Harsha Devani, J.

In this appeal from order under Order XLIII rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") read with section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, the appellant has called in question the order dated 1st January, 2019 passed by the Commercial Court, Ahmedabad below applications Exhibit 7 and Exhibit 1 in Commercial Trademark Suit No.1 of 2019.

2. Certain facts which may be necessary to decide this appeal are:

The first respondent M/s Red Ribbon Entertainment Private Limited (original plaintiff) has come with a case that one Kartik Patel has conceptualized the idea of the disputed song/music composition/video of "Char Bangadi Wari Gaadi" in November 2015 with the help of professional team Kathiawadi Kings and turned the idea into a successful music video on 5th September, 2016. Mr. Kartik Patel became the owner of the said copyright work. The final song was uploaded on YouTube on 29th September, 2016. On 20th December, 2016, the appellant and the respondents No.2 and 3 (original defendants No.1 to 3) copied the wordings and the music and recorded the same song and uploaded the video of the song on YouTube on 20th December, 2016, thereby infringing the copyright of the plaintiff.

Mr. Kartik Patel executed a deed of assignment in respect of the copyright of the song in favour of the plaintiff on 18th April, 2017. On 3rd January, 2017, the plaintiff's predecessor had filed a copyright infringement notice at YouTube claiming that their original work had been copied by the defendants and urging them to remove the same. The defendants filed a counter copyright infringement claiming that their work was original and was sung by Kinjal Dave (the appellant herein) and the lyrics were written by Manu Rabari. On 23rd February, 2017, the plaintiff sent a legal notice to the defendants alleging infringement of copyright. The defendants gave their reply to such notice on 7th March, 2017. It is further the case of the plaintiff that the defendants agreed to settle the matter by way of paying royalty but for one reason or the other, avoided settling the matter.

The plaintiff came to know about the dispute between the defendants and his predecessor after the deed of assignment was executed. Thereafter, the plaintiff immediately contacted the defendants to refrain from committing such illegal acts and pay compensation for illegal use of the said copyright work. The second respondent agreed to the same. However, the defendants did not abide by the same and continued to infringe the copyright.

The plaintiff, therefore, instituted the suit being Commercial Trademark Suit No.1 of 2019. The plaint and the application under Order XXXIX rules 1 and 2 of the Code came to be verified on 14th November, 2018 and the suit and the interim injunction application were actually moved on 1st January, 2019, on which date the Commercial Court passed the impugned order.

3. Mr. Harshit Tolia, learned advocate with Mr. J.V. Vaghela, learned advocate for the appellant (original defendant No.1) drew the attention of the court to the provisions of rule 3 of Order XXXIX of the Code, to submit that the same mandates that if the court proposes to grant an injunction without giving notice of the application to the opposite party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay. Referring to the impugned order, it was submitted that in the entire order, there is no discussion whatsoever to the effect that non-grant of injunction would be defeated by delay. It was submitted that the Commercial Court has merely considered the aspect of prima facie case and balance of convenience and has granted an ex parte injunction without complying with the requirement of rule 3 of Order XXXIX of the Code.

3.1 Reliance was placed upon the decisions of the Supreme Court in Morgan Stanley Mutual