w w w . L a w y e r S e r v i c e s . i n



Kamruddin I. Mehsaniya v/s Sarah International


Company & Directors' Information:- K N INTERNATIONAL LIMITED [Active] CIN = U45201UP2002PLC026841

Company & Directors' Information:- D B H INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1950PTC057209

Company & Directors' Information:- V AND S INTERNATIONAL PVT LTD [Active] CIN = U74899DL1992PTC049964

Company & Directors' Information:- S S A INTERNATIONAL LTD [Active] CIN = U15122DL1995PLC068186

Company & Directors' Information:- A T N INTERNATIONAL LIMITED [Active] CIN = L65993WB1983PLC080793

Company & Directors' Information:- D D INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909PB1995PTC016929

Company & Directors' Information:- T K INTERNATIONAL LIMITED [Active] CIN = U55101OR1982PLC001092

Company & Directors' Information:- N R INTERNATIONAL LIMITED [Active] CIN = L74999WB1991PLC051738

Company & Directors' Information:- K J INTERNATIONAL LIMITED [Active] CIN = L15142PB1993PLC011274

Company & Directors' Information:- A K S INTERNATIONAL LIMITED [Active] CIN = U74899DL1996PLC076327

Company & Directors' Information:- S P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U70100WB1994PTC063228

Company & Directors' Information:- B. K. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999DL2006PTC157013

Company & Directors' Information:- R S C INTERNATIONAL LIMITED [Active] CIN = L17124RJ1993PLC007136

Company & Directors' Information:- J C INTERNATIONAL LIMITED [Active] CIN = U51109WB1999PLC089037

Company & Directors' Information:- M T L INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U24219UP2001PTC025965

Company & Directors' Information:- T C N S INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U51311DL1996PTC080096

Company & Directors' Information:- K V S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18101DL2003PTC120770

Company & Directors' Information:- G N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL2001PTC110766

Company & Directors' Information:- S H A M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U45200MH1994PTC079867

Company & Directors' Information:- M K INTERNATIONAL LIMITED [Active] CIN = U51909DL1996PLC083430

Company & Directors' Information:- V. G. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101DL2007PTC162540

Company & Directors' Information:- D R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U24132DL1996PTC079867

Company & Directors' Information:- R H INTERNATIONAL LIMITED [Active] CIN = U72900DL2007PLC159452

Company & Directors' Information:- G & G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17120DL2012PTC234047

Company & Directors' Information:- A & D INTERNATIONAL PRIVATE LIMITED [Active] CIN = U36109RJ2007PTC024176

Company & Directors' Information:- H G E INTERNATIONAL PRIVATE LIMITED [Active] CIN = U19115UP2011PTC045112

Company & Directors' Information:- K A I INTERNATIONAL PRIVATE LIMITED [Active] CIN = U13100OR2007PTC009647

Company & Directors' Information:- C G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U99999MH1996PTC097577

Company & Directors' Information:- K C INTERNATIONAL LIMITED [Active] CIN = U74899DL1994PLC060402

Company & Directors' Information:- M P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29130MH1997PTC107943

Company & Directors' Information:- A S INTERNATIONAL LIMITED [Strike Off] CIN = U74899DL1993PLC056158

Company & Directors' Information:- H C S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U15312PB2012PTC036219

Company & Directors' Information:- L N G INTERNATIONAL LIMITED [Active] CIN = U51909DL1993PLC053438

Company & Directors' Information:- S. D. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900UP2008PTC036047

Company & Directors' Information:- S AND I INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL1995PTC072210

Company & Directors' Information:- L T INTERNATIONAL LIMITED [Active] CIN = U74899DL1999PLC097892

Company & Directors' Information:- A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51102GJ2008PTC053840

Company & Directors' Information:- S J M INTERNATIONAL LIMITED [Active] CIN = U52110DL1987PLC028571

Company & Directors' Information:- S B S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18101DL1997PTC085878

Company & Directors' Information:- R. A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51225DL2008PTC177405

Company & Directors' Information:- B G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U50300PB2014PTC038889

Company & Directors' Information:- S F INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999PB2000PTC023654

Company & Directors' Information:- R T S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U63022DL1997PTC089328

Company & Directors' Information:- I K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1995PTC066267

Company & Directors' Information:- C K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1991PTC045625

Company & Directors' Information:- L A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909PB2010PTC033683

Company & Directors' Information:- H R V INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U74899UP1993PTC057665

Company & Directors' Information:- K P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U24110GJ2007PTC050026

Company & Directors' Information:- V S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U85100MH1997PTC109647

Company & Directors' Information:- N N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01111DL1999PTC099094

Company & Directors' Information:- S R V INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74140DL2012PTC243060

Company & Directors' Information:- V. S. Y. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999UP2008PTC035521

Company & Directors' Information:- U M I INTERNATIONAL LTD [Strike Off] CIN = U51909WB1990PLC049671

Company & Directors' Information:- A. R. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51900MH2010PTC228539

Company & Directors' Information:- B R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1993PTC055562

Company & Directors' Information:- M J INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U74899DL1982PTC013231

Company & Directors' Information:- D N INTERNATIONAL LIMITED [Active] CIN = U36911TN1996PLC034205

Company & Directors' Information:- M. H. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U70102DL2007PTC164267

Company & Directors' Information:- H AND Z INTERNATIONAL LIMITED [Active] CIN = U10102AS1995PLC004509

Company & Directors' Information:- M G M INTERNATIONAL PVT LTD [Active] CIN = U74899DL1982PTC013580

Company & Directors' Information:- J J INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51109DL1992PTC047657

Company & Directors' Information:- H D INTERNATIONAL LIMITED [Active] CIN = U74899DL1994PLC060720

Company & Directors' Information:- K. A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101UP2012PTC049338

