supreme Court, including Laxmikant V Patel v Chetanbhai Shah1
(2002) 3 SCC 65
the law is that, where a prima facie case of passing off is made out, the
Court is required on the very first day to issue notice and appoint a
Local Commissioner to seize the injurious goods. In such cases, a
party is also entitled to seek waiver of the requirement of advance
service, so that the commission is not defeated. This principle also
applies mutatis mutandis, to infringement.
5. We find that the appellant has specifically sought an injunction
along with an application under Order XXIX of the CPC, seeking
appointment of a Local Commissioner with an application for waiver
from the requirement of advance service.
6. The impugned order gives no reasons for rejecting these
requests.
7. Inasmuch as the appellant is seeking appointment of a Local
Commissioner, issuance of notice in this appeal would be counter-
productive.
8. In that view of the matter, the impugned order is quashed and
set aside.The applications in CS (COMM) 331/2025 for waiver of the
requirement of advance service, for grant of ex parte ad interim
injunction, and appointment of Local Commissioner are remitted for
de-novo consideration to the learned District Judge (Commercial
Courts). The appellant would appear before the learned Commercial
Court on 10 July 2025 at 11 am.
9. We express no view on the entitlement of the appellant either to
waiver of advance service or appointment of Local Commissioner or
grant of ex parte ad interim relief. We have not examined the merits
of the matter.
10. The learned Commercial Court is requested to hear these
applications on 10 July 2025 itself and take a view thereon as
expeditiously as possible.
11. The appeal stands allowed in the aforesaid terms.
12. Needless to say, the impugned order dated 7 May 2025 would
not influence the learned Commercial Court while complying with the
order passed today.
13. A copy of the order be given dasti under signature of the Court
Master.
C. HARI SHANKAR, J.
AJAY DIGPAUL, J.
JULY 7, 2025
sk
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