Matra Mobili Private Limited vs Madanapalle Retail Private ...
2023 Latest Caselaw 6422 Kant

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                                             NC: 2023:KHC:32601-DB
                                              COMAP No.321 of 2023




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                  DATED THIS THE 11TH DAY OF SEPTEMBER, 2023
                                    PRESENT
                      THE HON'BLE MR. JUSTICE G.NARENDAR
                                       AND
                  THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
                      COMMERCIAL APPEAL NO.321 OF 2023


            BETWEEN:

            1.    MATRA MOBILI PRIVATE LIMITED
                  A COMPANY INCORPORATED UNDER
                  THE COMPANIES ACT, 2013
                  HAVING CIN- U36990DL2020PTC371502
                  HAVING ITS REGISTERED OFFICE AT
Digitally         KHASRA NO.432, PLOT NO.14
signed by         M G ROAD VILLAGE, SUTANPUR
RUPA V            GADAIPUR, NEW DELHI
Location:         DELHI 110 030, INDIA.
HIGH
COURT OF          REPRESENTED THROUGH ITS
KARNATAKA         AUTHORIZED REPRESENTATIVE
                  MR. UDAYKANT JAMNADAS.

                                                        ...APPELLANT
            (BY SMT. MANEESHA KONGOVI, ADV.,)
            AND:

            1.    MADANAPALLE RETAIL PRIVATE LIMITED
                  A COMPANY INCORPORATED UNDER THE
                  COMPANIES ACT, 1956
                  HAVING CIN U52100KA2012PTC062759

                  HAVING ITS REGISTERED OFFICE AT:
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                                  NC: 2023:KHC:32601-DB
                                   COMAP No.321 of 2023




    109/1, NMR PEARL, 2 FLOOR
    VIJAYA BANK COLONY
    DODDA BANASWADI, RING ROAD
    (SERVICE ROAD), BENGALURU
    KARNATAKA 560043, INDIA.

    REPRESENTED BY ITS DIRECTOR
    DR. ALPHONSE REDDY
    CHINTALACHERUVU.

                                             ...RESPONDENT
(BY SRI. PRADEEP NAYAK, ADV., FOR C/R)


     THIS COMAP/COMMERCIAL APPEAL IS FILED UNDER
SECTION 13(1A) OF THE COMMERCIAL COURTS ACT, 2015
R/W ORDER 43 OF THE CPC, PRAYING TO CALL FOR RECORDS
OF COM.O.S.NO.909/2023 PENDING BEFORE THE HONBLE
COURT OF THE LD. LXXXII ADDITIONAL CITY CIVIL AND
SESSIONS     JUDGE    (CCH-84),     COMMERCIAL     COURT,
BENGALURU.    SET ASIDE THE IMPUGNED ORDER DATED
17/08/2023   IN   I.A.NO.1/2023    TO    I.A.NO.4/2023   IN
COM.O.S.NO.909/2023 (ANNEXURE-A) PASSED BY THE LD.
LXXXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-
90) HAVING CONCURRENT CHARGE OVER THE COURT OF THE
HONBLE COURT OF THE LD. LXXXII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-84).      PASS ANY OTHER ORDER
OR DIRECTION IN THE INTERESTS OF JUSTICE AND EQUITY.


     THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:
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                                       NC: 2023:KHC:32601-DB
                                        COMAP No.321 of 2023




                            JUDGMENT

This appeal is filed under Section 13(1A) of the

Commercial Courts Act, 2015 read with order XLIII of the

Code of Civil Procedure, 1908, assailing the order dated

17.08.2023 passed on I.A.Nos.1/2023 to 4/2023 in

Com.O.S.No.909/2023 on the file of the LXXXIX Addl. City

Civil and Sessions Judge, Bengaluru (for short, 'the

Commercial Court').

2. The parties are referred to as per their

respective ranking before the Commercial Court.