Company & Directors' Information:- J & G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18109DL2012PTC238392

Company & Directors' Information:- K R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17291DL2008PTC172188

Company & Directors' Information:- D. J. INTERNATIONAL LIMITED [Strike Off] CIN = U65910MH1999PLC119298

Company & Directors' Information:- S P INTERNATIONAL PVT LTD [Strike Off] CIN = U99999UP1965PTC003091

Company & Directors' Information:- J M INTERNATIONAL PVT LTD [Active] CIN = U45201WB1991PTC050829

Company & Directors' Information:- D P C INTERNATIONAL PVT LTD [Active] CIN = U74210WB1984PTC037378

Company & Directors' Information:- B M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1992PTC048736

Company & Directors' Information:- S G INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51109WB1998PTC086547

Company & Directors' Information:- B N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U15412WB1999PTC089316

Company & Directors' Information:- V A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01111DL2000PTC104712

Company & Directors' Information:- S. J. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U27310DL2007PTC169438

Company & Directors' Information:- N H B INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U67190MH1997PTC107387

Company & Directors' Information:- P D K INTERNATIONAL PVT LTD [Active] CIN = U74140WB1992PTC056468

Company & Directors' Information:- G. S. C. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29120MH1994PTC080380

Company & Directors' Information:- A J INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U74899DL1994PTC060818

Company & Directors' Information:- J S M INTERNATIONAL LIMITED [Active] CIN = U85110KA1996PLC020046

Company & Directors' Information:- M K N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL2002PTC117207

Company & Directors' Information:- N M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74120MH2012PTC234492

Company & Directors' Information:- S S M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL1997PTC089876

Company & Directors' Information:- A P J INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51909HR2010PTC040304

Company & Directors' Information:- T. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72900DL1997PTC091049

Company & Directors' Information:- V R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101UP2011PTC043952

Company & Directors' Information:- A & F INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U00265KA1995PTC018998

Company & Directors' Information:- M E C INTERNATIONAL PRIVATE LIMITED [Active] CIN = U33111GJ1963PTC082423

Company & Directors' Information:- J K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01100MH2004PTC144492

Company & Directors' Information:- D. S. R. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999UP2010PTC039954

Company & Directors' Information:- B L S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900UR2010PTC033210

Company & Directors' Information:- R B INTERNATIONAL LTD [Strike Off] CIN = U18101WB1993PLC059515

Company & Directors' Information:- P Y INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U51102RJ1995PTC010133

Company & Directors' Information:- R C INTERNATIONAL LIMITED [Strike Off] CIN = U51909TG1991PLC012477

Company & Directors' Information:- N J INDIA INTERNATIONAL LIMITED [Strike Off] CIN = U70101UP2004PLC028722

Company & Directors' Information:- I AND A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72200TG1995PTC019936

Company & Directors' Information:- P V INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1998PTC094598

Company & Directors' Information:- I B INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U72200DL2000PTC105735

Company & Directors' Information:- A M INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC066228

Company & Directors' Information:- K K M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17110MH1995PTC089836

Company & Directors' Information:- Z. H. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U21098MH2010PTC210735

Company & Directors' Information:- J R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909TN2002PTC048744

Company & Directors' Information:- H P AND B G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U50500DL1999PTC100851

Company & Directors' Information:- L S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74999DL2009PTC193390

Company & Directors' Information:- M B INTERNATIONAL PVT LTD [Strike Off] CIN = U52190DL2001PTC110572

Company & Directors' Information:- O K R INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900DL1996PTC077152

Company & Directors' Information:- B B C INTERNATIONAL PVT LTD [Strike Off] CIN = U25209WB1984PTC037383

Company & Directors' Information:- K S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51909MH2001PTC134345

Company & Directors' Information:- A TO Z INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51101TN1992PTC022507

Company & Directors' Information:- C & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900MH1982PTC026718

Company & Directors' Information:- J S INTERNATIONAL PVT LTD [Strike Off] CIN = U51900MH1982PTC027604

Company & Directors' Information:- A C INDIA INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1989PTC034784

Company & Directors' Information:- S. S. N. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29306DL1981PTC012616

Company & Directors' Information:- INDIA INTERNATIONAL COMPANY PRIVATE LIMITED [Active] CIN = U51228MH1955PTC009483

Company & Directors' Information:- A H INTERNATIONAL PRIVATE LIMITED [Active] CIN = U55101RJ2021PTC073171

Company & Directors' Information:- R K INTERNATIONAL PVT LTD [Strike Off] CIN = U63040PB1982PTC004926

Company & Directors' Information:- L & P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U52100DL2016PTC292025

Company & Directors' Information:- J D K INTERNATIONAL PVT LTD [Active] CIN = U74899DL1982PTC014087

Company & Directors' Information:- R B N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U52300DL2012PTC243998

Company & Directors' Information:- P AND P INTERNATIONAL PRIVATE LIMITED. [Strike Off] CIN = U24100OR1993PTC003244

Company & Directors' Information:- B P INTERNATIONAL PVT LTD [Strike Off] CIN = U31909HP1984PTC005785

Company & Directors' Information:- E C INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1982PTC013146

Company & Directors' Information:- R A R E INTERNATIONAL PRIVATE LIMITED [Active] CIN = U31900DL2005PTC134395

Company & Directors' Information:- D I D INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U28112MH2014PTC258750

Company & Directors' Information:- S R A INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1980PTC010389

Company & Directors' Information:- R Z INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900KA2012PTC064445

Company & Directors' Information:- M M INTERNATIONAL PVT LTD [Converted to LLP] CIN = U51312DL1977PTC008583

Company & Directors' Information:- A K INDIA INTERNATIONAL PRIVATE LTD [Strike Off] CIN = U45201DL1981PTC012389

