Atyati Technologies Private Limited v. Cognizant Technology Solutions U.S. Corporation & 2. Cognizant Technology Solutions India Private Limited

(d) The Defendants’ impugned mark was advertised in the

Trademark Journal on 13th March 2023. The Plaintiff was aware of the Defendant’s rademark application and therefore it is not possible that the Plaintiff would not know that the Defendants’ impugned mark was advertised in the Trademark Journal on 13th March 2023. Despite the same, the Plaintiff has chosen to suppress the same. (e) The Defendants’ Parent Country Application made on 20th April 2022 in the USA shows first use on 21st March 2022 and use in commerce on 21st March 2022. This fact has also been suppressed by the Plaintiff.

13) The learned Single Judge thereafter held that no explanation was pleaded by the Plaintiff as to why and how it acquired knowledge of use of the impugned mark by the Defendants in October-2023. The learned Single Judge has refused to accept explanation given by the Plaintiff about Defendants’ stand in reply dated 1 December 2023 of remodelling of brand and use of the concerned mark i.e. “most recent”. The learned Judge held that the context in which words “most recently” are used in the said reply by the Defendants meant that the impugned logo was their recent logo and not that they had started using the recent logo very recently. The learned Single Judge held that if the Plaintiff was to disclose the fact that the Defendants were using the impugned mark as logo since 2022 the Court would have directed issuance of notice instead of granting ad-interim ex-parte relief. The learned Judge has held in paragraph 65 as under:

65. If the Plaintiff had disclosed these facts, and especially the fact that the Defendants were using the impugned logo since 2022, then the Court would have directed the Plaintiff to give notice and would not have granted ad interim reliefs without notice on the basis of urgency. Even otherwise there is suppression of material facts by the Plaintiff and, therefore on the principles laid down in the judgments referred to above, in my view, the ex-parte injunction granted to the Plaintiff by the said Order dated 19th March 2024 should not be continued.

14) Thus, ad-interim injunction granted in favour of Plaintiff by order dated 19 March 2024 has been discontinued by the learned Single Judge on a singular factum of non-disclosure of factum of Defendants using impugned mark /logo since 2022. As observed above, the Defendants did not file application under Order XXXIX Rule 4 of the Code, which provides for discharge, variance or setting aside order for injunction. Rule 4 of Order XXXIX provides thus:

4. Order for injunction may be discharged, varied or set aside- Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order: Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interest of justice: Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party. (underlining supplied)

15) The first Proviso to Rule 4 of Order XXXIX deals with a situation where injunction is granted without issuing notice to opposite party. Thus an ex parte order of injunction can be discharged, varied or set aside if it is found that in the application for temporary injunction or in any affidavit supporting such application, Plaintiff has knowingly made a false or misleading statement in relation to a material particular. For vacation of ex parte injunction, the Court needs to arrive at a conclusion that the material particular considered by it while granting temporary injunction was premised on a false or misleading statement. Thus if twin requirements of (i) court making an order of injunction without issuing notice to opposite party and (ii) Plaintiff making false or misleading statement relating to material particular, are fulfilled the ex-parte injunction can be vacated. However, in the present case, Defendants did not file application under Order XXXIX Rule 4 of the Code, but applied for discontinuation of ex-parte ad-interim injunction by filing limited affidavit-in-reply. This course of action appears to have been approved in various judgments of this Court including the judgment in Kewal Ashokbhai Vasoya (supra).

16) Under Order XXXIX Rule 3 the Code, the Court is mandated to direct issuance of notice to the opposite party ‘in all cases’ before granting injunction. This requirement is dispensed with only in a case where the Court records an opinion that object of granting injunction would be defeated by the delay. The provisions of Order XXXIX Rule 3 of the Code are as under: Rule 3. Before granting injunction, Court to direct notice to opposite party- The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party: Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant- (a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.

17) In the present case, Defendants sought discontinuation of ad-interim injunction by alleging suppression about date of acquisition of knowledge by Plaintiff in respect of Defendants’ use of the impugned mark/logo. It is Defendants’ case that though Plaintiff acquired the knowledge of Defendants’ use of the impugned mark/ logo in the year 2022, it falsely pleaded in the Plaint that such knowledge was acquired in October-2023. According to Defendants, if the Court was made aware of the position of Defendants’ use of the mark/logo since 2022, the Court would have issued notice under Order XXXIX Rule 3 of the Code and would not have granted ex-parte injunction in Plaintiff’s favour. Thus, the allegation of suppression raised by Defendants is relevant for the purpose of formation of opinion by the learned Single Judge under proviso to Rule 3 of Order XXXIX of the Code. According to Defendants, the learned Single Judge proceeded to pass ex-parte ad interim injunction under Proviso to Rule 3 on account Plaintiff’s misrepresentation that it acquired knowledge of Defendants’ use of impugned mark /logo in October-2023.