3. Brief facts giving rise to filing of this appeal are

that the respondent-plaintiff has filed commercial suit

seeking following prayers:

"A. An order for permanent injunction restraining the Defendant, its officers, servants, agents, and all other persons claiming through or under them from, in any manner whatsoever, infringing, adopting and/or using the Plaintiff's registered trademarks 'Sunday' and 'Sunday

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Life', or any other mark identically or deceptively similar thereto;

B. An order for permanent injunction restraining the Defendant, its officers, servants, agents, and all other persons claiming through or under them from, in any manner whatsoever, passing off their furniture and home furnishings as the furniture and home furnishings provided by the Plaintiff by adopting and/or using the Plaintiff's registered trademarks 'Sunday' and 'Sunday Life', or any other mark identical or deceptively similar thereto, including by way of using the Plaintiff's registered trademarks 'Sunday' and 'Sunday Life' as part of their trade name or in any manner whatsoever;

C. An order for permanent injunction restraining the Defendant, its officers, servants, agents, and all other persons claiming through or under them from, in any manner whatsoever, passing off their products as the products offered by the Plaintiff by using the domain name "http://www.sundaydesign.in/" or any other domain name incorporating the Plaintiff's registered trademarks 'Sunday' and 'Sunday Life'

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or any other mark identical or deceptively similar thereto;

D. An order for permanent injunction restraining the Defendant, its officers, servants, agents, and all other persons claiming through or under them from , in any manner whatsoever, passing off their products on various social media pages including on Facebook, Twitter, Instagram, LinkedIn, as products offered by the Plaintiff by incorporating the Plaintiff's registered trademarks 'Sunday' and Sunday Life', or any other mark identical or deceptively similar thereto;

E. An order for deliver-up to the Plaintiff by the Defendant, its officers, servants, agents, and all other persons claiming through or under them, of all infringing goods, advertising materials, memorabilia, printed matter, publications, including brochures, pamphlets, stationery and any other materials bearing the trademarks 'Sunday' and 'Sunday Life', or any other mark identical or deceptively similar thereto for the purposes of erasure or destruction;

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F. An order directing the Defendant to render honestly and faithfully true accounts of the profits that the Defendant has derived by promoting its products the Plaintiff's registered trademarks 'Sunday' and 'Sunday Life' or any other mark identical or deceptively similar thereto and directing payment of such profits to the Plaintiff by way of damages for infringing and passing off the trademark of the Plaintiff."

4. It is averred that the plaintiff company is into

the businesses of manufacturing and selling of home

furniture specifically mattresses and accessories such as

pillows and mattress covers including cots and desks. The

plaintiff is selling its products under the brand name

'Sunday' in several cities across the country from 2015.

The plaintiff for protection of its right has registered four

trademarks 'Sunday' in Class 20, 'Sunday' in Class 24,

'Sunday Life' in Class 20 and Class 24. It is further

averred that the products of the plaintiff has been widely

recognized for high quality, affordability and unique

features. It is also averred that the defendant is a private

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limited company which is engaged in the business of

selling furniture and room décor under the brand name

'Sunday' and the product sold by the defendant in the

name of furniture includes cots/beds, desks and

cushions/pillows, which constitute a majority of products

that the plaintiff manufactures and sells under its

registered trademark 'Sunday'. It is pleaded that the

defendant also sells its products through retail stores and

online. The present suit is filed by the plaintiff for

preventing the acts of infringement and passing of its

registered trademark i.e., Sunday and Sunday Life, being

committed by the defendant. It is further pleaded that the

defendant is unlawfully using the plaintiff's registered

trademark 'Sunday' for sale of its product and the brand

name used by the defendant is identical and replication, of

the registered trademark of the plaintiff and thereby

deceptively misleading the customers.

5. The plaintiff has filed applications I.A.No.1/2023

to I.A.No.4/2023 praying to grant of exparte ad-interim

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injunction restraining the defendant in any manner

whatsoever from infringing, adopting and by using the

plaintiff's registered trademark 'Sunday' in Class-20,

'Sunday' in class 24, 'Sunday Life' in class 20 and 'Sunday

Life' in class 24 or any other mark identically or

deceptively similar thereto. The Commercial Court vide

impugned order dated 17.08.2023 has allowed the

interlocutory applications by restraining the defendant by

way of an order of ad-interim temporary injunction from

any manner infringing, adopting and/or using the plaintiff's

registered trademark, 'Sunday' in Class 20, 'Sunday' in

Class 24, 'Sunday Life' in Class 20 and 'Sunday Life' in

Class 24 and further restrained from passing off their

products including but not limited to cots/beds,

cushions/pillows and desks as the products offered by

plaintiff company by adopting or using the plaintiff's

registered trademark. It has further restrained the

defendant from using domain name

https://www.Sundaydesign.in/ and further restrained from

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passing off their products on various social media platform

including on Facebook, Twitter, Instagram, LinkedIn as

products offered by the plaintiff by incorporating the

plaintiff's registered trademarks as 'Sunday' and 'Sunday

Life'. Being aggrieved, the present appeal is filed.