Company & Directors' Information:- O P INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U55101PB2013PTC037499

Company & Directors' Information:- J & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900PB2013PTC037302

Company & Directors' Information:- A P M INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900TN2014PTC095953

Company & Directors' Information:- Y. A. INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900RJ2012PTC040431

Company & Directors' Information:- D & A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262713

Company & Directors' Information:- R L INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18204UP2016PTC076344

Company & Directors' Information:- V P S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U93030UP2014PTC066242

Company & Directors' Information:- J V INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51102DL2012PTC240197

Company & Directors' Information:- R I K INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U52590DL2015PTC283801

Company & Directors' Information:- Y & H INTERNATIONAL PRIVATE LIMITED [Active] CIN = U63000DL2014PTC266649

Company & Directors' Information:- S R L INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U20296AP2013PTC085533

Company & Directors' Information:- M D INTERNATIONAL LIMITED [Active] CIN = U74140MH1981PTC025007

Company & Directors' Information:- INTERNATIONAL CO PRIVATE LIMITED [Strike Off] CIN = U51109UR1935PTC000663

Company & Directors' Information:- A B C INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1990PTC041062

Company & Directors' Information:- D C M INTERNATIONAL LTD. [Strike Off] CIN = U99999DL2000PTC004208

Company & Directors' Information:- B C I INTERNATIONAL LIMITED [Strike Off] CIN = U74900DL1977PLC008468

    Interim Application (L) No. 1 of 2021 (LD/VC/IA/2/2020), 6433 of 2020 (LD/VC/IA/1/2020) in Commercial IP Suit (L) No. 6425 of 2020 (LD/VC/GSP/43/2020) & Leave Petition (L) No. 97 of 2020

    Decided On, 05 January 2021

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE K.R. SHRIRAM

    For the Appellant: Dr. Veerendra Tulzapurkar, Senior advocate a/w. Rashmin Khandekar, Vinod Bhagat, Parveen Anand i/b. G.S. Hegde, V.A. Bhagat, Advocates. For the Respondent: Dinesh Purandare a/w. Amit Jamsandekar, Vighnesh Kamat, Hemang Engineer, Archita i/b. Gordhandas, Fozdar, Advocates.



Judgment Text

1. By an ex-parte order dated 24th July 2020, this Court was pleased to grant ad-interim relief in terms of prayer clauses - (a) and (c) which read as under:

(a) pending the hearing and final disposal of the suit, the defendant by themselves, their proprietor/partners, servants, agents, stockists, distributors, dealers, assignees and all those connected with the defendant in their business be restrained by an order and injunction of this Hon'ble Court from marketing, distributing, packaging, importing, selling and/or using in any manner whatsoever in relation to their wet dates, dates or any other like goods, the impugned mark SARAH KIMIA/KIMIA or any mark identical with and/or deceptively similar to the plaintiff's trade mark KIMIA, so as to infringe upon the plaintiff's said trade mark registered under No. 2235461 in class 29;

(b) pending the hearing and final disposal of this suit, the Court Receiver, High Court, Bombay, or such other fit and proper person/ s as this Hon'ble Court thinks fit, be appointed Receiver/s with all powers under Order XL Rule 1 and Order XXXIX Rule 7 of the Code of Civil Procedure, 1908, to attend and search the premises, shops, retail outlets, offices, factories, manufacturing units, godowns, warehouses, cold storages of the defendant, other premises wherever the goods, viz., wet dates, dates bearing the impugned mark and trade dress of SARAH KIMIA/KIMIA and all the other like goods including the labels, tins, pouches, wrappers, stickers, packaging and advertisement materials bearing the impugned mark or any other mark/s deceptively similar to the plaintiff's trade mark KIMIA as may be found, stocked, sealed or are lying and to break open such locks with police assistance (if needed), make an inventory, seize and take custody/possession thereof by sealing the said products at the defendant's premises under lock and key and also of all related items such invoices, printing materials, screens, cylinders, blocks, moulds, dyes, stencils, machinery and master plates used to print counterfeit packaging materials, lying at the premises, offices or factories, manufacturing units, godowns, warehouses, cold storages of the defendant or their agents or at any other place/s and the defendant by themselves, their proprietor/partners, legal heirs, servants, employees, representatives, agents, assignees, stockists, be ordered and directed to deliver all of the aforesaid to the Court Receiver or to such other fit and proper person as this Hon'ble Court thinks fit and the Court Receiver must carry out such search and seizure with local police assistance if necessary.

2. Court Receiver was appointed and he was directed to seize and seal all offending products and related items found in the premises of defendant or at any other place.

3. Against this order, defendant took out an application under Order 39 Rule 4 of the Code of Civil Procedure 1908 seeking the said order dated 24th July 2020 to be vacated. Defendant also filed reply to the Interim Application of plaintiff. Defendant came with essentially two grounds, (a) that there has been misrepresentation by plaintiff at the time of making application for ad-interim relief without notice, which misrepresentation was apparent from certain portions of the order and pleadings also; and (b) that KIMIA is a descriptive word and therefore, plaintiff's registration is bad in law and, therefore, plaintiff is not entitled to any ad-interim relief. At the stage of rejoinder, counsel for defendant also relied upon Section 35 of the Trade Marks Act 1999 (the Act) and submitted that defendant has been using KIMIA as a bonafide description of variety of dates and under Section 35 plaintiff is not entitled to interfere with defendant's use of KIMIA as a bonafide description of the character or quality of his goods and services. The counsel for defendant submitted that statutory defences under Section 35 are always available and are not wiped out.

