{"id":164508,"date":"2008-06-13T00:00:00","date_gmt":"2008-06-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/macleods-vs-alembic-on-13-june-2008"},"modified":"2018-06-12T03:35:50","modified_gmt":"2018-06-11T22:05:50","slug":"macleods-vs-alembic-on-13-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/macleods-vs-alembic-on-13-june-2008","title":{"rendered":"Macleods vs Alembic on 13 June, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Macleods vs Alembic on 13 June, 2008<\/div>\n
Author: K.M.Thaker,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nAO\/192\/2008\t 19\/ 27\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nAPPEAL\nFROM ORDER No. 192 of 2008\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE K.M.THAKER\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nMACLEODS\nPHARMACEUTICALS LTD. - Appellant(s)\n \n\nVersus\n \n\nALEMBIC\nLIMITED - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMr.Mihir\nThakore with MR\nANIP A GANDHI for\nAppellant(s) : 1, \nMr. KS NANAVATI with Mr. K.K. Nanavati for\nNANAVATI ASSOCIATES for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE K.M.THAKER\n\t\t\n\t\n\n \n\nDate\n: 13\/06\/2008  \nORAL JUDGMENT<\/pre>\n
1.\tThis
\nAppeal from Order arises from an order dated 29.05.2008 passed below
\nEx. 5 in Civil Suit No. 18 of 2008 whereby the Additional District
\nJudge, Vadodara has passed an ad-interim injunction against the
\npresent appellant in terms of paras 38[a] and 38[b]of the injunction
\napplication (Ex. 5).  The said paragraphs 38[a] and 38[b] read thus:\n<\/p>\n
?S38.\tThe plaintiff,
\ntherefore, prays that:-\n<\/p>\n
\t[a] Pending hearing and
\nfinal disposal of the suit, the Hon’ble Court be pleased to restrain
\nby an order of injunction the Defendant by themselves, their
\nservants, agents, chemists, distributors, retailers and anybody
\nclaiming through the Defendant are not entitled to use trade mark
\nGEMIMAC or any mark identical with or deceptively similar to the
\nPlaintiff’s reputed trade mark GERIMAC as their trade mark in respect
\nof manufacturing, selling, exporting or distributing their goods or
\nin any manner advertising their goods so as to pass off the goods of
\nthe Defendant as and for the Plaintiff;\n<\/p>\n
[b] Pending hearing and
\nfinal disposal of the suit, the Hon’ble Court be pleased to restrain
\nby an order of injunction the Defendant by themselves, their
\nservants, agents, chemists, distributors, retailers and anybody
\nclaiming through the Defendant are not entitled to use trade mark
\nGEMIMAC or any mark identical with or deceptively similar to the
\nPlaintiff’s reputed trade mark GERIMAC as their trade mark in respect
\nof manufacturing, selling, exporting or distributing their goods or
\nin any manner advertising their goods so as to cause confusion and\/or
\ndeception;??\n<\/p>\n
2.\tThe
\nappellant, being aggrieved by the said order has approached this
\nCourt by the captioned appeal.  The appellant has, essentially raised
\nserious grievance against the impugned order on the ground that there
\nwas no basis or justification for the learned court to grant exparte
\ninjunction without issuing  notice before granting the injunction,
\nand that too without recording reasons as contemplated by and
\nrequired by the provision of Rule 3 of Order 39 of the Code of Civil
\nProcedure, 1908 (hereinafter referred to as ‘the Code’).  The
\nappellant has prayed that the said order may be quashed and set
\naside.\n<\/p>\n
3.\tThe
\nappellant has raised below mentioned question of law, which according
\nto the appellant, arise from the impugned order.\n<\/p>\n
?S(a) Whether
\nirreparable or serious mischief will ensue to the plaintiff;\n<\/p>\n
(b) Whether the refusal
\nof exparte injunction would involve greater injustice than the grant
\nof it would involve;\n<\/p>\n
(c ) The court will also
\nconsider the time at which the plaintiff first had notice of the act
\ncomplained so that the making of improper order against a party in
\nhis absence is prevented.\n<\/p>\n
(d) The court will
\nconsider whether the plaintiff had acquiesced for sometime and in
\nsuch circumstances it will not grant exparte injunction;\n<\/p>\n
(e) The court would
\nexpect a party applying for exparte injunction to show utmost good
\nfaith in making the application;\n<\/p>\n
(f) Even if granted the
\nexparte injunction would be for a limited period of time;\n<\/p>\n
