Gujarat High Court
Purvish Indrakant Shah vs Shyamal Jagdishchandra Sheth on 23 September, 2025
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C/AO/164/2025 JUDGMENT DATED: 23/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 164 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/APPEAL FROM ORDER NO. 164 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting No Yes
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PURVISH INDRAKANT SHAH & ORS.
Versus
SHYAMAL JAGDISHCHANDRA SHETH
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Appearance:
MR HARJOTSINGH J KASSOWAL(11053) for the Appellant(s) No. 1,2,3,4,5
MR SHIVAM R PANDEY(12222) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 23/09/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. Harjotsingh J. Kassowal for the
appellants and Learned Advocate Mr. Shivam R. Pandey,
Caveator. Admit. Learned Advocate Mr. Shivam R. Pandey
waives service of notice for the respondent.
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2. With the consent of the parties, the appeal is taken up for final
hearing forthwith.
3. The parties will be referred as far as possible as per their
original position in the suit.
4. THE SHORT FACTS OF THE CASE APPEAR TO BE
THAT:
4.1. The respondent herein is an original plaintiff of Trade Mark
Suit No. 1 of 2025, filed against the appellants herein who are
the original defendants. As there was an injunction prayed for
and granted by the Trial Court vide its order dated 11th June
2025. Hence, the present appeal at the instance of the original
defendants.
5. SUBMISSIONS OF APPELLANTS-ORIGINAL
DEFENDANTS:
5.1. Learned Advocate Mr. Harjotsingh J. Kassowal would submit
that the Trial Court has committed serious error of law by
observing that as the defendants had not acted as per the
Memorandum of Understanding (MoU) dated 1st February
2023 and so also 7th April 2023, the plaintiff is entitled to get
temporary injunction as prayed in the injunction application. It
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is submitted that as per the MoU executed between the plaintiff
being the proprietor of Anugrah Events with the defendant
No.1 happens to be proprietor of T.O.V. Entertainment and
Anugrah LLP, wherein, the plaintiff is also one of the partners.
Whereby, as per the MoU, a logo in the name of "Taste of
Vadodara" would be of exclusive ownership of defendant No.1.
It was agreed between the parties that for any event project
"Taste of Vadodara - 2022," defendant No. 1 was required to
pay to second party to such MoU i.e. Anugrah Event LLP, the
sum of Rs.40,00,000/-.
5.2. Learned Advocate Mr. Kassowal would further submit that
subsequent to such MoU, another MoU dated 7th April 2023,
was executed between the plaintiff and defendant No. 1 i.e. the
proprietor of TOV Entertainment. Whereby, the ownership of
the logo namely "Taste of Vadodara" would be of equal
ownership of the plaintiff and defendant No. 1. It is submitted
that as per Clause 11 of such MoU, parties have agreed that on
making payment of Rs.42,00,000/- in three installments by
defendant No. 1 to the plaintiff, defendant No. 1 would
become the absolute owner of such logo i.e. "Taste of
Vadodara." Once receiving such payment, every right under
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Trademark, Copyright and Patent (Intellectual property rights)
would vest in favor of defendant No. 1, as stated in Clause 14
of such MoU.
5.3. Learned Advocate Mr. Kassowal would further submit that
pursuant to the MoU dated 7th April 2023, three cheques, as
disclosed in Clause 11 of such MoU, were given to the plaintiff,
out of which only one cheque of Rs.5,00,000/- dated 7th April
2023, came to be deposited and realized by plaintiff. It is
submitted that for reasons best known to the plaintiff, he has
chosen not to deposit the balance two cheques of
Rs.25,00,000/- and Rs.12,00,000/-, respectively, issued for the
dates 5th May 2023 and 5th June 2023. It is submitted that for
not depositing such cheques by plaintiff, defendants cannot be
injuncted.
5.4. Learned Advocate Mr. Kassowal would further submit that
when defendant No. 1 having performed his part of the
contract as per the MoU dated 7th April 2023, for not
depositing the balance two cheques by the plaintiff, the Trial
Court had erroneously observed in its impugned order that
payments were not received by the plaintiff.
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5.5. Learned Advocate Mr. Kassowal would submit that as per the
aforesaid two MoUs executed between the plaintiff and
defendant No. 1, was well within its right to use the logo i.e.