4. At the time of hearing of both the interim applications, I felt, by this order, both interim applications can also be disposed. However, plaintiff's application for passing off in its interim application is still pending because the petition for leave under clause 14 of Letters Patent is yet to be heard and is opposed by defendant and defendant in its interim application has also prayed for dismissal of the suit or in the alternative, reject the plaint under Order 7 Rule 11 (d) and/or (a) which were not argued at this point of time. Therefore, both the interim applications will have to be kept alive and I am only considering the issue as to whether the order dated 24th July 2020 should be allowed to stand as it is?

5. As regards the first ground that false statements have been made by plaintiff while obtaining the ad-interim order and hence, the said order dated 24th July 2020 should be vacated, Shri Purandare submitted that plaintiff's counsel had misled the Court by stating that plaintiff's interim application is an action in trade mark and copyright infringement combined, even though plaintiff's interim application is only in respect of purported trade mark infringement. For this, Shri Purandare relied upon paragraphs 2, 3 and 5 of the order dated 24th July 2020. Shri Purandare submitted that plaintiff have sought to argue beyond its pleadings in respect of its copyright held in the label artworks too in order to substantiate and bolster its untenable claims under trademark law. Shri Purandare also submitted that there has been false averments made in the plaint with which I shall deal with while dealing with the second ground of defendant's case.

6. As regards defendant's stand that plaintiff had argued, while obtaining an ex-parte order beyond its stated case, it is quite obvious that an error has crept in the order passed by this Court. In the affidavit in sur-rejoinder filed by plaintiff in defendant's interim application, in paragraph 5 plaintiff has explained that there were two matters listed on the board of the same plaintiff against two different defendants, one of which was a case of trade mark coupled with copyright violation and the second was simplicitor trade mark violation. It is also stated in the affidavit insur-rejoinder that the Court dictated the first order and whilst dictating the second order suggested to the Steno to copy certain portions from the first order and perhaps in that there was a mix up and the error went unnoticed but as soon as plaintiff noticed the error, plaintiff filed the praecipe dated 27th July 2020 for speaking to the minutes. It is also stated that as the assignment of the learned Judge by then changed, and we must remember it was through virtual hearing and there was no physical hearing, the Associate informed that the correction would be done at their end after showing the praecipe to the learned Judge and certain changes mentioned in the praecipe were under taken but certain portions remained to be changed by the Court. Therefore, it is plaintiff's case that there was no attempt to mislead or play a fraud on the Court. I accept this explanation of plaintiff and therefore, would put closure to that issue.

7. Now coming to the second ground raised by defendant for the ex-parte order to be vacated, Shri Purandare submitted that (a) KIMIA is a specific variety of dates and is descriptive of a particular kind of dates and this fact is suppressed by plaintiff; (b) KIMIA is used by the trade, consumers, industry, scientific community, farmers, Government authorities etc. to describe the nature, quality and kind of date much before plaintiff allegedly adopted KIMIA in 2011; (c) several other traders have been using the word KIMIA before 2011 and have contested plaintiff's use of KIMIA and plaintiff has concealed material documents and suppressed pending rectification and opposition proceedings; (d) defendant has been selling Kimia variety of dates since 2000 and plaintiff has suppressed the fact that plaintiff had knowledge of defendant's goods, reputation and trademark as they operate from the same market and in very close proximity, so as to create a false sense of urgency, with the intention of deceiving this Court; (e) in any event and without prejudice, defendant is using and has been selling Kimia dates under its mark "SARAH KIMIA" from the year 2000; (f) there is extensive use of Kimia to describe the variety of dates along with their respective house name; and (g) false and misleading statements intentionally and willfully made by plaintiff in the plaint and in the affidavits filed in the proceedings.

Shri Purandare took the Court through various documents annexed to the affidavits of defendant, plaintiff and through the plaint to justify the grounds noted above. We shall deal with that later.

8. Dr. Tulzapurkar, at the outset, submitted that defendant's application is under Order 39 Rule 4 of CPC, which has a very limited scope. Dr. Tulzapurkar submitted that the case sought to be pleaded with respect to KIMIA being a descriptive word and therefore, plaintiff's registration is bad in law etc. is outside the ambit of an enquiry under Order 39 Rule 4 of CPC. Dr. Tulzapurkar submitted that under Order 39 Rule 4 the only enquiry which the Court can undertake is whether plaintiff has secured the order dated 24th July 2020 on the basis of a suppression of a material fact, which is not the case for defendant's argument that KIMIA is a description and hence, registration is bad in law. Therefore, the Court has to simply reject defendant's application. Dr. Tulzapurkar also submitted that there has been no misrepresentation which can be said to be misleading, let alone suppression of a material fact, because even if the Court may gather such an impression reading the order dated 24th July 2020, plaintiff has immediately applied for clarification or atleast clarified its stand to the Court in the praecipe for speaking to the minutes.

