Ashiana Ispat Limited v. Kamdhenu Limited

15. The learned Senior Counsel for the Petitioner has submitted that as per Rule 26 of the Rules, if there are multiple proceedings related to the same or related to Intellectual Property Rights (“IPR”) subject matter, this Court has power to transfer under Section 24 of CPC pending before a Commercial Court to itself and consolidate the same with the proceedings pending before this Court. It was further submitted that this power can be exercised irrespective of whether the proceedings pending before the Commercial Court and this Court are between the same parties or not.

16. The learned Senior Counsel for the Petitioner submitted that Respondent Nos. 2 and 3 have categorically taken a stand in the Suit pending before the Commercial Court that they claim no right over the Mark, ‘AL KAMDHENU GOLD’ and had only manufactured the goods under instructions from the Petitioner, who is the absolute owner of the Mark, ‘AL KAMDHENU GOLD’.

17. It was further submitted that the underlying subject matter of CS(COMM) 130/2025 and CS(COMM) 569/2025 is also same as the Suit since they relate to the ownership of the Mark, ‘AL KAMDHENU GOLD’. There is no impediment for transfer of the Suit from the Commercial Court to this Court and consolidation with CS(COMM) 130/2025 and CS(COMM) 569/2025 only because the Petitioner is not made a party in the Suit. Rule 26 of the Rules specifically provides that transfer and consolidation can take place irrespective of whether the parties are common or not. The underlying purpose of Rule 26 of the Rules is to avoid multiplicity of proceedings in relation to the same or related IPR subject matter.

18. It was further submitted that since the IPR subject matter in all the three proceedings is same, this is a fit case for transfer of the Suit from the Commercial Court to this Court and consolidation with CS(COMM) 130/2025 and CS(COMM) 569/2025.

SUBMISSIONS ON BEHALF OF RESPONDENT NO. 1:

19. The learned Senior Counsel for Respondent No. 1 submitted that this Petition has been filed to derail the proceedings of CS(COMM) 130/2025 and CS(COMM) 569/2025, which is being heard by this Court. The Petition is an afterthought as the Petitioner first tried to implead itself in the Suit by filing an application under Order I Rule 10 of CPC and having failed to get impleaded, has filed this Petition.

20. The learned Senior Counsel for Respondent No. 1 submitted that the present Petition is not maintainable as the Petitioner is not a party to the Suit. It was submitted that only a party to the suit can file an application for transfer under Section 24 of CPC. As Rule 26 of the Rules specifically provides that power of transfer shall be exercised under Section 24 of CPC, Rule 26 of the Rules cannot override the mandatory requirement of Section 24 of CPC that only a party to the suit can file the petition for transfer of the suit.

21. It was submitted that the language of Rule 26 of the Rules, which states that “irrespective of whether the said proceedings are between the same parties or not” cannot mean that a third party can request for transfer of the Suit under Rule 26 of the Rules, especially having failed to implead itself in the Suit.

22. It was further submitted that Rule 26 of the Rules itself provides that if this Court is of the opinion that any matter pending before the Commercial Court is to be consolidated with a matter pending before this Court, the power of transfer under Section 24 of CPC may be exercised for transfer of such matter to this Court. Hence, Section 24 of CPC would prevail over the provisions of Rule 26 of the Rules. It was further submitted that Respondent Nos. 2 and 3 could have filed this Petition for transfer of the Suit in terms of Rule 26 of the Rules read with Section 24 of CPC, however, the Petitioner is not entitled to file this Petition not being a party to the Suit.

23. In any event, the subject matter of the Suit is entirely different as the relief is sought against only Respondent Nos. 2 and 3 herein and no relief has been sought against the Petitioner in the Suit. Respondent No. 1 has already filed CS(COMM) 569/2025 before this Court for seeking relief against the Petitioner.

24. Accordingly, it was submitted that there is no requirement to transfer the Suit before this Court as there will not be any multiplicity of proceedings or possibility of contradictory findings.

25. The learned Senior Counsel for Respondent No. 1, on instructions, submitted that if this Court is inclined to transfer the Suit to itself, Respondent No. 1 is not averse and has no serious objection.

SUBMISSIONS ON BEHALF OF RESPONDENT NOS. 2 AND 3:

26. The learned Counsel for Respondent Nos. 2 and 3 submitted that Respondent Nos. 2 and 3 are willing to file an undertaking that Respondent Nos. 2 and 3 have no objection for transfer of the Suit from the Commercial Court to this Court and Respondent Nos. 2 and 3 fully support the prayer in this Petition filed by the Petitioner. The learned Counsel for Respondent Nos. 2 and 3 submitted that Respondent Nos. 2 and 3 were only acting under the instructions of and on behalf of the Petitioner and do not claim any independent right or entitlement to use the Mark, ‘AL KAMDHENU GOLD’.

