Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S.Patel, Gauri Godse, JJ.
Kewal Ashokabhai Vasoya – Appellant
Versus
Suarabhakti Goods Pvt. Ltd – Respondent
Interim Appliciation (L) No. 28715 of 2022, 31993 of 2022, Commercial Ip Suit (L) No. 28710 of 2022, 31992 of 2022
Decided On : 07-10-2022
Trademark Infringement - Commercial Intellectual Property Suit - Code of Civil Procedure, 1908 (Order 39 Rules 1, 2, 3) - The court discussed the principles of applications moved without notice, the duty of fair disclosure, and the requirements for granting injunctions without notice. The court emphasized the need for full and accurate disclosure of material facts, proper enquiries before making the application, and the duty to present the case fairly and evenly. The court also highlighted the exceptional nature of without notice applications and the importance of time-limited injunctions.
Fact of the Case:
The original Defendants in the Commercial Intellectual Property Suit appealed against a without notice ad-interim order granted to the original Plaintiff, involving a trademark infringement action combined with a cause of action in passing off. The Defendants claimed extensive suppression in the plaint and argued that the Plaintiff's application could not have been granted without notice.
Finding of the Court:
The court analyzed the principles of applications moved without notice, emphasizing the duty of fair disclosure and the exceptional nature of without notice applications. The court noted that without notice orders are time-limited and reserved liberty for the Defendants to apply for a variation of the order with prior written notice to the Plaintiff's advocates.
Issues: The issues involved the grant of a without notice ad-interim order, the duty of fair disclosure, and the requirements for granting injunctions without notice.
Ratio Decidendi: The court emphasized the duty of fair disclosure, proper enquiries before making the application, and the exceptional nature of without notice applications. The court highlighted the importance of time-limited injunctions and reserved liberty for the Defendants to apply for a variation of the order with prior written notice to the Plaintiff's advocates.
Final Decision: The appeal was disposed of, preserving the liberty for the Defendants to apply for a variation of the order with prior written notice to the Plaintiff's advocates. The court set the parties at liberty to seek an appropriate order of costs before the learned single Judge.
Certainly. Based on the provided legal document, here are the key points summarized:
The court emphasized the importance of full and accurate disclosure of material facts when applying for injunctions without notice, highlighting the duty of fair presentation and the need for proper enquiries before making such applications (!) (!) (!) .
Applications for injunctions without notice are considered exceptional and must be time-limited, with safeguards including the reservation of liberty for the defendant to apply for a variation or revocation of the order with prior written notice (!) (!) (!) .
The principles governing ex parte or without notice applications require the applicant to demonstrate urgency, and to disclose all material facts, including potential defences or opposing arguments, to ensure the court's confidence in the fairness and integrity of the process (!) (!) (!) .
The court must record reasons if it grants an injunction without notice, especially if it considers that delay would defeat the purpose of the order, and must ensure the applicant has made proper enquiries and presented a balanced case (!) (!) (!) .
The duty of disclosure extends to investigating the cause of action, relevant facts, and potential defences, including conducting searches in relevant registries and gathering market information, particularly in intellectual property matters (!) .
The law mandates that both parties should be heard before an interlocutory order is made, with applications moving without notice being the exception rather than the rule, and such orders being inherently time-limited with mechanisms for the defendant to seek variation or vacatur (!) (!) (!) .
When a defendant appeals against a without notice order, they generally cannot introduce new material that was not before the original court, and the appeal court should not reverse such orders based on unpresented evidence unless under exceptional circumstances (!) (!) .
The court has discretion to continue, vary, or set aside an injunction obtained without notice, especially if there has been a failure to disclose material facts or if the order causes undue hardship, with the court considering the interests of justice and the specifics of each case (!) (!) .
An application under the relevant procedural rules for discharge or variation of an injunction is not always mandatory, but it remains a viable remedy, particularly when the order was obtained without notice and there are grounds such as non-disclosure or changed circumstances (!) (!) .
The court highlighted the importance of the applicant's obligation to make proper enquiries and disclose all relevant facts, including any potential defences or opposing evidence, to prevent misuse of ex parte procedures and to uphold the integrity of the judicial process (!) (!) (!) .
The order in the case was upheld for the time being, with liberty reserved for the defendant to seek variation or vacatur with proper notice, and the appeal was disposed of without awarding costs, leaving the parties to seek costs before the appropriate court (!) (!) .
Overall, the legal principles reinforce that applications for injunctions without notice are extraordinary, requiring strict adherence to disclosure duties, proper enquiries, and judicial safeguards to prevent misuse and ensure fairness (!) (!) (!) (!) .