9. Dr. Tulzapurkar also submitted that it is trite that the registration of a trade mark presumes distinctiveness of the mark registered. Relying upon Lupin Limited V/s. Eric Lifesciences Pvt. Ltd. & Ors., 2016 (67) PTC 144 (Bom) and Sun Pharma Laboratories Limited V/s. The Madras Pharmaceuticals & Anr., 2016 SCC OnLine Bom 9481, Dr. Tulzapurkar submitted that plaintiff is not required to give any reasons for coining the word KIMIA. When the mark is registered and the entry is made in the Register, plaintiff discharges the burden that the mark is a distinctive mark and satisfies the criteria of trade mark within the definition of the trade mark and the requirements of Sections 9 and 11 of the Act. Dr. Tulzapurkar also relied upon Section 31 of the Act and submitted that registration shall be prima facie evidence of the validity of the trade mark. Dr. Tulzapurkar submitted that despite the settled position in law, in effect, defendant is disputing plaintiff's title to the registered trade mark KIMIA and it is impermissible. Dr. Tulzapurkar relied upon judgment of the Full Bench of this Court in Lupin Limited V/s. Johnson & Johnson, 2015 STPL 2876 Bom where the issue was whether plaintiff's registration can be disputed at the ad-interim stage. Dr. Tulzapurkar submitted that the Full Bench, after considering the entire position in law, held that such a contention can be raised only in limited cases and there is not going to be a mini inquiry or mini trial. It was also held that a very heavy burden is cast on defendant to rebut the strong presumption of registration in favour of plaintiff at the interlocutory stage. Dr. Tulzapurkar submitted that the Civil Court cannot give any final finding on this question as the jurisdiction to give such a final finding is conferred on the appellate board in the rectification proceedings. Of course, the Full Bench also observed that it is not possible to accept the contention that at the interlocutory stage the jurisdiction of the Civil Court is completely barred. Dr. Tulzapurkar submitted that it is not sufficient for defendant resisting the application for interim injunction to show that defendant has an arguable case for showing invalidity of the trade mark registered in the name of plaintiff and the Civil Court hearing the application to restrain defendant from using the trade mark registered in plaintiff's name is only permitted to consider whether the registration is totally illegal or fraudulent or shocks the conscience of the Court. Dr. Tulzapurkar further submitted that the only window open to defendant is to show to the Court, without embarking on a detailed enquiry, that the registration granted in favour of plaintiff is (a) totally illegal or (b) fraudulent or (c) such which shocks the conscience of the Court. That being the case, the window in the present case is not available to defendant at all. Dr. Tulzapurkar further submitted that therefore, the reliance by defendant on material annexed to the application or to the affidavit in rejoinder is nothing but in the nature of evidence which cannot be looked into or considered.

10. It is also plaintiff's case that defendant's conduct estops it from contending that "Kimia" is descriptive or common to the trade. This is because defendant itself has applied for registration of the mark SARAH KIMIA and on the face of it, it shows that it is in respect of a composite trade mark SARAH KIMIA and not in the word SARAH alone. Dr. Tulzapurkar submitted that KIMIA is the essential and prominent feature of the mark applied for registration by defendant because SARAH is written in a smaller font whereas KIMIA dominates the said label. Therefore, when defendant seeks to assert proprietorship on the mark KIMIA as well, it does not lie in the mouth of defendant to contend that KIMIA is descriptive or common to the trade. Dr. Tulzapurkar submitted that similar contention was raised in the case of Ultra Tech Cement Ltd. V/s. Alaknanda Cement Pvt. Ltd., 2011 STPL 21907 Bom where defendant submitted that the word 'Ultra' was common to the trade and the Court negatived the said contention because there also defendant had applied for registration of the mark UltraTuff and that it was, therefore, estopped from raising the contention that the registered mark is descriptive. Dr. Tulzapurkar also relied upon a judgment of the Division Bench of this Court in Jubilant Agri & Consumer Products Ltd. V/s. Pidilite Industries Ltd.[5].

[5]. Unreported judgment in Notice of Motion (L) No. 313 of 2014 in Appeal (L) No. 69 of 2014 in Notice of Motion (L) No. 1717 of 2014 in Suit No. 112 of 2014 dated 24.2.2014

11. Dr. Tulzapurkar further added that defendant's application for the mark SARAH KIMIA is not in respect of Kimia dates alone but for all types of dates and therefore, defendant while making the said application, intended to use SARAH KIMIA as a trade mark in relation to every variety of dates, which defendant may choose to trade in its business. If defendant's case was that KIMIA is descriptive or common to the trade and that defendant wanted to use SARAH KIMIA only in respect of Kimia dates, the description of goods mentioned in the application for registration would have specifically said so.

It was also argued that defendant is not using the word KIMIA to bonafidely describe its goods but is allegedly trying to differentiate its goods from other goods by using the word SARAH KIMIA.

12. As regards defendant's reliance on material available in the public domain, Dr. Tulzapurkar submitted that without evidence of substantial user, it disentitles defendant from contending that Kimia is descriptive or common to the trade. Dr. Tulzapurkar submitted that no evidence is led to show substantial user which is the requirement as held by the Apex Court in Corn Products Refining Co. V/s. Shangrila Food Products Ltd., AIR 1960 SC page 142. Relying on the said judgment, Dr. Tulzapurkar submitted that substantial user is sine qua non to take up a defence of common to the trade and it is also required to be shown that the said marks have themselves acquired substantial reputation of their own. If defendant wishes to rely on the fact that many traders are using the impugned mark, defendant is required to establish extensive user of such mark and in this case, no such user has been established. Plaintiff, it was stated, has also filed suits against many other, which are pending in this Court.

13. Dr. Tulzapurkar also submitted that the material relied upon by defendant to show use of "Kimia" by different traders to describe is grossly misleading. According to plaintiff, KIMIA branded dates of only three parties are being sold online through various sellers, one of whom is plaintiff. The other two are one Zargarzadeh Commercial Company, an Iranian dealer/distributor against whom plaintiff has instituted a civil suit and the third is one "Markstor" against whom plaintiff is in the process of taking necessary action. It was also stated that Markstor is selling KIMIA branded dates as well as mazafati dates. It was also submitted that the documents relied upon by defendant downloaded from the internet does not constitute evidence for actual goodwill and reputation and veracity of documents also has to be proved.

14. In rejoinder, defendant relied upon Section 35 of the Act and submitted that defendant has been using Kimia as a bonafide description of variety of dates and under Section 35, plaintiff is not entitled to interfere with defendant's use of Kimia as a bonafide description of the character or quality of his goods or services. Defendant relied upon judgment of the Delhi High Court in Marico Ltd. V/s. Agro Tech Foods Ltd., (2010) 174 DLT 279 to submit that statutory defences under Section 35 are always available and are not wiped out.

