Important point
There being prior user of the mark ‘Malikchand’ and the use of the mark ‘Manikchand’ in respect of Pan Masala and Gutkha and Supari commenced only at a later point of time, therefore grant of interim injunction was granted on the basis of prima facie user.

Headnote:Civil Procedure Code, 1908—Order XXXIX Rules 1, 2 and 4; Order XLIII Rule 1(r)—Trade Marks Act, 1999—Sections 27 and 39—Grant of interim injunction in passing off action —Prima facie establishment of prior user —Mark ‘Malikchand’ was being used, though not much publicized by the original user—Defendants started use of mark ‘Manikchand’ in a large scale at a subsequent point of time—Suit was filed by plaintiff respondent for a declaration that defendants appellants do not have any right to sell Pan Masala, Gutkha, Supari and Supari Mix under the trade mark ‘Manikchand’ —Allegations that mark ‘Manikchand’ is deceptively similar to the mark ‘Malikchand’ used by the plaintiff—Trial Court passed an ad interim injunction—At relevant time, neither party had a registered trade mark for the respective marks claimed by them—A number of cases under the Prevention of Food Adulteration Act have been registered against defendants—Whether grant of interim injunction in favour of plaintiff respondent was justified—(Yes).
Held : Prima facie, it appears to us that the mark “Malikchand” was being used, though not much publicized by the original user, leading to the alleged acquisition of the right to use the mark by the plaintiff. The defendants appear to have started the use of the mark “Manikchand” in a large scale at a subsequent point of time. As noticed by the High Court, both sides had used their respective marks for some time. The litigation arose when the defendants herein approached the High Court of Bombay seeking to prevent the use of the mark “Malikchand” by suing what they thought was the proprietor of the business. It was then that the present plaintiff came forward with the suit seeking an injunction against the user of the mark “Manikchand” by the defendants. To some extent it may be possible to conceive that the present suit by the plaintiff was a counter-blast to the suit filed by the defendants in the High Court of Bombay; but at the same time, the point made by the High Court that the plaintiff probably was apprehensive of its mark being annihilated, had approached the trial court for relief based on its prior user of the mark. It was in this context that the High Court took the view that the application for interim injunction could not be rejected on the ground of delay and latches. We also feel, that we cannot completely brush aside the argument of counsel for the plaintiff, that the case of delay and latches has not been properly projected on behalf of the defendants in their pleadings either in the trial court or in the appellate court, though no doubt that aspect has been projected seriously before us by learned counsel for the defendants and to some extent is covered by the pleadings in the written statement. It is one thing to say that this Court, if it were exercising its original jurisdiction, might have refused an interim injunction on the ground that the plaintiff was not prompt in approaching the court for relief or that having allowed the defendants to use the mark for some time, no occasion had arisen for preventing the user by the defendants by way of an interlocutory injunction. But this Court is not exercising its original jurisdiction and is, in fact, exercising only the jurisdiction under Article 136 of the Constitution of India in a case where both the trial court and the appellate court have granted the injunction, considering the circumstances available in the case. In such a situation, the question is whether this Court ought to interfere with the grant of interim injunction on the ground of delay and latches, as canvassed for by counsel for the defendants. It appears to us that it may not be proper for this Court, in an appeal of this nature and on the facts of this case to interfere with the discretion exercised by the trial court and the appellate court in that behalf on this ground. (Paras 11 and 12)
In the broader context of this case, we cannot also ignore what has been noticed by the High Court in its order. The High Court has noticed that a number of cases under the Prevention of Food Adulteration Act have been registered against the defendants on the basis of alleged adulteration of the products marketed by the defendants. Even otherwise it is stated, that Gutakha and Pan Masala that are marketed are harmful to health. If they are harmful as claimed, what would be the consequence, when they are adulterated, is an aspect that requires anxious consideration by the authorities concerned. The State cannot ignore the mandate of Article 47 of the Constitution. Any way, that aspect is referred to us only for the purpose of reinforcing the conclusion that ultimately, in the exercise of discretion by this Court, it may not be necessary to interfere with the order of interim injunction granted by the courts below. (Para 13)

Judgment

P.K. Balasubramanyan, J.—Leave granted.

