[Cites 24, Cited by 0]
Gauhati High Court
Page No.# 1/12 vs Associated Alcohol And Beverages ... on 18 December, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Manish Choudhury
Page No.# 1/12
GAHC010256702025
2025:GAU-AS:17631
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : FAO/73/2025
M/S BRAHMAPUTRA DISTILLERY AND ANR
A PROPRIETORSHIP FIRM HAVING ITS FACTORY AT LAIPULI, A.T. ROAD,
TINSUKIA - 786183, P.O. LAIPULI, P.S. PANITOLA, ASSAM. REPRESENTED
BY ITS PROPRIETOR MR. BHARAT GOHAIN
2: MR BHARAT GOHAIN
PROPRIETOR OF APPELLANT NO. 1
RESIDENT OF OKANI MORIA GAON
.. ROAD
TINSUKIA - 786183
.. LAIPULI
P.S. PANITOLA
ASSAM
VERSUS
ASSOCIATED ALCOHOL AND BEVERAGES COMPANY
A PARTNERSHIP FIRM REGISTERED UNDER THE INDIAN PARTNERSHIP
ACT, 1932, AND HAVING ITS REGISTERED OFFICE AND FACTORY AT JEC
ROAD, GARMUR, JORHAT - 785007, ASSAM, ITS HEAD OFFICE AT KAY DEE
BUILDING, RUPAHI ALI, JORHAT - 785001, ASSAM, AND REPRESENTED IN
THE PROCEEDINGS BY ONE OF ITS PARTNERS, MR AKSHAY DUTTA.
Advocate for the Petitioner : MR. A K SAHEWALLA,
Advocate for the Respondent : ,
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BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 18.12.2025
(K.R. Surana, J)
On the issue of maintainability of this regular first appeal, filed
under Order XLIII, Rule 1(r) of the Civil Procedure Code, heard Mr. S. Dutta,
learned senior counsel, assisted by Mr. A.K. Sahewalla, learned counsel for the
appellant. Also heard Mr. N.N. Dutta, learned counsel for the respondent.
Background facts leading to this appeal:
2) The respondent in this appeal is the plaintiff in Commercial Suit
No. 11/2025, which is pending before the Court of Civil Judge, Jorhat. The suit
is under Sections 134 and 135 of the Trade Marks Act, 1999, for permanent
injunction, restraining infringement of trademark/ passing-off and delivery/
rendition of accounts. The defendant in the said suit is the appellant in this
appeal. For the purpose of reference to the parties in this appeal, they are
referred to as the "appellant" and "respondent", as arrayed in this appeal.
3) Along with the said commercial suit, the respondent had also
filed a separate application under the provisions of Order XXXIX, Rules 1 and 2
read with Section 151 of the Civil Procedure Code, praying for ad interim
injunction, inter alia, to restrain the appellant and others claiming through them
from using, selling, soliciting, exporting, displaying, advertising or in any manner
dealing in or using the impugned label, trade-dress/ font-size-remove/ font-colour
combination/ packaging of its product Raagi and/or any other label/ packaging
which may be deceptively similar to the respondent's said label/ trade-dress/
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font-size-remove/ font-colour combination/ packaging in relation to country spirit and
from doing any other acts or deeds amounting to or likely (A) Passing of and
violation of the plaintiff's rights in the plaintiff's said label used in the plaintiff's
manufacture country spirit; (B) Infringement of the plaintiff's copyrights in
label/trade-dress/font colour/font size/colour combination/packaging; (C)
Restraining the defendant from disposing of or dealing with its assets, including
their warehouse, factories etc., at the addresses mentioned in the Memo of
Parties and their stocks-in-trade or any other assets till the disposal of the suit.
The said injunction application was registered as Misc.(J) Case No. 146/2025 [in
Commercial Suit No. 11/2025].
4) The appellant contested the suit and the injunction application
by filing their written statement and written objection, amongst others, denying
infringement and setting a defence of user of their label by investing heavily in
branding, marketing and packaging in good faith and without any mala fide or
dishonest intention. Further, it was claimed that the respondent had not sold a
single bottle of their product in Jorhat and therefore, there was no cause of
action for the suit and for ad interim injunction.
5) The pleadings, referred to hereinbefore of the respondent and
the appellant, referred to above are only illustrative and not exhaustive.
