ORDER

Anish Dayal, J. - This order deals with the issue of rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 ("CPC") which arose in the following context:

(i) Plaintiff filed the present suit claiming to be the proprietor of the trademarks "KARIM/KARIM'S/KAREEM" (word as well as device) and their trading name M/s. Karim Hotel Pvt. Ltd., of which the word 'KARIM' formed a prominent and essential feature. Plaintiff's founder, Haji Karimuddin, opened the first Karim Restaurant in 1913 near Jama Masjid, Delhi. Over a period of time, they gained extensive reputation for their high-quality Mughlai food and the said restaurant became iconic.

(ii) Plaintiff obtained registrations in these marks, around 50 in number, in various classes including Classes 16, 29, 30, 42, 43. Plaintiff also used the domain name www.karimhoteldelhi.com. Plaintiff came to know of defendant's use of the identical mark 'KAREEM'S' sometime in December 2014, and issued a legal notice in February 2015, which was responded to by defendant in March 2015.

(iii) Thereafter, plaintiff filed a suit being CS(OS) 1885/2015 (later renumbered as CS (COMM) 526/2016) titled "Karim Hotels Pvt. Ltd. v. Kareem A. Dhanani" against defendant ("previous suit"). Therein, defendant took a plea that it had a registration dated 04th February, 2005 for the device mark 'KAREEM'S' bearing No.1336349 in Class 42. Considering the said registration, plaintiff had filed a petition seeking cancellation of defendant's mark before the Intellectual Property Appellate Board ("IPAB"), Mumbai ("the cancellation petition").

(iv) Consequently, this Court vide order dated 17th February, 2016 in the previous suit, passed the following order:

"LA. No. 2316/2016

Issue notice. Learned counsel for the plaintiff accepts notice.

This application has been moved by the defendant under Section 124 of the Trade Marks Act, 1999 with the plea that the plaintiff has disclosed in paragraph 27 of the plaint that the plaintiff has already, i.e. prior to the filing of the suit, moved an application for removal of the defendant's trade mark "KAREEM'S" (LOGO) registered under-No.1336349 in class 42 in the name of the defendant by moving an application under Sections 47/57/125 of the Trade Marks Act before the Intellectual Property Appellate Board (IPAB), Mumbai. The defence of the defendant in the suit is premised on Section 30(2)(e) of the Act, apart from other defences. In view of the aforesaid position, the suit is liable to be stayed.

Learned counsel for the plaintiff does not oppose the application.

Accordingly, the suit is staved and adjourned sine die to await the decision of the IPAB in the aforesaid rectification application. " (emphasis added)

(v) Subsequently, while the cancellation petition was pending before IPAB, Mumbai, this Court passed the following order in the previous suit on 16th November, 2017:

"Present suit has been filed for permanent injunction to restrain infringement, passing off, delivery up, damages etc.

No injunction order has been passed by this Court in the present suit.

Admittedly, the plaintiff has filed a proceeding before the Intellectual Property Appellate Board (for short 'IPAB') for cancellation of the defendant's mark.

Present suit is being repeatedly adjourned since 17th February, 2016 to await the outcome of the IPAB.

This Court is of the opinion that no fruitful purpose would be served by repeatedly adjourning the present suit as not only the proceedings before the IPAB are bound to take time, but any order passed by the IPAB may be challenged by either of the parties.

Consequently, the present suit and pending applications are disposed of with liberty to the plaintiffs to file an appropriate proceeding after the IPAB has disposed of the proceeding for cancellation of the defendant's mark and the said order has attained finality. The rights and contentions of all parties are left open.

Registry is also directed to issue to an authorized representative of the plaint