1. The defendants in Civil Suit No. 8A of 2004 on the file of the District court of Mandaleshwar are the appellants. That suit was filed by the respondent herein for a declaration that the defendants do not have any right to sell Pan Masala, Gutkha, Supari and Supari Mix or any other goods under the trade mark ‘Manikchand’ which is deceptively similar to the mark ‘Malikchand’ used by the plaintiff, for a perpetual injunction restraining the defendants from dealing in or selling the above articles under the name/brand ‘Manikchand’ and to confiscate and destroy the above goods in the custody of the defendants and for other consequential reliefs. The plaintiff also filed I.A.No. 2 of 2004 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (for short the “C.P.C.”) seeking an interim injunction pending suit, restraining the defendants from selling the products referred to above under the name ‘Manikchand’. The trial court passed an ad-interim order of injunction as sought for by the plaintiff. The defendants appeared and filed their objections. They also filed an application, I.A.No. 5/2004, under Order XXXIX Rule 4 of the C.P.C. seeking to get vacated the ad-interim injunction granted by the trial court. Various documents were produced by the parties and the genuineness and validity of the documents produced, were mutually challenged. The trial court, by order dated 06.04.2004, held that the plaintiff has made out a prima facie case for an interim injunction and that the balance of convenience was in favour of the grant of an interim injunction as sought for by the plaintiff. Thus, the trial court confirmed the ad-interim order of injunction granted by it earlier and allowed I.A.No. 2/2004 and dismissed I.A.No. 5 of 2004. The defendants filed an appeal before the High Court of Madhya Pradesh under Order XLIII Rule 1(r) of the C.P.C. The High Court, on a consideration of the arguments raised before it, came to the conclusion that the order passed by the trial court could not be said to be incorrect, arbitrary or perverse, justifying interference with the discretion exercised by the trial court to grant the interim injunction. The High Court, thus, dismissed the appeal; but it directed the trial court to conclude the trial of the suit expeditiously, and finally dispose it of, preferably within a period of six months from the date of receipt of the copy of the order which was passed on 11.05.2004. The defendants have challenged this order before this Court in this appeal.

2. It is seen from the pleadings, the other materials produced, the orders passed and the arguments raised before us, that this is a passing off action. The case of the plaintiff is that the plaintiff and its predecessors were using the mark ‘Malikchand’ in its packets containing Pan Masala, Supari, Gutkha and Supari Mix kept for sale. Its plea is that the defendants are seen to be marketing the same products under the name ‘Manikchand’. The products are marketed in pouches that are deceptively similar to the ones used by the plaintiff and this misleads the customers seeking to purchase the products of the plaintiff. The plaintiff along with its predecessors, being the prior users of the mark ‘Malikchand’, the plaintiff is entitled to prevent the defendant from marketing their products under the name ‘Manikchand’. Since the action of the defendant would lead to the plaintiff suffering irreparable injury and incurring monetary loss and loss of reputation as the products marketed by the defendants were of sub-standard quality as could be seen from various prosecutions launched against the defendants under the Prevention of Food Adulteration Act, the balance of convenience was in favour of the grant of an injunction in its favour. The defendants challenged the claim of the plaintiff of prior user. The defendants also questioned the three unregistered assignments relied on by the plaintiff, the basis on whi

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2005 Supreme(SC) 363

Important pointThere being prior user of the mark ‘Malikchand’ and the use of the mark ‘Manikchand’ in respect of Pan Masala and Gutkha and Supari commenced only at a later point of time, therefore grant of interim injunction was granted on the basis of prima facie user.

Important point
There being prior user of the mark ‘Malikchand’ and the use of the mark ‘Manikchand’ in respect of Pan Masala and Gutkha and Supari commenced only at a later point of time, therefore grant of interim injunction was granted on the basis of prima facie user.