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TMI Blog2023 (5) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... ECHNOLOGY OU VERSUS UJOY TECHNOLOGY PRIVATE LIMITED AND ORS. [ 2022 (8) TMI 1495 - DELHI HIGH COURT] . Like in the present case, the plaintiff in Bolt Technology, had issued a cease and desist notice dated 6th November, 2020 to the petitioner/defendant to which no response was received. In respect of the notice of opposition filed by the plaintiff therein against the trademark application of the defendant, the defendant filed a counter-statement stating that the opposition was frivolous - the Court in the aforesaid case held that the requirement of Section 12 A of the Commercial Courts Act stands satisfied on both counts i.e., i. Firstly, the Plaintiff had attempted an amicable resolution which was clearly refuted, rejected and condemned by the Defendants; Secondly, the Plaintiff has also sought urgent interim relief before this Court and is entitled to maintain the present suit. The plaintiff has also filed along with the plaint an application for grant of ex parte interim injunction under Order XXXIX Rules 1 and 2 of the CPC against the defendant from using the impugned mark. In the said application also, it has been pleaded that the plaintiff shall suffer an irreparable loss and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... til Automation (P) Ltd. v. Rakheja Engineers (P) Ltd., 2022 SCC OnLine SC 1028. 5. The case set up by the respondent/plaintiff before the Commercial Courts was that in cases pertaining to intellectual property, the relief of interim injunction, including ex parte ad interim stage is extremely important as the cases relating to intellectual property are not only for the benefit of the plaintiff but also for the benefit of the public at large. In the present case, the respondent/plaintiff had made valid grounds for grant of an ad interim injunction order. 6. Agreeing with the submission of the respondent/plaintiff that grant of an ad interim injunction in intellectual property cases is extremely important and in view of the fact that the respondent s/plaintiff s suit contemplated urgent interim relief against the petitioner/defendant, the Commercial Court held that there was no requirement for the plaintiff to undergo pre-institution mediation before filing the present suit and hence, the application filed by the petitioner/defendant under Order VII Rule 11 of the CPC was dismissed. Relevant observations of the Commercial Court are set out below: 8. As per the experience seen in inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n can file a suit against the Government without sending the requisite notice in terms of Section 80(1) of the CPC after taking leave of the Court. Therefore, while considering grant of leave under Section 80(2), the Court would have to apply its judicial mind to determine if urgency is contemplated in the suit or not. Reliance in this regard has been placed on the judgment of the Supreme Court in State of A.P. v. Pioneer Builders, (2006) 12 SCC 119. 8. Per contra, counsel for the respondent/plaintiff has made the following submissions: i. Reliance placed by the petitioner on Patil Automation (supra) is misplaced as in the said case, the Supreme Court was not concerned with cases where urgent interim relief was contemplated. Even otherwise, the present suit was filed on 5th March, 2022, and the judgment in Patil Automation (supra) was applicable only to suits filed after 20th August, 2022. ii. In Chandra Kishore Chaurasia v. R A Perfumery Works Private Ltd., 2022 SCC OnLine Del 3529, a Division Bench of this Court has categorically held that the question whether a suit involves any urgent relief or not, is to be determined solely by the pleadings and the relief sought by the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the word contemplate is that there can be attempts to bypass the statutory mediation under Section 12-A by contending that the plaintiff is contemplating urgent interim relief, which in reality, it is found to be without any basis. Section 80(2)CPC permits the suit to be filed where urgent interim relief is sought by seeking the leave of the court. The proviso to Section 80(2) contemplates that the court shall, if, after hearing the parties, is satisfied that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to the court after compliance. Our attention is drawn to the fact that Section 12-A does not contemplate such a procedure. This is a matter which may engage attention of the lawmaker. Again, we reiterate that these are not issues which arise for our consideration. In the fact of the cases admittedly there is no urgent interim relief contemplated in the plaints in question. X X X 113. Having regard to all these circumstances, we would dispose of the matters in the following manner: 113.1. We declare that Section 12-A of the Act is mandatory and hold that any suit instituted violating the mandate of Section 12-A must be visited with r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commercial Courts Act are applicable or not, as is sought to be done in the present case. It was in this backdrop that the Court considered the expression, contemplate any urgent interim relief , as used in Section 12A(1) of the Commercial Courts Act and made the following observations: 33. This Court also finds it difficult to accept that a Commercial court is required to determine whether the urgent interim reliefs ought to have been claimed in a suit for determining whether the same is hit by the bar of Section 12A(1) of the Commercial Courts Act, 2015. The question whether a plaintiff desires any urgent relief is to be decided solely by the plaintiff while instituting a suit. The court may or may not accede to such a request for an urgent interim relief. But that it not relevant to determine whether the plaintiff was required to exhaust the remedy of pre-institution mediation. The question whether a suit involves any urgent interim relief is not contingent on whether the court accedes to the plaintiff's request for interim relief. 34. The use of the words contemplate any urgent interim relief as used in Section 12(1) of the Commercial Courts Act, 2015 are used to quali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes, FMCG, food products, financial services, technology, creative works such as books, films, music, etc. Recent trends also point towards large scale misuse on the internet. In some cases, due to misuse of known marks and brands, the consumers are being duped into parting with large sums of money. The rights of the parties are affected almost on a daily basis as there is continuous manufacturing, selling, and offering of services or goods to the customers. The ambit of urgent interim relief that may be required to be granted is extremely varied and depends on the facts of each case. Such reliefs are usually granted by courts not merely for protection of statutory and common law rights, but also in order to avoid confusion, deception, unfair and fraudulent practices, etc. in the marketplace. 16. In these circumstances, the Court in the aforesaid case held that the requirement of Section 12 A of the Commercial Courts Act stands satisfied on both counts i.e., : i. Firstly, the Plaintiff had attempted an amicable resolution which was clearly refuted, rejected and condemned by the Defendants; ii. Secondly, the Plaintiff has also sought urgent interim relief before this Court and is en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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