18) Thus, the allegation of suppression raised by the Defendants does not relate to material particular, on the basis of which the learned Single Judge could have applied the triple test of prima facie case, balance of convenience and irreparable loss. Allegation of suppression is relevant only to the aspect of Court getting convinced about the need for dispensation of the notice under Order XXXIX Rule 3 of the Code. As observed above, the Defendants have not filed application under Order XXXIX Rule 4 of the Code, which requires proof of Plaintiff knowingly making a false or misleading statement in relation to material particular on which the injunction is premised. Defendants’ choice of not applying for vacation of ad-interim injunction under Order XXXIX Rule 4 of the Code can possibly be attributed to their belief that the suspension had no bearing on merits of Plaintiff’s entitlement for injunction. This is also clear from the fact that in the ‘limited affidavit’ filed by Defendants, there is no allegation that Plaintiff suppressed information or document relating to merits of its claim. All that is done by filing ‘limited affidavit’ seeking discontinuation of ex-parte ad-interim injunction was to inform the Court that it was misled in dispensing with notice under Order XXXIX Rule 3 of the Code. Thus, if true disclosure of alleged information of Defendants’ use of the mark /logo since the year 2022 was made, all that would have happened was issuance of notice by the learned Judge to the Defendants under Order XXXIX Rule 3 of the Code before making an order of ad interim injunction. Making of such disclosure would not have any effect on prima facie determination by the learned Single Judge of the Plaintiff’s entitlement of ad-interim injunction. In other words, though the learned Single Judge could have passed an order of ad-interim injunction, such order could not have been made ‘ex-parte’. The allegation of suppression is thus relevant only for the purpose of deciding the factor as to whether the learned Single Judge was justified in proceeding ex-parte while passing the order dated 19 March 2024.

19) When Plaintiff moves an application for ad interim injunction and urges the Court to grant the same without issuing notice to the Defendants, the Court institutes twin inquiries. It first inquires whether Plaintiff has satisfied the trinity test of prima facie case, balance of convenience and irreparable loss, which is ‘Inquiry No. 1’. If Plaintiff passes the muster of Inquiry No. 1, the Court then inquires whether it is necessary to issue notice to Defendants or whether the requirement of issuance of notice needs to be dispensed with in the facts of the case, which is ‘Inquiry No. 2’. As observed above, if the suppression is of material particular on which the order of injunction is premised (i.e. the one, if disclosed, would have affected the Court’s mind while conducting Inquiry No. 1), the injunction needs to be vacated/discontinued. However, if the allegation of suppression is relevant only to Inquiry No. 2, it has bearing on only the aspect of need for issuance of notice to Defendants. In a given case, if there is no allegation of suppression qua Inquiry No. 1 and the Defendant has not even pleaded or urged before the Court that the outcome of Inquiry No. 1 is erroneous on merits, but the Defendant approaches the Court levelling allegation of suppression qua only Inquiry No. 2, vacation of injunction already granted would not be warranted in each case and it would depend on facts and circumstance of each case. In the present case, the allegation of suppression has relevance only to Inquiry No. 2 and the same is not relevant for Inquiry No.1. Defendants, as of now, have not even filed Affidavit-in-Reply opposing the Application for temporary injunction on merits.

