Telangana High Court
Kohinoor Seed Fields India Pvt. Ltd. vs Veda Seed Sciences Pvt. Ltd. on 9 September, 2024
IN THE HIGH COURT FOR THE STATE OF TELANGANA, HYDERABAD
***
CIVIL REVISION PETITION No.2297 OF 2024
Between:
Kohinoor Seed Fields India Pvt. Ltd.
Petitioner
VERSUS
Veda Seed Sciences Pvt. Ltd. and Another
Respondents
ORDER PRONOUNCED ON: 09.09.2024
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE M.G.PRIYADARSINI
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether Her Ladyship wishes to
see the fair copy of the Judgment? : No
_________________________________
MOUSHUMI BHATTACHARYA, J
2
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CRP.No.2297 of 2024
* THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE M.G.PRIYADARSINI
+ CIVIL REVISION PETITION No.2297 OF 2024
ORDER:
% Dated 09.09.2024
# Between:
Kohinoor Seed Fields India Pvt. Ltd.
Petitioner
VERSUS
Veda Seed Sciences Pvt. Ltd. and Another
Respondents
! Counsel for petitioner : Mr.A.Venkatesh, learned Senior Counsel
Representing Ms.Rubina Khatoon.
^ Counsel for respondent No.1 : Mr.Avinash Desai, learned Senior Counsel
Representing Mr.Khamar Kiran Kantamaneni.
.
< GIST :
> HEAD NOTE :
? Cases referred :
1(2024) 5 SCC 815
2(2022) 10 SCC 1
3CMA.No.69 OF 2023
42024 SCC OnLine Cal 1838
5(2010) 9 SCC 385
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HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
HON'BLE JUSTICE M.G. PRIYADARSHINI
CIVIL REVISION PETITION No.2297 OF 2024
ORDER: (Per Justice Moushumi Bhattacharya)
The Civil Revision Petition (CRP) arises out of an order dated
10.04.2024 passed by the Special Court for Trial and Disposal of
Commercial Disputes, Ranga Reddy District, at L.B. Nagar.
2. The Commercial Court rejected the objection taken by the
revisionist with regard to the Suit filed by the respondent No.1 not
being maintainable. The maintainability was mounted on the Suit
circumventing the statutory requirement under section 12A of The
Commercial Courts Act, 2015 (2015 Act).
3. The Revisionist - M/s.Kohinoor Seed Fields India Pvt. Ltd.
(Kohinoor) is the defendant No.1 and the respondent No.2 -
M/s.Crystal Crop Protection Pvt. Ltd. (Crystal) is the defendant No.2
in the Suit filed by the respondent No.1 - M/s.Veda Seed Sciences
Pvt. Ltd. (Veda). The defendant No.2 (Crystal) took the objection with
regard to the maintainability of the Suit before the Trial Court. The
present CRP is however filed by the defendant No.1/Kohinoor against
the order dated 10.04.2024.
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The Dispute
4. The respondent No.1/plaintiff/Veda filed a Suit for permanent
injunction for restraining the defendants (petitioner and the
respondent No.2) from infringing the Trademark, Trade Dress and
Copyright of the plaintiff's trademarks/packaging - "Sadanand",
"Tadaka" and "Basant" and from passing off the defendants' products
as those of the plaintiff's. The plaintiff claimed damages and rendition
of accounts in the said Suit (COS.No.06 of 2024). The plaintiff/Veda
also filed an application for temporary injunction restraining the
defendants from using the 3 Trademarks or any Marks identical to the
plaintiff's trademarks "Sadanand", "Tadaka" and "Basant".
5. The respondent No.2/defendant No.2/Crystal objected to the
maintainability of the plaintiff's Suit in the course of the hearing
which led to the order under revision. The grounds of objection taken
by Crystal are repeated by the Revisionist/Kohinoor before this Court.
