M/S Laxmi Agro Impex India vs M/S Ladli India Commodities

D.N. Patel, CJ

CM APPL.51072/2019 (exemption)

Exemption allowed, subject to all just exceptions.

The application is disposed of.

FAO(OS) (COMM) 341/2019

This appeal has been preferred by the appellant who is the original plaintiff in CS (COMM) 86/2019.

The appellant initially had preferred an IA 2317/2019 for an ex-parte ad interim relief which was granted by the learned Single Judge vide order

dated 14th February, 2019.

Thereafter, an application was preferred under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 for vacating the stay by the respondent

(original defendant), being IA No. 4741/2019.

The aforesaid applications were adjudicated vide order dated 8th November, 2019 (Annexure A to the memo of this appeal) whereby the learned

Single Judge dismissed the applications modifying the interim order passed in terms of the reasonings and directions contained therein.

The following are the trademarks used by the plaintiff as well as defendant which were to be compared by the learned Single Judge, prima facie,

for grant or otherwise of the stay:

During the course of hearing, the defendant pointed out that the following trade-mark will be used by it, because now it has been registered in

favour of the defendant on 18th March, 2019:

The learned Single Judge instead of comparing “Aâ€​ with “Bâ€​, the comparison has been made between “Aâ€​ and “Câ€​.

Looking to the contentious issue raised by the learned counsel for this appellant, this appeal is admitted.

Registry is directed to list this appeal in the category of “final disposalâ€​ on 20th January, 2020.

CM APPL.51071/2019 (stay)

This application has been preferred for getting stay against the order dated 8th November, 2019 (Page-36) passed by the learned Single Judge in

IA Nos. 2317/2019 & 4741/2019 in CS(COMM) 86/2019, whereby ex-parte ad interim order earlier granted by the learned Singl eJudge on 14th

February, 2019 in favour of the appellant (original plaintiff), has been modified in terms of the judgment dated 8th November, 2019.

Prima facie, it appears that the plaintiff has obtained ex-parte ad interim relief vide order dated 14th February, 2019. Moreover, as stated herein,

the comparison was to be made between the manner of use/presentation by the plaintiff and manner of use/presentation by the defendant i.e.

comparison with “Aâ€​ and “Bâ€​.

Now, the learned Single Judge has made a comparison “A†with “Câ€, which is a new method of use or presentation by the defendant,

and it is allowed by the learned Single Judge.

Moreover, the mark “Câ€​ has been equated with “Aâ€​, which was never mentioned in the application preferred under Order XXXIX Rule 4

CPC.

Thus, the learned Single Judge instead of comparing “A†with “B†has compared “A†with “C†and allowed the mark “Câ€

to be used by the original defendant (respondent herein).

Thus, there is a prima facie case in favour of the appellant (original plaintiff). Balance of convenience is also in favour of the appellant and if the

stay is not granted to this appellant, great irreparable loss would cause to this appellant.

We, therefore, stay the operation, implementation and execution of the order dated 8th November, 2019, passed by the learned Single Judge in IA

Nos. 2317/2019 & 4741/2019 in CS(COMM) 86/2019.

The stay will remain in operation till the pendency and final disposal of this appeal.

The application stands disposed of accordingly.