(g) General principles
\nlike prima-facie case balance of convenience and irreparable loss
\nwould also be considered by the Court;??\n<\/p>\n
4.\tIn
\nview of the issues arising in this appeal, appeal deserves
\nconsideration.  Hence ADMIT.  Considering
\nthe facts and request of the respective counsel and with their
\nconsent, the appeal is taken up and heard for final disposal.\n<\/p>\n
5.\tThe
\nfacts involved in and relevant for the present purpose, as stated by
\nthe appellant, are briefly recapitulated below.\n<\/p>\n
5.1\tThe
\ncase of the appellant is that it is a Public Limited Company
\nincorporated and registered under the provisions of the Companies
\nAct, 1956 having its registered office at Mumbai and is interalia
\nengaged in the business activity of manufacturing and selling of
\npharmaceutical products.  The appellant has claimed that one of the
\nseveral pharmaceutical products being manufactured and marketed by
\nit, is a medicinal preparation for respiratory disorders, which is
\nmarketed in the name and style of GEMIMAC i.e. under the trademark
\n?SGEMIMAC??.\n<\/p>\n
5.2\tThe
\nappellant claims that it has started manufacturing and selling the
\nsaid medicinal preparation since May 2007 and at present the turnover
\nof the said product is of about 20 crores per annum.  The appellant
\nfurther claims that it has independently and honestly conceived,
\ncoined and adopted the said trade mark GEMIMAC wherein the prefix
\nGEMI stands for Gemifloxacin and that the suffix MAC stands for
\nMacleods Pharmaceutical (which is the name of the appellant company).\n<\/p>\n
5.3\tThe
\nappellant has further stated that earlier it was served with a ?Scease
\nand desist notice?? by the opponent in the present case asking the
\nappellant to desist from manufacturing\/marketing and using, in
\nrelation to the medicinal and pharmaceutical preparation, the
\nimpugned mark GEMIMAC because it was deceptively and also confusingly
\nsimilar to the appellant’s reputed trade mark GERIMAC.\n<\/p>\n
5.4\tThe
\nappellant has stated that by its communication dated 03.07.2007 it
\nhad responded to the said notice and informed the opponent that the
\ntrade mark GEMIMAC was an independently and honestly coined, invented
\nand adopted by it and that therefore there was no cause or
\njustification for the opponent to issue the said ?Scease and desist
\nnotice?? and that the opponent, having faced with competition had
\ncome out with groundless threats and legal proceedings.  It is
\nfurther claimed by the appellant that for almost ten months the
\nopponent did not take any steps in the matter and that therefore it
\nwas reasonably believed by the appellant that after the reply dated
\n03.07.2007, the opponent had appreciated and accepted the case and
\nthe issue was put to rest.\n<\/p>\n
5.5\tIt
\nis the case of the appellant that suddenly after a period of almost
\nten months it was served with the impugned exparte order restraining
\nit from using its trade mark GEMIMAC or any mark identical with or
\ndeceptively similar to the present opponent’s (i.e. original
\nplaintiff’s) trade mark GERIMAC and also restraining it from
\nmanufacturing, selling, exporting or distributing its goods in any
\nmanner using the trade mark GEMIMAC.\n<\/p>\n
5.6\tThe
\nappellant has stated that the said exparte order is not only
\nunreasonable, unjustified and unwarranted in the facts of the case
\nbut is also in total disregard to the mandatory requirements of the
\nprovisions under Rule 3 of Order 39 and proviso of Rule 3 which
\nrequires that in all cases, except where the object of granting
\ninjunction is likely to be defeated by delay, notice must be issued
\nbefore granting injunction inasmuch as the learned  court failed to
\nappreciate that the original plaintiff i.e. present opponent had
\nissued the ?Scease and desist notice?? after almost one year since
\nthe appellant started manufacturing and marketing the medicinal
\nproduct with the trade mark GEMIMAC and that the suit was filed after
\nalmost ten months since the said ?Scease and desist notice?? was
\nissued and that further there was no justification in granting the
\nexparte mandatory injunction without issuing notice of a week or
\natleast three days so as to enable the appellant to place on record
\nits reply and supporting material.\n<\/p>\n
6.\tIn