20) No doubt, a party to litigation has a duty to disclose true and correct information and the relief of temporary injunction, being discretionary and equitable, can be denied to a Plaintiff indulging in suppression of material information. However, it must also be examined as to in respect of which inquiry, the alleged suppressed information would have affected the mind of the Court. If there is suppression of material information affecting Inquiry No. 1, discharge of injunction is warranted. However, if there is allegation of suppression (and which is debatable) qua only Inquiry No. 2 (relating to need for dispensing with notice to Defendants), whether the case would call for discharge of injunction already granted becomes questionable and the issue needs to be decided in facts of each case. Once it is observed that allegation of suppression is relevant only for the purpose of formation of opinion under proviso to Rule 3 of Order XXXIX of the Code and not for deciding Plaintiff’s entitlement on merits for grant of ad-interim injunction, the suppression, in our view, must be of a very high degree for the purpose of revoking or discontinuing the adinterim injunction already granted. To paraphrase, the degree of suppression needs to be comparatively higher when it has connection with formation of opinion for dispensing with the notice under proviso to Rule 3 of Order XXXIX of the Code (Inquiry No. 2) as compared to the suppression of material particular on the basis of which the very order of ad-interim injunction is premised (Inquiry No. 1). This is because the adinterim injunction is granted by the Court after satisfying itself about existence of prima facie case and the other two tests of irreparable loss and balance of convenience being met. Though notice to opposite party was dispensed with, the Court can always hear the opposite party on the next date and decide whether to continue the ex-parte injunction or not. Therefore, the Court ordinarily needs to concentrate more on deciding Plaintiff’s entitlement for continuation of ex-parte injunction on merits rather than vacating the same only on the ground that it was misled in dispensing with notice. However, it is not that in every case where the allegation of suppression has relevance only to Inquiry No. 2, the Court can ignore the allegation of suppression and continue the ad interim ex-parte injunction already granted. It all depends on facts of each case. In a given case, where the suppression qua Inquiry No. 2 is of a very high degree, deliberate and undebatable, the Court would be justified in discontinuing the discretionary and equitable relief of interim injunction already granted.

21) Keeping in mind the above discussed principles, we now proceed to examine the allegation of suppression raised by the Defendants.

22) Defendants have alleged that Plaintiff was aware of the Defendants’ use of the mark since the year 2022, but falsely pleaded in the Plaint that it acquired such knowledge in October -2023. On the other hand, it is Plaintiff’s case that irrespective of the date from which Defendants actually started using the impugned mark / logo, Plaintiff acquired knowledge of such use only in October -2023. The allegation of suppression raised by the Defendants is premised essentially on following statements made by the Plaintiff in its Advocate notice dated 30 October 2023: “The device mark adopted by you is a blatant and an exact copy of our Client’s mark/ device, which demonstrates your malafide intention to trade and cash upon our Client’s goodwill and reputation. It is pertinent to highlight that you had adopted and used different trademarks/ devices for your company before you blatantly adopted our client’s highly profiled well-known trademark, in the year 2022. You have only adopted our client’s mark with the goal to obtain notoriety through our client and to incur significant financial damage, after understanding that our client is one of the leading technology service providers in India.

23) Plaintiff explains the above statement in the notice dated 30 October 2023 by contending that the above statement refers to screen shot of Defendants’ most recent use of Plaintiff’s logo. The said screen shot is copied by Plaintiff from the website of Logos-World.net. Plaintiff however contends that the concerned article/ web page was published on 1 October 2023 and that therefore Plaintiff noticed the said use only in October- 2023 upon visiting the concerned web page.

24) There is thus debate between the parties about the exact meaning of the statement in the Notice that “It is pertinent to highlight that you had adopted and used different trademarks/ devices for your company before you blatantly adopted our client’s highly profiled well-known trademark, in the year 2022.” Plainly read, the statement means that the Defendants adopted the mark in the year 2022. The notice is silent about the date of acquisition of knowledge by Plaintiff of such use. In the Plaint the time of acquisition of such knowledge is disclosed as October

2023. The issue is whether the statement made in the Plaint about acquisition of knowledge about Defendants’ use of mark/logo in October 2023 can be termed as ‘false’ on the basis of contents of the Notice? The answer to the question, to our mind, does not emphatically appear to be in affirmative. If Plaintiff was to make a statement in the notice that it learnt about Defendants’ use of the mark in 2022, its statement in the Plaint could be termed as a false statement. However, the Notice is silent about the time when Plaintiff acquired the knowledge.

25) Therefore, though Plaintiff made a statement in the notice that Defendants started using the impugned mark since the year 2022, the said statement does not automatically ascribe knowledge to the Plaintiff of such use since the year 2022. Defendants’ use of the mark since the year 2022 is an altogether different concept than Plaintiff acquiring knowledge of such use from a particular date. It is Plaintiff’s case before us that irrespective of the actual date of commencement of use of the mark/logo by Defendants, Plaintiff acquired knowledge of such use in October -2023. On the other hand, Defendants have interpreted the above quoted statement in the Notice to mean acquisition of knowledge by Plaintiff of use of the mark/logo by Defendants since the year 2022. Without delving deeper into this controversy, it is suffice to observe that the allegation of suppression is debatable.