"Taste of Vadodara" and also entitled to enter into further
agreement with different entities like the rest of the defendants.
5.6. Learned Advocate Mr. Kassowal would submit that the Trial
Court, without considering all these aspects of the case, having
not considered that neither any prima facie case nor balance of
convenience nor any irreparable loss made out by plaintiff, still
granted injunction in favour of plaintiff, thereby, committed
serious error of law.
5.7. Making the above submissions, learned Advocate Mr.
Kassowal would request this Court to allow the present
appeal.
6. SUBMISSIONS OF RESPONDENT-PLAINTIFF:
6.1. Per Contra, learned Advocate Mr. Shivam R. Pandey
appearing for the plaintiff, would vehemently opposed the
present appeal, contending inter alia that the plaintiff is a
registered trademark holder and entitled for the relief as prayed
in the injunction application.
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6.2. Learned Advocate Mr. Pandey would submit that the
documents i.e. statement of bank accounts, some of the
photographs and letter dated 17th May 2023, issued by the
plaintiff to defendant No. 1, as well as other tax invoices in
relation to appellant No. 4, are not part of the record of the
suit, having not produced by defendants, which may not be
looked into by this Court.
6.3. Learned Advocate Mr. Pandey would further submit that the
plaintiff is a registered trademark holder having all rights to
seek injunction against a person who is not authorized to use
the registered trademark i.e. "Taste of Vadodara" against the
wish of the plaintiff. It is submitted that as per the MoU dated
1st February 2023, defendant No. 1 has never acted upon it,
having not paid any amount to the plaintiff, thereby,
committed breach of such MoU, would not be entitled to pass
on any right flowing from such MoU to third party.
6.4. Learned Advocate Mr. Pandey would further submit that the
Trial Court, having noticed all these aspects and having found
that the plaintiff has not been paid as per MoU, granted
injunction which may not be disturbed by this Court while
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exercising its power under Order 43, Rule 1 of the CPC.
6.5. Learned Advocate Mr. Pandey would further submit that so
far as MoU dated 7th April 2023, executed between the
plaintiff and defendant No. 1 is concerned, as per said MoU,
the balance two cheques were not deposited by the plaintiff as
there was no clarity given by the defendant No. 1 as regards its
realization. So, as on date, the plaintiff, having absolute rights
and having registration in relation to the trademark i.e. "Taste
of Vadodara" in his favour, maintained the suit and secured the
injunction against third parties, including defendants.
6.6. Making the above submissions, learned Advocate Mr. Pandey
would request this Court to reject the present appeal.
7. No other or further submissions have been advanced by the
learned advocates appearing for the respective parties
ANALYSIS
8. Having heard learned Advocates appearing for the respective
parties at length.
9. The facts so emerge from the impugned order, as well as after
going through the documentary evidence available on record,
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that there were two MoUs independently executed between the
plaintiff and defendant No. 1. One MoU was executed on 1st
February 2023, wherein, the plaintiff being the proprietor of
Anugrah Events was the first party, Anugrah Events LLP was
the second party and the defendant No.1 being the proprietor
of T.O.V. Entertainment was the third party. As per such
MoU, the logo in the name of "Taste of Vadodara" would be
the sole ownership of the third party i.e. defendant No.1,
wherein, neither the first party i.e. plaintiff nor the second
party have any right and authority on such logo. The defendant
No. 1 being the third party was required to pay Rs.40,00,000/-
to the second party i.e. Anugrah Events LLP and not to the
plaintiff i.e. Proprietor of Anugrah Events. It remained
undisputed that in the suit proceedings, the second party i.e.
Anugrah Events LLP is not joined either as a plaintiff or
defendant.
10. As per the terms of the MoU dated 1st February 2023, there is
absolute right given in favour of defendant No. 1 in relation to
presenting event/project using word "Taste of Vadodara" and
as per Clause 8, the first and second parties to such MoU have
no right of presenting event/project. As per Clause 11 of such
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MoU, the City of Vadodara has jurisdiction to decide the lis
between the parties in case of any breach of condition.
11. Likewise, as per another MoU dated 7th April 2023, executed
between defendant No. 1 as the first party and the plaintiff as
the second party, whereby, it was agreed between the parties
that "Taste of Vadodara" would be one of an event brand of
T.O.V. Entertainment i.e. defendant No.1 - Proprietor firm.