15. Shri Purandare submitted that the question involved in this case is not whether plaintiff's mark is valid but whether the mark is used by defendant as description of defendant's products sold under the mark. Shri Purandare also submitted that in Section 17 of the Act it is provided that when a trademark contains any matter, which is common to the trade or is otherwise of a non-distinctive character, the registration thereof shall not confer any exclusive right in the matter forming only a part of the whole of the trade mark so registered. Defendant's trademark application was for the entire label SARAH KIMIA taken as a whole including its distinctive as well as non-distinctive components such as Kimia or dates or any other non-distinctive material. Shri Purandare submitted that defendant's use of Kimia as a non-distinctive component in its application cannot be said to be an assertion of any exclusive right in the same. Therefore, there cannot be any estoppel in law or otherwise. Shri Purandare added that Kimia was a variety of date and is used by defendant as a variety and defendant also sells other varieties with Sarah as prefix before the respective variety such as Sarah Kimia, Sarah Tunisia, Sarah Omani, Sarah Ajwa, Sarah Safawi etc. and relied upon copies of purchase orders which are annexed to the application.

16. In conclusion Shri Purandare submitted that the relief of injunction being a relief in equity, when the Court is convinced that the grant of interim injunction would lead to highly inequitable results, Court is not powerless to refuse such relief and relied upon the judgment of the Full Bench in Lupin Limited V/s. Johnson & Johnson (Supra). Shri Purandare added, relying on the same judgment, that there is no express or implied bar taking away the jurisdiction and power of the Civil Court to consider the challenge to the validity of the trade mark at the interlocutory stage by way of prima facie finding.

17. In response plaintiff submitted that Section 35 is not applicable to the facts and circumstances of the present case because what is permitted is use by a person of any bonafide description of the character or quality of his goods and services and defendant is not using SARAH KIMIA as a description but as a mark. That is clear from the application for registration made by defendant of the mark SARAH KIMIA. It was also submitted that in any event, defendant's use is not a bonafide use because defendant was aware of plaintiff's registration and use of the mark KIMIA prior to the use by defendant of the words SARAH KIMIA, particularly because defendant had, between 18th April 2018 to 28th March 2019, purchased more than 7700 kg of Kimia dates from plaintiff.

18. Having heard both counsel and having considered the materials placed before this Court and the judgments relied upon, one thing is certain, the Civil Court is not powerless to refuse to grant an injunction. There is no express or implied bar taking away the jurisdiction of the Civil Court to consider the challenge to the validity of the trade mark at the interlocutory stage by way of prima facie finding. The relief of injunction being a relief in equity, when the Court is convinced that the grant of interim injunction would lead to highly inequitable results, Court is not powerless to refuse such relief and if granted ex-parte, Court is not powerless to recall the order granting interim injunction.

19. At the outset, I would not term the stand taken by defendant that false and misleading statements have been made by plaintiff in the plaint and in the affidavits filed in the proceedings as wrong. I must clarify that these are prima facie findings but certainly the Court is entitled on its own prima facie findings to decide whether the order of injunction granted ex-parte has to be continued or recalled.

20. Plaintiff has stated in paragraph 4 of the plaint and in paragraph 3 of its Interim Application as under:

"In and around September 2011, the Plaintiff honestly and independently conceived and adopted the trade mark KIMIA for use in relation to wet dates. The Plaintiff submits that his trade mark KIMIA is coined and invented word, adopted by the Plaintiff from alphabets/letters comprising of his own name." (emphasis supplied)

In paragraph 5 of the plaint and in paragraph 4 of its Interim Application plaintiff has stated as under:

" The Plaintiff submits that its trade mark KIMIA is a coined and an invented word, being inherently distinctive of its goods." (emphasis supplied)

Prima facie these averments of plaintiff are not true. Defendant has relied upon various websites which are available in the public domain. These documents some of which are online guides on exports of dates or are research papers on study of special properties of dates provide that KIMIA is a particular variety of date with distinct characteristics. For example Exhibit G to defendant's interim application is a research article available online published by Department of Microbiology, Bhavan's College, Andheri, Mumbai and published in International Journal of Current Research in March 2016. The research article was based on a study aimed at evaluating ant microbial potential of methanol extract of Kimia dates and to identify potential nature sources for the synthesis of new drugs to address the growing antimicrobial resistance. Exhibit G, which is an open access article permitting unrestricted use, distribution and reproduction in any medium, starts with an introduction "Kimia Date Palm is of plant species of the family Palmacea". Exhibit H to defendant's interim application, which is also an open access research article published in Journal of Food Processing and Beverages, is a study of consumption pattern of dates among Muslim and Maharashtrian Community and for nutritional analysis of four palm date varieties. One of the variety known to Maharashtrian and Muslim participants includes Kimia dates and 16% of the Muslim population were aware of Kimia dates. Both these articles also list various sources referred to. Plaintiff in the affidavit in reply has not denied these documents or its contents but the explanation is that the research papers appended at Exhibits G and H and as relied upon by defendant have been published subsequent to the first use and registration of the trade mark KIMIA by plaintiff.

Similarly, document annexed as Exhibit E to defendant's interim application is a document uploaded by Department of Science and Technology, Government of India, which while describing dates varieties state that Kimia date is a fruit which is black coloured, creamy and luscious. It also says this date variety is popular in consumption as it melts in the mouth, has properties that improve health and even diabetic people can also relish. Exhibit F to defendant's interim application is an article posted in the Times of Agriculture and is all about agriculture across the globe. It deals with dates farming in India and one of the date farming varieties listed is Kimia dates said to be a black coloured fruit with a creamy consistency and luscious. Again these two documents have not been denied in the affidavit in reply by plaintiff and plaintiff only states these documents appended at Exhibits E and F have been published much subsequent to plaintiff's first use and registration and hence, are inconsequential. Defendant has also relied on various other documents.

