A party seeking discretionary relief must approach the court with clean hands and disclose all relevant facts; failure to do so may invite sanctions under Section 340 of Cr.P.C.

JUDGMENT

Manmohan, J. (Oral)--The appeal has been heard by way of video conferencing.

2. Present appeal has been filed challenging the order dated 11th February, 2021 passed in CS(COMM) 2138 of 2019, whereby the learned District Judge has dismissed the application under Order XXXIX Rule 4 CPC of the appellants filed for vacation of the ex-parte ad interim order dated 30th July, 2019 and has allowed the application under Order XXXIX Rule 1 & 2 CPC filed by the respondent/plaintiff.

3. Learned counsel for the appellants states that the competing marks VICTORINOX of the respondent and VICTORIA CROSS/VICTORIACROSS of the appellants are totally different and the cross as well as shield device / of the respondent is strikingly different from the cross device of the appellants. He emphasises that the respondent in the present case has suppressed material facts as well as documents. He also submits that the suit is barred by acquiescence as the mark of the appellants had been registered abroad prior in time.

4. Learned senior counsel for the respondent raises a preliminary objection to the documents being referred to by the learned counsel for the appellants. He states that none of the said documents are a part of the Trial Court record. He contends that these documents have been filed for the first time in the present appeal and the appellants have had no occasion to controvert them. He emphasises that the Trial Court had refused to take additional documents filed by the respondent on record much earlier due to objections filed by the appellants.

5. Learned senior counsel for the appellants admits that the documents referred to and relied upon by him during the course of the present hearing are not a part of the Trial Court record. He, however, states that these documents are available online, and in any event, the `Court must endeavour to find out the truth shorn of technicalities'.

6. Prima facie finding merit in the submission advanced by learned counsel for the appellants, this Court permitted him to argue at length and refer to additional documents now placed on record.

7. During the course of hearing, learned counsel for the appellants stated that the respondent was well aware of registration of conflicting marks like VICTORY, VICTOR, VICTORIAN AND VICTORIA. He emphasises that the respondent never took any action against M/s Promoshirt SM S.A. in respect of the trade mark VICTORIA CROSS for which an application was filed in July, 2017 which clearly indicates that respondent was well aware about distinctiveness of VICTORIA CROSS against the trade mark VICTORINOX of the appellant.

8. He further states that the respondent concealed its filing of the trade mark application for trademark/label in Korea in 2018 in class-18 i.e. much after the trade mark application and copyright registration of the appellants bearing no.3044235 dated 31st August, 2015. Consequently, according to him, it is the respondent who had malafidely copied the trademark of the appellants and applied the same in Korea after being aware of the appellants' trademark/label VICTORIA CROSS.

9. He also states that the respondent deliberately concealed email correspondence with Mr. Ashok Sawhney and its knowledge about the impugned trademark/label device at least since 2016 when the respondent was informed of the impugned trademark/label of the appellants. He points out that the appellant no.1 has registered its trademark VICTORIACROSS in New Zealand, which has not even been opposed by the respondent.

10. He further contends that the respondent deliberately concealed various emails exchan