BADAR DURREZ AHMED, J.

CM 22329/2016 (condonation of delay)

The delay in filing the appeal is condoned.

The application stands disposed of.

FAO(OS) 177/2016 & CM 22330/2016 & CM 22331/2016

1. This appeal has been preferred against the judgment and/or order dated 10.02.2016 passed by a learned Single Judge of this Court, whereby he has dismissed IA 23095/2015, being an application under Order 39 Rules 1 and 2 CPC, filed by the appellants/plaintiffs and allowed IA 26213/2015 (under Order 39 Rule 4 CPC) which had been filed by the respondents/defendants.

2. The entire battle is with regard to the trade mark ‘AURA’. The plaintiffs claimed exclusivity over the said trade mark in respect of metallic false ceilings. The suit that has been filed is one of passing off in which the plaintiffs claimed that the defendants were passing off their products as those of the plaintiffs/appellants by using the mark ‘AURA’.

3. Initially, the learned Single Judge had granted an ex parte ad interim injunction restraining the defendants from using the mark ‘AURA’ in respect of metallic false ceilings. As mentioned above, the respondents/defendants filed the application under Order 39 Rule 4 for vacation of the ex parte ad interim injunction that had been granted. One of the main grounds raised in the application for vacation of the injunction was that the plaintiffs/appellants had not come to Court with clean hands and, therefore, had disentitled themselves for the relief of injunction being an equitable relief. In the first instance, it was contended that the plaintiffs had not disclosed the earlier relationship between the plaintiffs/appellants on the one hand and the defendants/respondents on the other, whereby the plaintiffs/appellants, under an agreement dated 20.04.2012, functioned as an agent of the defendants/respondents in respect of metallic false ceilings. The plaintiffs/appellants have clearly marketed metallic false ceilings manufactured by the defendants during the subsistence of the said agreement dated 20.04.2012.

4. The learned Single Judge has examined the matter in great detail and particularly on the allegation that the plaintiffs/appellants had suppressed and/or concealed material facts and based on such suppression and concealment, the plaintiffs/appellants had approached this Court for the ex parte ad interim injunction which it did get.

5. We have also heard the learned counsel for the parties at length and have examined the papers before us. We are in full agreement with the conclusions arrived at by the learned Single Judge with regard to suppression and concealment. Insofar as the merits of the matter are concerned, any findings in the impugned order are obviously only of a prima facie nature and would be subject to the conclusions in the trial after evidence is led.

6. Insofar as the present appeal is concerned, we have only to focus on the issue of suppression and concealment. The learned counsel for the appellants has placed before us two decisions of the Supreme Court :-

(i) S.J.S. Business Enterprises (P) Limited v. State Bank of Bihar and Others: (2004) 7 SCC 166; and

(ii) Mayar (H.K.) Limited and Others v. Owners and Parties, Vessel M.V. Fortune Express and Others: (2006) 3 SCC 100

7. In S.J.S. Business Enterprises (supra), the Supreme Court had observed that as a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. It was also observed that the said rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. However, the Court also noted that the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. The learned counsel for the appellants relies on this latter observation of the Supreme Court to submit that the fact that the agreement and the earlier relationship between the appellants and the respondents was not m