Madras High Court
A.Mani vs S.Suresh on 31 August, 2021
O.S.A. (CAD) No.23 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.08.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
O.S.A.(CAD) No.23 of 2021
A.Mani .. Appellant
Vs.
S.Suresh,
Trading as Flash Beauty Saloon,
No.1/17, Vannarpathi,
Kodambakkam,
Chennai – 600 024. .. Respondent
Prayer: Appeal filed under Section 13(1) of the Commercial Courts
Act and under Order XXXVI Rule 1 of O.S. Rules read with Clause 15
of the Letters Patent to set aside the judgment and decree dated
27.11.2019 passed in C.S.No.98 of 2019.
For the Appellant : Mr.R.Sathish Kumar
for M/s.P.C.N.Ragupathy
For the Respondent : Mr.Ramesh Ganapathy
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O.S.A. (CAD) No.23 of 2021
JUDGMENT
(Delivered by The Hon'ble Chief Justice)
The appeal is directed against a rather astounding decree
passed by the suit court here.
2. The matter pertains to the use of a mark “FLASH” by the
rival parties. It is the same mark which is being used by both the
parties and it appears that the respondent plaintiff obtained an
exparte injunction in an interlocutory application in the suit.
However, notwithstanding the injunction being in place, the
appellant defendant purported to set up another shop by the name
“FLASH”.
3. The impugned judgment records that an interim order had
been passed on September 24, 2019 directing status quo to be
maintained. It is necessary to see paragraphs 2 to 6 of the
impugned judgment and decree:
“2. In the last hearing, the learned counsel appearing for
the applicant brought to the notice of this Court that
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O.S.A. (CAD) No.23 of 2021
despite the Order of this Court dated 24.09.2019, the
respondent has opened new shop in the name of 'FLASH'
with similar colour scheme and get up.
“3. In this regard the learned counsel appearing for the
defendant sought time to get instructions from his client.
“4. When the matter is came up today, the learned
counsel for the defendant submitted that since the
advance has been paid in the month of January, his
client has opened the shop and now he has closed the
name board, bearing name 'FLASH' in the newly opened
shop.
“5. Taking note of the above submission, this Court is of
the view that the conduct of the defendant is nothing but
audacious and he has violated the Order of this Court.
When the persons have no respect the Order of this
Court, they have no right to seek any equity in the eye of
law.
“6. Accordingly, the respondent is restrained from using
the name 'Flash' and the permanent injunction as sought
in the suit is Ordered against the respondent.”
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O.S.A. (CAD) No.23 of 2021
4. It is evident that merely because it appeared to the trial
court that its injunction had been violated, without even rendering
any finding as to whether the violation was wilful or deliberate, the
court decreed the suit without reference to the written statement or
any other defence that may have been indicated by the appellant
herein.
5. While there is a convention that when a party is in breach
of an order of the court, such party cannot proceed with an
application to vacate the injunction without first taking appropriate
steps to adhere to the order, a suit cannot be decreed without any
finding on the issues that may have arisen, merely because the
court perceived that the defendant was in breach of any order that
had been passed.
6. The respondent submits that contempt proceedings have
been instituted and the same are pending.
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O.S.A. (CAD) No.23 of 2021
7. The present appeal has nothing to do with the contempt
proceedings and it will be for the appellant herein to furnish an
appropriate explanation as to why he opened a shop by using the
same trade name despite the order dated September 24, 2019.
However, the judgment and decree impugned cannot be sustained
as there are no reasons in support thereof and there was no
adjudication conducted by the trial court in decreeing the suit.
8. O.S.A. (CAD) No.23 of 2021 is allowed by setting aside the
impugned judgment and decree and by requesting the trial court to
decide the matter on merits, in accordance with law and after
considering the issues that may have been framed. Nothing in this
order will stand in the way of the contempt proceedings being
proceeded with and concluded without any impediment.
There will, however, be no order as to costs.
(S.B., CJ.) (P.D.A., J.)
31.08.2021
Index : No
sasi
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O.S.A. (CAD) No.23 of 2021
To:
The Sub Assistant Registrar,
Original Side,
High Court, Madras.
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O.S.A. (CAD) No.23 of 2021
THE HON'BLE CHIEF JUSTICE
AND
P.D.AUDIKESAVALU, J.
(sasi)
O.S.A.(CAD) No.23 of 2021
31.08.2021
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