6. Sri.Uday Holla, learned Senior counsel

appearing for the appellant-defendant made the following

submissions:

a. The impugned order is passed without complying the

mandatory requirement under Order XXXIX Rule 3 of

the CPC. The Commercial Court has not assigned

any reason whatsoever for waiver of notice. The

Commercial Court has passed the impugned order

without giving any reasons on the balance of

convenience and likelihood of irreparable harm and

injury.

b. The Commercial Court has committed grave error in

granting exparte injunction in favour of the

respondent as the respondent has approached the

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Commercial Court belatedly showing the cause of

action on 06.10.2021. However, the appellant is

carrying on the business from 2020 and there is

almost two years have passed, hence, there was no

necessity to pass exparte injunction by the

Commercial Court.

c. It is submitted that Class 20 deals with furniture and

plastic goods and the respondent has received

registration of their mark only in respect of

mattresses, cots and pillows and similarly in Class 24

pertains to textiles and textile goods and it has

registered trademark only for mattress covers, pillow

cases and bed sheets and the appellant's products

are furniture, beds, home décor solutions, cots/beds,

pillows and mattresses. The respondent was aware

about the differences, despite knowing the same, by

suppressing the material fact, has filed the present

suit.

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d. The respondent has registered its trademark on

05.05.2015 as 'Sunday' under Class 20 and originally

its application was for furniture, mirror, picture

frames, wood, cord, reed, mattress bedding, pillows

and mattress toppers, etc. When the authority raised

objections, the respondent has amended its

application and restricted its right under Class 20 to

mattresses, cots and pillows and similarly under

Class 24 for textile and textile goods, the initial

application was for bed covers, table covers, duvets,

bedsheets, place mats etc., and by way of

amendment, it has restricted to pillow cases,

mattress covers and bedsheets. The respondent has

given up its claims insofar as certain items while

obtaining the trademark. The respondent is

attempting to claim trademark by creating monopoly

over other products, which it has given up in Class

20 and Class 24. These facts were not disclosed

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before the Commercial Court, which has resulted in

passing of exparte injunction.

e. It is submitted that the primary business of the

respondent is of mattress and pillows and the

appellant is not even involved in the said business.

The appellant is having a business in all spheres of

furniture, however, by misrepresentation of facts, the

respondent claimed that the appellant is in the same

business and selling the same products as that of

respondent.

f. It is submitted that as on the day there are several

entities with Class 20 and Class 24 having same

combination of 'Sunday' as its trademark or part of

its trademark and all these entities are peacefully co-

existing, however the respondent wanted to create

monopoly over the use of the word 'Sunday' and

'Sunday Life', which are specifically pointed out in the

memorandum of appeal. It is further submitted that

the appellant's domain name in the Instagram and

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Twitter as 'Sunday Design' and there is no confusion

in the mind of general public as claimed by the

respondent.

g. These above aspects have been conveniently

suppressed by the respondent before the Commercial

Court and the Commercial Court, without assigning

any reasons for waiver of notice, has passed exparte

injunction which has resulted in great prejudice,

irreparable loss and damage to the appellant.

Learned Senior Counsel appearing for the appellant

has relied on the following decisions in support of his

contentions:

1. ILR 2022 Kar 5159 in the case of Supriya Shrinate v. MRT Music and Ors.,

2. 2014 SCC OnLine Kar 7191 in the case of Vedant Fashions Pvt. Ltd. v. Rajul Devi.

3. (1993) 3 SCC 161 in the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi and others.

4. Dabur India Limited v. Emami Limited, High Court of Delhi, FAO (OS) (Comm) 171/2023 dated 21 August 2023.

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5. (2000) 7 SCC 695 in the case of A.Venkatasubbiah Naidu v. S.Chellappan and others.

6. (2023) 296 DLT 529 in the case of Raman Kwatra and others v. KEI Industries Limited.

7. 2022 SCC Online Del 757 : (2022) 90 PTC 286 in the case of Om Logistics v.

Mahendra Pandey.

8. AIR 1998 Del 126 : ILR (1997) 2 Del 168 in the case of SBL Limited v. Himalaya Drug Co.

9. (2004) 5 SCC 257 in the case of Godfrey Philips India Ltd. v. Girnar Food & Beverages (P) Ltd.

