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2019 Supreme(Mad) 2236
IN THE HIGH COURT OF JUDICATURE AT MADRAS
VINEET KOTHARI, C. SARAVANAN, JJ.
M/s. Patanjali Biscuits Pvt. Ltd. & Another - Appellants
Versus
Hatsun Agro Product Ltd. & Another - Respondents
O.S.A. Nos. 264, 284 & 285 of 2019 & CMP. No. 21918 of 2019
Decided On : 05-11-2019
P. Giridharan, Aashishjazn Lunza, M/s. Surana & Surana, Advocates.
Headnote:
Civil Procedure Code, 1908 - Order XIIIA - Order XXXVII - Order XV-A - Order XXXVI - Rule 9 - Rule 7 - Rule 6 - Sections 35 and 35A - Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2018 - Section 13 - Legal obligation of one party to a victim as a results of a civil wrong or injury requires some form of remedy from a court system - A tort liability arises because of a combination of directly violating a persons rights and transgression of a public obligation causing damage or a private wrong doing - Evidence must be evaluated in a court hearing to identify who tort feasor / liable party is in case - It is relevant to point out that there is no interconnectivity between products sold by Plaintiff and Defendants and classes of registration are also different, as Plaintiffs trademark was registered under Class 29, whereas products of Applicants/Defendants was under Class 30 - Plaintiffs Trademark “Arokya” was familiar amongst general public in connection with milk and milk products only, whereas Applicants/Defendants involve in preparation of biscuit related items - In this regard, Court find much force in contention raised by learned counsel for Applicants/Defendants that mark has to be viewed as a whole and together and cannot be looked into in a divided form and in an isolated manner - It is seen that Applicants/Defendants are carrying on its business under Trademark “Patanjali Aarogya” for nearly three years and Plaintiff, having kept quiet all these years, cannot attempt to stall business of Applicants/Defendants on one fine morning, unless there is a specific finding in suit after full fledged trial - Hence, this Court finds that there is no need for an interim order to be in operation and therefore, interim injunction granted by this Court which was later on ordered to be kept in abeyance for shorter period, is liable to be vacated – Held , On other hand, learned counsel for plaintiff/respondent submits that issues raised in plaint deserves full fledged trial and rejection of Application filed by defendants, was justified - He further submits that even vacating of injunction granted earlier in favour of plaintiff was not justified and therefore, he has also filed Cross Appeals before this Court - But, we note that rejection of Application filed by defendants, to pass a summary judgment, has been summarily rejected by learned Single Judge without giving any conjoint reasons - Certainly, a full fledged trial of a suit will consume a lot of time of Court and therefore, unless there are cogent and strong reasons as envisaged as applicable to commercial disputes under provisions of Commercial Courts Act, inserted in Code of Civil Procedure, dismissal of Application by learned Single Judge in Application for summary judgment, is not sustainable - Appeals are disposed of
JUDGMENT :
Vineet Kothari, J.
(Prayer: O.S.A.No.264 of 2019: Appeal filed under Order XXXVI Rule 9 of the O.S. Rules r/w clause 15 of the amended Letters Patent 1865 and read with Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2018 against the order dated 05.07.2019 in Application No.2920 of 2019 in C.S.No.33 of 2019.
O.S.A Nos.284 & 285 of 2019: Appeals filed under Order XXXVI Rule 9 of the O.S. Rules r/w clause 15 of the amended Letters Patent 1865 against the order dated 05.07.2019 in Application No.2230 of 2019 in O.A.No.34 of 2019 in C.S.No.33 of 2019.)
1. These Cross Appeals are disposed of by a Common Judgment.
2. The learned Single Judge by Order dated 05.07.2019 vacated the interim injunction granted in favour of the applicant/plaintiff viz., Hatsun Agro Product Ltd, who filed a suit against the respondents viz., M/s Patanjali Biscuits Pvt Ltd and M/s Patanjali Ayurved Limited for the alleged infringement and passing off its products as that of the Plaintiff by using the offending trademark “AAROGYA” which are similar, deceptively similar and identical to the plaintiff's trademark “ AROKYA” or by using any other trademark which is similar, deceptively similar or identical to that of the plaintiff's trademark “AROKYA”.
3. Initially, interim injunction was granted by the learned Single Judge in O.A.Nos.33 and 34 of 2019 dated 28.02.2019 However, by the impugned Order dated 05.07.2019, the learned Single Judge has vacated the interim injunction with the following observations:
“16. Legal obligation of one party to a victim as a results of a civil wrong or injury requires some form of remedy from a court system. A tort liability arises because of a combination of directly violating a person's rights and the transgression of a public obligation causing damage or a private wrong doing. Evidence must be evaluated in a court hearing to identify who the tort feasor / liable party is in the case.
17. It is relevant to point out that there is no interconnectivity between the products sold by the Plaintiff and the Defendants and the classes of registration are also different, as the Plaintiff's trademark was registered under Class 29, whereas the products of the Applicants/Defendants was under Class 30. The Plaintiff's Trademark “Arokya” was familiar amongst general public in connection with milk and milk products only, whereas the Applicants/Defendants involve in preparation of biscuit related items. In this regard, I find much force in the contention raised by the learned counsel for the Applicants/Defendants that the mark has to be viewed as a whole and together and cannot be looked into in a divided form and in an isolated manner.
18. It is seen that the Applicants/Defendants are carrying on its business under the Trademark “Patanjali Aarogya” for nearly three years and the Plaintiff, having kept quiet all these years, cannot attempt to stall the business of the Applicants/Defendants on one fine morning, unless there is a specific finding in the suit after full fledged trial. Hence, this Court finds that there is no need for an interim order to be in operation and therefore, the interim injunction granted by this Court on 28.02.2019, which was later on ordered to be kept in abeyance for shorter period, is liable to be vacated.
4. While vacating the interim injunction, the learned Single Judge also dismissed the Application No.2920 of 2019, filed by the defendants to pass a Summary Judgment under Order XIIIA of the Code of Civil Procedure (as amended) with the following observations:
“ 21. A.No.2920 of 2019 filed to pass a summary judgments is dismissed, in view of the fact that the interim order granted by this Court is vacated and the entire issues, such as damages, jurisdiction, passing off, etc need to be decided after full-fledged trial by letting the respective parties to adduce both oral and documentary evidence.
22. It is made clear that the observations m