Please let me know if you need further analysis or specific legal advice based on this document.
JUDGMENT
G.S.PATEL J. - The original Defendants in the Commercial Intellectual Property Suit have come in appeal against a without notice ad- interim order dtd. 15/9/2022 by RI Chagla J. That order was passed on the application of the original Plaintiff, which is the Respondent to the Appeal.
2. By the impugned order, Chagla J granted a time-limited ad- interim injunction and appointed a Court Receiver for a limited purpose. He also passed the necessary directions under Order 39 Rule 3 of the Code of Civil Procedure, 1908 ("CPC"). The order is operative only until 19/10/2022. Specific liberty is reserved to the Defendants to apply for a variation of the order with 72 hours prior written notice to the advocates for the Plaintiff.
3. The suit is a trademark infringement action combined with a cause of action in passing off. A Leave Petition under Clause 14 of the Letters Patent to combine the two causes of action is pending.
4. Mr Kirpekar for the Defendants in appeal says that the Plaintiff's application could not have been granted without notice. He claims says that there is extensive suppression in the plaint, including, importantly, that the Defendant are registered proprietors of the rival mark although the registration is subsequent to that of the Plaintiff. Mr Kirpekar also says that while the Plaintiff mentioned in the plaint that it applied for cancellation of the Defendants' mark there is 'nothing annexed' to the plaint.
5. There are two questions that arise for our immediate consideration since Mr Kirpekar relies on the order by one of us (GS Patel J) on 3/8/2021 in Rizwana Abdul Aziz Farooqui and Ors v Limra Realty and Ors. Interim Application (L) No. 14556 of 2021 in Suit (L) No. 14555 of 2021. That order culls out certain principles of the law relating to applications moved without notice; specifically, the need for a fair disclosure of material particulars in the Plaint or the application for ad-interim relief without notice. The relevant portion of the Order in Rizwana Abdul Aziz was based on an order dtd. 7/6/2021 in Sun Pharmaceutical Industries Ltd v Emil Pharmaceutical Industries Pvt Ltd and Anr. Interim Application (L) 10937 of 2021 in Commercial IP Suit (L) No. 10928 of 2021.
6. To begin with, it is necessary to clarify that the popular and widespread understanding of the expression 'ex parte' is misleading. Black's Law Dictionary3 has these definitions:
Ex parte (eks pahr-tee), adv. [Latin, "from the part"] On or from one party only, usu. without notice to or argument from the adverse party [the judge conducted the hearing ex parte[.Ex parte, adj. Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested [an ex parte hearing] [an ex parte injunction]. An 'ex parte injunction' is also defined: ex parte injunction. A preliminary injunction issued after the court has heard only the moving party. (Emphasis added)
7. The CPC itself does not use this expression. What we are concerned with is an application made without notice to the other side. To put it briefly and to get this aspect out of the way, an ex parte application is one-sided, without notice to the opponent. Where a party does not appear despite notice, and therefore, by conduct, declines to present its case, such an order is not, strictly speaking, 'ex parte'. A court can compel notice. It can compel attendance. It cannot compel argument. There are many legal situations where the word ex parte is used to mean that there is only a party without an opponent -- frequently in uncontested testamentary matters, for example, where though there is no opponent, yet a court order or direction is sought. For the rest of this order, therefore, we prefer not to use this expression. Instead, we will use the phraseology of the CPC: with notice and without notice.
8. Since we are dealing with injunctions, we must first look at the provisions of Order 39 Rules 1, 2 and 3 of the CPC:
ORDER
The duty of fair disclosure and the exceptional nature of without notice applications, emphasizing the importance of time-limited injunctions and the reserved liberty for the Defendants to apply for ....
(1) An ad interim injunction shall not be granted in derogation of right of opposite party.(2) An order passed without issuing notice to opposite party cannot be brought under purview of Section 36 C....
The court must record reasons for granting ex-parte injunction without notice, making this requirement mandatory for valid exercise of jurisdiction.
The trial Court must provide reasoned orders when dealing with applications for temporary injunctions, particularly in urgent cases, and should not simply issue mechanical orders without assessment.
“3A Where an injunction has been granted without giving notice to the opposite party, the court shall make an endeavour to finally dispose of the application within thirty days from the date on which....
Non-compliance with the conditions of an ex parte injunction under Order 39, Rule 3 CPC renders the injunction invalid, necessitating prompt judicial action.
An injunction obtained under misrepresentation cannot be vacated without proven suppression of material facts; established trademark rights remain effective despite prior lawsuits.
Non-compliance with statutory requirements for an ex parte injunction renders the order invalid, emphasizing the need for adherence to procedural mandates.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
