Seematti Silks v. T. Beena

1 FAO 92/23 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 19[TH ]DAY OF SEPTEMBER 2023 / 28TH BHADRA, 1945 ``` ``` FAO NO. 92 OF 2023 ``` ## **`I.A. 3/2022 IN OS 14/2020 OF VI ADDITIONAL DISTRICT COURT,`** ## **`ERNAKULAM`** ## **`APPELLANT/RESPONDENT/DEFENDANT:`** ``` SEEMATTI SILKS, 93-1, TRUNK ROAD, POONAMALLEE, CHENNAI TAMIL NADU REPRESENTED BY ITS PROPRIETOR S. ASAN MOHAMED. ``` ``` BY ADVS. C.HARIKUMAR VIZZY GEORGE KOKKAT SANDRA SUNNY ARUN KUMAR M.A FARAH JYOTHI PRADEEP ``` ## **`RESPONDENT/PETITIONER/PLAINTIFF:`** ``` T. BEENA, AGED 61 YEARS, D/O. T. THIRUVENKITAM PROPRIETRIX, M/S. SEEMATTI, M.G. ROAD ERNAKULAM, PIN - 682035 ``` ``` BY ADVS. JOHN MATHEW ADV. MATHEW JOHN (JMA)(K/677/2012) VINU SASIDHARAN(K/576/2013) ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 5.09.2023, THE COURT ON 19.9.2023 DELIVERED THE FOLLOWING: ``` 2 FAO 92/23 ## **JUDGMENT** (Dated this the 19[th] day of September 2023) The appellant was the respondent/defendant in I.A. No.3 of 2022 in O.S. No.14 of 2020 on the files of Additional District Judge – VI, Ernakulam. I.A. No.3 of 2022 was filed under Order 39 Rule 2 read with Section 151 CPC praying for an interim injunction restraining the defendant from using the trade mark ‘SEEMATTI’ as a trade name, trade mark or part of the trade name, trade mark, corporate name or internet domain till the disposal of the suit. 2. The respondent/plaintiff filed O.S. No.14 of 2020 under Section 134 of the Trade Marks Act, 1999 (for short ‘the Act’) for a decree of permanent prohibitory injunction restraining the defendant from using the trade mark ‘‘SEEMATTI’ as a trade name, trade mark or part of the trade name/trade mark, corporate name or internet domain name and 3 FAO 92/23 for other reliefs. 3. The appellant filed I.A. No.2 of 2022 under Section 124 of the Act for a stay of the suit on the ground that a rectification application is filed before the High Court of Madras as O.P.(Arb.) No.47078 of 2022. The lower court, by order dated 20.12.2022 allowed the petition and stayed all further proceedings in the suit till disposal of the rectification application. 4. The respondent/plaintiff thereafter, filed an application for amending the plaint and the amendment sought was to delete the registration numbers in respect of trade marks which are serial numbers 1839635 and 1839637 from the averments as well as in the reliefs portion. The lower court, by order dated 10.3.2023 allowed the amendment petition and ordered to delete the registration numbers. After the amendment application was allowed, the respondent filed the present application for injunction. 4 FAO 92/23 5. It was contended by the appellant that by amendment of the plaint and deletion of the very registration numbers of the trade marks on which the suit for injunction was filed, is not maintainable, as nothing survives in the suit. Another contention raised was that since the suit is stayed till the rectification application is disposed of, the application for temporary injunction is not maintainable. The lower court, by the impugned order, allowed the I.A. and an interim injunction restraining the defendant and their agents from using the trade name of the respondent/plaintiff ‘SEEMATTI’ as the trademark, trade name or part of the trade name, trade mark, corporate name or internet domain name, till the disposal of the suit, was passed. Aggrieved by the said order, this appeal is filed. 6. The contention raised by the counsel for the appellant is that the very basis of filing the suit is infringement on the trade mark numbers 1839635 and 1839637 under Section 134 of the Act. On the basis of amendment, 2 registered trade 5 FAO 92/23 numbers are deleted and therefore, the question of infringement of those 2 trade marks does not survive and thus, the suit is not maintainable. An application for injunction cannot be filed in a suit which is not maintainable. Therefore, the court below had exceeded its jurisdiction and passed the impugned order granting an interim injunction against the appellant. He argued that Section 134(1)(a) of the Act deals with a suit for infringement of a registered trade mark and under sub clause (2), a suit can be filed before the District Court having jurisdiction within the local limits of whose jurisdiction, the person, or one of the persons, instituting the suit or other proceedings, actually or voluntarily resides or carries on business. When the very basis of the suit that the registration numbers are taken away, the question of infringement goes and therefore, no suit will lie under Section 134(1) of the Act and the said suit is not maintainable before the District Court, though the court below ought to have returned the plaint for 6 FAO 92/23 presentation before the proper court. 