10. (2018) 9 SCC 183 in the case of Nandhini Deluxe v. Karnataka Cooperative Milk Producers Federation Limited.

11. (1997) 4 SCC 201 in the case of Vishnudas Trading v. Vazir Sultan Tobacco Co. Ltd.,.

h. Hence, he seeks to allow the appeal by setting aside

the impugned order passed by the Commercial Court.

7. Per contra, Sri.Pradeep Nayak, learned counsel

for the respondent-plaintiff makes the following

submissions:

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a. The respondent is carrying on the business from

2015 in various cities across the country and its

business allows the customers to place orders

through online.

b. The respondent has applied for registration of the

word marks 'Sunday' and 'Sunday Life' under Class

20 and Class 24 and the same came to be registered

in the name of respondent on 07.11.2017 and

09.01.2019 respectively with retrospective effect

from the date of application i.e., 05.05.2015.

c. It is submitted that the brand name 'Sunday' and

'Sunday Life' is a unique mark coined by the

respondent for its home furnishing business and over

the years the products sold by the respondent have

acquired goodwill in the market. It is submitted that

the respondent has huge turnover and has also

incurred expenses on sales and marketing of the

products under the brand 'Sunday' and 'Sunday Life'.

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d. It is submitted that for the sale of various products

by the respondent, it has placed invoices and

correspondences with the customers before the

Commercial Court to establish the fact that they are

into the business from 2015. It is submitted that

respondent has a social media website i.e., Facebook

under the brand name 'Sunday' and the Instagram

page, YouTube page and the LinkedIn profile of the

respondent is being followed by thousands of

customers and they have submitted their reviews on

the products.

e. It is submitted that on 21.07.2023, the respondent

has discovered that the appellant company has

opened retail store in Bengaluru and subsequently

discovered that the appellant is selling the exact

same products as that of the respondent. The

appellant is selling the cots/beds, pillows/cushions

and desks under the respondent's registered

trademark 'Sunday'. On discovery, it is revealed that

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the appellant is carrying on the business in the same

brand from 2021, however, the respondent being a

registered trademark holder of 'Sunday' and 'Sunday

Life' carrying on the business from 2015 was

compelled to file the present suit. The act of the

appellant selling its home furniture products to the

public under the registered trademark 'Sunday' of the

respondent is infringement of its right. It is submitted

that the appellant is selling the products which

overlaps almost entirely with the products

manufactured and sold by the respondent and selling

of products by the appellant under the name

'Sunday' unambiguously creates an impression that

they are products of the respondent, which will lead

to confusion in the mind of any reasonable customer

and the appellant has no registered trademark in its

favour. On 20.12.2021, the appellant has applied for

registration of trademark; however, the Registrar of

Trade Marks has raised objection under Section 11(1)

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of the Trade Marks Act, 1999, on the ground that the

mark sought by the appellant is similar to the earlier

mark in respect of identical or similar description of

goods. As on this day, the appellant has no

registered trademark in its favour and in the absence

of any registered trademark 'Sunday' in home

furnishing industry, the appellant illegally using the

goodwill generated by the respondent through its

brand 'Sunday'.

f. It is submitted that the appellant has caused

immense loss and damage to the respondent by

deceitful practice of using the trademark registered in

the name of respondent, hence, the respondent has

sought urgent exparte injunction before the

Commercial Court, which has been rightly considered

and granted.

g. It is submitted that the impugned order of the

Commercial Court is well reasoned order and does

not call for any interference in the present appeal.

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Learned counsel for the respondent in support of his

contentions has relied on the following decisions:

1. 2010 SCC Online Del 114 in the case of Ozone Spa Pvt. Ltd. v. Ozone Club.

2. 2014 SCC Online Del 1240 in the case of Mind Gym Ltd. v. Mindgym Kids Pvt. Ltd.

3. (2004) 3 SCC 90 in the case of Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia and Others.

4. 1985 SCC Online Del 387 in the case of Shri Swaran Singh Trading as Appliances Emporium v. M/s Usha Industries (India) New Deli and Another.

5.    ILR (1989) I Delhi in the case           of
      M/s.Hindustan    Pencils  Pvt.   Ltd.    v.

M/s.Stationery Products Co. and Anr.

