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TMI Blog2005 (2) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... If they are harmful as claimed, what would be the consequence, when they are adulterated, is an aspect that requires anxious consideration by the authorities concerned. The State cannot ignore the mandate of Article 47 of the Constitution. Any way, that aspect is referred to us only for the purpose of reinforcing the conclusion that ultimately, in the exercise of discretion by this Court, it may not be necessary to interfere with the order of interim injunction granted by the courts below. Thus, on the whole, we are satisfied that the courts below cannot be said to have erred in thinking that the balance of convenience was in favour of the grant of interim injunction in favour of the plaintiff. In any event, we are satisfied that a case for interference under Article 136 of the Constitution of India is not made out in this case. We, therefore, decline to interfere with the order of the High Court and dismiss this appeal. - C.A. 1407 OF 2005 - - - Dated:- 25-2-2005 - B.P. SINGH P.K. BALASUBRAMANYAN, JJ. JUDGMENT Leave granted. 1. The defendants in Civil Suit No. 8A of 2004 on the file of the District court of Mandaleshwar are the appellants. That suit was filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen from the pleadings, the other materials produced, the orders passed and the arguments raised before us, that this is a passing off action. The case of the plaintiff is that the plaintiff and its predecessors were using the mark Malikchand in its packets containing Pan Masala, Supari, Gutkha and Supari Mix kept for sale. Its plea is that the defendants are seen to be marketing the same products under the name Manikchand . The products are marketed in pouches that are deceptively similar to the ones used by the plaintiff and this misleads the customers seeking to purchase the products of the plaintiff. The plaintiff along with its predecessors, being the prior users of the mark Malikchand , the plaintiff is entitled to prevent the defendant from marketing their products under the name Manikchand . Since the action of the defendant would lead to the plaintiff suffering irreparable injury and incurring monetary loss and loss of reputation as the products marketed by the defendants were of sub-standard quality as could be seen from various prosecutions launched against the defendants under the Prevention of Food Adulteration Act, the balance of convenience was in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se for interim injunction. It was further found by that court that the balance of convenience was in favour of the grant of interim injunction in favour of the plaintiff restraining the defendants from using the mark Manikchand till the final disposal of the suit. On appeal by the defendants, the appellate court reconsidered the relevant aspects in the light of the arguments addressed before it and came to the conclusion that the trial court was justified in granting an order of injunction and the grant of interim injunction by the trial court could not be said to be in exercise of discretion which was either arbitrary or perverse. The appellate court observed that the trial court at this stage was not wrong in coming prima facie to the conclusion that the prior user of the mark was by the predecessors of the plaintiff and the plaintiff. Regarding the argument based on delay and latches and acquiescence, the appellate court took the view that the present action was triggered off by the filing of a suit by the defendants in the High Court of Bombay seeking to restrain the user of the mark "Malikchand" by the plaintiff and under the circumstances the claim for interim injunction co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods of another person or as services by another person or the remedies in respect thereof. Therefore, the fact that neither party has a registered trade mark as on the date of the suit cannot stand in the way of entertaining the claim of the plaintiff and granting the plaintiff an injunction in case the plaintiff is in a position to show prima facie that it was the prior user of its mark, that it had a prima facie case and that the balance of convenience was in favour of the grant of an interim injunction. It is provided in Section 39 of the Act that an unregistered trade mark may be assigned or transmitted with or without goodwill of the business concerned. It is, therefore, possible for a plaintiff or a defendant to show that an unregistered trade mark that was being used by another person earlier had been assigned to it and that it can tack on the prior user of its predecessor. 7. At the threshold, learned senior counsel appearing for the respondent - the plaintiff, submitted that the trial court and the appellate court had considered the relevant aspects from the proper perspective and have exercised their discretion to grant an order or interim injunction and normally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommenced only at a later point of time. This prima facie finding of prior user was arrived at by the trial court relying on the deeds of assignments produced by the plaintiff and some documents and affidavits produced in support of its claim. Some inconsistencies in the claim of the defendants were also referred to. The High Court, in appeal, appreciated that the main contention on behalf of the defendants regarding prior user claimed by the plaintiff was based on a challenge to the assignments relied on by the plaintiff and the documents filed in support. The High Court noticed that the plea was that the entire series of documents were forged or manufactured for the purpose of litigation and hence were not reliable. The High Court felt that a wholesale condemnation of the documents produced by the plaintiff as forged or got up, could not be made at this interlocutory stage and this question seriously raised on behalf of the defendants has to be decided only at the trial. In other words, the High Court took the view that at this stage there was no reason for it to discard the various documents relied on by the plaintiff to establish prior user, first by its predecessors and then by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that once the story of the plaintiff that he came to know of the user of the mark by the defendants only the previous day to the filing of the suit was discarded, obviously, it was a case where the plaintiff had not come to court promptly to object to the user of the mark by the defendants and this delay and latches, disentitle the plaintiff to an injunction. Counsel submitted that the High Court has not properly appreciated the effect of its own finding on the question of delay and the finding on the arising of the cause of action as set up by the plaintiff, on the bona fides of the claim for injunction itself. Counsel submitted that the defendants had been using the mark "Manikchand" for quite some time; that it has attained popularity; that the mark was being widely used and advertised and there was no reason to interfere, with an interim injunction, preventing such use by the defendants. Counsel in this context also submitted that the present suit was really a counter-blast to the action initiated by the defendants in the High Court of Bombay seeking to restrain the plaintiff from using the mark "Malikchand", being deceptively similar to the mark "Manikchand" being used b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff came forward with the suit seeking an injunction against the user of the mark "Manikchand" by the defendants. To some extent it may be possible to conceive that the present suit by the plaintiff was a counter-blast to the suit filed by the defendants in the High Court of Bombay; but at the same time, the point made by the High Court that the plaintiff probably was apprehensive of its mark being annihilated, had approached the trial court for relief based on its prior user of the mark. It was in this context that the High Court took the view that the application for interim injunction could not be rejected on the ground of delay and latches. We also feel, that we cannot completely brush aside the argument of counsel for the plaintiff, that the case of delay and latches has not been properly projected on behalf of the defendants in their pleadings either in the trial court or in the appellate court, though no doubt that aspect has been projected seriously before us by learned counsel for the defendants and to some extent is covered by the pleadings in the written statement. 12. It is one thing to say that this Court, if it were exercising its original jurisdiction, might ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy of the order of the High Court and interests of justice would be met by the said direction being complied with by the trial court. In fact, counsel pointed out that the suit should have been tried and disposed of by the trial court by this time and the said court had made some progress, and in such a situation, it was not just and proper to accede to the submission of the defendants that they be permitted to keep separate accounts of the sales of their products under the name of "Manikchand" and on that basis, vacate the interim order of injunction. Now that the trial court had granted the interim injunction which had been affirmed by the High Court and the same had been in force for at least seven months or more, we do not think that it will be appropriate to modify the order by permitting the defendants to keep separate accounts of their sale of these products especially since the products are being marketed under a different name, subsequent to the order of injunction passed by the trial court. 13. In the broader context of this case, we cannot also ignore what has been noticed by the High Court in its order. The High Court has noticed that a number of cases under the Prev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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