Back
HIMACHAL PRADESH HIGH COURT
Ajay Mohan Goel, J.
Zydus Wellness Products Ltd. – Non-applicant
versus
Karnal Foods Pack Cluster
Limited and Ors. – Applicant
OMP No.644 of 2025 in COMS No.1 of 2025
Decided on 29.8.2025
For the Non-applicant:M/s Guruswamy Natraj, Shradha Karol and Vaibhav Singh Chauhan, Advocates
For the Applicant:Mr. Rajiv Jiwan, Senior Advocate, with M/s Yug Singhal, Prashant, Sharma and Aditi Sharma, for applicant/ defendant No.2, Mr. Praveen Chandel, Advocate, for defendant No.4, Defendants No.1 & 3 already exparte.
IMPORTANT POINTS
(1) Rejection of plaint – For adjudication of application under Order VII, Rule 11 of CPC, Court has to restrict itself to contents of plaint as well as documents filed therewith – Court is not to delve into defence of other side.
(2) Suit against infringement of registered trademarks – Pre-institution mediation and Settlement is necessary.
Headnote:
(A) Civil Procedure Code, 1908 – Order VII, Rule 11(d) read with Section 151 – Rejection of plaint – For the purpose of adjudication of application under Order VII, Rule 11 of CPC, Court has to restrict itself to contents of plaint as well as documents filed therewith to assess and ascertain as to whether plaint is hit by provisions of Order VII, Rule 11 of CPC or not – Court is not to delve into defence of other side to judge credibility of application – Merit of application has to be assessed by Court on the basis of contents of plaint itself. (Para 8)
(B) Commercial Courts Act, 2015 – Section 12A – Civil Procedure Code, 1908 – Order VII, Rule 11(d) read with Section 151 – Rejection of plaint – Suit against infringement of registered trademarks – Pre-institution mediation and Settlement – When a plaint is filed under Commercial Courts Act, with a prayer for urgent interim relief, Commercial Court is duty bound to examine nature and subject matter of suit, cause of action and prayer for interim relief – Court has to ascertain and satisfy itself that prayer for urgent relief should not be a guise or mask to wriggle out of and get over Section 12A of Act – Plaintiff could not have done away with mandatory pre-institution mediation in settlement, as is contemplated under Section 12A of Act – What has to be examined is whether urgent relief application was a bonafide application or just a camouflage to bypass Section 12A of Act – In this case, application was filed just to bypass Section 12A of Act – Plaint rejected. (Paras 19, 23, 25, 28 and 29)
Result: Application allowed.
JUDGMENT (ORAL)
Ajay Mohan Goel, J.—By way of this application, filed under Order VII, Rule 11(d) read with Section 151 of the Civil Procedure Code (hereinafter referred to as ‘CPC’), prayer has been made by the applicant for the rejection of the plaint.
2. Learned Senior Counsel for the applicant/defendant No.2 argued that as the subject matter of the present suit constitutes a commercial dispute as defined under Section 2(c) (xvii) of the Commercial Courts Act, 2015 (hereinafter referred to as ‘the Act’), it was mandatory upon the plaintiff to comply with pre-institution mediation as provided under Section 12A(1) of the Act and in the present case as the plaintiff did not exhaust the said remedy, therefore, the plaint is liable to be rejected on the said ground. He argued that the only exception to the above mandatory compliance is when the party has prayed for an urgent relief and the party can demonstrate before the Court that in light of the fact that it is urging the Court to grant urgent relief, it is not in the peculiar facts of that case, required to go for a pre-litigation mediation in terms of the provisions of the Act. Learned Senior Counsel by referring to the judgments of the Hon’ble Supreme Court, which I will refer to in the later part of this order, argued that mere filing of an application for an interim injunction by the plaintiff is not sufficient and the Commercial Court is obliged to holistically examine and scrutinize the nature and subject matter and cause of action to affirm the genuineness of the urgency to seek an interim relief. He submitted that a perusal of the plaint demonstrates that herein the alleged cause arose in favour of the defendant in the month of April, 2023 when the first Cease and Desist notice was issued and since then the plaintiff has been sending such kind of notices or reminders to defendant No.2 and as the plaintiff approached the Court after a lapse of two years as from the date when the cause of action accrued, without demonstrating any sufficient cause so as to seek any urgent interim relief, the bypassing of the mandatory requirement of pre-litigation mediation cannot be condoned and the plaint deserves to be rejected under Order VII, Rule 11 of the CPC.
3. On the other hand, learned counsel for the nonapplicant/ plaintiff submitted that a perusal of the plaint clearly demonstrates that when the suit was filed by the plaintiff alongwith an application under Order XXXIX, Rules 1 and 2 of the CPC praying for interim relief, the fact situation necessitated the plaintiff to approach the Court to seek urgent relief in light of the conduct of the applicant/defendant No.2 who was flagrantly violating the trademark of the plaintiff and as in this regard the last cause of action arose in the month of December, 2024, as is clearly spelled out in the plaint, and thereafter, as the plaintiff immediately approached this Court by way of the suit as well as the application for urgent relief, the plaintiff was not obliged to resort to the pre-litigation mediation and, therefore, as there is no merit in the application, the same be dismissed.
4. I have heard learned Senior Counsel for the applicant/defendant No.2 as well as learned counsel for the non-applicant/plaintiff and have also gone through the contents of the application as well as the reply thereto and the plaint.
5. By way of this Civil Suit, the plaintiff has, inter alia, prayed for the following reliefs:—
“(i) decree of permanent and mandatory injunction restraining Defendants, partners, proprietors, directors, employees, officers, servants, agents, subsidiaries, affiliates and all others acting for and on their behalf from manufacturing, selling, offering for sale, exporting, advertising, marketing and/or in any manner using directly or indirectly in relation to its products being glucose powder-based drink mixes and/or any other allied or cognate goods, the mark Glucose-D, Glucospoon-D, Glucose-C and associated trade dress wh