6. 2011 SCC Online Del 4272 in the case of M/s.Sohan Lal Nem Chand Jain v. Trident Group and Ors.,

7. 1981 SCC Online Kar 124 in the case of Brooke Bond India Ltd. v. Royal Products and Ors.

8. (2002) 3 SCC 65 in the case of Laxmikant V.Patel v. Chetanbhai Shah and another.

9. 2013 SCC Online Bom 895 in the case of Som Distilleries and Breweries Ltd. V. Sab Miller Ltd.

10. 2010 SCC Online Cal 2014 in the case of R.R. Proteins and Agro limited v. Hari Shankar Singhania and Anr.

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11. (1969) 2 SCC 727 in the case of Ruston & Hornsby Ltd. v. Zamindara Engineering Co.

12. 2011 SCC Online Del 1180 in the case of Aktiebolaget Volvo and Ors. V. Mr.Vinod Kumar and Ors.

13. (1960) 1 SCR 968 in the case of Corn Products Refining Co. v. Shangrila Food Products Ltd.

14. 1987 SCC Online Bom 754 in the case of Kamal Trading Co., Bombay and Others v. Gillette U.K. Limited, Middle Sex, England.

15. 1985 SCC Online All 79 in the case of Bata India Limited v. Pyare Lal & Co., Meerut City and Ors.

16. 2022 SCC Online Cal 2516 in the case of Kaira District Co-operative Milk Producers Union Ltd. and Another V. Maa Taara Trading Co. and Others.

17. 1962 SCC Online SC 13 in the case of Amritdhara Pharmacy v. Satya Deo Gupta.

18. (2001) 5 SCC 73 in the case of Cadila Health Care Ltd., v. Cadila Pharmaceuticals Ltd.

19. 2009 SCC Online Del 1690 in the case of M/s Amar Singh Chawal Wala v. M/s Shree Vardhman Rice and Genl. Mills.

20. 2022 SCC OnLine Bom 3335 in the case of Kewal Ashokbhai Vasoya & Another v. Suarabhakti Goods Pvt. Ltd.

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21. 1990 (Supp) SCC 727 in the case of Wander Ltd. & Anr. v. Antox India P. Ltd.

22. Rajendraprasad R. Singh v. Municipal Corporation

23. 2007 SCC Online Cal 12 in the case of Intime Spectrum Registry Ltd. V. MCS Ltd.

24. 2018 SCC Online Del 6905 in the case of Marina Food Products Pvt. Ltd. V.

Britannia Industries Ltd.

h. Hence, he seeks to dismiss the appeal.

8. We have heard the learned Senior counsel for

the appellant, learned counsel for the respondent, perused

the material on record and list of authorities cited by the

parties.

9. It is not in dispute that the respondent-plaintiff

has filed commercial suit seeking prayer of permanent

injunction restraining the appellant-defendant from using

the respondent's registered trademark 'Sunday' and

'Sunday Life' and other prayers. In the said suit, the

respondent-plaintiff has filed applications I.A.Nos.1 to 4

seeking prayer to grant ad-interim injunction restraining

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the appellant-defendant from infringing, adopting and/or

using the respondent's registered trademarks 'Sunday' in

Class 20 & Class 24 and 'Sunday Life' in Class 20 & Class

24; and sought to pass an ad-interim exparte order by

dispensing with issuance of prior notice to the appellant-

defendant; and for grant of ad-interim injunction

restraining the appellant from passing off their products

including but not limited to cots/beds, cushions/pillows

and desks as the products are offered by the respondent

company under its registered trademark; and seeking

prayer to grant ad-interim injunction restraining the

appellant from passing off their products as those offered

by the respondent using the website; and seeking prayer

to grant ad-interim injunction from passing off their

products on various social media platforms as the products

offered by the respondent. The Commercial Court vide

impugned order dated 17.08.2023 was pleased to grant

exparte injunction as prayed in the applications.

