Dinesh Kumar vs Yang Bin
2022 Latest Caselaw 8608 Kant

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     IN THE HIGH COURT OF KARNATAKA, BENGALURU

        DATED THIS THE 13TH DAY OF JUNE, 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

               M.F.A.NO.2383 OF 2022 (IPR)
BETWEEN

DINESH KUMAR
S/O.LATE LALSINGHJI
AGED ABOUT 27 YEARS
PROPREITOR OF
M/S.JAI LAKSHMI MARKETING
NO.802, 2ND FLOOR
VINAY COMPLEX
BENGALURU - 560 053                      ...APPELLANT

(BY SRI SIVARAMAN VAIDYANATHAN, ADVOCATE)

AND

1.     YANG BIN
       S/O.YANG KINAI
       NO.1377-1
       YINHAI INTERNATIONAL BUSINESS
       CENTRE, CHOUZHOU ROAD
       YIWU CITY
       ZHEJIANG PROVINCE, CHINA

2.     YIWU KEMEI ELECTRIC APPLIANCE
       COMPANY LIMITED
       THROUGH ITS AUTHORIZED
       REPRESENTATIVE, MR.YANG BIN
       NO.1377-1, YINHAI INTERNATIONAL
       BUSINESS CENTRE
       CHOUZHOU ROAD, YIWU CITY
       ZHEJIANG PROVINCE, CHINA           ...RESPONDENTS

(BY SRI RISHI ANEJA, ADVOCATE)
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      THIS APPEAL IS FILED UNDER ORDER XLIII RULE 1(r) OF
CPC PRAYING TO SET ASISE THE ORDER DATED 28.01.2022
(ANNEXURE-A) PASSED ON I.A.NOS.1 AND 2 IN OS NO.588/2022 ON
THE FILE OF XVII ADDITIONAL CITY CIVIL JUDGE, BENGALURU AND
ETC.

     THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

This appeal by the defendant in O.S.No.588/2022 is

directed against the impugned order dated 28.01.2022.

2. The aforesaid suit filed by the respondents-plaintiffs

against the appellant-defendant, whereby the trial Court has

passed an ad-interim ex parte order of temporary injunction on

the applications IA.Nos.1 and 2 filed by the respondents-

plaintiffs in the suit before the trial Court.

3. Respondents have filed statement of objections to

the appeal and Interlocutory application and same are placed

on record.

4. Heard the learned counsel for appellant and learned

counsel for respondents and perused the material on record.

5. A perusal of material on record would indicate that

the impugned order having been passed by the trial Court on

28.01.2022, this Court vide order dated 28.04.2022 stayed the

said operation and execution of the impugned order till today.

The aforesaid order dated 28.04.2022 passed by this Court in

the present appeal is as under:

"Heard the learned counsel appearing for the appellant.

Learned counsel appearing for the appellant / defendant would strenuously argue and contend before this Court that the Court below by order dated 28.01.2022 had granted ex-parte interim injunction.

Learned counsel by taking this Court through the order under challenge would argue and contend that no reasons are forthcoming for granting ex-parte interim injunction.

Learned counsel appearing for appellant / defendant would submit to this Court that defendant on receipt of summons has filed written statement and also filed objections to I.A.Nos.1 and 2 on 18.04.2022.

The appellant / defendant pleads that he is into business and claims that he is prior user.

The grievance of the appellant / defendant is that though the applications are contested by filing written statement / objections, the learned Judge has granted interim order and he would also contend that the exparte interim order granted is composite in nature and therefore is questioning the very jurisdiction of the trial Court in granting injunction in the nature which is granted by the learned Judge.

Learned counsel appearing for the appellant / defendant would also contend that infact the appellant / defendant has already filed the suit against the respondents / plaintiffs which is in earlier point of time seeking similar relief alleging passing off the ex-parte interim injunction does not indicate on what the learned Judge has proceeded to grant relief in favour of the respondents / plaintiffs. On meticulous examination of order under challenge, this Court finds that the order under challenge is not a speaking order and the reasons assigned does not reflect that the

learned Judge has adverted to the pleadings and prima-facie material placed on record by respondents / plaintiffs. The appellant / defendant by filing the written statement has taken a specific contention that mere filing of petition for cancellation of registered trade mark or opposition towards pending trade mark application or filing of trade mark application cannot give rise to any cause of action for infringement of registered trade mark and the same does not given rise to any cause of action for passing off, of trade mark. The defendant in the written statement has also complained that the interim injunction would virtually restrain the present appellant from prosecuting the trade mark application under Section 18 of the Trade Mark Act, 1989 and the rights of the appellant are also substantially affected in prosecuting the suit filed by appellant / defendant. All these serious contentions and claim made by respondent / plaintiff are to be dealt by the trial Court by deciding the applications filed in I.As.1 and 2.

When the ex-parte interim injunction granted by the trial Court is contested by the appellant / defendant on receipt of summons,

the learned Judge having regard to the valuable rights of the rival parties has to decide the applications.

In that view of the matter, the execution and operation of the order under challenge is stayed till the next date of hearing.

List this matter on 13.06.2022.

In the meanwhile, it is open for the appellant / defendant to press for hearing on the pending applications i.e., I.A.Nos.1 and 2 before the trial Court."

6. Learned counsel for appellant-defendant submits that

the appellant-defendant has already filed his written statement

and objections to IA.Nos.1 and 2 in the suit before the trial

Court.

7. Both learned counsel jointly submit that the matter

before the trial Court is posted on 26.07.2022 and if the trial

Court is directed to take up the applications in an expeditious

manner, both sides are ready and willing to submit their

arguments on merits before the trial Court so as to enable the

trial Court to dispose of the applications on merits. The said

joint submission is placed on record and the appeal is

disposed of in the following terms:

ORDER

i) The appeal is hereby disposed of;

ii) Both the parties undertake to appear before the trial

Court on 27.06.2022 by suitably seeking

preponement/advancement of the case from

26.07.2022 to 27.06.2022;

iii) The trial Court is directed to consider and dispose of

IA.Nos.1 and 2 on merits within a period of three

weeks from 27.06.2022 without being influenced by

the finding and observation recorded in the

impugned order passed by the trial Court or by this

Court in its order dated 28.04.2022;

iv) It is further directed that till the trial Court considers

and passes appropriate orders on IA.Nos.1 and 2 in

O.S.No.588/2022, interim arrangement made by this

Court on 28.04.2022 will continue to remain in force

and operate between the parties;

v) All rival contentions on merits are kept open and no

opinion is expressed on the same.

SD/-

JUDGE LB