6. Learned Senior Counsel appearing for the revision petitioner/
defendant No.1 submits that the Trial Court erred in rejecting the
objection with regard to the maintainability of the Suit. Counsel relies
on section 12A of The Commercial Courts Act, 2015 to urge that a
Suit which does not contemplate any urgent interim relief cannot be
instituted unless the plaintiff exhausts the remedy of pre-institution
mediation. Counsel submits that the plaintiff's Suit does not disclose
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any such urgency and hence the Trial Court could not have permitted
the Suit to proceed without complying with the mandatory statutory
requirement.
7. Learned Senior Counsel appearing for the plaintiff/respondent
No.1/Veda places an outline of the relevant facts which led to the
filing of the Suit for infringement of Trademarks. Counsel submits
that the facts stated in the plaint as well as the application for interim
injunction would show that there was great urgency in obtaining the
relief prayed for since the revisionist had sold one of the Marks
("Sadanand") to Crystal on 28.09.2023 and Crystal had also launched
an advance booking scheme for the Kharif (harvesting) season on
27.12.2023 using the Mark "Sadanand". Counsel submits that
respondent No.1/Plaintiff/Veda owns the said Mark and was hence
constrained to file a Suit along with an Interlocutory Application in
December 2023.
8. Counsel also submits that the CRP is not maintainable under
Article 227 of the Constitution of India since there is no abuse of the
fundamental principles of law.
9. We have heard learned counsel arguing against and in support
of the order under revision, respectively. We propose to decide the
controversy under the following heads.
10. Our conclusions are reflected in the captioned headings.
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Mandatory requirement of Pre-Institution Mediation under Section
12A of The Commercial Courts Act, 2015
11. The Commercial Courts Act, 2015 was published in the Gazette
of India on 01.01.2016 with effect from 23.10.2015. The Act primarily
provided for a hierarchy of Commercial Courts in the Districts and in
the High Courts. The Commercial Appellate Division was at the top of
the pyramid for adjudication of commercial disputes of a specified
value. The Statement of Objects and Reasons in the 253rd Report of
the Law Commission of India gives the reasons for enacting The
Commercial Courts Act, 2015 which includes accelerating economic
growth and improving the image of the Indian justice delivery system.
12. Section 12A of the 2015 Act forms part of Chapter IIIA which
was brought into effect on and from 23.10.2015. The relevant part of
Section 12A is set out below:
"A suit, which does not contemplate any urgent interim relief under
this Act, shall not be instituted unless the plaintiff exhausts the remedy of
pre-institution mediation in accordance with such manner and procedure as
may be prescribed by rules made by the Central Government."
13. The mandate of section 12A would be clear from the word
"shall" i.e., a Suit under the 2015 Act, shall not be instituted unless
the plaintiff first opts for and exhausts mediation. The embargo is
however limited to those Suits which do not contemplate any urgent
interim relief. The provision does not specify the mode and manner in
which the plaintiff must satisfy the requirement i.e., whether the
plaintiff is required to file a separate application for dispensing with
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pre-institution mediation or incorporate a prayer for dispensation in
the plaint itself. Section 12A also does not contemplate any
requirement for obtaining any leave from the Court for instituting a
Suit which needs urgent intervention.
Section 12A is silent on the aspect of Application and Leave
14. The statutory silence makes it evident that the assessment of
whether a Suit contemplates urgent interim relief falls squarely on the
plaintiff to prove and on the Court to determine a finding on the issue.
The silence pertains to the manner in which a plaintiff may seek
exemption from the bar. The onus is therefore on the plaintiff as well
as the Court to fill in the gaps in the mode and manner of exemption
when the plaintiff intends to by-pass the statutory embargo which
includes filing of a separate application for dispensing with the
statutory mandate.
15. This issue was recently considered by the Supreme Court in
Yamini Manohar Vs. T.K.D. Keerthi 1 which held that the application
per se is not a condition under section 12A of the 2015 Act and that
the pleadings and oral submissions would be sufficient for deciding
the issue of whether a Commercial Suit can be filed without
exhausting the remedy of pre-institution mediation.
