Point of Law; While ordering ad interim injunction and ex parte ad interim injunction, the court must be more vigilant and cautious about the exception carved out under sub-section (3)

JUDGMENT :

This appeal came up for hearing today. Heard both sides. The dispute is pertaining to alleged infringement of trade mark and name of Raja Biri and Raja Bidi.

2. The preliminary objection raised that the appeal will not stand as there is no provision for it against an ex parte interim order cannot be sustained in view of the legal position settled by the Apex Court in A.Venkatasubbiah Naidu v. S.Challappan and Ors. (AIR 2000 SC 3032).

3. Before issuance of notice to the defendants/counter petitioners, an ex parte ad interim injunction was granted restraining the defendants from doing their business. The suit was filed on 31/05/2022. Interim ex parte injunction was granted on 01/06/2022 before issuing notice to the appellants/counter petitioners. The defendants/appellants entered appearance and filed their counter on 27/06/2022. But, the matter was not heard on merit within the time schedule of 30 days. It was adjourned to 02/7/2022 and then to 13/07/2022. The appellants/defendants hence filed an application for early hearing under Order XXXIX Rule 3 A C.P.C.. But in spite of the said application, the matter was not heard on merit. The trial court in the meanwhile appointed a Commission to collect the materials belonged to the defendants supplied to various shops and afforded police protection to the Commissioner. The Commissioner in turn collected all the materials belonged to the defendants supplied to various shops, with police protection and thereby the trial court has implemented the interim ex parte injunction granted without notice to the counter petitioners, who are the appellants herein.

4. It is submitted that the trial court is well within the jurisdiction of granting even an ex parte ad interim injunction without notice to the counter petitioners/appellants by virtue of Section 135 of the Trade Marks Act, 1999, which is extracted below for reference:

“Relief in suits for infringement or for passing off (1) The relief which a court may grant in any suit for infringement or for passing off referred to in section 134 includes injunction (subject to such terms, if any, as the court thinks fit) and at the option of the plaintiff, either damages or an account of profits, together with or without any order for the delivery-up of the infringing labels and marks for destruction or erasure.

(2) The order of injunction under sub-section(1)may include an ex parte injunction or any interlocutory order for any of the following matters, namely:--

(a) for discovery of documents;

(b) preserving of infringing goods, documents or other evidence which are related to the subject-matter of the suit;

(c) restraining the defendant from disposing of or dealing with his assets in a manner which may adversely affect plaintiff's ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff.

(3) Notwithstanding anything contained in sub-section(1), the court shall not grant relief by way of damages (other than nominal damages) or on account of profits in any case--

(a) where in a suit for infringement of a trade mark, the infringement complained of is in relation to a certification trade mark or collective mark; or

(b) where in a suit for infringement the defendant satisfies the court--

(i) that at the time he commenced to use the trade mark complained of in the suit, he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was on the register or that the plaintiff was a registered user using by way of permitted use; and

(ii) that when he became aware of the existence and nature of the plaintiff's right in the trade mark, he forthwith ceased to use the trade mark in relation to goods or services in respect of which it was registered; or

(c) where in a suit for passing off, the defendant satisfies the court--

(i) that at the time he commenced to use the trade mark complained of in the suit, he was unaware and had no reasonable ground for believing that the trade mark f