\nthe back drop of such facts and on the premise of such contentions,
\nthe appellant has preferred present appeal and challenged the said
\nexparte order dated 29.05.2008.\n<\/p>\n
7.\tThe
\nopponent i.e. the original plaintiff has appeared on caveat and on
\n11.06.2008 when the subject appeal was circulated for hearing,
\nrequest for an adjournment for one day was made during which the
\nopponent-plaintiff wanted to file its reply affidavit opposing the
\ncivil application for interim relief in the present appeal.  In view
\nof the consent of the appellant, the proceeding was adjourned to
\n12.06.2008.\n<\/p>\n
8.\tMr.\n<\/p>\n
Mihir Thakore, learned senior counsel appeared with Mr. Gandhi for
\nthe appellant and Mr. K.S Nanavati, learned senior counsel appeared
\nwith Mr. K.K Nanavati for the opponent-plaintiff.  Mr. Thakore made
\nhis submissions on 12.06.2008 and Mr. Nanavati has replied the same
\non 13.06.2008 i.e. today.\n<\/p>\n
9.\tMr
\nMihir Thakore reiterated the factual aspects and in particular
\nstressed the fact that the appellant’s product is extremely popular
\nand within a span of one year it has a market of about Rs.20 crores
\nper annum.  He submitted that the ?Scease and desist notice?? was
\nissued on 20.06.2007 whereas the suit has been filed on 29.05.2008
\ni.e. after almost ten months since the date of notice and\/or the date
\nof the reply by the appellant to the opponent-plaintiff.\n<\/p>\n
9.1\tMr.\n<\/p>\n
Thakore submitted that in view of such time lag and the delay, there
\nwas no justification for the learned court to not issue notice, for
\none week or atleast three days, and to proceed to grant an exparte
\nmandatory injunction on the same day when the suit was presented.
\nMr. Thakore was quick to add that it is not his attempt to urge that
\nthe said delay of ten months would defeat the prayer for interim
\ninjunction but his attempt is to urge that the said delay of ten
\nmonths atleast defeated or wiped  out any justification, if at all
\nthere was any, of granting exparte mandatory ad interim injunction
\nwithout issuing notice as required by Rule 3 of Order 39 of the Code.
\n He submitted that the said requirement is mandatory and the order
\npassed by the learned court without issuing notice is contrary to the
\nlegal decisions well settled by catena of judgements and also in
\ntotal disregard to the requirement prescribed by the Code.\n<\/p>\n
9.2
\nMr. Thakore in support of his submissions relied upon the judgement
\nof this Court (Coram : J.M Panchal, J., as his lordships then was)
\ndated 29.01.1994 rendered in Appeal From Order No. 29\/94.   He has
\nalso relied upon the judgement of the Hon’ble Apex Court in the case
\nof Laxmikant V. Patel vs. Chetanbhai Shah<\/a> reported in 2002(3) SCC 65
\nas well as the order of this Court (Coram: D.N Patel, J.) dated
\n16.10.2007 passed in Appeal From Order No.378 of 2007 and orders
\ndated 18.07.2007 in Appeal From Order No. 261\/07 and dated 30.08.2007
\nin Appeal From Order No. 306\/07.\n<\/p>\n
10.\tOn
\nthe other hand, Mr K.S. Nanavati referred to the factual aspects
\nmentioned by the opponent-plaintiff in the application for interim
\ninjunction and submitted that the opponent i.e. original plaintiff is
\na century old company which is highly reputed for its pharmaceutical
\nand medicinal products.  He also submitted that the plaintiff spends
\na significant amount for research and development work and has
\nseveral patentable inventions to its credit.  He also submitted that
\nthe plaintiff takes ample measures to protect its Intellectual
\nProperty Rights.  Mr. Nanavati further submitted that the plaintiff
\nhas coined several trade marks with prefix GERI. He submitted that in
\ncase of the product in question, the prefix GERI is derived from the
\nword GERIATRICS and to illustrate his submission he made reference to
\nplaintiff’s various products which are being marketed under the trade
\nmark having prefix GERI eg. GERIPOD, GERICEFF, GERICARD, GERIGAT,
\nGERIFLAM, GERIJOINT, GERIGRAD.  Mr. Nanavati submitted that so far as
\nthe product in question i.e. GERIMAC is concerned, the plaintiff has
\nsecured sales of 40.23 lakhs, 58.86 lakhs and 60.29 lakhs during the
\nfinancial years 2005-06, 2006-07 and 2007-08 respectively.  He
\nsupplemented the said submission by also referring to the amount
\nspent by the plaintiff company towards promotion of the said product