1(2024) 5 SCC 815
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16. Although section 12A(1) of the 2015 Act does not contain the
word "Court", the plain language of the provision points to the
Commercial Court to assess the affect of the Suit from the subject
matter, cause of action and the relief claimed for determining whether
the Suit contemplates urgent interim relief. The Court will look at the
pleadings and the prayers in a meaningful manner so as to reach the
nub of the dispute shorn of ambiguities and return a finding as to
whether the pleadings in the plaint call for urgent intervention.
17. It has now been judicially settled that section 12A is mandatory
and any Suit instituted in violation thereof would be visited with
rejection under Order VII Rule 11 of The Code of Civil Procedure,
1908: Patil Automation Private Limited Vs. Rakheja Engineers Private
Limited 2. In Tata Consumer Products Limited Vs. ITC Limited 3, a
Division Bench of this Court placed emphasis on the mandatory
nature of section 12A of the 2015 Act. The decision as to whether the
plaintiff has complied with the mandate of section 12A must also be
made at the point of institution of the Suit: Proactive Ship
Management Private Limited Vs. Owners and Parties Interested in the
Vessel Green Ocean 4.
2 (2022) 10 SCC 1
42024 SCC OnLine Cal 1838
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The import of Section 12A of The Commercial Courts Act, 2015
18. Section 12A of the Act, read with the case law cited on behalf of
the parties, can be summed up thus. The plaintiff seeking to institute
a Suit under the provisions of the 2015 Act must first satisfy the
Court that the Suit contemplates urgent interim relief. If the Suit
contemplates otherwise, i.e., interim relief can wait, the plaintiff must
first exhaust the remedy of pre-institution mediation as provided
under section 12A (2), (3), (4) and (5) of the 2015 Act.
19. The plaintiff is not required to seek the leave of the Court or file
a separate application for dispensing with the statutory mandate
under section 12A, i.e., for instituting a Suit circumventing the pre-
institution mediation requirement. Therefore, the question of whether
the Suit requires urgent interim relief must be answered by the Court
based on the substance of the dispute and the relief claimed. The
plaintiff must discharge the onus by proving to the Court that the Suit
indeed contemplates urgent interim relief and hence needs to be
instituted without waiting for pre-institution mediation.
The Cause of Action, Pleading and Relief projected before the
Commercial Court in the present case
20. The plaintiff/Veda used the 3 Trademarks for high-quality
hybrid Cotton and other seeds. The plaintiff claimed reputation and
goodwill in the market in relation to the Trademarks supported with
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substantial turnover from the manufacture and sale of the seeds
bearing the 3 Trademarks. The plaintiff/Veda sought for relief against
the alleged acts of infringement and passing off allegedly committed by
the defendant Nos.1 and 2 (Kohinoor and Crystal), of the plaintiff's
trademark and copyright in the registered Trademarks "Sadanand",
"Tadaka" and "Basant" along with "Gold" variations.
21. The plaintiff's case is also that the plaintiff had business
arrangements with the defendant No.1/Kohinoor whereby the parties
agreed that the plaintiff would be the exclusive owner and user of the
Marks "Sadanand", "Tadaka" and "Basant". The plaintiff also claimed
Copyright in the Trade Dress of the products sold under the 3 Marks
along with variations.
22. The plaint discloses that the defendant No.1/Kohinoor filed a
Suit against the plaintiff on 28.11.2022 in the Delhi High Court
alleging infringement of the 3 Marks by the plaintiff and claiming
ownership of the same 3 Marks. The Delhi High Court passed an
order of injunction against the plaintiff on 01.12.2022 prohibiting the
plaintiff from using the Trademarks "Veda Sadanand Gold", "Veda
Tadaka Gold" and "Veda Basant Gold". The plaint also avers that the
defendant No.1 sold the rights related to "Sadanand" to defendant
No.2 and defendant No.2 further launched an advance booking
scheme for the products under the brand name "Sadanand".