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10. The Commercial Court while granting the

exparte injunction, has recorded finding that the

respondent-plaintiff has been using marks since 2015 and

the appellant has applied for registration of device mark in

2021, the impugned marks being used by the appellant is

similar to the mark of the respondent and the customer &

general public could be easily confused about the marks

used by the appellant as the mark of the respondent and if

the same is allowed to continue would adversely affect the

interest of the respondent-plaintiff and hold that the

respondent has made out the prima-facie case and

proceeded to grant exparte injunction order. In our

considered view, the Commercial Court has committed

grave error in granting exparte injunction without

assigning any reason whatsoever for dispensation of notice

as contemplated under Order XXXIX Rule 3 of CPC. The

Commercial Court has failed to consider the fact that the

appellant is carrying on the business from 2020 in the

same name and style as 'Sunday' and 'Sunday Design' and

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the respondent has filed the present suit on 11.08.2023

showing the cause of action for filing of the suit as

05.05.2015 when the respondent obtained the registered

trademark; 06.10.2021, when the appellant begun its

business in Delhi; December 2021, when the appellant

published its website; July 2023, when the appellant

opened its store in Bengaluru; and on 21.07.2023, when

the respondent became aware of the appellant committing

the act of infringement and there is delay of more than

two years from the alleged infringement. Hence, in our

considered view the Commercial Court ought to have

issued the notice to the appellant before considering the

applications filed by the respondent.

11. On close scrutiny of the material available on

record, prima-facie appears that the respondent has

registered its mark with respect to mattresses, cots and

pillows under Class 20 and Class 24 in respect of

mattress covers, pillow case and bed sheets and the

products being sold by the appellant are not one and the

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same. The appellant has made specific assertion that the

respondent has suppressed the material information

before the Commercial Court and on the misrepresentation

of fact the Commercial Court has passed an exprate

injunction. The appellant has specifically contended that,

the products sold by the appellant are different than that

of respondent and in the market similarly placed entities

are carrying on business with synonym names, when thing

stood thus, this Court, is of the considered view that the

Commercial Court is required to consider those

contentions with reference to the voluminous records

made available by the parties before considering the

applications filed by the respondent-plaintiff and thereafter

take appropriate decision on such applications. The

appellant as well as the respondent have raised various

contentions placing reliance on the documents and the

decisions of the Hon'ble Supreme Court and this Court

referred supra. We are of the considered view that it

would be appropriate for the Commercial Court to consider

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the applications filed by the respondent-plaintiff on its

merits as the impugned order is an exparte order without

providing an opportunity to the appellant-defendant.

12. On bare perusal of the impugned order, it is

evident that the Commercial Court has not assigned any

reason whatsoever, except recording the finding that

respondent has been using the mark since 2015 and the

appellant has applied for registration of its mark in 2021,

the mark used by the appellant is similar, the customer &

general public would easily confuse about the mark and if

the same is allowed to continue, it would adversely affect

the interest of the respondent-plaintiff and has come to

the conclusion that the respondent has made out prima-

facie case. The Commercial Court has not recorded any

finding with regard to the balance of convenience and

irreparable injury likely to be caused to the parties. The

Commercial Court has not recorded any reason

whatsoever for dispensation of notice to the appellant-

defendant, hence, on this ground also the impugned order

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is required to be set aside by remanding the matter back

to the Commercial Court to re-consider the applications

after providing an opportunity to both the parties to the

proceedings.

13. The grant or refusal of the interim injunction is

absolutely discretionary power of the Commercial Court

keeping in mind the material available before it. The

material placed by the appellant were not available before

the Commercial Court while considering the applications in

question hence, it would be appropriate to direct the

commercial Court to consider the applications filed by the

respondent-plaintiff on its merits taking note of the

observations made by this Court supra.

14. This Court has not expressed any opinion on

the merits and demerits of the case. The finding recorded

by this Court would not come in the way of the

Commercial Court in deciding the applications on merit.

We have not considered the various authorities cited by

the parties as this Court has not decided the entitlement of

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the relief sought by the respondent-plaintiff in its

applications.

15. For the aforementioned reasons, we pass the

following :

ORDER i. The appeal is allowed-in-part. ii. The impugned order dated 17.08.2023 passed on I.A.Nos.1/2023 to 4/2023 in Com.O.S.No.909/2023 on the file of the LXXXIX Addl. City Civil and Sessions Judge, Bengaluru is set aside.

iii. The Commercial Court is directed to consider the interlocutory applications filed by the respondent-plaintiff after providing an opportunity to the parties on their merits and in accordance with law, within two weeks from the date of receipt of this Judgment.

iv. The Commercial Court shall not grant any adjournments and complete the hearing on a day to day basis and dispose of the applications.

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16. In view of disposal of the main appeal,

I.A.No.1/2023 does not survive for consideration.

Accordingly, the same is disposed of.

No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE

BSR