S.135 Trade Marks Act | Scope Of Granting Interim Injunction Is Limited, Vigil & Caution Must While Granting Ex-Parte Relief: Kerala High Court
Observing that scope of granting ad interim injunction is limited, the Kerala High Court has held that Courts must be vigil and cautious while granting the relief ex parte without notice to the counter petitioner or defendant.Justice P. Somarajan further added that the scope of relief to grant interim injunction should be pertaining to the matters incorporated under Section 135(2) of the...
Observing that scope of granting ad interim injunction is limited, the Kerala High Court has held that Courts must be vigil and cautious while granting the relief ex parte without notice to the counter petitioner or defendant.
Justice P. Somarajan further added that the scope of relief to grant interim injunction should be pertaining to the matters incorporated under Section 135(2) of the Trade Marks Act, adding that the provision cannot have any exhaustive application.
"Hence, the court must be more vigil and cautious while granting an ad interim injunction without notice to the counter petitioner/defendant. It would be too adventurous to implement an ex parte ad interim injunction order passed without notice to the defendants/counter petitioners," the Court added.
Sec. 135(2) of the Act lists three types of matters wherein order of ex parte injunction or any interlocutory order may be passed.
The matters pertain to discovery of documents, preserving of infringing goods, documents or other evidence which are related to the subject-matter of the suit and those restraining the defendant from disposing of or dealing with his assets in a manner which may adversely affect plaintiff's ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff.
The Court observed that while ordering ad interim injunction and ex parte ad interim injunction, there should be a prima facie satisfaction that the matter would not fall under the exception so carved out, besides the grounds available for the exercise of jurisdiction under sec. 135(2) of the Act.
"The purpose of Section 135(2) (c) of the Act is akin to that of an attachment before judgment under Order XXXVIII Rule 5 C.P.C.It is for the purpose of preserving and protecting the interest of the plaintiff and the award that may be passed for payment of damages, costs and other pecuniary remedies, the property of the defendant or his assets can be preserved and protected by way of an ad interim injunction and not for the purpose of preventing any violation of passing off or infringement," the Court added.
In the present Writ Appeal, the dispute arose from an alleged infringement of trade mark and name of Raja Biri and Raja Bidi. An interim ex parte injunction was granted before issuing notice to the defendants restraining them from doing their business.
However, the matter was not heard on merit within the time schedule of 30 days. Despite the defendant/appellant moving an application for an early hearing under Order XXXIX Rule 3A CPC, the matter was not heard. The trial court, meanwhile, appointed a Commission to collect the materials belonging to the defendants supplied to various shops and afforded police protection to the Commissioner.
The Commissioner, in turn, collected all the materials belonging to the defendants supplied to various shops with police protection and thereby, the trial court implemented the interim ex parte injunction granted without notice to the defendants.
When the Appeal came before the Court, it was contended that the Trial Court is well within the jurisdiction of grating even an ex parte ad interim injunction without notice to the counter petitioner/appellants by virtue of Section 135 of the Trade Marks Act.
The High Court was of the view that the order of injunction granted by the trial court for preventing the sale of goods belonging to the defendant in contravention of the alleged trade mark or name and by collecting the goods by appointing a Commission would not come under the purview of sec. 135(2)(c) of the Act.
"In a matter of alleged infringement of or passing off trade mark or trade name, the court should be more cautious and vigilant while passing ex parte interim orders by virtue of Section 135 of the Trade Marks Act. An injunction can be granted only pertaining to the matters included in clauses (a) to (c) to subsection (2) of Section 135 of the Trade Marks Act. While ordering ad interim injunction and ex parte ad interim injunction, the court must be more vigilant and cautious about the exception carved out under sub-section (3), and there should be a prima facie satisfaction that the matter would not fall under the exception so carved out, besides the grounds available for the exercise of jurisdiction under sub-section 2 of Section 135 of the Act," the Court said.
It added "An ad interim injunction shall not be granted in derogation of the right of the opposite party. The exercise of jurisdiction to issue an ex parte ad interim order before notice to the opposite party must reflect the proper consideration of all the abovesaid aspects."
Furthermore, the Court also held that the lower Court implementing the ex parte ad interim injunction passed without the issuance of notice to the party and without hearing the counter petitioner/defendants is a clear violation of the mandate under sec. 135(3) of the Trade Marks Act, besides the mandate under Order XXXIX Rule 3 A C.P.C.
Thereby, the Court disposed of the appeal.
Also Read: Ex-Parte Orders Passed Without Issuance Of Notice Cannot Be Brought Within Purview Of S.36 CPC For Execution: Kerala High Court
Case Title: G. M. Sheik & Ors. v. M/s Raja Biri Private Ltd & Ors.
Citation: 2022 LiveLaw(Ker) 483