Category: CODE OF CIVIL PROCEDURE

interim order already in force should continue during the pendency of the suit. The balance of convenience has been found in favour of the plaintiff owing to the use by the plaintiff of the mark, of which infringement/passing off is averred, being much prior to that of the defendants, with the defendants having commenced use barely eight months prior to the grant of the ex-parte injunction. However, it is made clear that in the event of the plaintiff failing in the suit, the plaintiff shall be required to restitute to the defendant No.2 the loss, if any suffered by the defendant No.2 owing to the interim injunction.
CODE OF CIVIL PROCEDURE

interim order already in force should continue during the pendency of the suit. The balance of convenience has been found in favour of the plaintiff owing to the use by the plaintiff of the mark, of which infringement/passing off is averred, being much prior to that of the defendants, with the defendants having commenced use barely eight months prior to the grant of the ex-parte injunction. However, it is made clear that in the event of the plaintiff failing in the suit, the plaintiff shall be required to restitute to the defendant No.2 the loss, if any suffered by the defendant No.2 owing to the interim injunction.

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Apex Court in case of Indian Performing Rights Society Ltd. had observed that, accrual of cause of action was a sine qua non for suit to be filed and cause of action was a bundle of facts which required to be proved to enable Court to grant relief to Plaintiff. Cause of action, not only referred to infringement but also material facts on which rights were founded. It was requirement of law that, it had to be independently decided in each case by concerned Court as to whether cause of action arose wholly or in part thereby conferring jurisdiction of Court. if cause of action arose wholly or in part in a place where Plaintiff was residing or having its principal office/carried on business or personally worked for gain, suit could be filed at such a place. That Plaintiff could also institute suit at a place where he was residing, carrying on business or personally worked for gain de hors
CODE OF CIVIL PROCEDURE

Apex Court in case of Indian Performing Rights Society Ltd. had observed that, accrual of cause of action was a sine qua non for suit to be filed and cause of action was a bundle of facts which required to be proved to enable Court to grant relief to Plaintiff. Cause of action, not only referred to infringement but also material facts on which rights were founded. It was requirement of law that, it had to be independently decided in each case by concerned Court as to whether cause of action arose wholly or in part thereby conferring jurisdiction of Court. if cause of action arose wholly or in part in a place where Plaintiff was residing or having its principal office/carried on business or personally worked for gain, suit could be filed at such a place. That Plaintiff could also institute suit at a place where he was residing, carrying on business or personally worked for gain de hors

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The defendants as well as unidentified persons are restrained at Bhagirath Palace, Chandni Chowk, Delhi under John Doe order and their vendors, sellers, agents, servants, representatives and employees or any one claiming under them, directly or indirectly, from in any manner selling/purchasing/distributing the Plaintiffs ‘Amway products’ unauthorizedly and illegally through any wholesale/retail shops till the next date of hearing.
CODE OF CIVIL PROCEDURE

The defendants as well as unidentified persons are restrained at Bhagirath Palace, Chandni Chowk, Delhi under John Doe order and their vendors, sellers, agents, servants, representatives and employees or any one claiming under them, directly or indirectly, from in any manner selling/purchasing/distributing the Plaintiffs ‘Amway products’ unauthorizedly and illegally through any wholesale/retail shops till the next date of hearing.

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A perusal of plaint revealed that, it was primarily based on Sections 134 of the Trade marks Act, 1999 and 62(2) of Copyright Act, 1957. Plaintiff’s registered office was situated in Haryana and Defendant was also carrying on its business in Haryana. Further as both Plaintiff and Defendant carry on their business in Haryana,   in view of judgments passed in Indian Performing Rights Society v. Sanjay Dalia & Anr. and Ultra Home Construction Pvt. Ltd. v. Purushottain Kumar Chaubey & Ors2016 SCC Online Del. 376., Court in Haryana would have territorial jurisdiction
CODE OF CIVIL PROCEDURE

A perusal of plaint revealed that, it was primarily based on Sections 134 of the Trade marks Act, 1999 and 62(2) of Copyright Act, 1957. Plaintiff’s registered office was situated in Haryana and Defendant was also carrying on its business in Haryana. Further as both Plaintiff and Defendant carry on their business in Haryana,   in view of judgments passed in Indian Performing Rights Society v. Sanjay Dalia & Anr. and Ultra Home Construction Pvt. Ltd. v. Purushottain Kumar Chaubey & Ors2016 SCC Online Del. 376., Court in Haryana would have territorial jurisdiction

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It cannot also be lost sight that Plaintiff having its principal/registered office in West Bengal has invoked jurisdiction of this Court (DELHI) instead of suing Defendants at place where Defendants are carrying on their business, obviously with an intent to have an unfair advantage over Defendants. Judicial notice can be taken of fact that it is always inconvenient to persons/entities as Defendant/s to fight a litigation at a far off place, where they have no base and cost and inconvenience in defending the litigation itself becomes a reason for such Defendant/s to concede to the claim of Plaintiff.
CODE OF CIVIL PROCEDURE

It cannot also be lost sight that Plaintiff having its principal/registered office in West Bengal has invoked jurisdiction of this Court (DELHI) instead of suing Defendants at place where Defendants are carrying on their business, obviously with an intent to have an unfair advantage over Defendants. Judicial notice can be taken of fact that it is always inconvenient to persons/entities as Defendant/s to fight a litigation at a far off place, where they have no base and cost and inconvenience in defending the litigation itself becomes a reason for such Defendant/s to concede to the claim of Plaintiff.

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Appellant has hidden Settlement Deed from both trial Court, and present Court. Since, a material document has been withheld from both Courts, Appellant is disentitled from getting any relief from both Courts. Even if for sake of argument, it were accepted that goodwill belonged to Appellant’s father prior to his demise, even then, under Shariat Law, goodwill would devolve not just to Appellant, but more so, to all legal heirs, including his two sisters.
CODE OF CIVIL PROCEDURE

Appellant has hidden Settlement Deed from both trial Court, and present Court. Since, a material document has been withheld from both Courts, Appellant is disentitled from getting any relief from both Courts. Even if for sake of argument, it were accepted that goodwill belonged to Appellant’s father prior to his demise, even then, under Shariat Law, goodwill would devolve not just to Appellant, but more so, to all legal heirs, including his two sisters.

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