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23. The infringing actions are specified in the Suit and include the
advance booking schemes made by the defendant by using a trade
dress which is identical to plaintiff's trade dress and exclusive
copyrights of the products bearing the 3 Marks. The plaint states that
the Suit was filed in urgent circumstances and the plaintiff
accordingly reserved its right to bring further documents. The cause
of action pleaded in the plaint is said to have arisen from October
2022 to 30.01.2023 when the defendant No.1 launched a second
advance booking scheme and finally on 23.11.2023 when the
defendant No.1 sold the rights in "Sadanand" to the defendant No.2.
The cause of action also covers the defendant No.2 offering its
products for sale from 22.03.2023 - 24.11.2023.
24. The prayers in the plaint are for permanent injunction
restraining the defendants from using the artistic work/trade dress
relating to the Mark "Sadanand", "Tadaka" and "Basant" or from
passing off the defendants' Marks/brands as those of plaintiff's and
for a direction on the defendant No.2 to render accounts for misuse of
the plaintiff's trademark-"Sadanand". The plaintiff also prayed for
punitive damages against the defendants.
25. The plaintiff/Veda filed the plaint in December 2023 and an
application for interim injunction (I.A.No.123 of 2024) in COS.No.06 of
2024 on 24.01.2024. The plaintiff prayed for temporary injunction
against the defendants specifically pleading that the defendants'
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infringement of the plaintiff's trademark and trade dress is likely to
cause confusion in the minds of potential customers and unless
restrained, defendant No.1 (revisionist) would gain an unjust
competitive edge resulting in financial set-back to the plaintiff. The
plaintiff also pleaded that the plaintiff has taken prompt action
without undue delay.
26. The cause of action pleaded in the plaint would show that
urgency formed the bedrock of the statements made therein. Apart
from the specific pleadings made therein with regard to the defendant
No.2/Crystal purchasing the rights of the Trademark - "Sadanand",
from the defendant No.1 and the advance booking scheme made by
the defendant No.1 and finally the sale of the rights over the
Trademark "Sadanand" by the defendant No.1 to the defendant No.2
on 23.09.2023, the plaintiff has also pleaded a continuing cause of
action in the alleged infringement of its trademark by the defendant
Nos.1 and 2.
The nature of the Suit filed by the Respondent/Plaintiff pre-supposes
Urgency
27. Intellectual Property Rights (IPRS) are the rights given to
persons over creations of the minds. Intellectual Property
encompasses creation of Trademarks, Trade Dress, Copyright,
Industrial Designs, Trade Secrets and other rights bearing the insignia
of the creator/proprietor of the Trademark, Trade Dress and other
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types of intangible properties. It is a wide-ranging array of rights
where the creator or the inventor of the creative output claims
ownership of the product/process/brand including the right to reap
commercial benefit from the use of the product.
28. The urgency of Court intervention arises from the intangible
nature of the property. Unlike property in the traditional sense which
can be protected from misappropriation by physical means as in
posting guards for preventing trespass and occupation of one's house,
the proprietor of a Trademark can do little to prevent misuse of the
Marks by sale or otherwise unless the proprietor obtains an injunction
from a competent Court. Further, misappropriation of intellectual
property leads to immediate injury to the proprietor/creator including
in the form of financial loss. Unlike other forms of property, where the
wrongful appropriation can be quantified, infringement of IPRs is often
un-quantifiable as the wrongdoer rides on the reputation and goodwill
of the Mark/brand. Therefore, time is always of the essence as even a
single "consumption" of the Mark by an unauthorized user can result
in immeasurable injury to the owner/proprietor. For instance, a TV
commercial using the trademark, trade name, get-up of a rival's
product entails repeated viewings/broadcasts which would dilute the
brand value of the trademark or create confusion in the minds of the
viewers as to the source of the trademark.
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The Respondent/Plaintiff could not be diverted to Pre-Institution
Mediation
29. The present case involves the alleged misuse of the plaintiff's
Trademarks "Sadanand", "Tadaka" and "Basant", by the defendants
by way of purchase of the rights in the trademark by the defendant
No.2 and also advance bookings floated by the defendant No.1
allegedly using the plaintiff's trademarks. The allegation of misuse
shows the basis of the urgency which imbues the cause of action in
the Suit. The nature of the Suit, the cause of action and the relief
claimed would itself command urgent intervention by the Court. The
question is not whether the plaintiff was entitled to protective orders
of the Court but whether the Suit instituted contemplated urgent
interim relief. Considering the pleadings in the plaint, there is little
doubt that the plaintiff could not afford to wait for pre-institution
mediation. Diverting the plaintiff to this remedy would have
frustrated the Suit.
