JUDGMENT (ORAL)

C. HARI SHANKAR, J.

1. There is no appearance on behalf of the respondent though the matter was called out thrice.

2. We have heard Mr. Vivek Ranjan Tiwary, learned counsel for the appellant.

3. This appeal emanates from CS (Comm) 902/2022 instituted by the respondent against the appellant, alleging that the appellant was passing off its goods as those of the respondent by use of the marks THUKRAL KRANTI, THUKRAL, KS THUKRAL and KS THUKRAL KRANTI.

4. Additionally, the suit also prayed for a decree for delivery up of goods, damages, rendition of accounts and the like.

5. We eschew reference in detail to the facts or the rival contentions as, to our mind, the impugned order is liable to be set aside on a short ground and the matter remanded for consideration.

6. Various applications were filed by the appellant, as the defendant before the learned Commercial Court, contesting the plaint filed by the respondent. Among these, were applications under Order VII Rule 11 of the Code of Civil Procedure, 1908, (1 “CPC”, hereinafter), Section 12A of the Commercial Courts Act and Section 10 of the CPC. These applications stand dismissed by the learned Commercial Court. The appellant has not chosen to assail the impugned judgment to that extent.

7. Mr. Tiwary, learned counsel for the appellant, submits that he is restricting his challenge to the impugned judgment on the ground that while confirming the ex parte ad interim injunction granted to the respondent and dismissing the appellant’s application under Order XXXIX Rule 4 of the CPC, the learned Commercial Court has, without returning any finding on goodwill, held in favour of the respondent, on passing off.

8. In fact, we find that the learned Commercial Court has not just failed to address the aspect of goodwill but has also failed to record any findings on the merits of the respondent’s application under Order XXXIX Rules 1 and 2 of the CPC. The learned Commercial Court has merely adverted to the appellant’s application under Order XXXIX Rule 4 of the CPC. There is no finding on merits whatsoever. We may, in this context, reproduce paras 5 to 5.4 of the impugned judgment.

“5 Turning to the second application Under Order 39 Rule 4 CPC, besides some of the common grounds as referred above such as suppression and concealment of facts & documents and invoking of Sec. IO of CPC, non-compliance of Sec. 12A of the Commercial Courts Act, the defendant/applicant seeks vacation of the stay order dated 21.02.2023 on the ground that the defendant is a bonafide user of the mark since 2003 and that there is non-compliance of Order 39 Rule 3 of CPC by the plaintiff.

5.1 So far as bonafide user of the impugned trademark by the defendant since 2003 is concerned, as against it, the case of the plaintiff is that plaintiff is bonafide user of the trademark since 1983. It is therefore a disputed question of fact which will have to be determined during trial. Suffice it to note that the Ld. Predecessor Court did get prima facie satisfied as to existence of all the three necessary ingredients i.e. prima facie case, balance of convenience and irreparable loss to the plaintiff and only thereafter the injunction order dated 21 .02.2023 was passed. The said order is a detailed order clearly establishing existence of the three requisite conditions for grant of stay in favour of the plaintiff.

5.2 So far as non-compliance of Order 39 Rule 3 CPC is concerned, the plaintiff has filed an affidavit on record that on 06.03.2023 when the LC went to execute the Commission, at that very time compliance of the said provision was made by the plaintiff upon the defendant. In a case of infringement, as the present case is, it sometimes become necessary to get Commission executed by a Local Commissioner and whenever such an order is passed, the execution of Commission in fact depends even upon the availability of the LC so appointed and availability of time with the LC. It is particularly important when the Commission is