7. The counsel for the respondent argues that the respondent/plaintiff has been using trade mark ‘SEEMATTI’ and it is the registered trade mark under the Act. Ext.Nos.A1 to A3 trade mark certificates are in his favour. According to him, the plaintiff has got the certificate of registration other than those registration numbers shown in the original plaint. Ext.A1 certificate with registration No.215384 shows that the plaint has registered with trade mark ‘SEEMATTI’ as early as on 7.5.1963 and Ext.No.A2 and A3 certificates are dated 7.5.1977 and 14.7.2009 respectively. Though an amendment application was filed praying that registration numbers in the body of the plaint and relief portion were sought to be deleted, the fact remains that the plaintiff has got registration of the trade marks in Ext.Nos.A1 and A2. The pleadings to that effect are unaltered even after the amendment. Therefore, it cannot be said that merely registration numbers have been taken away 7 FAO 92/23 from the body and relief portion of the portion, the suit will not lie. 8. Section 124(5) of the Act gives power to the court for making any interlocutory order including any order granting an injunction, during the period of the stay of the suit. The respondent has invoked the said provision and filed I.A. No.3 of 2022 for injunction as the suit is stayed till disposal of the rectification petition and the appellant/defendant is continuously using the trade mark ‘‘SEEMATTI SILKS’. The court below has found that the plaintiff has been using the registered trade mark for the last 2 decades and the defendant does not have a case that he has got registered the trade marks. Moreover, the plaintiff has acquired immense reputation in the industry with the trade mark ‘‘SEEMATTI’’ and the business done by the defendant is also a textile business as done by the plaintiff. 9. It is settled law that granting interim injunction against 8 FAO 92/23 infringement is a rule and injunction can only be denied under exceptional circumstances. The respondent had showed a _primafacie_ case before the trial court that defendant is using the name ‘SEEMATTI SILKS’ which is deceptively similar to the name of the plaintiff as ‘SEEMATTI’. The suit is already stayed in I.A. No.2 of 2022 and the said suit can be proceeded only after disposal of O.P.(Arb.) No.47078 of 2022. The court below found that if the defendant is allowed to use the trademark ‘SEEMATTI SILKS’, during the stay of suit it will cause irreparable injury, hardship and loss to the respondent/plaintiff. So the balance of convenience was also found in favour of the plaintiff. So the application was allowed and an interim injunction was granted as prayed for. ## 10. In **Wander Ltd. v. Antox India (P) Ltd., 1990 Supp** ## **SCC 727, in paragraph No.14** , it was held as follows : **14.** The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of 9 FAO 92/23 the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in _Printers (Mysore) Private Ltd._ v. _Pothan Joseph_ [(1960) 3 SCR 713 : AIR 1960 SC 1156] : (SCR 721) “... These principles are well established, but as has been observed by Viscount Simon in _Charles Osenton & Co._ v. _Jhanaton_ [1942 AC 130] ‘...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case’.” 11. The apex court has, a number of times cautioned that the appellate court should not interfere with the exercise of discretion of the court at the first instance and substitute its own discretion except where the discretion has been shown to have 10 FAO 92/23 been exercised arbitrarily, capriciously or perversely. The learned Additional District Judge had exercised his discretion and found that irreparable injury and hardship would be caused to the respondent/plaintiff, if the appellant/defendant is allowed to use the trade name ‘SEEMATTI SILKS’, which is very similar to the name of plaintiff ‘SEEMATTI’. The learned District Judge also found that since the suit is stayed under Section 124 of the Act, the defendant if not restrained and will be using the said name will cause irreparable injury, hardship and loss to the plaintiff also. The learned Judge also found _primafacie_ case and balance of convenience in favour of the plaintiff and irreparable injury would be caused if an interim injunction is not granted. Therefore, in view of the dictum laid down by the apex court in **Wander Ltd. (supra)** and also the fact that the learned Judge found that the respondent will be put to irreparable injury, hardship and loss will be caused and the balance of convenience is in favour of the respondent, I am 11 FAO 92/23 of the view that the learned Additional District Judge is perfectly justified in granting interim injunction as prayed for. Therefore, the First Appeal from Orders lacks merit and it is dismissed. SD/- **BASANT BALAJI, JUDGE** _dl/_