Wherein, the first party and the second party i.e. defendant No.
1 and the plaintiff, respectively, having 50-50% share [See:
Clause 1 of MoU dated 7th April 2023]. As per Clause 11 of
such MoU, it was agreed between the parties that defendant
No. 1 will purchase 50% right of the plaintiff by paying him
Rs.42,00,000/-. For which, defendant No. 1 in fact given the
plaintiff three different cheques of Rs.5,00,000/-, Rs.25,00,000/-
and Rs.12,00,000/-, respectively. Further, as per Clause 14 of
such MoU, once such payment being received by the plaintiff,
all intellectual property rights, including Trademark,
Copyright, etc., would be of exclusive ownership of defendant
No. 1 in relation to "Taste of Vadodara."
12. It remained undisputed that the plaintiff has encashed
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Rs.5,00,000/- out of the said amount, but for reasons best
known to him, has not deposited the balance two cheques.
There may be an inter se dispute arisen between the plaintiff
and defendant No. 1 and/or other two partners of Anugrah
Event LLP, but the fact remains that defendant No. 1 by virtue
of the execution of the first MoU dated 1st February 2023, as
well as the second MoU dated 7th April 2023, having right and
ownership to use registered trademark of plaintiff i.e. "Taste of
Vadodara" and as per the terms of the MoU, can use it
commercially, including assigning it to others i.e. Third
parties.
13. The Trial Court appears to have completely lost sight this
aspect and not properly appreciated the different clauses of the
aforesaid MoUs, whereby, committed serious error in law by
prohibiting defendant No. 1 and other defendants not to use
trademark i.e. "Taste of Vadodara" by granting injunction.
14. Further, the Trial Court has erroneously observed in Para-21
that;
"......Thus, it becomes crystal clear from the aforesaid
documents that, the defendant No.1 has got 50% shares of
sole plaintiff and to use the trademark of logo of "Taste of
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Vadodara" but, after executing the said documents and after
getting the permission to use such trademark, he has not
paid remaining amount of said deed of MoU. Here, it is to
be mentioned that, the said document is of dated
07/04/2023 and even after passing of two years, the
defendant No.1 has not shown any readiness and willingness
to perform his part of the contract by making payments of
remaining amounts.....".
Such would be the erroneous and perverse observation
on the part of the Trial Court, inasmuch as it is not the case of
the plaintiff that he has not received the balance two cheques
from the defendant No. 1 and so also not disputed having not
deposited it. As observed hereinabove, when the plaintiff on his
own failed to deposit those two cheques, no blame can be
shifted on the shoulder of defendant No. 1. Had the plaintiff
deposited remaining two cheques of balance amount, the
exclusive right of using the word "Taste of Vadodara" as per
the MoU dated 7th April 2023, would have stood transferred in
favor of defendant No. 1.
15. The Trial Court has not properly appreciated the facts of the
case, rather went into complete wrong direction, having not
appreciated that it was not the defendant No. 1 would not
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ready and willing to perform the part of his obligation as per
the MoU, but rather the entire situation cropped up because of
inaction on the part of the plaintiff, having not deposited the
balance two cheques of the remaining amount given to him by
defendant No. 1 as per the MoU dated 7th April 2023.
16. At this stage, it also requires to be observed that the Trial
Court not properly appreciated the provisions of the Trade
Marks Act, 1999 (hereinafter referred to as "the Act, 1999"). It
is so submitted that as per Section-31 of the Act, 1999, plaintiff
has an exclusive right to use registered mark and can sought for
injunction against its unauthorized use. As such, Section 31 of
the Act, 1999 would rather stand in favour of defendant No. 1
than the plaintiff, inasmuch as undoubtedly, there was an
assignment of the trademark i.e. "Taste of Vadodara" by the
plaintiff in favor of defendant No. 1, having executed MoU
dated 7th April 2023 and so also allowed defendant No. 1 to
use the logo of "Taste of Vadodara" having executed the MoU
dated 1st February 2023. Such assignment is not unknown in
the commercial world where a person having registered mark
can always, on terms, assign such mark to be used in favour of
the assignee. It would be profitable to refer Section-2(1)(b) read
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with (r) of the Act, 1999, wherein, definitions of "assignment"
and "permitted use" are given, which read as under:
"Section-2(1)(b) "assignment" means an
assignment in writing by act of the parties
concerned;"
"Section-2(1)(r) "permitted use", in relation
to a registered trade mark, means the use of
trade mark-
(i) by a registered user of the trade mark in
relation to goods or ser- vices-
(a) with which he is connected in the course of
trade; and
(b) in respect of which the trade mark remains
registered for the time being; and
(c) for which he is registered as registered
user; and
(d) which complies with any conditions or
limitations to which the registration of
registered user is subject; or
(ii) by a person other than the registered
proprietor and registered user in relation to
goods or services-
(a) with which he is connected in the course of
trade; and
(b) in respect of which the trade mark remains
registered for the time being; and
(c) by consent of such registered proprietor in
a written agreement; and
(d) which complies with any conditions or
limitations to which such user is subject and
to which the registration of the trade mark is
subject."
