Point of Law: if there is no infirmity found in the order of the Trial Court, injunction against encashment of bank guarantee and letter of credit should not be granted except where fraud or irretrievable damage is contended and prima facie established. Therefore, in sum and substance, if there is no infirmity found in order of the Trial Court, in that case, the Appellate Court is not required to interfere.

JUDGMENT :

(A) Introductory Remarks:

Intellectual Property Rights (“IPR” for short) are the rights give to persons over the creation of their minds. Normally, they give the creator an exclusive right over the use of his / her creation for certain period of time. Though the IPR is not just right to exclude other from selling or using the own asset, it is also designated to provide holder with the right to argue or license the rights for commercial or other bona fide uses. Raison d'etre is to protect the intellectual and extraordinary invention / skill / goodwill of an individual, ultimately, enhance the field of GLOBAL TRADE.

The quia timet action is the need of the hours, wherein one feels apprehension for the protection of his own rights (here, IPR) which may be taken away by others in different style.

Quia timet action has been described in Black's Law Dictionary as follows:

“Because he fears or apprehends. In equity practice, the technical name of a bill filed by a party who seeks the aid of a court of equity, because he fears some future probable injury to his rights or interests, and relief granted must depend on circumstances.”

(B) Keeping in mind such two aspects, the facts in detail, in the present Appeal from Order are discussed as under. It is made clear, with the consent of both sides, matter is taken for final decision.

1. The Appellant – Vimal Dairy Limited (Original Defendant) has filed this Appeal from Order under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 for the following prayers:

“(A) To admit the present Appeal from Order

(B) To quash and set-aside the order dated 11.12.2020, passed by the learned City Civil Court No. 29, Ahmedabad below Exh. 7 for interim injunction in Civil Suit No. 884/2020 and thereby be further pleased to dismiss the Notice of Motion at Exh. 7 moved by original plaintiffs- respondents herein.

(C) To permit the appellant to produce the list of documents and authorities, by way of separate paper book along with memo of the present Appeal from Order.

(D) Any other and further reliefs that Your Lordships may deem just, fit and expedient be granted in favour of the appellant.”

2. Factual Remarks:

The present Respondents – Original Plaintiffs have preferred Civil Suit No. 884/2020 in the Ahmedabad City Civil Court at Ahmedabad, inter-alia, praying for permanent injunction restraining the defendant and its agents from manufacturing, marketing advertising for Sales, the defendant's products under the Trademark /Label “VIMAL” “TM Application No. 4352164 including its Art Work, Colour Scheme, Get-up, Arrangement and/or any other Label, which is substantial and material reproduction of the label of the plaintiffs from committing an act of infringement of plaintiff's copy right registered label bearing No. A-118473 / 20177 under the Copy Right Act. Plaintiffs also prayed to restrain the defendant from committing an act of infringement of the plaintiff's registered Trademark/labels and from committing an act of passing of the plaintiffs' trademarks/labels. Plaintiffs further prayed for directions to the defendant to give true and correct accounts of the goods manufactured and marketed by them under the trademark /label VIMAL and after verifying the accounts and deriving at the amount of the profit earned by the defendant, to pay the said amount with 18% interest. The suit is essentially filed for permanent injunction and seeking damages.

Respondents herein – Original Plaintiffs have filed an application for Temporary Injunction along with the suit under Order XXXIX Rule-1(a) of the Code of Civil Procedure, 1908 with similar reliefs prayed in the suit.

3. The Appellant / Original Defendant states and submits that the gist of the case of the plaintiffs can be described in nutshell to the effect that plaintiffs are using the trademark 'WAGH BAKRI' and they have acquired wide reputation and go