6) The learned Civil Judge, Senior Division, Jorhat, by order dated
12.11.2025, passed in Misc.(J) Case No. 146/2025, upon finding prima facie
case and balance of convenience in favour of the respondent, also took a view
that the respondent shall suffer irreparable loss, including loss to their goodwill,
granted ad-interim injunction, restraining the appellant, their men, agents,
representatives, distributors, assignees, heirs, successors, stockiest and all
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others acting for and on their behalf, are restrained from using, selling,
soliciting, exporting, displaying, advertising or by any other mode or manner
dealing in or using the impugned label, trade dress, label colour combination,
packaging of its product Raagi and/or any other label/packaging which may be
identical with and/or deceptively similar to the respondent's label/ trade dress/
label colour combination/packaging in relation to country spirit. The appellant
has also been restrained from doing any other act amounting to or likely to
passing off and violation of the respondent's rights in the said label used in the
respondent's country spirit, infringement of the respondent's copyrights in
labels/ trade dress/ label colour combination/packaging and from disposing or
dealing with its assets including their warehouse factories etc. at the address
mentioned in the memo and their stocks-in-trade or any other assets till disposal
of the suit.
Preliminary issue of maintainability:
7) The learned senior counsel for the appellant has submitted that
the instant appeal, having been filed against order passed by the Civil Judge,
Senior Division, by which ad-interim injunction was granted. Hence, the appeal
ought to be taken up by the learned Single Judge as a Regular First Appellate
Court and not by the Division Bench, as Commercial Appellate Division Court.
8) Per contra, the learned counsel for the respondent has
submitted that the appeal ought to have been filed before the District Judge,
Jorhat and the appeal is not maintainable before this Court.
Reasons and decision:
9) In order to answer the preliminary issue of maintainability, the
Court must refer to the relevant provisions of law. Accordingly, the provisions of
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Sections 2(a), 2(aa), 2(b), 2(c)(xvii), 3, 3A, 4, 5, 6, 7, and 13 of the Commercial
Courts Act, 2015, are quoted below for ready reference:-
2. Definitions.(a) "Commercial Appellate Courts" means the Commercial
Appellate Courts designated under section 3A;
(aa) "Commercial Appellate Division" means the Commercial Appellate Division in a
High Court constituted under sub-section (1) of section 5;
(b) "Commercial Court" means the Commercial Court constituted under sub-
section (1) of section 3;
(xvii) intellectual property rights relating to registered and unregistered
trademarks, copyright, patent, design, domain names, geographical indications
and semiconductor integrated circuits;
3. Constitution of Commercial Courts.--- (1) The State Government, may after
consultation with the concerned High Court, by notification, constitute such
number of Commercial Courts at District level, as it may deem necessary for the
purpose of exercising the jurisdiction and powers conferred on those Courts under
this Act:
Provided that with respect to the High Courts having ordinary original civil
jurisdiction, the State Government may, after consultation with the concerned High
Court, by notification, constitute Commercial Courts at the District Judge level:
Provided further that with respect to a territory over which the High Courts have
ordinary original civil jurisdiction, the State Government may, by notification,
specify such pecuniary value which shall not be less than three lakh rupees and
not more than the pecuniary jurisdiction exercisable by the District Courts, as it
may consider necessary.
(1A) Notwithstanding anything contained in this Act, the State Government may,
after consultation with the concerned High Court, by notification, specify such
pecuniary value which shall not be less than three lakh rupees or such higher
value, for whole or part of the State, as it may consider necessary.
(2) The State Government shall, after consultation with the concerned High Court
specify, by notification, the local limits of the area to which the jurisdiction of a
Commercial Court shall extend and may, from time to time, increase, reduce or
alter such limits.
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(3) The State Government may, with the concurrence of the Chief Justice of the
High Court appoint one or more persons having experience in dealing with
commercial disputes to be the Judge or Judges, of a Commercial Court either at
the level of District Judge or a court below the level of a District Judge.
3A. Designation of Commercial Appellate Courts.--- Except the territories
over which the High Courts have ordinary original civil jurisdiction, the State
Government may, after consultation with the concerned High Court, by
notification, designate such number of Commercial Appellate Courts at District
Judge level, as it may deem necessary, for the purposes of exercising the
jurisdiction and powers conferred on those Courts under this Act.
4. Constitution of Commercial Division of High Court.
(1) In all High Courts, having ordinary original civil jurisdiction, the Chief Justice of
the High Court may, by order, constitute Commercial Division having one or more
Benches consisting of a single Judge for the purpose of exercising the jurisdiction
and powers conferred on it under this Act.
(2) The Chief Justice of the High Court shall nominate such Judges of the High
Court who have experience in dealing with commercial disputes to be Judges of
the Commercial Division.
5. Constitution of Commercial Appellate Division.
(1) After issuing notification under subsection (1) of section 3 or order under sub-
section (1) of section 4, the Chief Justice of the concerned High Court shall, by
order, constitute Commercial Appellate Division having one or more Division
Benches for the purpose of exercising the jurisdiction and powers conferred on it
by the Act.
(2) The Chief Justice of the High Court shall nominate such Judges of the High
Court who have experience in dealing with commercial disputes to be Judges of
the Commercial Appellate Division.
