Madras High Court
Geoscope Exim Private Limited vs Snj Distillers Private Limited on 13 August, 2024
Author: M.Sundar
Bench: M.Sundar
O.S.A. (CAD) No.89 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.08.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
O.S.A. (CAD) No.89 of 2022
and
C.M.P. No.9845 of 2022 in O.S.A. (CAD) No.89 of 2022
Geoscope Exim Private Limited
Flat No.B3, Ceebros Building,
No.32, Cenotaph Road, Teynampet,
Chennai – 600 018
Rep. By its Senior Manager,
Mr.P.Prakash .. Appellant
Vs
1.SNJ Distillers Private Limited,
Old No.47, New No.99, Canal Bank Road,
C.I.T.Nagar, Nandanam,
Chennai – 600 035.
2.M/s.Sree Balaji Traders
Rep. By its Partner Ms.G.Shanthi,
18/37A-6, R.K.S.Building, Paramathi Road,
Namakkal – 637 001. .. Respondents
Prayer : Appeal filed under Section 13 of The Commercial Courts
Act, 2015 read with Order XXXVI Rule 9 of the Original Side Rules
to set aside the impugned order dated 08.06.2022 passed in
O.A.No.94 of 2022 in C.S. (Comm Div.) No.27 of 2022.
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Page 1 of 8
O.S.A. (CAD) No.89 of 2022
For Appellant : Mr.Arun C.Mohan
along with
Ms.Swabhhi Tyagi
For Respondents : Mr.R.Rajarajan
along with
Mr.D.Nandhagopal
for R1 and R2
JUDGMENT
(Judgment of the Court was delivered by M.Sundar, J.)
Captioned intra-court appeal i.e., 'Original side Appeal'
(hereinafter 'OSA' for the sake of brevity) is directed against an
interlocutory order dated 08.06.2022 made in O.A.No.94 of 2022 in
C.S. (Comm Div.) No.27 of 2022 by the Hon'ble Commercial
Division of this Court. This '08.06.2022 order' shall hereinafter be
referred to as 'impugned order' for the sake of convenience and
clarity.
2. In the appeal today, Mr.Arun C.Mohan, learned counsel
along with Ms.Swabhhi Tyagi, learned counsel for the sole
appellant (applicant/plaintiff before the Commercial Division) and
Mr.R.Rajarajan along with Mr.D.Nandhagopal for R2 (M/s.Sree
Balaji Traders) are before us. To be noted, R1 has been duly
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served and the name of R1 together with full and complete address
as in the short and long cause titles is shown in the cause list.
Today, Mr.R.Rajarajan, learned counsel submits that he would
accept notice for R1 also. This submission is recorded and
therefore Mr.R.Rajarajan will now be counsel for both respondents.
To be noted, we are informed that R1 is D1 before the Commercial
Division in the main suit and D1 has been set exparte in the main
suit but this really does not matter as regards the captioned OSA
is concerned in the light of Order XLI Rule 14 of 'The Code of Civil
Procedure, 1908 (5 of 1908)' [hereinafter 'CPC' for the sake of
convenience and clarity] and the judgment in Gnanasoundari and
another Vs. G.Vijayakala and others reported in (2023) 6 MLJ
135. To be noted, Gnanasoundari has been referred to a Larger Bench
but as of today, it holds the field.
3. Owing to the limited legal perimeter within which
captioned OSA should now perambulate, short facts (shorn of
elaboration) will suffice. Factual matrix in a nut shell is that one
'Geoscope Exim Private Limited' (hereinafter 'Geoscope' for the
sake convenience and clarity) filed a suit vide plaint dated
07.02.2022 with prayers for permanent injunction qua alleged
infringement and alleged passing off as regards trademark
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'HOBBS' qua liquor products; that there are other limbs of prayers
as regards damages, delivery of alleged offending material,
rendition of accounts and costs (to be noted, there is also usual
residuary limb of prayer); that pending suit, plaintiff took out an
application in O.A.No.94 of 2022 with a prayer for injunction qua
passing off; that this application after full contest was disposed of
vide impugned order directing accounts to be maintained as
regards revenue and profits earned from the sale of alcoholic
beverages with the alleged offending mark; that not satisfied with
this order, applicant/plaintiff is on appeal before us; that we are
informed by the learned counsel on both sides that the disposal of
the main suit is in the anvil as the main suit is now listed for
arguments on 02.09.2024 before Hon'ble Commercial Division; that
in the light of the advanced stage of main suit and considering that
the defendants have been directed to maintain accounts of profits,
we deem it appropriate to dispose of captioned appeal by making a
simple order which will be set out infra.
4. We are of the considered view that the parties will do well
to have the main suit argued on 02.09.2024 rather than contest in
this appeal and create an avoidable tributary. Both learned counsel
fairly agreed to have the main suit heard out rather than a contest
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in the captioned appeal. This common submission is recorded.
5. The sequitur is, we would now be leaving it to the Hon'ble
Commercial Division to decide the main suit but before we do that,
we deem it appropriate to record one aspect of the hearing today
owing to the submission made by learned counsel for appellant.
Learned counsel for appellant Mr.Arun C.Mohan drew our attention
to a portion of paragraph 10 of the impugned order which reads as
follows:
'10........ What cannot be denied, however, is
that there is some similarity between the two
registered word marks, HOBSONS and HOBBS, but
such similarity should be balanced against the fact
that the word mark HOBBS is registered. Even in a
passing-off action, in my view, this is relevant though
not controlling criterion and should be reckoned along
with other aspects. The fact that the two products are
sold at different price points is an additional factor
that works in the Defendants' favour.'
6. Adverting to the aforesaid portion of the impugned order,
learned counsel submitted that even in a passing off action,
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registration of the defendants' mark is a relevant factor and this
according to learned counsel runs contrary to a catena of
authorities. Learned counsel for respondents pointed out that vide
impugned order, Hon'ble Commercial Division has made it clear
that registration of the defendants' mark would not be the
controlling criteria and that it should be reckoned along with other
aspects. It was pointed out that this means that registration of the
defendants' mark is only one of the determinants and not the sole
determinant. Considering the advanced stage of the suit coupled
with the consensus between the two counsel to have the main suit
heard out, we deem it appropriate to not to express any view or
opinion on this submission and leave it open to the Hon'ble
Commercial Division to take a call. We also hasten to add that
there is one more reason as to why we refrain from expressing any
view or opinion on this and that reason is, any observation made in
an interlocutory order will have no impact on the decision qua the
main suit. The law is well settled on this aspect of the matter.
7. In the light of the narrative thus far, we leave it open to
Hon'ble Commercial Division to decide the main suit which we are
sure will be done as expeditiously as the Board of the Hon'ble
Commercial Division would permit and though obvious we also
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make it clear that all questions including the aforementioned point
are left open for the Hon'ble Commercial Division to decide the
mater on its own merits and accordance with law.
8. Ergo, sequitur is, captioned OSA is disposed of as closed
albeit with the aforementioned observation. Consequently,
captioned CMP is disposed of as closed. There shall be no order as
to costs.
(M.S.J.) (K.G.T.J.)
13.08.2024
Index:Yes/No
Neutral Citation: Yes/No
mmi
To
The Sub Assistant Registrar,
Original Side, High Court,
Madras.
https://www.mhc.tn.gov.in/judis
M.SUNDAR.J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
mmi
13.08.2024
https://www.mhc.tn.gov.in/judis