30. Even otherwise, the urgency with which the plaintiff instituted
the Suit would also be evident from the plaintiff not losing any time
before filing an application for temporary injunction. It is not a case
where the plaintiff went into hibernation after filing the Suit and
woke-up from its slumber much later to pray for interim injunction.
31. Moreover, the plaint discloses that the defendant No.1/
Kohinoor filed a suit in December 2022 against the plaintiff in the
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Delhi High Court alleging the infringement of trademark and passing
off and claiming ownership of the 3 Trademarks. Presumably, this
accelerated the momentum for the plaintiff to file the present Suit
against the defendants.
32. The plaint also alleges the importance of the Kharif (harvesting)
season for marketing of products with the trademarks in the Southern
States, Gujarat and Madhya Pradesh. Therefore, stopping a rival from
misappropriating the Trademark before the onset of the Kharif season
would also entail that the Suit contemplates a sensitive time frame for
urgent interim relief.
Conclusion
33. We have no hesitation in holding that the Suit instituted by the
plaintiff for infringement of Trademarks and passing off was wholly
unsuited for pre-institution mediation since it contemplated urgent
interim relief. We have considered the nature of the Suit, the
allegations made in the plaint, the cause of action pleaded and the
relief claimed by the plaintiff in COS.No.06 of 2024. The
plaintiff/Veda, therefore, cannot be held back to first exhaust the
remedy of mediation before instituting the Suit in the pretext of
section 12A of the 2015 Act.
34. The Trial Court correctly considered the plaintiff's cause of
action and the defendants' alleged infringing activities and also the
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Suit filed by the defendant No.1 in the Delhi High Court to arrive at
the conclusion that the plaintiff was not required to comply with
section 12A of The Commercial Courts Act, 2015 before instituting the
Suit. The Trial Court found that the plaintiff had made out a case for
waiving the mandate of section 12A of the 2015 Act and accordingly
rejected the contentions of the defendant No.2/ Crystal.
35. Tata Consumer Products Limited (supra) does not assist the
petitioner since the decision went up to the Supreme Court in Civil
Appeal No.3845 of 2023 whereby the Supreme Court by its order
dated 18.05.2023 left the question of law open i.e., in respect of
interpretation of section 12A of the 2015 Act. Yamini Manohar (supra)
was subsequently decided by the Supreme Court on 13.10.2023 and
put the matter to rest, namely, that a plaintiff is not required to file a
separate application to show urgency or even take the leave of the
Court for dispensation of the statutory mandate under section 12A of
the 2015 Act.
Is the Civil Revision Petition maintainable?
36. Having perused the order dated 10.04.2024, we do not find that
the Trial Court committed any jurisdictional error in rejecting the
objections of the defendant No.2. Neither do we find a flagrant abuse
of fundamental law and justice or grave dereliction on the part of the
Trial Court in passing the order in revision.
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37. The scope and ambit of the exercise of power by the High Court
under Article 227 of the Constitution of India must be within limits.
The High Court is not vested with unlimited prerogative to correct all
kinds of wrong decisions made by subordinate Courts made within its
jurisdiction. Interference with the orders of Courts or Tribunals
should be restricted to cases of serious dereliction of duty or grave
miscarriage of justice : Jay Singh Vs. Municipal Corporation of Delhi5.
38. We do not find any palpable perversity in the order under
revision to warrant interference or have it set aside. The reasons for
our view have already been stated above.
39. CRP.No.2297 of 2024, along with all connected applications, is
accordingly dismissed. There shall be no order as to costs.
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MOUSHUMI BHATTACHARYA, J
____________________________
M.G.PRIYADARSINI, J
September 9, 2024
BMS
5(2010) 9 SCC 385
