Orders on injunction applications are discretionary and not purely prima facie adjudications; appellate courts must respect trial court discretion unless shown to be arbitrary.

JUDGMENT :

ALOK ARADHE, CJ.

1. A Division Bench of this Court noticed irreconcilable conflict of views expressed by Division Benches of this Court in COLGATE PALMOLIVE COMPANY AND ANOTHER VS. ANCHOR HEALTH AND BEAUTY CARE PVT. LTD., [2005 (1) Mh.L.J. 613] and PARKSONS CARTAMUNDI PVT. LTD. VS. SURESH KUMAR JASRAJ BURAD, [2012 SCC OnLine Bom 438] as well as GOLDMINES TELEFILMS PVT. LTD. VS. RELIANCE BIG ENTERTAINMENT PVT. LTD. AND ORS., [Appeal (L) No.458/2014 in NM/452/2014 in Suit/194/2014 dated 24.09.2014] with regard to following aspects; (i) Whether order passed on an application for temporary injunction is prima facie adjudication and not an exercise of discretion (ii) Scope of appeal from an order of the trial court on an application of injunction.

The Division Bench, therefore, by an order dated 15^th December 2014, has referred the matter for consideration by a larger Bench:

(I) FACTS :

2. The facts leading to the order of reference lie in a narrow compass. The appellants are major dutch producers, importers, exporters, sellers and distributors of various spirits and liquors, including scotch whiskey, gin, vodka, rum, liqueurs and cognac. The respondents are in the business of manufacturing and marketing of industrial alcohol, spirits, Indian made foreign liquor and sugar cubes. The appellants claim to be proprietors of several trademarks including ‘Mansion House’ and ‘Savoy Club’ which the appellants have used in relation to the spirits and liquors manufactured by them. According to them, appellant No.1 is a registered proprietor of the trademark ‘Mansion House’. The appellants claim to have used the trade mark ‘Savoy Club’from 1947.

3. Sometime in the year 1982, the respondents approached the appellants to consider the possibilities of entering into collaboration for sale of the appellants’ products in India. Thereupon, appellant No.1, on 7^th July 1983, entered into a license agreement with the respondents by which the respondents were licensed and permitted to use the trade marks and labels of ‘Mansion House’ and ‘Savoy Club for alcoholic beverage products such as whisky, gin, brandy and rum. According to the appellants, the respondents, with dishonest and mala fide intention, filed various applications for registration of trade marks ‘Mansion House’ and ‘Savoy Club’ in India including the logo ‘Herman Jensen’, which was used by appellant No.2 since 1947. The appellants, thereupon, filed a suit for infringement of copyright and passing-off. Along with the plaint a Notice of Motion seeking injunction was also filed. The trial court, by order dated 22^nd December 2011 rejected the notice of motion for injunction. The appellants challenged the aforesaid order in an appeal namely, appeal No.66 of 2012.

(II) SUBMISSIONS BEFORE DIVISION BENCH :

4. Learned senior counsel for the appellants, at the time of hearing of the appeal before Division Bench, contended that there is an infringement and assignment of trademark of the appellants and in the alternative, there has been an abandonment of trade marks by the appellants. It was further contended that, even, there has been acquiescence on the part of the appellants in permitting the respondents to use the appellants’ trade mark. It is submitted that in the instant case, in an appeal from order refusing to grant injunction, the scope of inquiry is not restricted only to examine whether the impugned order is perverse or suffers from errors apparent on the face of record but the impugned order can be examined in all its aspects. It was further contended that the appellate court, whenever necessary, on consideration of all the facts and law, is obliged to substitute the conclusion of the trial judge by its own findings.

(III) ORDER OF REFERENCE:

5. The Division Bench of this Court, thereafter, in paragraph9 held as under:

“9) It may be pointed out that the entire exercise of determining whether order of the learned Single Judge while disposing of an interim application is within realm of disc