\nGERIMAC and submitted that amount of Rs. 6.03 lakhs, 8.83 lakhs and
\n9.04 lakhs have been spent by the plaintiff company for the promotion
\nof the said product during the aforesaid period of three years.\n<\/p>\n
10.1\tAccording
\nto Mr. Nanavati, it is the case of the plaintiff that the present
\nappellant, with the intention of exploiting the goodwill of the
\nplaintiff company and reputation of the product GERIMAC, resorted to
\nthe trade mark GEMIMAC which is deceptively and confusingly similar
\nto the plaintiff’s trade mark GERIMAC. He also submitted that the
\nproduct in question is a medicinal preparation which is used for
\nupper respiratory disorders.  In other words his submission amounts
\nto contending that both the products have a similar purpose and that
\ntherefore the phonetic and\/or visual similarity would result into
\nconfusion and thereby adversely affect the prospects of the
\nplaintiff’s product and the plaintiff’s business.\n<\/p>\n
10.2\tMr.\n<\/p>\n
Nanavati also made reference to the very common and off repeated
\ncontention based on almost illegible or difficult to decipher
\nprescriptions and in light of that contention he submitted that there
\nwas a strong likelihood of confusion which would facilitate the
\npassing off the appellant’s products instead of the well reputed
\nproduct of the plaintiff.  Mr. Nanavati also submitted that the
\nplaintiff has placed on record before the learned Court the
\nmaterial-literature of opponent’s products which, even as per the
\nappellant, has several side effects.  Mr Nanavati on the basis of
\nsuch material, which is said to be obtaining on the record of the
\nlearned court, submitted that there is, therefore, strong
\njustification for injunction as prayed for by the plaintiff so that
\nthe passing off of the appellant’s product instead of the opponent’s
\nproduct may be immediately arrested and hence the order is justified.\n<\/p>\n
10.3\tMr.\n<\/p>\n
Nanavati also submitted that the learned court has recorded
\nsufficient reasons to justify the order granting injunction without
\nissuing notice and the said order cannot be treated as an order
\ndevoid of any reasons.  In his submission, it cannot be said on
\nreading of the order, that the court has gone wrong in taking
\ndecision to grant exparte injunction and it also cannot be said that
\nthe reasons recorded by the court are so perverse or arbitrary and
\npalpably wrong that it would warrant its setting aside.  Mr Nanavati
\nsubmitted that may be by some standard the said order probably may
\nnot be meeting with the normal standards of a well reasoned order,
\nbut only on that ground the same ought not be set aside.  Mr.
\nNanavati in support of his submissions relied upon the judgements
\nreported in the following:\n<\/p>\n
1988(8)
\n\tPTC 85<\/p>\n
AIR
\n\t1994 J & K 25<\/p>\n
AIR
\n\t2003 Calcutta 64<\/p>\n
(2001)<\/span>
\n\t5 SCC 73<\/p>\n
2007(1)
\n\tGLR 686 <\/p>\n
1997(2)
\n\tGLH 1002.\n<\/p>\n
11.\tI
\nhave extensively heard Mr. Thakore and Mr. Nanavati for contesting
\nparties and I have also gone through the record of the present
\nappeal.\n<\/p>\n
12.\tIn
\nthe present case which arises from a passing off action initiated by
\nthe present opponent (original plaintiff) against the present
\nappellant (original opponent) on the ground that by manufacturing and
\nmarketing its medicinal preparation under the trade mark GEMIMAC, the
\nappellant herein is indulging into passing off of its product by
\nusing phonetically\/visually similar trade mark, the learned court
\nhas, on 29.05.2008 granted exparte injunction and the injunction
\norder is not limited till the returnable date but is until further
\norders.\n<\/p>\n
13.\tThis
\nCourt, at this stage of the proceedings, does not intend to go into
\nthe merits of the rival claims, lest it should affect the proceedings
\nbefore the learned Civil Court where the suit as well as notice of
\nmotion are still pending.  It is clarified that the narration of
\nfactual aspects and observations in the present order are only for
\nthe purpose of deciding this appeal against the exparte injunction
\norder and are not made on merits of the subject matter of the Civil
\nSuit and\/or by examining the merits of the case and that therefore
\nthey are not to be treated as observations or findings on the merits
