The weight of evidence and the exercise of discretion in granting interim relief and security are fact-dependent and guided by known principles.

JAYANT NATH, J.

IA No.6775/2017

1. This application is filed under Order 39 Rule 1 and 2 CPC seeking multiple reliefs. The main relief which has been sought is that defendant No.1 be directed to secure the alleged liability which has accrued till date, being the profits from the sale of the product BURNOL from 1.5.2005 till 1.5.2017, by way of a bank guarantee. Other consequential directions are also sought.

2. The plaintiff has filed the present suit seeking a decree of permanent prohibitory injunction to restrain the defendants from infringing the plaintiff’s registered trademark BURNOL and from manufacturing and marketing any pharmaceutical preparation including burns cream or otherwise using the said mark in violation of the plaintiff’s proprietary rights. Other connected reliefs are also sought.

3. Alongwith the suit the plaintiff filed an application under Order 39 Rule 1 and 2 CPC seeking interim orders. This application was dismissed by the learned Single Judge of this court on 18.4.2006. The learned Single Judge recorded a finding in paragraph 42 that after considering all the facts and reasons as given by Dr. Morepen (defendants) it appears that Dr. Morepen has been able to discharge the heavy burden cast upon it to show that the transaction entered into on 19.4.2004 was a nominal transaction and the purpose of that transaction was entirely different from what was purported to be. It was also noted that the plaintiff has not been able to make out any case for grant of an injunction in its favour. It also noted the submission of the defendant that it is maintaining proper accounts of the sale of BURNOL burns cream. The court also held that in case Poysha (plaintiff) succeeds in the suit it will be entitled to appropriate relief. It also noted that balance of convenience does not lie in favour of Poysha, namely, the plaintiff. In paragraph 44 the court noted as follows:-

“44. The balance of convenience certainly does not lie in favour of Poysha. It has not, on its own showing, commenced any business activity. The burns cream BURNOL is a medicinal product that has been in use in India for the last several years if not more. If its manufacture and production is stalled because of the inability of Poysha to manufacture the product, it will cause irreparable injury to consumers of the burns cream. Consequently, it will be in the interest of consumers, if the position as it exists today is allowed to continue till the disposal of the suit. Poysha has not been able to show how it will suffer any irreparable loss and injury if the injunction prayed for is not granted.”

4. Against the above order an appeal was filed before the Division Bench which was disposed of by a consent order on 7.9.2012. The Division Bench disposed of the appeal on the following terms:-

“(i) The evidence in Suit No. 1140/2005 and Suit No. 1276/2005 be recorded at the earliest point of time. Learned counsel agree that the examination and cross-examination of the respective witnesses would be concluded on or before 30.04.2013. Thereafter, the matter would be listed before the concerned Court for final disposal.

(ii) Doctor Morepen Ltd. shall maintain true and faithful accounts pertaining to the trademark and brand which is the subject matter of the pending suits, i.e. BURNOL . To that end, it shall file an affidavit of its authorised director or person incharge. The affidavit shall undertake, in the event of an adverse decree for accounts being issued by the Court in any of the pending proceedings against the said defendant, Doctor Morepen Ltd. shall satisfy the same out of the assets. The affidavit shall also enclose a copy of the Board Resolution authorizing the said Director to file an affidavit. Further, the affidavit shall undertake to file before the Court audited accounts of the company that Doctor Morepen Ltd. periodically, in every quarter, with a copy to the learned counsel for the plaintiff in all the pending suits. The above arrangement shal