- (1.) This first appeal has been filed by INDO BRINE INDUSTRIES LIMITED (in short the plaintiff-appellant) against the decree and judgment dated 23.7.2011 passed by Addl. District Judge (Fast Track) No. 7 Jaipur Metropolitan, (in short "the trial court") in civil suit No. 107/2010 whereby the trial court allowed the application under Order 7 Rule 11 CPC filed by (Dandi Salt Private Limited, Ram Niwas Hukam Chand Gupta, and Neeraj Kumar Agarwal (in short the defendants 2 to 4) and thereby dismissed the civil suit against all the defendants (defendants 2 to 4 and Neeraj Agarwal S/o. Ashok Agarwal, and M/s. Pacs Chemical (defendants 1 and 5 (in short" the defendants") filed by the plaintiff-appellant. The brief facts giving rise to this first appeal are that the plaintiff-appellant filed a civil suit before the trial court for perpetual and mandatory injunction on infringement of trade mark and infringement of copyright and for the damages and rendition of accounts, it was stated in the plaint that the plaintiff-appellant is a company incorporated under the Companies Act, 1956 and engaged in the business of manufacturing, selling and exporting 'iodized Salt' amongst others, under the trade mark and label containing and consisting of the name DANDI NAMAK in Hindi as also DANDI SALT in English. The trade marks (logo) containing and consisting of the name DANDI NAMAK in Hindi in respect of 'iodized Salt for human consumption and for preserving food stuff included in class-30 have been granted registration in favour of the plaintiff-appellant under Nos. 1641653 and 1641655 in class-30 by the office of the Registrar of Trade Marks and that too after the objections filed by the defendant No. 3 for the defendant No. 2 as also by other opponents were considered in accordance with the provisions of the Trade Marks Act, 1999. it was also mentioned in the plaint that inspite of the registration of the trade mark DANDI NAMAK in the name of the plaintiff-appellant and plaintiff-appellant being the prior user since the month of June, 1998, all the defendants in collusion with each other and at the instance of each other continued the acts of infringement of the trade mark of the plaintiff-appellant. The defendants continued to use and infringe the trade mark, infringement of copyright and passing off their goods as and for the plaintiff and in this process also the defendants filed collusive suits amongst each other as also against the plaintiff-appellant in the territorial jurisdiction of District Court at Jaipur. The plaintiff-appellant has drawn attention of this court towards para 27 of the plaint, which reads as under: Para 27. That the cause of action of this suit arose against the defendants within the jurisdiction of this Hon'ble Court firstly when the defendant No. 3 filed a suit for alleged passing off in the name of the defendant No. 2 against the present plaintiff and thereafter, the defendant No. 3 and 4 filed several false and frivolous criminal complaints as also filed contempt case against the Registrar of Trade Marks and thereby attempted to derail the registration proceedings of the trade mark DANDI NAMAK of the plaintiff followed by frivolous notice of oppositions against the registration of the trade mark (logo) DANDI NAMAK of the present plaintiff with the office of the Registrar of Trade Marks at Ahmedabad. The defendants No. 3 and 4 also filed a frivolous suit for the alleged passing off in the name of the defendant No. 2 company against the present plaintiff in the Hon'ble District Court at New Delhi and thereafter a civil Suit No. 17 of 2010 on 23.7.2010 in the Hon'ble District Court, Jaipur City and defendant No. 5 filed a frivolous and collusive suit for the alleged passing off before Hon'ble the District Court at Jaipur City and thereby continued illegal acts of infringement of trade mark infringement of copyright, falsification of trade mark and passing off in clear violation of the vested property rights including the statutory rights of registration of the present plaintiff. The defendants, in active association with each other doing illegal acts of infringement of trade mark, infringement of copyright, falsification of trade mark and passing off by selling their goods i.e. salt under the identical and/or deceptively similar mark DANDI NAMAK/DANDI SALT in Jaipur City, Rajasthan and elsewhere throughout country without mentioning the brand name in the invoices and/or without issuing sale bills for such sale and/or in the clandestine manner in Jaipur City, Rajasthan and elsewhere throughout Country and as such, the cause of action for such illegal acts is continuous to arise 'de die in dem' within the jurisdiction of this Hon'ble Court. The plaintiff state that the cause of action in respect of the infringement of trade mark and copyright and also for the illegal acts of passing off committed by the defendants is continuous and recurring one and is arising day to day until the defendants are restrained by the injunction order of this Hon'ble Court from committing such illegal acts any further. This suit is filed within limitation for the cause of action, which is continuous in nature mentioned herein.