21. Therefore, prima facie it does appear whatever could be the argument of plaintiff that KIMIA is a coined and an invented word, and of defendant that KIMIA is a variety of date, the documents at Exhibits E, F, G and H to defendant's interim application speak for itself and prima facie indicate that the word KIMIA is used by the trade, consumers, industry, etc. to describe the nature, quality and kind of date. It is immaterial whether these articles were published after plaintiff's first use and registration. That cannot take away the fact that KIMIA is a particular variety of date with distinct characteristics and plaintiff has been economical with truth in his pleadings and while obtaining an ex-parte order.

22. Defendant has also annexed an extract of e-register of plaintiff's application 2235461 that shows several traders have challenged plaintiff's application and rectifications have also been filed by these traders. Those parties also state in their application for rectification of the register in trade mark KIMIA that they have been using openly, continuously and extensively the mark KIMIA since 2006 or 2005 or 2007. Importantly plaintiff has not denied these documents but states that those rectification applications are without any merit and plaintiff is contesting those rectification proceedings.

23. What I am driving at is that plaintiffs averment in the plaint that in or around September 2011 plaintiff honestly and independently conceived and adopted the trade mark KIMIA for use in relation to wet dates and that KIMIA is a coined and invented word adopted by plaintiff from alphabets/letters comprising of his own name cannot be true. Infact plaintiff in its reply to defendant's interim application has averred that KIMIA has been granted registration atleast in one such overseas jurisdiction which also makes it difficult to accept plaintiffs claim that KIMIA is an invented word.

24. One more document which also has influenced my above thinking is Exhibit Y to defendant's interim application which is a search report of trade mark registry showing number of applicants using KIMIA. The said document shows 41 applicants have claimed use of KIMIA alongwith their respective house names. Apart from plaintiff, 14 of them are objected, 10 opposed, 4 refused, 3 withdrawn, 8 abandoned, 1 accepted, 2 advertised and 2 sent to Vienna Codification. Plaintiff does not deny this document but says he has opposed most of the applications which have come to be advertised and shall oppose the others as and when the same are published in the Trade Mark Journal.

25. In my view, these should have been disclosed in the pleadings in sufficient detail and brought to the notice of the Court while moving ex-parte.

26. I am not considering whether plaintiff could have got the word KIMIA registered as trade mark because the jurisdiction for that lies elsewhere. What we are considering is whether defendant using the word KIMIA alongwith SARAH is permissible and my answer is yes, it is permissible.

27. Dr. Tulzapurkar relied on Jagdish Gopal Kamath V/s. Lime & Chilli Hospitality Services, (2015) 3 Bom CR 496, UltraTech Cement Ltd. (Supra) and Pidilite Industries Ltd V/s. Jubiliant Agri and Consumer Products Ltd., 2014 (57) PTC 617 (Bom) to submit that defendant cannot claim to be a bonafide user and rely on Section 35 because defendant has also applied for registration of the mark "SARAH KIMIA".

But these three judgments do not deal with the defence under Section 35 and the marks therein ['Caf Madras' in respect of a restaurant in Jagdish Gopal Kamath (Supra), Ultratech" and "Ultratuff" in respect of cement in UltraTech Cement Ltd. (Supra) and 'Marine' in respect of adhesives in Pidilite Industries Ltd. (Supra)] cannot be said to be any bonafide description of the character or quality of goods or services in question. In fact, the Division Bench in Jubiliant Agri and Consumer Products Ltd. (Supra) gave an express finding that "MARINE", the impugned mark therein, did not pertain to adhesives while rejecting the defense of the mark being common to the trade. None of these cases, in my opinion, are relevant in the present case as Kimia is the name of the variety of date being sold and therefore, description of goods.

In fact, the full bench Judgment in Lupin Ltd. (Supra) draws a distinction between a defense of invalidity of registration of trademark, vis-vis, the defense that defendant's use does not amount to infringement.

28. Plaintiff sought to contend that defendant herein is using the word Kimia as a trademark and are estopped from contending that it is a description. In this regard, defendant's trademark application was shown. It was argued by plaintiff that since the label includes the word Kimia, rights have been claimed in the word Kimia. But if one sees plaintiffs application, plaintiff has filed application for "KIMIA DATES". I ask myself would that entitle plaintiff to argue that no one can use the word "DATES" on any packet containing dates. The answer would be no because it is non distinct.

29. As regards Dr. Tulzapurkar's submissions that defendant's trade mark application is in respect of all kinds of dates and therefore, KIMIA cannot be said to be a description, defendant in paragraph 28 of its rejoinder has explained that KIMIA forms part of the label used by defendant and Kimia dates are available in different grades. Therefore, in defendant's application for registration of SARAH KIMIA dates of all kinds is mentioned in the description of goods to cover all grades of Kimia dates. Plaintiff has not denied that Kimia dates are available in different grades. Plaintiff only states that defendant has come up with a new story of different grades therein and the same is another afterthought to back up its false claim. The fact that there are different grades of Kimia dates is also confirmed by Exhibit H annexed to plaintiffs affidavit in reply which is an invoice raised by plaintiffs alleged licensee on defendant for supply of 100 boxes of wet dates "Kimia grade 2".

30. Therefore, I am prima facie satisfied that KIMIA was a variety of date and is used by defendant as a variety. Section 17 of the Trade Marks Act provides that when a trademark contains any matter which is common to the trade or is otherwise of a non-distinctive character, the registration thereof shall not confer any exclusive right in the matter forming only a part of the whole of the trade mark so registered. Defendant's trademark application, in my view, cannot be said to be an assertion of any exclusive right in the word KIMIA and hence, there cannot be any estoppel in law or otherwise.