26) One may expect Plaintiff to be clearer in the pleadings. Plaintiff could have pleaded in the Plaint that though Defendants started using the impugned logo/mark in 2022, Plaintiff acquired knowledge of such use only after visiting the concerned website in October-2023. Instead of pleading so, Plaintiff has chosen to plead a plain and simple case of it acquiring knowledge of Defendants’ use of the mark in October-

2023. The reason for such conduct is discussed in the latter part of the judgment. The case, in our view, does not involve a very high degree of suppression as the allegation of suppression itself is debatable. At the highest, Plaintiff can be accused of not raising a correct and clearer pleading, but it is debatable as to whether Plaintiff can be held guilty of suppression of such a degree that ad-interim relief granted in its favour was required to be withdrawn only because disclosure of such information would have led to issuance of notice under Rule 3 of the Order XXXIX of the Code.

27) Also of relevance is the statement made by the Defendants in their reply dated 1 December 2023, in which it was contended that the Defendants had remodelled their brand and created artistic representation of its trademark and name to better convey its goal and accordingly three marks of the Defendants were reflected in paragraph 7 of the reply. In respect of the last mark / logo, Defendants chose to describe adoption of the said mark /logo ‘most recently’. In the impugned order, the learned Single Judge has held that use of the words ‘most recently’ in paragraph 7 of the reply refers to the concerned logo being the most recent logo and that the said words do not convey /imply the timeline from which the impugned logo was put to use. While the learned Single Judge may not be entirely wrong in observing so, use of the said words ‘most recently’ may also create an impression that the impugned mark was put to use by the Defendants not very long time ago. Defendants also did not state in the said reply that the use of the impugned mark started in the year 2022. Thus, absence of specific statement about use of the mark from the year 2022 coupled with use of the words ‘most recently’ in paragraph 7 of the reply has created an impression in Plaintiff’s mind that the Defendants had started using the impugned mark / logo ‘very recently’. The allegation of suppression needs to be understood in the context of manner in which the reply of Defendants dated 1 December 2023 was couched. If Defendants were to make an assertive statement in the said reply that the use of the impugned mark started in the year 2022, perhaps Plaintiff could have been expected to be clearer by pleading in the Plaint that though use may have started in the year 2022, knowledge of such use was acquired only in October -2023.

28) The learned Single Judge has also considered the position as to whether it was otherwise possible for Plaintiff to acquire knowledge of Defendants’ use of the mark/logo since

2022. The learned judge has considered the aspect of Plaintiff copying the mark of the Defendants from the journal Logos.World.net which shows use of the marks since 2022. However, Plaintiff has invited our attention to the print out of the concerned web page showing the date of publication of the Article as 1 October 2023, which aspect appears to have been ignored by the learned Single Judge. The other material considered by the learned Single Judge for arriving at a finding of suppression is (i) Defendants’ Linkedin account showing use of the logo on 22 June 2022 and 21 July 2022, (ii) advertisement of the impugned mark in Trademark Journal in March 2023 and

(iii) Defendants’ Parent Company Application dated 20 April

2022 in USA showing first use on 21 March 2022. The learned Single Judge has accused Plaintiff of not making the required inquiries and accordingly the finding of suppression is recorded. In absence of any material to hold that the Plaintiff actually had noticed the three documents or acts, the learned Single Judge has expected high degree of diligence on the part of the Plaintiff, which, if exercised, would have enabled Plaintiff to acquire knowledge about Defendants’ use of the mark since the year

2022. Order XXXIX Rule 4 of the Code requires the act of ‘knowingly’ making a false statement. True it is that it is Plaintiff’s duty seeking ex-parte ad-interim orders to ensure that information about the defendant and the offending product, available on a reasonable inquiry, is honestly disclosed and placed on record before the Court. However, present case involves a peculiar fact where the Defendants have evolved their marks/logos over a period of time. Admittedly they were using different mark/logo till 2022. Defendants are global IT services leaders and are not fly-by-night companies. Business operations of Defendants must be in knowledge of Plaintiff, both being in the same services related business. However admittedly Defendants were using a different mark/logo earlier. Defendants themselves claim that they started using the mark/logo in the year 2022. Thus, this is not a case where Defendants have been using the impugned mark/logo for the last several years. The use is attributed to three documents pertaining to March/April 2022 (Defendants’ Parent Company Application in USA), 22 June/21 July 2022 (Defendants’ Linkedin account) and March 2023 (advertisement of the impugned mark in Trademark Journal). The last document is of March 2023 and Plaintiff’s claim of acquisition of knowledge is October 2023. In the peculiar facts of the present case where the Defendants, who were using a different mark/logo for several years, adopted the impugned mark in 2022, some delay in noticing of adoption of the impugned mark/logo by Plaintiff cannot be a ground to infer that Plaintiff has indulged in suppression.