(emphasis supplied)
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17. Such statutory provisions of law unnoticed by the Trial Court
while granting injunction in favour of the plaintiff, who already
assigned in favour of defendant No. 1 to use his registered
trademark i.e. "Taste of Vadodara" as per the execution of the
said MoU. Thus, in view of aforesaid, no prima facie case
made out by plaintiff.
18. As per the first MoU dated 1st February 2023, any amount due
and payable by defendant No. 1 only to Anugrah Events LLP
(wherein the plaintiff is one of the partners) and not to the
plaintiff's proprietary concern, Anugrah Events, per se (See
Clause-5 of MOU - 01.02.2023). Having so observed herein
above, said LLP is neither plaintiff nor defendant in the suit. In
such circumstances, it cannot be gainsaid that the plaintiff
would suffer any irreparable loss, inasmuch as he would be
adequately compensated in terms of money, if succeeds in the
suit.
19. Having regards to the aforesaid peculiar facts and
circumstances of the case, the balance of convenience also tilts
in favour of the defendants rather plaintiff, who, with open
eyes, executed the aforesaid MoU but failed to act upon it.
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20. Lastly, it also required to be mentioned that in both these
MoUs, the parties to MoU, including the plaintiff agreed that
in case of any dispute between the parties, the appropriate
jurisdictional court would be Vadodara, but reasons best
known to the plaintiff, he chose to file suit before the Court of
Halol, District Panchmahal, maybe under the mistaken belief
that his registration mark issued from such places. This Court
would not like to make further comment upon it as this aspect
can be taken care by the Trial Court while deciding other issues
including any issue of jurisdiction raised by defendants in their
pleading and may arise during the course of trial.
21. Having reached to the aforesaid conclusion and having so
found order impugned is erroneous and perverse inasmuch as,
plaintiff failed to prove any prima facie case, balance of
convenience and irreparable loss, even though, this Court
having limited jurisdiction to interfere with the discretionary
order passed by the Trial Court having granted injunction in
favour of the plaintiff, but as per settled legal position of law,
whenever this Court found such discretionary order either
erroneous, perverse, or contrary to settled legal position of law,
even in such limited jurisdiction under Order 43, Rule 1 of the
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CPC, this Court can always interfere with such
erroneous/perverse order. Thus, in light of aforesaid, I would
like to interfere with the impugned order passed by the Trial
Court.
22. Before parting with this judgment, on request of learned
advocate Mr. Pandey appearing for plaintiff, it is made clear
that any of the observations so made hereinabove by this Court
would not influence the mind of the Trial Court while deciding
the lis between the parties when finally decides the suit.
CONCLUSION
23. In light of the aforesaid observations, discussions and reasons,
the present Appeal From Order is hereby allowed.
Consequently, the impugned order dated 11th June 2025,
passed by the 2nd Additional District Judge, Halol,
Panchmahal, passed below Exhibit 5 in Trade Mark Suit No. 1
of 2025, is hereby quashed and set aside. Accordingly, the
impugned injunction application filed below Exhibit 5 in Trade
Mark Suit No. 1 of 2025 is hereby rejected. No order as to
costs.
24. If the parties to the suit request for early adjudication of the
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suit, the Trial Court may consider such request in accordance
with law.
25. Direct service is permitted.
(MAULIK J.SHELAT,J)
Nilesh
