The central legal point established in the judgment is the limited scope of Article 227 powers and the inapplicability of certain sections of the CPC and Trade Marks Act, 1999 to the case at hand.

JUDGMENT

asha Menon, J. - This petition has been filed under article 227 of the Constitution of India by the petitioners/defendants against the order dated 10th January, 2022 of the Commercial Court, South District, Saket, New Delhi.

2. Mr. Praveen Chaturvedi, learned counsel for the petitioners/defendants has submitted that the impugned order was liable to be set aside as it contained directions contrary to 'law of the land' and in contravention of the judgment dated 28th May, 2021 of this court in FaO (COMM) 41/2021 titled Black Diamond Track Parts Private Limited and Ors. Vs. Black Diamond Motors Private Limited. The learned counsel submitted that the Division Bench of this Court, while dealing with the First appeal in question, has set aside interim injunction which had been granted ex-parte to the respondent/plaintiff. Thus on the date when the impugned order was passed, there was no right left in the respondent/plaintiff which required protection. Such an observation in the impugned order was thus misplaced and against the orders of this court in the First appeal. It is further submitted that under Section 136 of the Code of Civil Procedure, 1908 ('CPC' in short), the court could not have appointed a Court Commissioner beyond its jurisdictional limits. Thirdly, Section 34 of the Trade Marks act, 1999 saved the vested rights of the petitioners/defendants as it was the predecessor-in-interest of the parties who had the Trademark 'BLaCK DIaMOND' registered in their names. The family members being engaged in a dispute, the petitioners/defendants could not be prevented from using the trademark. It is also submitted that the learned Court could not have further directed the petitioners/defendants to deposit the sale proceeds in the court or furnish a bank guarantee, as such orders were beyond the jurisdiction vested in a court. Thus, it was prayed that the impugned order be set aside.

3. Ms. Malvika Trivedi, learned senior counsel on behalf of the respondent/plaintiff, appearing on advance notice, has submitted that the petition itself was not maintainable. Reliance in this regard has been placed on the judgment passed by the Division Bench of this court in CM(M) 132/2021 i.e. Black Diamond Trackparts Pvt. Ltd. & Ors. Vs. Black Diamond Motors Pvt. Ltd. It is argued that the scope of exercise of powers under article 227 was very restricted and the petitioners/defendants have failed to disclose any error in the impugned orders. It is submitted that the suit was yet to be disposed of finally. Further, though the interim injunction granted to the respondent/plaintiff had been vacated by the Division Bench of this court, it had directed the petitioners/defendants to remove the labels containing the trademark of the respondent/plaintiff and change into two different labels namely 'Raminder Singh Bhatia Group' and "Parvinder Singh Bhatia Group" about which there is not a whisper in the petition. It was further submitted that since the suit was still pending, protection of the interests of the respondent/plaintiff was but natural, since they were the registered proprietors of the trade mark 'BLaCK DIaMOND'.

4. arguments heard and the record and cited judgments perused.

5. Before proceeding further, it may be noted that the power under article 227 of the Constitution of India being one of judicial superintendence cannot be exercised to upset conclusions, howsoever erroneous they may be, unless there was something grossly wrong or unjust in the impugned order shocking the court's conscience or the conclusions were so perverse that it becomes absolutely necessary in the interest of justice for the court to interfere. The powers under article 227 will be used sparingly. The Supreme Court has observed in M/s India Pipe Fitting Co. Vs. Fakhruddin M.a. Baker and anr (1997) 4 SCC 587 and in Mohd. Yunus Vs. Mohd. Mustaqim & Others (1983) 4 SCC 566 that the supervisory jurisdiction conferred to the High Courts under article 227 of the Constitution