Delay In Approaching Court Cannot Be A Ground To Conclude That Plaintiff Cannot Contemplate Urgent Relief: Bombay HC
The Bombay High Court remarked that the delay in approaching the court cannot be a ground to conclude that the plaintiff cannot be said to contemplate urgent interim relief.
The Court remarked thus in an interim application filed under Order VII Rule 11 of the Civil Procedure Code (CPC) by the defendant seeking rejection of plaint on the short ground of non-compliance of Section 12-A of the Commercial Courts Act, 2015 (CCA), on the part of the plaintiff.
A Single Bench of Justice Manish Pitale observed, “This Court is of the opinion that the fact that more than 8 years elapsed between September 2015 to August 2023, cannot be a ground to ipso facto conclude that the plaintiff cannot be said to contemplate urgent interim reliefs in the facts and circumstances of the present case. The plaintiff is claiming interim reliefs on the basis of its registered trademark. It has placed on record facts and data pertaining to its reputation and goodwill earned over a long period of time. There is substance in the contention raised on behalf of the plaintiff that the contemplation of urgent interim relief has to be seen in the context of the subject matter of the suit, which pertains to intellectual property rights. The question of delay and its effect on entitlement of interim relief to the plaintiff, cannot be relevant for the limited enquiry of finding as to whether on the basis of the material on record, the plaintiff can indeed contemplate urgent interim relief.”
Advocate Rashmin Khandekar represented the applicant/defendant while Senior Advocate Veerendra Tulzapurkar represented the respondent/plaintiff.
Brief Facts -
It was the case of the defendant that since a perusal of the plaint itself shows that the suit does not contemplate any urgent interim relief, the plaintiff ought to have first exhausted the remedy of pre-institution mediation as per Section 12-A of CCA, before instituting the suit. According to the defendant, the requirement of Section 12-A of the said Act is mandatory in nature and hence, the application ought to be allowed, thereby rejecting the plaint. The plaintiff filed the commercial suit, praying for relief of permanent and mandatory injunction, restraining the defendant from infringing the registered trademark of the plaintiff and also, from passing off its goods as those of the plaintiff.
Along with the aforesaid prayers, the plaintiff also prayed for interim reliefs in the plaint as well as in a separate application for grant of interim reliefs. The pleadings in the application for interim reliefs were completed, but since the defendant filed the application for rejection of plaint, the High Court had taken up the said application for consideration, before considering the application for interim reliefs. The counsel for the defendant/applicant contended that the application of the defendant deserves to be allowed and the plaint deserves to be rejected.
The High Court after hearing both parties noted, “The limited question is, as to whether on the basis of the pleadings in the plaint, this Court can reach a conclusion that the plaintiff does indeed contemplate urgent interim relief. … This Court is of the opinion that the aforesaid aspect of contemplation of urgent interim reliefs by the plaintiff has to be holistically examined from the stand point of the plaintiff on the basis of the pleadings in the plaint. In the present case, it cannot be said that the plaintiff has indulged in clever drafting or falsity or deception, for the reason that the plaintiff has clearly stated the chronology of events from September 2015 onwards, as also the fact that the impugned trademark of the defendant and impugned goods first came to the knowledge of the plaintiff in September 2015.”
The Court said that there are pleadings on record to show as to what steps the plaintiff took after issuing cease and desist notice and also after receiving the response of the defendant in October 2015.
“It was found that applications for registration of the impugned marks of the defendant were abandoned and in the context of one such application filed by the defendant on 12.01.2019, opposition proceedings have been undertaken, wherein the trademark registry is considering the rival stands. It is also placed on record as to the manner in which the criminal complaint was initiated by the plaintiff and the status of the said proceeding. It cannot be said in the facts and circumstances of the present case that the plaintiff has suppressed any fact from this Court or that it has indulged in deception or falsity while claiming interim relief”, it added.
The Court further observed that the defendant is not justified in claiming that the plaintiff cannot be said to be contemplating urgent interim reliefs and that it must necessarily exhaust the remedy of pre-institution mediation.
“In the present case, the plaintiff has given details of the manner in which the defendant has been refuting the rights of the plaintiff, despite registered trademarks in favour of the plaintiff and in that context, this Court finds that the plaintiff has indeed contemplated urgent interim relief while filing the present suit”, it also noted.
The Court said that there is substance in the contention raised on behalf of the plaintiff that in such cases concerning intellectual property rights, not only are the proprietary rights of the plaintiff of concern to the court, but interests of consumers in the products in question are also relevant.
“Consumers are likely to be duped if marks are misused and therefore, while considering such interim reliefs, the Court is not merely protecting the statutory and common law rights of the plaintiff, but the Court is also protecting the interests of the consumers. As to whether the plaintiff in the facts of the present case, will be able to succeed on the touchstone of the prima facie case, irreparable harm and injury and balance of convenience, is a different matter because at this stage, while conducting the aforesaid limited exercise, this Court is not expected to enter into the merits of the matter”, it added.
The Court, therefore, concluded that the plaintiff has indeed made out enough grounds to demonstrate that it does contemplate urgent interim reliefs, thereby showing that the plaint in the case cannot be rejected as being barred by Section 12-A of the Act.
Accordingly, the High Court dismissed the application of the defendant.
Cause Title- Chemco Plastic Industries Pvt. Ltd. v. Chemco Plast (Neutral Citation: 2024:BHC-OS:8445)
Appearance:
Applicant/Defendant: Advocates Rashmin Khandekar, Anand Mohan, Maitri Asher, and Ishaan K. Paranjape.
Respondent/Plaintiff: Senior Advocate Veerendra Tulzapurkar, Advocates Hiren Kamod, Pratik Pawar, Siddhesh Pradhan, Meher Misri, and Anees Patel.
