V. Sundaresan v. Varalakshmi Starch Industries Pvt. Ltd
2024:MHC:2596
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.07.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI & C.M.P.Nos.21443 & 21448 of 2022 in C.M.A.No.2747 of 2022 & C.M.P.No.17297 of 2023 in C.M.A.No.1763 of 2023 C.M.A Nos.2747 of 2022
1. V.Sundaresan
2. S.Tamilarasi
3. S.Vimal Kumar
4. K.Sindu
5. M/s.Shri Varalakshmi Company (Now known as Shri.Varalakshmi Sago Foods Pvt. Ltd.,) All at:
No.3, Komarapalayam, Mallur Rasipuram Taluk, Namakkal District Tamil Nadu - 636 203 ... Appellants Vs.
1. Varalakshmi Starch Industries Pvt. Ltd., No.127/1 Gandhi Road Hastampatty Salem- 636 007 Page Nos.1/12
2. V.Anbalagan ... Respondents Civil Miscellaneous Appeal filed under Section 104 of the Code of Civil Procedure, 1908 to set aside the fair and decretal oder dated 27.09.2022 in I.A.No.1 of 2022 in COS No.22 of 2022 on the file of the Commercial Court, District Judge, Salem.
For Appellants :
Mr.Suhirith Parthasarathy For Respondents :
Mr.Arun C Mohan C.M.A.No.1763 of 2023 Varalakshmi Starch Industries Pvt. Ltd., No.127/1 Gandhi Road Hastampatty Salem- 636 007 ... Appellant Vs.
1. V.Sundaresan
2. S.Tamilarasi
3. S.Vimal Kumar
4. K.Sindu
5. M/s.Shri Varalakshmi Company (Now known as Shri.Varalakshmi Sago Foods Pvt. Ltd.,) No.3, Komarapalayam, Mallur Rasipuram Taluk, Namakkal District Tamil Nadu - 636 203
6. V.Anbalagan ... Respondents Civil Miscellaneous Appeal filed under Section 13 of the Commercial Courts Act, 2015 to set aside the condition for curtailing the use of the trade name of 'Varalakshmi' in launching new products by the Appellant in common order dated 27.09.2022 passed in I.A.No.1 of 2022 in C.O.S.No.22 of 2022 to the extent as per the grounds stated above. Page Nos.2/12
For Appellants :
Mr.Arun C Mohan For Respondents :
Mr.Suhirith Parthasarathy COMMON JUDGMENT [Order of the Court was made by M.SUNDAR, J.,] This common judgment will now govern the captioned two main 'Civil Miscellaneous Appeals' ['CMAs' in plural and 'CMA' in singular for the sake of brevity] and two captioned 'Civil Miscellaneous Petitions' ['CMPs' in plural and 'CMP' in singular for the sake of brevity] thereat.
2. Considering the nature of the order which we propose to make, we would not dilate much on facts, nonetheless we deem it appropriate to set out a thumbnail sketch of facts which i.e., facts that are imperative for appreciating this order.
3. A suit being Commercial Original Suit No.22 of 2022 [Originally C.O.S.No.37 of 2022 on the file of Principal District Judge, Salem (CNR No.TNSA23-000042-2022)] vide a plaint dated 02.01.2022 is now pending on the file of 'Commercial Court (District Judge Cadre), Salem' [hereinafter 'said Commercial Court' for the sake of convenience and clarity].
4. The aforementioned 'Commercial Original Suit No.22 of 2022' shall Page Nos.3/12
hereinafter be referred to as 'said main suit' for the sake of brevity and convenience.
5. Said main suit is a typical trademark infringement suit with prayers for injunction, delivery of offending material and accounts. To be noted, the usual costs and residuary limbs also form part of the prayer.
6. The products are 'a variety of sago/sabudana and other tapioca products' [hereinafter 'said products' for the sake of convenience]. Pending suit, the plaintiffs took out I.A.No.1 of 2022 inter alia under Order XXXIX Rules 1 and 2 of 'the Code of Civil Procedure, 1908' ['CPC' for the sake of brevity] seeking injunction restraining the use of alleged offending marks. Suffice to say that said Commercial Court neither acceded to the prayer in entirety nor dismissed the application but made an order saying that the first defendant (D1) shall not introduce any new product in the market until the question as to who is entitled to use of the word 'Varalakshmi' is decided and made a further order saying that status-quo till disposal of suit shall be maintained. A scanned reproduction of the decretal order dated 27.09.2022 is as follows:
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7. The five plaintiffs as well as D1 have preferred the captioned appeals i.e., CMAs saying they are aggrieved by the impugned decree. Therefore, captioned CMAs are cross CMAs. To be noted, we are referring to the 'impugned fair order and decretal order' together as 'impugned order' for convenience.
