(August 8, 2001) 2001 (TLS)125363

2001-DLT-93-383 :: 2001-AD (Del)-6-436

NECTAR (U. K.) LIMITED Vs. Herbs Shop India Limited

SANJAY KISHAN KAUL

( 1 ) THE appellanti is aggrieved by the impugned order dated. 23rd February, 1999 passed bed by the learned Single Judge restraining the appellant from using the trademark NECTAR in respect of lipsticks or other cosmetic products.

( 2 ) THE suit was filed by respondent no. 1 against the appellant for permanent injunction against the use of trademark NECTAR or any deceptively similar mark and for passing of the goods of the appellant as the goods of defendant no. 1. Along with the suit an application under order XXXIX Rules 1 and 2 read with section 151 Civil Procedure Code was also filed bearing IA No. 5042/98 claiming , ad interim orders in the same terms. The suit was placed before the court on 2 9/05/1998 when summons were directed to be issued in the suit and notice in the application. No ex-parte ad interim order was granted. The nekt date was fixed as 9/07/1998. Respondent no. 1, plaintiff in the suit, filed another application bearing IA No. 5373/98 before the vacation bench and vide order dated 2/07/1998 an injunction order was granted. restraining the appellant, the then sole defendants in the suit, from using the mark NECTAR in respect of lipstick or other cosmetic products.

( 3 ) MR. NAVEEN Chawla, learned counsel for the appellant addressed us on the issue of the allegation against respondent no. 1 of playing a fraud on the court and attempting to overreach the,court. The contention of the learned counsel for the appellant was that in view of the conduct of respondent no. 1, the merits of the application were not liable to be considered by the learned Single Judge and at least the application, if not the suit, should have been dismissed on that ground alone.

( 4 ) WE deem it expedient to first consider submissions on this aspect. The learned counsel for the appellant contended that when the suit was initially filed, no interim orders were granted on 29/05/1998 and a date was fixed immediately after the summer vacation for 9/07/1998. From the record it transpires that though respondent no. 1 filed the process for issue,of summons and " notice by ordinary process, the registered AD covers were apparently not filed. Further, in terms of order dated 29/05/1998, notices were directed dasti ,in addition to the normal process and registered AD post at the request of counsel for respondent no. 1. Dasti notices were not collected. Thus learned counsel for the appellant contended that no efforts were made to serve the appellant expeditiously. Even though the returnable date was 9/07/1998 an application was filed by respondent no. 1 a week before the said date which was listed before the vacation bench and an ad interim order was granted on 2/07/1998 in the absence of the appellant as the appellant had not been served in advance with copy of the application in terms of the rules of the high Court. this subsequent application bearing IA no. 5373/98 was posted before the vacation bench, in view of the endorsement made thereon by the Plaintiff s counsel that it was an application for ex-parte order and the defendant in the suit being the appellant, had not entered appearance. The cause of action for this application was stated to be the conduct of the appellant in allegedly surreptitiously starting the use of tradename NECTAR on the. lipsticks which they had introduced under the brand name Avon and by using their corporate name NECTAR U. K. Ltd. on the underside of the product. It was further stated in the application that as the appellant had not yet introduced their products under the brand name NECTAR prior to the filing of the suit and the miscelleneous application (IA No. 5042/98), only notice in the application had been issued. Ad-interim injunction was prayed for in the said application IA No. 5373/98 both against ,the trademark or tradename NECTAR. The vacation ju