31. One more point which shows plaintiff has been economical with truth and obtained an ex-parte order pertains to plaintiffs knowledge about defendant. In paragraph 5 (d) and 19 of defendant's interim application, defendant has averred that plaintiff and defendant operate from the same market and in very close proximity. In the affidavit in reply, plaintiff has not denied that defendant operates from the same market and in very close proximity. In paragraph 21 of defendant's interim application, defendant has specifically contended that Seema Trading Company was plaintiffs brother's business concern and a purported licensee and operated in the same market where there are only 15 to 20 traders and therefore, it is implausible that plaintiff did not come across defendant's product for two decades. In the affidavit in reply, plaintiff has not denied the fact that Seema Trading was plaintiffs brother's concern or was plaintiffs licensee or that it operated in the same market as defendant where there are only 15 to 20 traders. Plaintiff has simply stated that his licensee was not aware of the use of the impugned trade mark undertaken by defendant. Therefore, it is impossible to believe plaintiffs story that plaintiff had no knowledge of defendant's goods or reputation of trade mark when they operated from the same market and in very close proximity. It is rather obvious that plaintiff has made statements in the plaint only to give an impression that defendant was some fly-by-night operator and that plaintiff was unaware of defendant's business to create a false sense of urgency. Even if one believes what plaintiff states that they did not know defendant was selling SARAH KIMIA dates until July 2020, one cannot certainly believe that plaintiff was not aware about defendant's existence particularly when plaintiff has also filed opposition to defendant's registration of the word SARAH KIMIA and plaintiff ought to have given notice before making an ex-parte application. I am certain if plaintiff had disclosed these facts that plaintiff and defendant are operating from the same market and there are only 15 to 20 traders in the market and plaintiffs brother and licensee operate in very close proximity to defendant's office, certainly the Court would not have permitted the application to be made ex-parte. If defendant had been given notice, defendant would have brought to the notice of the Court the materials mentioned above and the Court would have had an opportunity to apply its mind to whether Kimia is actually a variety of date or is a coined and invented word before passing any order. Infact plaintiff has even annexed a copy of the invoice issued by Seema Trading Company on 18th April 2018 to defendant whereby defendant has purchased 100 packages of Kimia dates. It is also plaintiffs case now that defendant, between 18th April 2018 and 28th March 2019, had purchased from plaintiff 7700 kg of Kimia dates. That is 7.7 tones, certainly a very large quantity. On this ground alone, the ad-interim order should be vacated.

32. The observations of the Hon'ble Supreme Court in S.P. Chengalvaraya Naidu V/s. Jagannath (Dead) by LRS. and Ors., (1994) 1 SCC 1 are apposite in this context. The court observed,

"The Courts of law are meant for imparting justice between the parties. One who comes to the Court must come with clean hands........... We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation".

The Apex Court also observed in paragraph 6 of the said judgment that:

"A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another".

33. The Apex Court and this Court have, on many occasions, stated that if a party comes to the Court with unclean hands, which in this case plaintiff has, the party should be dealt with firmly. The conduct of plaintiff of ob

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taining an ex-parte order in a case like this intends to impede and prejudice the administration of justice. Judiciary is the bedrock and handmaid of orderly life and civilized society. In M/s. Sciemed Overseas Inc. V/s. BOC India Ltd. & Ors., 2016 AII SCR 370, the Apex Court has lamented about the unhealthy trend in filing of affidavits which are not truthful. Para 2 of the said judgment reads as under: "2. A global search of cases pertaining to the filing of a false affidavit indicates that the number of such cases that are reported has shown an alarming increase in the last fifteen years as compared to the number of such cases prior to that. This is illustrative of the malaise that is slowly but surely creeping in. This 'trend' is certainly an unhealthy one that should be strongly discouraged, well before the filing of false affidavits gets to be treated as a routine and normal affair." 34. Kuldip Singh, J (as he then was) in S.P. Chengalvaraya Naidu (Supra) in paragraph 5 observed: "5 ...................................We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax-evaders, bank loan-dodgers and other unscrupulous persons from all walks of life find the Court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation." 35. In Oswal Fats and Oils Limited V/s. Additional Commissioner (Administration), Bareilly Division, Bareilly and Ors., (2010) 4 SCC 728 the Apex Court followed the same principal that if a person is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the Court not only has the right but a duty to deny relief to such person. 36. In Dalip Singh V/s. State of Uttar Pradesh & Ors., (2010) 2 SCC 114, the Court bemoaned that a new creed of litigants has cropped up who do not have any respect for truth and they shamelessly resort to falsehood and unethical means for achieving their goals. Such a litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief. 37. As noted earlier, the relief of injunction is a relief in equity. There is nothing in the Act to suggest that any different parameters for grant of injunction are required to be applied when a plaintiff seeks injunction on the basis of registered trade mark. Therefore, together with the conduct of plaintiff as noted above, what we have to consider is who would suffer a greater prejudice if the injunction is granted or continued in this case and on whose side the balance of convenience tilts. In my view, since I have also come to a conclusion prima facie that KIMIA is a description or variety of date, continuing the ex-parte order dated 24th July 2020 would cause greater prejudice to defendant than to plaintiff. I would add, not only to defendant but to all others who are trading or selling Kimia variety of dates. 38. Therefore, the ex-parte order of injunction passed on 24th July 2020 is hereby recalled. 39. Court Receiver shall forthwith hand over to defendant the goods/materials seized from defendant's premises or belonging to defendant. If those goods/materials are in the premises of defendant, then in that case Court Receiver shall take steps to remove his seal so that defendant can use the goods/materials. Court Receiver stands discharged without passing of accounts. 40. All to act on authenticated copy of this order. 41. Mr. Khandekar seeks stay of this order. I have recalled the ex-parte order on the ground (a) plaintiff has been economical with truth and (b) prima facie KIMIA is a description/variety of goods. For the same reasons, I am not inclined to grant the stay. Stay refused.
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