29) In our view therefore, the case does not involve very high degree of suppression on the part of the Plaintiff, and in any case suppression to the extent of warranting discontinuation of ad-interim injunction granted in its favour. The learned Single Judge ought to have used his discretion and called upon the Defendants to file reply to application for temporary injunction and ought to have decided the same.

30) As observed above, the impugned order dated 13 June 2024 does not record any finding that the allegation of suppression has any bearing on Plaintiff’s entitlement for adinterim injunction. The allegation of suppression has relevance only to Plaintiff’s act for pressing its application ex-parte on 19 March 2024. In that view of the matter, reliance by the Defendants on judgment of Division Bench of this Court in Kewal Ashokbhai Vasoya (supra) is inapposite. In case before the Division Bench, an appeal was filed challenging order granting ad-interim injunction without notice whereas the present case involves moving an application before the learned Single Judge for discontinuation of ad-interim injunction alleging suppression of material particulars. In Kewal Ashokbhai Vasoya, the order granting ad-interim injunction was challenged before the Appellate Court accusing the Plaintiff of suppressing information about Defendant being the registered proprietor of rival mark and non-production of any material to indicate filing of application for cancellation of Defendant’s mark. The order granting ad-interim injunction was thus questioned before the Appellate Court on the ground that such order would never have been made if the Court was informed of Defendant being the registered proprietor of the rival mark. Thus, the allegation of suppression in Kewal Ashokbhai Vasoya (supra) had a direct bearing on Plaintiff’s entitlement to seek ad-interim injunction, which is not the case in the present Appeal, where the allegation of suppression is limited only to the aspect of non-issuance of notice by the learned Single Judge before making ex-parte adinterim order. The findings recorded by the Division Bench therefore needs to be appreciated in the light of this fundamental distinction between the two cases. In Kewal Ashokbhai Vasoya (supra) disclosure of information relating to Defendant’s proprietorship in the rival mark would have resulted in refusal of an order of injunction whereas the disclosure of the alleged suppressed material in the present case would have at the highest resulted in issuance of notice to the Defendant under Order XXXIX Rule 3 of the Code. Also, while discussing the principles governing grant of ad-interim injunction without notice to the Defendants, the Division Bench ultimately did not interfere in the order passed by the learned Single Judge and left a liberty for Defendant open to move the learned Single Judge opposing Plaintiff’s application for temporary injunction. In our view, there is a fundamental difference in the exact effect of disclosure of alleged suppressed information in the case before the Division Bench in Kewal Ashokbhai Vasoya (supra). Also, in Kewal Ashokbhai Vasoya the Division Bench has noted the principles discussed in English judgment in Alexendar Tugushev V/s. Vitaly Orlov[3] in which one of the principles is as under: xii) The court nevertheless has a discretion to continue the injunction (or impose a fresh injunction) despite a failure to disclose. Although the discretion should be exercised sparingly, the overriding consideration will always be the interests of justice. Such consideration will include examination of i) the importance of the facts not disclosed to the issues before the judge ii) the need to encourage proper compliance with the duty of full and frank disclosure and to deter non-compliance iii) whether or not and to what extent the failure was culpable iv) the injustice to a claimant which may occur if an order is discharged leaving a defendant free to dissipate assets, although a [2019] EWHC 2031 (Comm) strong case on the merits will never be a good excuse for a failure to disclose material facts; (emphasis and underling supplied)

31) Plaintiff had drawn attention of the learned Single Judge to the judgment in Merico Ltd. V/s. KLR Nirmal Industries Pvt. Ltd[4] in which the above principle in Alexendar Tugushev V/s. Vitaly Orlov (supra) and Kewal Ashokbhai Vasoya was applied and the Court held as under:

73. In the decisions of this Court in Kewal Ashokbhai Vasoya (supra), this Court has held that “the Court nevertheless has discretion to continue the injunction (or impose a fresh injunction) despite a failure to disclose. Although the discretion should be exercised sparingly, the overriding consideration will always be the interests of justice.” Although, in my view, there has been no suppression of any material particular, presuming that there was a suppression, this is a fit case for this Court to exercise its discretion to continue the injunction (or impose a fresh injunction), in view of the overriding consideration which is always the interest of justice. (emphasis added)

