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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 18.11.2016

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FAO(OS) 177/2016

AURA SYNERGY INDIA PVT LTD & ORS

... Appellants

versus

M/S NEW AGE FALSE CEILING

CO PVT LTD & ORS

... Respondents

Advocates who appeared in this case:

For the Appellants

: Mr Sanjeev Sindhwani, Senior Advocate with

Mr Harsh Kaushik, Mr Abhay Chattopadhyay and

Gaurav Sharma

For the Respondents

: Mr Saif Khan with Mr Manish Biala

CORAM:

HON'BLE MR JUSTICE BADAR DURREZ AHMED

HON'BLE MR JUSTICE JAYANT NATH

JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

CM 22329/2016(condonation of delay)

The delay in filing the appeal is condoned.

The application stands disposed of.

FAO(OS) 177/2016 & CM 22330/2016 & CM 22331/2016

1.

This appeal has been preferred against the judgment and/or order

dated 10.02.2016 passed by a learned Single Judge of this Court, whereby

he has dismissed IA 23095/2015, being an application under Order 39

Rules 1 and 2 CPC, filed by the appellants/plaintiffs and allowed

2016:DHC:7530-DB

IA 26213/2015 (under Order 39 Rule 4 CPC) which had been filed by the

respondents/defendants.

2.

The entire battle is with regard to the trade mark ‘AURA’. The

plaintiffs claimed exclusivity over the said trade mark in respect of

metallic false ceilings. The suit that has been filed is one of passing off in

which the plaintiffs claimed that the defendants were passing off their

products as those of the plaintiffs/appellants by using the mark ‘AURA’.

3.

Initially, the learned Single Judge had granted an ex parte ad

interim injunction restraining the defendants from using the mark ‘AURA’

in respect of metallic false ceilings. As mentioned above, the

respondents/defendants filed the application under Order 39 Rule 4 for

vacation of the ex parte ad interim injunction that had been granted. One

of the main grounds raised in the application for vacation of the injunction

was that the plaintiffs/appellants had not come to Court with clean hands

and, therefore, had disentitled themselves for the relief of injunction being

an equitable relief. In the first instance, it was contended that the plaintiffs

had not disclosed the earlier relationship between the plaintiffs/appellants

on the one hand and the defendants/respondents on the other, whereby the

plaintiffs/appellants, under an agreement dated 20.04.2012, functioned as

2016:DHC:7530-DB

an agent of the defendants/respondents in respect of metallic false ceilings.

The plaintiffs/appellants have clearly marketed metallic false ceilings

manufactured by the defendants during the subsistence of the said

agreement dated 20.04.2012.

4.

The learned Single Judge has examined the matter in great detail

and particularly on the allegation that the plaintiffs/appellants had

suppressed and/ or concealed material facts and based on such suppression

and concealment, the plaintiffs/appellants had approached this Court for

the ex parte ad interim injunction which it did get.

5.

We have also heard the learned counsel for the parties at length and

have examined the papers before us. We are in full agreement with the

conclusions arrived at by the learned Single Judge with regard to

suppression and concealment. Insofar as the merits of the matter are

concerned, any findings in the impugned order are obviously only of a

prima facie nature and would be subject to the conclusions in the trial after

evidence is led.

6.

Insofar as the present appeal is concerned, we have only to focus on

the issue of suppression and concealment. The learned counsel for the

appellants has placed before us two decisions of the Supreme Court :-

2016:DHC:7530-DB

(i)

S.J.S. Business Enterprises (P) Limited v. State Bank of

Bihar and Others: (2004) 7 SCC 166; and

(ii)

Mayar (H.K.) Limited and Others v. Owners and Parties,

Vessel M.V. Fortune Express and Others: (2006) 3 SCC 100

7.

In S.J.S. Business Enterprises (sup