S. S. INDUSTRIES vs PAVAN KUMAR GUPTA TRADING AS VAPNR TRADERS
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M)-IPD 12/2023
S. S. INDUSTRIES ….. Petitioner
Through: Mr. Nishant Mahtta and Mr. S. Hijhin, Advs.
versus
PAVAN KUMAR GUPTA
TRADING AS VAPNR TRADERS ….. Respondent
Through: Mr. Sandeep Bisht, Adv.
CORAM:
HON’BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
% 10.10.2023
CM(M)-IPD 12/2023, CM 112/2023 (Order XLI Rule 5 of the CPC) and CM 113/2023 (Order XLI Rule 27 of the CPC)
1. The impugned order dated 18 August 2023, passed by the learned District Judge (Commercial Court) (the learned Commercial Court) decides an application filed by the respondent as the plaintiff in the suit before the learned Commercial Court (CS (COMM.) 597/2023). By the impugned order, the learned Commercial Court has appointed an Advocate as a Local Commissioner, to visit the premises of the petitioner-defendant and seize shell helmets which, according to the respondent, bore a design which was deceptively similar to the registered design of the respondent. The impugned order also directs the seizure of the machinery used to manufacture the said helmets.
2. Mr. Mahtta, learned Counsel for the petitioner restricts his relief in the present case to release of the machinery and moulds, which have been seized by the learned Local Commissioner. He undertakes to maintain status quo with respect to the seized helmets.
3. The impugned order has been passed on the very first day of hearing, ex parte, without granting an opportunity to the petitioner to respond either to the plaint or to the application filed by the respondent under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (CPC). Somewhat strangely, the learned Commercial Court has, while entering interim observations against the petitioner, kept the accompanying application of the respondent under Order XXXIX Rules 1 and 2 of the CPC pending, having merely issued notice thereon. As such, the situation that exists as on date is that while no interim relief has been granted to the respondent-plaintiff in the application filed by it under Order XXXIX Rules 1 and 2 of the CPC, prima facie findings have already been entered against the petitioner- defendant while adjudicating the Order XXVI Rule 9 application of the respondent, and the goods of the petitioner have been directed to be seized.
4. To say the least, this is a very unusual practice. Ordinarily, a Court which is seized of an application for interim injunction and an application for appointment of a Local Commissioner in a case where infringement is alleged, is expected to adjudicate both the applications together. I am unaware of any precedent in which the Court has kept the interim application Order XXXIX Rules 1 and 2 of the CPC pending and directed appointment of a Local Commissioner to seize the goods regarding which prima facie findings of infringement are returned. Indeed, having already returned prima facie findings of infringement in the impugned order while adjudicating the respondents application Order XXVI Rule 9 of the CPC, one wonders whether the fate of the Order XXXIX application, which is presently pending, is not already pre-determined.
5. I invited the attention of Mr. Bisht, learned Counsel for the respondent to a recent order passed by the Division Bench of this Court in Dabur India Ltd v. Emami Ltd1, para 8 of which reads thus:
8. Having conferred our thoughtful consideration on the rival submissions noticed above, we find that, undisputedly, the suit upon being presented on or about 02 August 2023 came up for consideration for the first time on 07 August 2023. The ad interim injunction came to be granted merely two days thereafter on 09 August 2023. Admittedly, and as per the plaintiffs/respondents own case, the product of the appellant / defendant had been introduced somewhere around May 2023. In our considered opinion, this fact alone warranted the appellants/defendants being accorded at least a rudimentary opportunity to oppose the application which sought grant of ad interim injunction.
(Emphasis supplied)
6. Admittedly, the petitioner has been using the impugned design for some time prior to the institution of the suit by the respondent. Applying the principle enunciated in para 8 of Dabur1, the petitioner, as the defendant in the suit, would be entitled to an opportunity to respond to the suit before any interim orders are passed. No doubt, the application under Order XXXIX Rules 1 and 2 of the CPC filed by the respondent is still pending and the petitioner has been granted an opportunity to file a response thereto; however, in the meanwhile, the impugned order has come to be passed on the application under Order XXVI Rule 9 of the CPC of the respondent, returning prima facie finding of infringement against the petitioner and on that basis, directing seizure of the petitioners goods and machinery. This is a somewhat paradoxical situation.
7. The observation of the Division Bench in para 8 of Dabur1, which requires the defendant to be extended an opportunity to file a response before any interim orders are passed, would, in my considered opinion, also extend to returning interim findings against the defendant on an Order XXVI Rule 9 application and directing seizure of the defendants goods. In fact, the impugned order directs seizure not only allegedly infringing helmets but also of moulds and machinery which is used to make the said helmets.
8. Confronted with para 8 of Dabur1, Mr. Bisht seeks to distinguish the decision by pointing out that the application of his client under Order XXXIX Rules 1 and 2 of the CPC is still pending, whereas Dabur1 dealt with the case where an ad interim order had been passed in Order XXXIX Rules 1 and 2 application. Mr. Bisht submits that, as no interim order has yet been passed in the Order XXXIX Rules 1 and 2 application filed by his client, till any such interim orders are passed, the petitioner is free to use the impugned design. He, however, submits that the moulds and machinery which would have to be used for the said purpose, should be preserved.
9. The suggestion appears to me to be well taken and wholesome. Mr. Mahtta has agreed not to alienate or otherwise deal with the helmets, if any, which have been seized by the learned Local Commissioner. As already noted, he has restricted his prayer to permission to use the moulds and machinery, which have been seized. That, according to Mr. Bisht, is not interdicted by the impugned order, as the Order XXXIX Rules 1 and 2 application is still pending.
10. In view of the aforesaid statement made by Mr. Bisht, this petition is disposed of in the following terms:
(i) The Court is not interfering with the seizure, by the learned Local Commissioner, of helmets which bear the allegedly infringing design, as Mr. Mahtta has not pressed for the said relief.
(ii) The petitioner shall also preserve and shall not alienate the moulds or the machines which are used to manufacture the helmets, and shall preserve them in status quo.
(iii) However, the petitioner shall be entitled to use the said moulds and machines to manufacture helmets, till a decision is taken by the learned Commercial Court on the application filed by the respondent under Order XXXIX Rules 1 and 2 of the CPC.
11. The petitioner is directed to positively file its reply to the application under Order XXXIX Rules 1 and 2 of the CPC filed by the respondent within a week, with an advance copy to learned Counsel for the respondent, who may file a rejoinder thereto within three days thereof.
12. Let the application under Order XXXIX Rules 1 and 2 of the CPC be listed before the learned Commercial Court on 26 October 2023. The learned Commercial Court would not grant any adjournment on the said date and shall proceed to take up and hes ar the respondents application under Order XXXIX Rules 1 and 2 of the CPC and pass orders thereon as expeditiously as possible.
13. Pending miscellaneous applications do not survive for consideration and stand disposed of.
C.HARI SHANKAR, J
OCTOBER 10, 2023
rb
1 FAO(OS)(COMM) 171/2023
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