SIEL EDIBLE OILS LTD. v. M/s Khemka Sales (P) Ltd.

Delhi High Court · 04 Mar 2010 · 2010:DHC:1274
Shiv Narayan Dhingra
CS(OS) 1093/2009
2010:DHC:1274
civil appeal_allowed Significant

AI Summary

The Delhi High Court held that courts can grant or continue interim injunctions even when the suit is stayed, and recalled an order that stayed the injunction application contrary to this principle.

Full Text
Translation output
CS(OS) 1093/2009 SIEL EDIBLE OILS LTD.(SEOL) v. M/s Khemka Sales (P) Ltd.
HIGH COURT OF DELHI
Date of Reserve: January 19, 2010
Date of Order: March 04, 2010 IA No. 16898 of 2009 in CS(OS) 1093/2009
04.03.2010 SIEL EDIBLE OILS LIMITED (SEOL) ...Plaintiff
Through: Mr. Sandeep Sethi, Sr. Advocate with Ms. Ekta Kapil, Advocates
VERSUS
M/s Khemka Sales (P) Ltd. ...Defendant
Through: Mr. Anil Goel, Advocate JUSTICE SHIV NARAYAN DHINGRA
JUDGMENT

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest? ORDER

1. By this application under Order 47 Rule 1 CPC, the plaintiff/ applicant has sought review of the order passed by this Court on 7th December, 2009 on the ground that this Court while adjourning the present suit sine die had observed that the Court cannot proceed with the interim application for injunction and the application for injunction has also to be stayed. It is submitted that this observation of the Court was contrary to the settled legal position and the judgments pronounced by Division Bench of this Court and, therefore, there was 2010:DHC:1274 an error apparent on the face of the order and the order needs review. The plaintiff relied upon Clinique Laboratories LLC & Anr. v. Gufic Limited and another 2009(41) PTC 41 (Del) wherein this Court observed as under:

“14. I thus conclude that a suit for infringement of registered trademark is maintainable against another registered proprietor of identical or similar trademark and in such suit, while staying the further proceedings pending decision of the registrar on rectification, an interim order including of injunction restraining the use of the registered trademark by the defendant can be made by the court, if the court is prima facie convinced of invalidity of registration of the defendant‟s mark”.

2. A similar view was taken by the Division Bench of this Court in Rhizome Distilleries P. Ltd. and others v. Pernod Ricard S.A. France and ors. FAO(OS) No.484 of 2008 decided on 23rd October, 2009 whereby this Court observed as under:

“21. Section 124(5) preserves the power of the Court to make any interlocutory order including (a) granting an injunction (b) directing account to be kept, (c) an order appointing a Receiver or 9d) an order attaching any property. Plainly, the parenthesis in this Sub-section is superfluous. The last nine words dispel any doubt as to the power of the Court staying proceedings before it as it specifically contemplates that interlocutory orders could be made „during the period of the stay of the suit”.

3. This legal position is not controverted by the respondent. I, therefore, consider that the order regarding staying of proceedings on an application for interim injunction is required to be recalled and is therefore hereby recalled. It is, therefore, directed that while the suit shall remain stayed, the interim injunction granted by this Court vide order dated 29th May, 2009 restraining defendant from manufacturing and selling washing soap under the trade name DCM No.1 shall continue.

4. In the result, the application is allowed and the order dated 7th December 2009 is recalled to the above extent. The application stands disposed of. CS(OS) 1093/2009

1. The matter be listed before the Regular Bench on 8th April, 2010, subject to orders of Hon’ble The Acting Chief Justice, for disposal of interim application for injunction on merits and for further directions. March, 2010 SHIV NARAYAN DHINGRA J. rd