32) Thus, in appropriate cases, the Court can use its discretion and refuse to vacate the ad-interim injunction despite noticing suppression. In our view, this is the fit case where the ad-interim injunction ought not to have been vacated only on the ground of allegation of suppression, which is not only debatable, but which relates only to the aspect of dispensation of notice to Defendants. IA (L) No. 26759 of 2023 in Commercial IP (L) Suit No. 2293 of 2023

33) Reliance by Defendants on the Supreme Court judgment in Shiv Kumar Chadha (supra) again does not provide any assistance for deciding the present Appeal. The Apex Court has emphasized the importance of issuance of notice to the Defendants in all cases under Order XXXIX Rule 3 of the Code. The judgment highlights the importance of recording of reasons by the Judge while forming opinion for dispensing with the notice under proviso to Rule 3 of Order XXXIX of the Code. However, in the present case, Defendants did not challenge the order of the ex-parte ad-interim injunction dated 19 March 2024 by filing appeal, but chose to move the learned Single Judge for discontinuation of ex-parte ad-interim injunction order. The learned Single Judge while passing order dated 13 June 2024 was obviously not sitting in appeal over order passed by another Single Judge on 19 March 2024. Therefore, order dated 13 June 2024 rightly does not deal with the need of recording of reasons for formation of opinion for dispensing with the notice to the opposite party as required under Rule 3 Order XXXIX of the Code. Therefore, it is not necessary in the present Appeal to delve deeper into the issue of requirement to record of reasons by the learned Single Judge while passing order dated 19 March

2024.

34) In our view, considering the peculiar facts of the case where the allegation of suppression raised by the Defendants had little relevance to the issue of determining Plaintiff’s entitlement to injunction order under Order XXXIX Rules 1 and 2 of the Code, it would have been more appropriate for the Court to take up Interim Application (L) No.7958 of 2024 for final decision rather than entertaining Defendants’ prayer for discontinuation of ad-interim injunction.

35) As observed above, on the basis of material placed by the Defendants, it is difficult to conclusively hold that the Plaintiff has indulged in deliberate act of suppression of information about date of acquisition of knowledge about Defendant’s use of the impugned mark / logo. Even if nondisclosure of full and complete information is to be remotely attributed to Plaintiff, such allegation would be relevant not for the purpose of determining Plaintiff’s entitlement for temporary injunction but would have been relevant only for the purpose of deciding whether issuance of notice under Order XXXIX Rule 3 of the Code to the Defendants was necessary or not. Also, the allegation of suppression in the present case is debatable and not so serious that the same warranted discontinuation of ad-interim injunction only because notice was not served on the Defendants. In other words, allegation of suppression having relation to the issue of requirement of issuing notice to the Defendants, the same cannot be used for the purpose of assessing Plaintiff’s entitlement for temporary injunction. In our view therefore the order dated 13 June 2024 discontinuing the order of ad-interim injunction is indefensible and liable to be set aside.

36) We are conscious of the position that the impugned order was passed on 13 June 2024, and more than a year has passed since discontinuation of the ad-interim injunction. Therefore, Defendants have urged for direction to the learned Single Judge for decision of the main application by continuing the position as it stands today. The Appeal was however filed by the Plaintiff immediately after passing of the impugned order and therefore pendency thereof for last more than a year cannot be held against the Plaintiff. Merely because some time has elapsed after passing of the impugned order, Plaintiff cannot be made to suffer the consequences of erroneous findings of the Court about suppression. Since discontinuation of the ad-interim injunction is found to be erroneous, the position as it stood prior to the passing of order dated 13 June 2024 needs to be restored.

37) The Appeal accordingly succeeds, and we proceed to pass the following order: a) Judgment and Order dated 13 June 2024 passed by the learned Single Judge is set aside. b) Order dated 19 March 2024 shall continue to operate during pendency of Interim Application (L) No.7958 of

2024. c) The learned Single Judge is requested to expedite decision of Interim Application (L) No.7958 of 2024 and to make an endeavour to decide the same in an expeditious manner.

38) With the above direction, Appeal is allowed. There shall be no orders as to costs.

39) With the disposal of the Appeal, Interim Application does not survive and the same stands disposed of. [SANDEEP V. MARNE, J.] [CHIEF JUSTICE] Designation: PA To Honourable Judge