1. Appeal against conditional order permitting disposal of existing stock of infringing product post-injunction confirmed by Division Bench. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 )
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2026 Supreme(Online)(Del) 16811
IN THE HIGH COURT OF DELHI AT NEW DELHI
V. Kameswar Rao, Manmeet Pritam Singh Arora, JJ
Emami Limited – Appellant
Versus
Dabur India Limited – Respondent
FAO(OS) (COMM) 177/2026 | CM APPL. 45249/2026
Advocates:
For the Appellants/Petitioners: Abhimanyu Bhandari, Roohe Hina Dua, Shrutika Garg, Dhwani Arora, Harshit Khanduja
For the Respondents: Sandeep Sethi, Kripa Pandit, Christopher Thomas, Krisna Gambhir, Shreya Sethi, Anirudh Bakhru
For the Appellants/Petitioners: Abhimanyu Bhandari, Roohe Hina Dua, Shrutika Garg, Dhwani Arora, Harshit Khanduja
For the Respondents: Sandeep Sethi, Kripa Pandit, Christopher Thomas, Krisna Gambhir, Shreya Sethi, Anirudh Bakhru
The judgment establishes that an interim order affirmed by a Division Bench merges into that judgment, precluding a Single Judge from modifying it. It also affirms that discretionary permission to sell existing infringing stock requires the mandatory recall of unsold inventory to preserve the injunction's effect.
Headnote:(A) Judicial Hierarchy and Merger of Orders - Modification of interim injunction - Once an interim injunction granted by a Single Judge is affirmed by a Division Bench, the order merges into the judgment of the Division Bench. Any subsequent variation or relaxation must be sought from the Division Bench or a superior court, as a subordinate court cannot pass orders inconsistent with a superior court's determination. (Para 16, 17, 23)
(B) Maintainability of Appeal - Order passed under Section 151 CPC - If an order effectively varies an injunction, it is an exercise of jurisdiction under Order XXXIX Rule 4 CPC and is therefore appealable under Order XLIII Rule 1(r) CPC. (Para 12, 13, 14)
(C) Intellectual Property - Disposal of infringing stock - Grant of time to exhaust existing stock is a discretionary relief to reduce economic waste. To maintain the efficacy of an injunction, the defendant must recall unsold stock from wholesalers and retailers upon expiry of the granted period. (Para 30, 32)
Issues: Whether the learned Single Judge had jurisdiction to modify an interim injunction that had merged into a Division Bench judgment and whether the respondent could be exempted from recalling unsold stock from retailers.
Legal Category Hierarchy
- intellectual property
- practice and procedure
Table of Contents
2. Appellant: Application before Single Judge not maintainable post-merger with Division Bench order. Respondent: Appeal not maintainable as order under Section 151 CPC. (Para 8 , 9 , 10 )
3. Order permitting sale of stock varied interim injunction — Single Judge lacked jurisdiction to modify order merged with and affirmed by Division Bench. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 )
4. An order of an appellate court merges with the original; a subordinate court cannot modify the affirmed order. (Para 16 , 17 , 22 , 23 )
5. Appeal allowed — application before Single Judge not maintainable; conditional permission deemed granted by Division Bench; modification application dismissed. (Para 35 )
6. Is an appeal maintainable under Order XLIII Rule 1(r) CPC against an order that varies an interim injunction?
Yes, an order granting limited permission to sell infringing products amounts to variation of the injunction under Order XXXIX Rule 4 CPC and is appealable. (Para 12 , 13 , 14 )
7. Can a Single Judge modify an interim injunction after it has been confirmed by the Division Bench?
No, once the interim injunction is affirmed by the Division Bench, the Single Judge cannot entertain an application to modify it due to the merger of orders. (Para 15 , 16 , 17 , 22 , 23 )
8. What are the obligations of a party permitted to sell infringing stock within a time-bound period?
The party must recall all unsold stock from retailers and wholesalers by the expiry date to ensure the stock is not indefinitely available in the market. (Para 30 , 31 , 32 )
JUDGMENT
MANMEET PRITAM SINGH ARORA, J.
