$~26 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : 23.08.2024 + RFA(OS)(COMM) 16/2024 M/S. KG MARKETING INDIA .....Appellant Through: Mr Deepak Dhyani, Advocate.

versus RASHI SANTOSH SONI & ANR. .....Respondents Through: Mr Jaspreet Singh Kapur, Advocate.

CORAM:

HON'BLE MR. JUSTICE VIBHU BAKHRU HON'BLE MR. JUSTICE SACHIN DATTA VIBHU BAKHRU, J. (ORAL CM APPL. 48484/2024 (Early hearing)

1. This is an application for advancement of hearing scheduled on

13.09.2024. For the reasons stated in the application, the same is allowed.

2. With the consent of the counsel, the above captioned appeal is taken up for hearing.

RFA(OS)(COMM) 16/2024 & CM APPL. 47681-85/2024

3. The appellant has filed the present appeal impugning a judgment dated 02.07.2024 (hereafter the impugned judgment) passed by the learned Single Judge in CS (COMM) No.18/2023 whereby, the learned Single Judge had directed the worthy Registrar General of this Court to take action within a period of four weeks and lodge a complaint with the concerned Judicial Signature Not Verified RFA(OS)(COMM) 16/2024 Page 1 of 17 Digitally Signed By:DUSHYANT RAWAL Signing Date:06.09.2024 Magistrate under Section 340 of the Code of Criminal Procedure, 1973 (hereafter the CrPC). FACTUAL CONTEXT

4. It is stated that the appellant had filed the suit [CS (COMM) No. 18/2023] against the respondents seeking an injunction against the use of the mark/label ‘SURYA’ and the accompanying trade dress, which is set out below:

5. The appellant had placed on record certain newspaper advertisements of its trademark SURYA to establish that it was the prior user and had extensively advertised its trademarks. The said relevant pages of the newspapers, as filed by the appellant along with its plaint and application for interim relief, are set out below and the advertisements relied upon by the appellant have been highlighted by outlining the same.:

6. The aforesaid newspaper advertisements were relied upon in the suit [CS (COMM) No. 18/2023] for the purposes of claiming prior user/adoption in the mark ‘SURYA GOLD’ since 2016.

7. By an order dated 16.01.2023, the learned Single judge, relying upon the pleadings of the appellant, granted an ex-parte ad-interim injunction and also appointed a Local Commissioner (LC) for search and seizure of allegedly infringing goods of the respondents.

8. Thereafter, the respondents had filed an application being I.A.10033/2023 dated 18.05.2023 under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 (hereafter the CPC), alleging that the documents filed by the appellant were maliciously fabricated for the sole purpose of securing an order of interim injunction. The Court found merit in the aforesaid contention.

9. On 25.05.2023, the Court allowed the aforesaid I.A. No. 10033/2023 and vacated the ad interim injunction granted in terms of the order dated 16.01.2023. The appellant's application being [I.A. No.680/2023] was dismissed by the learned Single Judge.

10. In the meantime, the respondents filed a cross suit [being CS (COMM) No.477/2023] on 15.07.2023 seeking to injunct the appellant from using the mark ‘SURYA GOLD’ and the accompanying labels. In this suit, the respondents filed the original newspapers dated 17.06.2016 and 12.07.2017 to establish that the newspapers relied upon by the appellant in its suit [CS (COMM) No. 18/2023] were fabricated. In response, Mr. Karan Kumar, partner of the appellant company took the position that its main suit [CS(COMM) No.18/2023] may be dismissed by the learned Single Judge. The original newspapers dated 17.06.2016 and 12.07.2017 are extracted as below:

11. The learned Single Judge after having perused the recorded statement of Mr. Karan Kumar dated 18.07.2023 and the original newspapers produced by the respondents, found that the appellant’s claim of having advertised their products under the trademarks in question in the years 2016 and 2017 is false. The original and certified copies of the said newspapers dated 17.06.2016 a