C.M. No.13114/2013 (for recall of order dated 28.1.2013)

1. By virtue of the present application, the appellant is seeking recall of the order dated 28.1.2013 vide which the appeal of the appellant against the order dated 15.9.2012 was permitted to be withdrawn with liberty to file the same at an appropriate stage. Recall is sought on the ground that by virtue of the order dated 15.9.2012, the application of the appellant/plaintiff under Order 39 Rule 1 & 2 CPC for ad interim injunction was partly allowed at this stage (at the stage of disposal of the application) restraining the respondents from using the trade name ‘Sagar Ratna’. So far as the other ad interim relief, which were claimed in the application are concerned, they were not granted.

2. Before dealing with the rival contentions of the parties, it may be pertinent to give briefly the background in which the present application has been filed. The appellant/plaintiff, M/s. Sagar Ratna Restaurants Private Limited filed a suit claiming itself to be a registered company having entered into a franchisee agreement and a supplementary agreement with respondent No.1, M/s Sri Bihariji’s and others allowing them to open a South Indian restaurant in the name of ‘Sagar Ratna’ at Vrindavan. It was alleged that vide e-mail dated 12.7.2013, the said agreement was illegally terminated by respondent No.1 which was in derogation of the terms and conditions and they continued to misuse the intellectual property of the appellant/plaintiff by using the trade names ‘Sagar Ratnam’ and ‘Ratnam’. Further, the respondent/defendant had taken steps to get the said marks registered. It was also alleged that so far as respondent Nos.2 and 3 were concerned, they were the employees of the plaintiff and they were in the knowledge of the aforesaid trade names, who had taken undue advantage of their knowledge in the capacity of employees of the appellant/plaintiff and thereafter tendered resignation from the services of the appellant/plaintiff on 16.4.2012 and 14.4.2012 respectively and joined hands with respondent No.1, who had usurped publically the aforesaid two trade names ‘Sagar Ratnam’ and ‘Ratnam‘ and started business of selling South Indian preparations. It was also alleged that search from the Registry of the trademark has revealed that respondent No.1 had applied for registration of the aforesaid trade names as trade mark. Apart from the main relief of permanent injunction against the respondents, the appellant/plaintiff had also sought an ex parte ad interim injunction in the suit by filing an application under Order 39 Rule 1 and 2 CPC.

3. The respondents were served. On the very first date, the appellant/plaintiff is purported to have insisted on addressing arguments on the grant of ad interim injunction without permitting the respondent/defendants to file their reply in writing which lead to the passing of an order dated 15.9.2012. So far as the respondent/defendant is concerned, though it admitted the trade name ‘Sagar Ratna’ being owned by the appellant but it denied that the said name is deceptively similar to ‘Sagar Ratnam’ or ‘Ratnam’ which was claimed by them to be their own names. As regards the condition of a restraint of not carrying any business of selling South Indian preparations in terms of the franchisee agreement with the appellant, the respondent took the plea that the said agreement having been terminated and, therefore, the condition does not foreclose their right to sell the preparation and in any case any condition which restraint them from selling any South Indian dishes was void ab initio as it was in violation of Section 27 of the Indian Contract Act, 1872. They also took the plea that the appellant/plaintiff had not filed Schedule I, II and III of the agreement and thus, they had tried to give selective information about the franchisee agreement between the parties.

4. The learned trial court, after hearing the learned counsel for the parties and on the basi