6. Jurisdiction of Commercial Court.
The Commercial Court shall have jurisdiction to try all suits and applications
relating to a commercial dispute of a Specified Value arising out of the entire
territory of the State over which it has been vested territorial jurisdiction.
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Explanation.-- For the purposes of this section, a commercial dispute shall be
considered to arise out of the entire territory of the State over which a Commercial
Court has been vested jurisdiction, if the suit or application relating to such
commercial dispute has been instituted as per the provisions of sections 16 to 20
of the Code of Civil Procedure, 1908 (5 of 1908).
7. Jurisdiction of Commercial Divisions of High Courts.
All suits and applications relating to commercial disputes of a Specified Value filed
in a High Court having ordinary original civil jurisdiction shall be heard and
disposed of by the Commercial Division of that High Court:
Provided that all suits and applications relating to commercial disputes, stipulated
by an Act to lie in a court not inferior to a District Court, and filed or pending on
the original side of the High Court, shall be heard and disposed of by the
Commercial Division of the High Court:
Provided further that all suits and applications transferred to the High Court by
virtue of sub-section (4) of section 22 of the Designs Act, 2000 (16 of 2000) or
section 104 of the Patents Act, 1970 (39 of 1970) shall be heard and disposed of
by the Commercial Division of the High Court in all the areas over which the High
Court exercises ordinary original civil jurisdiction.
13. Appeals from decrees of Commercial Courts and Commercial
Divisions.
(1) Any person aggrieved by the judgment or order of a Commercial Court below
the level of a District Judge may appeal to the Commercial Appellate Court within a
period of sixty days from the date of judgment or order.
(1A) Any person aggrieved by the judgment or order of a Commercial Court at the
level of District Judge exercising original civil jurisdiction or, as the case may be,
Commercial Division of a High Court may appeal to the Commercial Appellate
Division of that High Court within a period of sixty days from the date of the
judgment or order:
Provided that an appeal shall lie from such orders passed by a Commercial Division
or a Commercial Court that are specifically enumerated under Order XLIII of the
Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and section 37
of the Arbitration and Conciliation Act, 1996 (26 of 1996).
(2) Notwithstanding anything contained in any other law for the time being in
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force or Letters Patent of a High Court, no appeal shall lie from any order or
decree of a Commercial Division or Commercial Court otherwise than in
accordance with the provisions of this Act.
10) The relevant orders by the Governor, vide Notification No. JDJ-
111/2018-ESTT-JUDL-12 dated 13.02.2019, thereby designating Commercial
Courts, Appellate Court, Commercial Division and Commercial Appellate Division
is quoted below:-
GOVERNMENT OF ASSAM
JUDICIAL DEPARTMENT :: JUDICIAL BRANCH
ORDERS BY THE GOVERNOR
NOTIFICATION
Dated Dispur, the 13thFebruary, 2019
No. JDJ-11/2018-ESTT-JUDI-12:On the recommendation of the Hon'ble Gauhati
High Court, the Governor of Assam is pleased to designate the Courts of all Civil
Judges, High Court, the Commercial Courts and Courts of District Judges in all the
Districts of Assam as Appellate Court at the District Level under the Commercial
Courts, Commercial Division and Commercial Appellate Division of the High Courts
(Amendment) Ordinance, 2018.
Sd/- S.K. Sharma
L.R.-cum-Commissioner & Secretary to the Govt. of
Assam
Judicial Department
11) By virtue of the orders passed by the Hon'ble The Chief Justice,
this Court, by Notification No. 54 dated 10.05.2023 and notification no. 37 dated
02.06.2025, had constituted "Commercial Appellate Division" and "Commercial
Division" of the Gauhati High Court.
12) It is not in dispute that the Gauhati High Court is not conferred
with original jurisdiction to try suits. Therefore, in the considered opinion of the
Court, within the meaning and scope of the provision of Section 6 of the
Commercial Courts Act, 2015, save and except under specified few enactments
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like Designs Act, 2000, the Gauhati High Court does not and cannot have
jurisdiction of "Commercial Court". For the same reason, the Gauhati High Court
does not and cannot have jurisdiction of Commercial Division as envisaged
under section 5 and Section 7 of the Commercial Courts Act, 2015.
13) It must be mentioned that the predecessor to The Commercial
Courts Act, 2015 was The Commercial Courts, Commercial Division and
Commercial Appellate Division of High Courts Ordinance, 2015, which stood
repealed by virtue of Section 23 of the Commercial Courts Act, 2015. The
Commercial Courts Act, 2015, came into force on and from 31.12.2015.