1. This is an appeal filed under Order XLIII Rule 1(r) read with Section 104 Code of Civil Procedure, 1908 (‘CPC’) read with Section 13(1) of the Commercial Courts Act, 2015 (‘Act of 2015’) and Section 10 of Delhi High Court Act, 1966 assailing the order dated 19.06.2026 [‘impugned order’] passed in I.A. No. 15761/2026 in CS(COMM) 532/2023 titled as Emami Limited v. Dabur India Limited whereby the learned Single Judge passed a conditional order, permitting the Respondent to dispose off the existing stock.
2. The Appellant is the plaintiff, and the Respondent is the defendant in the Commercial Suit.
FACTUAL MATRIX
3. The Appellant filed a suit against the Respondent for infringement of its registered Trade Marks, passing off, unfair trade practices and damages along with an application under Order XXXIX Rule 1 and 2 read with Section 151 of the CPC bearing I.A. No. 14557/2023 seeking ad interim injunction against the Respondent.
4. Learned Single Judge, vide judgment dated 31.01.2026 (‘judgment’), granted an interim injunction in favour of the Appellant, thereby restraining the Respondent from selling its product, namely, ‘DABUR Cool King 
Thanda Tel’, under the Trade Dress, ‘ ’ (‘Respondent’s infringing product’), or under any other trade dress deceptively similar to that of the 
Appellant, being ‘ ’ (‘Appellant’s Product’). The operative of the judgment reads as under:
“28. Considering the submissions made by the Parties and the case laws relied upon by them, the Plaintiff is entitled to the relief of injunction, and it is directed that the Defendant is restrained 
from selling the Defendant’s Product, i.e., ‘Cool King Thanda Tael’ using the Trade Dress, ‘ ’ or any other deceptively similar Trade Dress to the Plaintiff’s Trade Dress being.
29. The Application stands disposed of with the aforesaid directions.”
[Emphasis supplied]
5. The said judgment was assailed by the Respondent before the Division Bench in FAO(OS)(COMM)23/2026 (‘Appeal’), titled as ‘Dabur India Limited v. Emami Limited’. Vide judgment dated 22.05.2026 (‘Division Bench Judgment’), the Division Bench dismissed the Appeal and upheld the judgment. The operative part of the Division Bench judgment reads as under:
“77. Our aforesaid conclusion is based on the finding that the trade dress encompassing the overall visual appearance of the product including the lay-out, colour scheme of the products of the appellant vis-à-vis those of the respondent, has been rightly injuncted because it is deceptively similar to the trade dress of the products of the respondent/plaintiff and there is every likelihood of misleading the consumers and constitutes passing off.
78. In view of our findings and analysis above, this appeal being devoid of merits is dismissed. We uphold the impugned order passed by the learned Single Judge. The pending application is also dismissed.”
[Emphasis supplied]
6. However, on 26.05.2026, subsequent to the aforesaid judgment of the Division Bench, the Respondent filed an application I.A. 15761/2026 under Section 151 CPC before learned Single Judge seeking permission to exhaust the existing stock of Respondent’s infringing product.
7. Learned Single Judge vide impugned order dated 19.06.2026, has passed a conditional order permitting the Respondent to dispose of its stock in a time-bound manner. The operative part of the impugned order setting out the conditions permitting the disposal of the existing stock reads as under:
“12. Accordingly, in order to balance the equities between the Parties, and subject to strict compliance with the conditions set out hereinbelow:
i. The Defendant is granted time until 30.09.2026 to exhaust 
only the existing stock of the Defendant’s Product, namely, ‘DABUR Cool King Thanda Tel’, under the impugned Trade Dress, manufactured only till the date of the Judgement as per the quantity disclosed in the present Application.
ii. In the event any inventory of