ANALYSIS AND FINDINGS:

27. The subject matter of the Suit pending before the Commercial Court and both the suits being CS(COMM) 130/2025 and CS(COMM) 569/2025 pending before this Court relate to the same IPR being the proprietorship of the Trade Mark, ‘AL KAMDHENU GOLD’.

28. Rule 26 of the Rules categorically provides that where there are multiple proceedings relating to the same or related IPR subject matter, irrespective of whether the said proceedings are between the same parties or not, this Court shall have power and the discretion to transfer the matter and consolidate the proceedings for consolidated recording of evidence / common trial and consolidated adjudication.

29. The underlying principle for Rule 26 of the Rules is to ensure that the same or related IPR subject matters are not adjudicated by different courts to avoid multiplicity of proceedings and conflicting decisions. The transfer and consolidation will increase the efficiency and reduce the cost by having consolidated adjudication of all the matters relating to the same or related IPR subject matters.

30. The power to transfer and consolidate is specifically provided irrespective of the proceedings being between the same parties or not. This provision is vital as the parties should not be able to avoid transfer or consolidation by either joining unnecessary parties or avoiding to join necessary parties for proper adjudication of the disputes.

31. In the present case, the Suit has been filed against Respondent Nos. 2 and 3 seeking the relief of injunction from using the Mark, ‘AL KAMDHENU GOLD’ before the Commercial Court and CS(COMM) 569/2025 is filed against the Petitioner before this Court by Respondent NO. 1 seeking identical relief as sought in the Suit. Hence, trying of the Suit by the Commercial Court independently may result in conflicting decisions especially when Respondent Nos. 2 and 3 have taken a stand that their rights flow from the Petitioner and they do not have any independent right over the Mark, ‘AL KAMDHENU GOLD’.

32. Respondent No. 1 is interested in protecting its Mark, ‘KAMDHENU’ and any formative mark that has the Mark, ‘KAMDHENU’, which includes ‘AL KAMDHENU GOLD’ in both the Suit and CS(COMM) 569/2025 against Respondent Nos. 2 and 3 and the Petitioner, respectively. Hence, clearly there is commonality of the subject matter and Rule 26 of the Rules is directly attracted.

33. Respondent No. 1 contended that the present Petition is not maintainable as Petitioner is not a party to the Suit and Rule 26 of the Rules provides that this Court may exercise power of transfer under Section 24 of CPC, which provides for the transfer at the request of a party to the suit. However, the power to transfer under Section 24 of CPC is not restricted to an application by any of the parties and such power can be exercised by this Court on its own motion as well. Therefore, there is no inconsistency in the language of Rule 26 of the Rules when it refers to the powers of transfer under Section 24 of CPC and also provides that such transfer can be made irrespective of whether the parties are same or not. The first part of Rule 26 of the Rules relates to consolidation of the proceedings pending before this Court and the second part of Rule 26 of the Rules relates to power of transfer, when the proceedings that are sought to be consolidated are not before this Court, but one of them is pending before the Commercial Court. It is under those circumstances, this Court shall first exercise its power of transfer under Section 24 of CPC by directing the transfer of the proceedings pending before the Commercial Court to itself and then consolidate the same with matter(s) pending before this Court.

34. Ideally, Respondent Nos. 2 and 3 ought to have made this Petition for transfer of the Suit, however, there is no impediment for the Petitioner to file this Petition as the Petitioner is a party to both the Suits pending before this Court and claims that the Defendants in the Suit are acting under authorisation from the Petitioner. Accordingly, the Petitioner has locus to file the present Petition for transfer of the Suit from the Commercial Court to this Court in accordance with Rule 26 of the Rules read with Section 24 of CPC. In any case, Respondent Nos. 2 and 3 have agreed to give an undertaking before this Court stating that Respondent Nos. 2 and 3 have no objection for the transfer of the Suit from the Commercial Court to this Court.

35. In view of the no objection given by Respondent No. 1 for transfer after making the submissions as recorded above, there is no requirement to direct Respondent Nos. 2 and 3 to give an undertaking stating that they have no objection for the transfer.

36. Considering the submissions made by the Parties and taking into consideration the commonality of the subject matter and to avoid multiplicity of proceedings and conflicting decisions, the Suit being CS(COMM) No. 53 of 2025 is directed to be transferred from the Commercial Court to this Court under Section 24 of CPC and shall be consolidated with CS(COMM) 130/2025 and CS(COMM) 569/2025 under Rule 26 of the Rules.

37. The Registry is directed to re-number the Suit being CS(COMM) NO. 53 of 2025 upon its transfer and list along with CS(COMM) 130/2025 and CS(COMM) 569/2025 on 10.10.2025 at 02:30 PM.

38. The present Petition stands disposed of with the aforesaid directions.

TEJAS KARIA, J SEPTEMBER 22, 2025