Therefore, the Notification No. JDJ-111/2018-ESTT-JUDL-12 dated 13.02.2019,
issued by the Judicial Department, Govt. of Assam, thereby designating
Commercial Courts, Appellate Court, Commercial Division and Commercial
Appellate Division, is without jurisdiction because on 13.02.2019, The
Commercial Courts, Commercial Division and Commercial Appellate Division of
High Courts Ordinance, 2015, under which the said notification was issued, did
not exist, having been repealed with effect from 31.12.2015. In the considered
opinion of the Court, the repeal and savings clause contained in Section 23 of
the Commercial Courts Act, 2015, would have the effect of saving only anything
done or any action taken under the said Ordinance. But the said provision would
not empower the Government to act under the said Ordinance after the repeal
of the said Ordinance had taken effect on and from 31.12.2015. Therefore, in
the further opinion of the Court, the said Notification No. JDJ-111/2018-ESTT-
JUDL-12 dated 13.02.2019, issued by the Judicial Department, Govt. of Assam,
would not have any effect whatsoever, being non-est in the eye of law.
Suggestions, which ought not to be considered as an order or direction of the
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Court:
14) Therefore, having said that the notification dated 13.12.2019,
having been issued under the repealed ordinance would have no effect, it would
be open to the appropriate Government to:
a. Issue a fresh notification under the law in force to designate
Commercial Courts and Appellate Courts;
b. To examine as to which law in force confers jurisdiction to the
Gauhati High Court to try original suits; and
c. Thereafter, to notify the Gauhati High Court as Commercial Division
and Commercial Appellate Division.
Forum for the appellant:
15) The appellant is aggrieved by the order dated 12.11.2025,
passed by the learned Civil Judge, Senior Division, Jorhat, in Misc.(J) Case No.
146/2025, which has been passed under Order XXXIX, Rules 1 and 2 read with
Section 151 of the Civil Procedure Code.
16) The Notification No. JDJ-111/2018-ESTT-JUDL-12 dated
13.02.2019, issued by the Judicial Department, Govt. of Assam, issued under
the repealed Ordinance, would not have any effect whatsoever.
17) Therefore, till the appropriate Government takes remedial
measures, on the principle that a litigant cannot be left remediless, the instant
appeal, having been filed under the provisions of Order XLVII, Rule 1(r) of the
Civil Procedure Code, ought to be filed before the Court of the District Judge,
Jorhat, as per the mandate of Section 13(1) of the Commercial Courts Act,
2015.
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18) The reason for suggesting that the present appeal can be filed
and taken up by the District Judge is because notwithstanding that the suit filed
by the respondent is valued at Rs.50,00,000/- (Rupees Fifty lakh only), the
provision of Section 13(1) specially prescribes that any person aggrieved by the
order of a Commercial Court below the rank of District Judge may appeal to the
Commercial Appellate Court within sixty days. The said prescription of law, in
the considered opinion of the Court, would oust the ordinary civil appellate
jurisdiction of this Court.
19) It may be stated that as per the notification no.56, dated 16 th
August, 2024, issued by this Court, civil appeal valued at Rs.20,00,000/-
(Rupees Twenty lakh only) and above can be taken up by the High Court.
However, none of the provisions of the Commercial Courts Act, 2015, prescribes
the upper pecuniary limit of the Court of District Judge to take-up appeals.
Therefore, ouster of jurisdiction of Gauhati High Court inhers in Section 13(1) of
the Commercial Courts Act, as this Court does not have original civil jurisdiction
and is not the designated appellate court for the purpose of suits and
proceedings under the Commercial Courts Act, 2015.
20) Ordered accordingly.
21) Therefore, in light of the discussions above, the present appeal
is liable to be returned to the appellant so as to enable the appellant to present
this appeal before the Court of learned District Judge, Jorhat.
22) This appeal was presented before this Court on 18.11.2025.
Accordingly, considering the intervening Court holidays in the remaining part of
this month of December, 2025 and January, 2026, this Court is inclined to
provided that in the event the appeal is presented before the Court of District
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Judge within outer limit of three weeks from the date of this order, the time
spent in this Court from 18.11.2025 till presentation of appeal within outer limit
of three weeks from the date of this order, shall be treated as time bona fide
spent before this Court pursuing this appeal as per Section 14 of the Limitation
Act, 1963.
Directions to the Registry:
23) Let this appeal along with certified copy of impugned order and
vakalatnama be returned to the appellant after keeping a photocopy thereof for
the record.
24) The Registry shall send a copy of this order to (i) the Ministry of
Law and Justice, Govt. of India for information; and to the Legal
Remembrancer-cum- Commissioner and Secretary to the Govt. of Assam,
Judicial Department to examine the order and to do the needful at the earliest.
25) This order shall be also brought to the notice of the Hon'ble The
Chief Justice, Gauhati High Court for information only.
JUDGE JUDGE
Comparing Assistant