8. Today Mr.Suhirith Parthasarathy, learned counsel for the appellants/plaintiffs in C.M.A.No.2747 of 2022 and Mr.Arun C Mohan, learned counsel for the appellant / D1 in C.M.A.No.1763 of 2023 are before us.
9. Both learned counsel submit in one voice in unison that in the suit in the said Commercial Court pleadings are complete and filing of proof affidavit on the side of the plaintiffs is the stage.
10. The issue on hand would essentially mean a legal drill which will require this Court to go into multitude of issues that have been raised qua the alleged offending mark in the main suit. Therefore, we are of the considered view that taking into account the nature of the suit, nature of the CMAs, nature of the interim order as well as the overall pendency in the said Commercial Court (to be noted, we have gone into the Data Grid qua said Page Nos.7/12
Commercial Court as well as the Justice Clock and ascertained that only 105 suits {all less than one year} are pending in said Commercial Court as of today), it would be appropriate to have the main suit expedited. The reasons are, i) a decision in the main suit would serve the purpose of the parties better than appeals arising out of interlocutory orders are decided and ii) there is a huge overlap qua the two legal drills. In this view of the matter, the question regarding maintainability of the appeals in the light of proviso to Section 13(1A) of CCA is left open. This question will be considered in another matter where a legal tussle / contest ensues.
11. We have also taken into account the obtaining position that interim order is operating partly in favour of the plaintiffs and partly in favour of D1 as it injuncts D1 from introducing new products and it permits D1 status-quo as regards the present market i.e., status-quo as on the date of the impugned order (27.09.2022). This has also weighed in our mind in making this order.
12. The following order is made:
i) The said Commercial Court is requested to expedite Commercial Original Suit No.22 of 2022 and dispose of the Page Nos.8/12
same in accordance with the procedure qua CCA and of course the substantive law qua Trade Marks Act, 1999 and other applicable legislations/Statute on its own merits and in accordance with law as expeditiously as the Board would permit but in any event within 16 weeks from today i.e., on or before 21.10.2024;
ii) Interim order made by the said Commercial Court i.e., order dated 27.09.2022 in I.A.No.1 of 2022 in Commercial Suit No.22 of 2022 which is being referred to as 'impugned order' will continue to operate till the disposal of the suit;
iii) Law is well settled that any observation made in an interlocutory order will have no bearing qua the main suit. Nonetheless as the matter has travelled to Division Bench by way of an appeal, we deem it appropriate to say that none of the observations or dispositive reasoning or discussion of the said Commercial Court in the impugned order dated 27.09.2022 in I.A.No.1 of 2022 will have any bearing in the Page Nos.9/12
main suit being decided. In other words, said Commercial Court shall decide the main suit on its own merits and in accordance with law as set out supra based on the documentary/oral evidence, written arguments and other material before it i.e., suit file before it; iv) This order shall not be construed as one that has examined the impugned order on merits and sustained the same as merely to balance the rights of parties, we have said that impugned order will continue till the disposal of the suit as it neither allows nor dismisses injunction application but gives some interim relief/benefit to both sides {as alluded to supra};
iv) As regards the captioned CMPs, a Hon'ble predecessor Division bench had stayed the proceedings in the said Commercial Court vide order dated 13.12.2022 and another Hon'ble Bench on 04.03.2024 made it clear that the interim stay would not apply to mediation but as we are informed that mediation was resorted to but the same did not Page Nos.10/12
fructify into a settlement it will suffice to make it clear that the interim order of stay stands vacated and the road is clear for said Commercial Court to proceed with the suit. Captioned two CMAs and captioned two CMPs are disposed of in the aforesaid manner with the aforesaid directives. There shall be no order as to costs.
(M.S.,J.) (K.G.T.,J.) 02.07.2024 Index : Yes / No gpa Page Nos.11/12
M.SUNDAR, J., and K.GOVINDARAJAN THILAKAVADI, J., gpa 02.07.2024 Page Nos.12/12