(2.) in the civil suit plaintiff-appellant prayed as under: A. The defendants by themselves, their proprietors/partners/directors, their servants, agents, dealers, distributors and all other persons connected with them in any manner, may please be restrained by a perpetual order and injunction of this Hon'ble Court from in any manner manufacturing, marketing, selling and/or using in relation to their Salt and/or any other like goods, the impugned mark/label containing and consisting of the name DANDI NAMAK or DANDI SALT and/or any other mark/label which may be identical and/or deceptively similar to the plaintiff's prior used trade mark and label Of DANDI NAMAK/DANDI SALT and also from doing business of salt' or any other like goods under the trade name of DANDI SALT PRIVATE LIMITED or any other name containing and consisting of the name DANDI NAMAK/DANDI SALT so as to infringe upon the trade mark rights of the plaintiff and also from passing off their such goods and business or enable others to pass off their such goods as and for the true goods and business of the plaintiff; B. The defendants by themselves, their proprietors/partners/directors, their servants, agents, dealers, distributors and all other persons connected with them in any manner, may please be restrained by a perpetual order and injunction of this Hon'ble Court from in any manner limitating and/or reproducing the plaintiffs artistic work titled DANDI NAMAK in their impugned label on pouch packings of 'salt' in any manner and/or any other art work which may be identical and/or deceptively similar or substantial reproduction of the artistic work titled DANDI NAMAK of the plaintiff so as to infringe upon the plaintiffs copyright under the provisions of the Copyrights Act. 1957: C. The defendants may be directed or ordered to render the true and accurate account of profits earned by them from the manufacture and sale of their 'salt' and any other like goods under the identical and/or deceptively similar mark and the artistic work containing and consisting of the name DANDI NAMAK or DANDI SALT and/or limited art work on the pouch packings of their 'salt' and/or under the trade name of DANDI SALT PRIVATE LIMITED and to grant the decree of the amount so ascertained in favour of the plaintiff of all such profits as damages for the illegal acts of infringement of statutory rights of registration including the infringement of copyright and trade mark as also for the illegal acts of the passing off committed by them as complained off; D. The Hon'ble Court may be pleased to pass a decree of mandatory injunction directing the defendants to deliver to the plaintiff all the trade literatures, packing materials, brochures, stock of offending goods, advertising materials and all other goods bearing the identical and/or deceptively similar mark and artistic work containing and consisting of the name DANDI NAMAK or DANDI SALT for the destruction or erasure: E. That, pending the hearing and final disposal of the suit, the Hon'ble Court may be pleased to restrain the defendants from disposing off or dealing with their assets in a manner which may adversely affect the plaintiff's ability to recover damages/accounts of profits and also for the costs which may be finally awarded to the plaintiff by this Hon'ble Court; F. The defendants may also be restrained by way of perpetual injunction order against causing obstruction or impediment in manufacturing, marketing and distribution of DANDI NAMAK and DANDI SALT by the plaintiff: G. The cost of the present suit may kindly be awarded to the plaintiff from the defendants; H. Any other and further relief or reliefs may please be granted to the plaintiff after looking to the facts and circumstances of the present case, in the interest of justice.
(3.) The defendants No. 2 to 4 and 5 filed written statements, during the pendency of the application under Order 39 Rules 1 and 2 CPC. The defendant No. 1 chose to file an application under order 39 Rule 4 CPC and later on the same was considered as reply of the defendant No. 1. The trial court granted ad-interim injunction against each of the defendants vide order dated 21.8.2010 and thereafter upon hearing the arguments and on consideration of the documents placed on record by the parties in the matter of temporary injunction application under Order 39 Rules 1 and 2 CPC, the trial court allowed the same and granted temporary injunction till the disposal of the suit in favour of the plaintiff vide order dated 28.10.2010. The defendants 2 to 4 as also the defendant No. 5 separately filed S. B. civil Misc. Appeals Nos. 3222/10 and 3476/10 against the plaintiff-appellant. This court has not passed any interim order against the order of the trial court dated 28.10.2010 inspite of several hearings. The defendant No. 5 sought permission to withdraw its appeal to pursue the remedy under Order 39 Rule 4 CPC. The appeal filed by the defendant No. 5 was dismissed by this court as having been withdrawn with liberty to argue the matter upon the application under order 39 Rule 4 CPC before the trial court. After lapse of almost 8 months, the defendants 2 to 4 filed application under Order 7 Rule 11 CPC seeking dismissal of the suit. The plaintiff-appellant filed detailed reply to the application. After hearing the plaintiff-appellant and the defendants 2 to 4 on 16.7.2011, the matter was posted on orders upon the application under Order 7 Rule 11 CPC on 23.7.2011. The trial court allowed the application under Order 7 Rule 11 CPC with a detailed order. On 23.7.2011 the plaintiff filed an application under Order 41 Rule 5(2) read with section 151 CPC stating that the plaintiff-appellant wants to file appeal before the High court and for long time injunction was operating in favour of the plaintiff-appellant and against all the defendants and the same was allowed to continue for a period of 30 days by the order dated 23.7.2011. The appellant filed the present appeal before this court on 12.8.2011 and this court in the presence of both the parties continued the order dated 23.7.2011 of the trial court vide order of this court dated 24.8.2011 and it is being continued further by the orders dated 30.8.2011, 8.9.2011, 14.9.2011 and 16.9.2011. The arguments of the plaintiff-appellant and the defendants were heard on 23.9.2011 in this appeal.;