\nof the subject matter or in favour of or against any party.\n<\/p>\n
14.\tThe
\nfactual aspects which are relevant for the present appeal, are not in
\ndispute inasmuch as it is an undisputed fact-situation that the
\noriginal plaintiff i.e. opponent herein has started manufacture and
\nsale of the medicinal preparation under the trade mark GERIMAC since
\nSeptember 2005.  Accordingly, the plaintiff i.e. the opponent herein
\nis a prior user of the trade mark GERIMAC.\n<\/p>\n
15.\tIt
\nappears that the plaintiff was granted drug license in July 2005 for
\nthe said product GERIMAC and it had applied for registration of the
\ntrade mark in Class 5 on 06.10.2005.  An advertisement with reference
\nto the plaintiff’s application came to be published in the trade mark
\njournal on 16.04.2006 and it appears that thereafter some objection
\nby a company named Mac Remedies Pvt. Ltd was raised and it is
\nregistered.  It is, however, not in dispute that even after the said
\nadvertisement, way back in April 2006, present appellant did not
\nraise any objection and has not done so until now.  It is also not in
\ndispute that the plaintiff has been marketing the said medicinal
\nproduct with trade mark GERIMAC since September 2005 whereas the
\nappellant herein has started marketing its product with trade mark
\nGEMIMAC after more than almost 15 months, in May 2007.\n<\/p>\n
15.1\tIt
\nis pertinent that after the appellant started marketing the product
\nin May 2007, in June 2007 the plaintiff issued the ?Scease and
\ndesist notice??.  This fact also is not in dispute.  True it is,
\nthat the appellant replied the said ?Scease and desist notice?? on
\n03.07.2007 and the suit came to be filed on 29.05.2008 i.e. after
\nalmost ten months from the date of the appellant’s reply.  It is also
\nnot in dispute that the purpose or use of both the products is
\nsimilar and that the said medicinal preparations are Schedule H
\ndrugs, as a result of which it would be available or sold only on
\nprescription.\n<\/p>\n
16.\tIn
\nthe passing off action against the appellant filed by the present
\nopponent, the learned Civil Court, as it appears from the perusal of
\nthe order, upon taking into account the contents of the suit and
\ninterim relief application and after hearing the plaintiff’s advocate
\nconsidered it appropriate to pass exparte injunction, and did not
\nissue notice as required by Order 39 Rule 3.\n<\/p>\n
16.1\tThe
\nappellant has mainly two fold objections against the impugned order.
\nThe first one being that there was no justification for granting
\nexparte injunction without issuing notice for a period of one week or
\natleast three days, more particularly when the suit was filed after
\nalmost ten months since the date of ?Scease and desist notice?? and
\nthe said time gap or difference demonstrated that delay of a week or
\nthree days would not have defeated the object of granting the
\ninjunction, and second being that the learned court has failed to
\nrecord reasons, which in appellant’s submission is mandatory,
\ndisclosing as to how and why the court believed that delay of a week
\nor three days would defeat the object of granting injunction.\n<\/p>\n
17.\tFor
\nappreciating the appellant’s grievance and objections against the
\nimpugned order it is appropriate to refer to the provisions under
\nRule 3 of Order 39 and its proviso and the relevant portion of the
\nimpugned order.  The provision under Rule 3 of Order 39 reads thus:\n<\/p>\n
\t?S3. Before
\ngranting injunction, Court to direct notice to opposite party.-
\nThe Court shall in all cases, except where it appears that the object
\nof granting the injunction would be defeated by the delay, before
\ngranting an injunction, direct notice of the application for the same
\nto be given to the opposite party:\n<\/p>\n
\t[Provided that, where
\nit is proposed to grant an injunction without giving notice of the
\napplication to the opposite party, the Court shall record the reasons
\nfor its opinion that the object of granting the injunction would be
\ndefeated by delay, and require the applicant-\n<\/p>\n
\t(a) to deliver to the
\nopposite party, or to send to him by registered post immediately
\nafter the order granting the injunction has been made, a copy of the
\napplication for injunction together with-\n<\/p>\n
\t\t\ta copy of the
\n\t\t\taffidavit filed in support of the application;\n<\/p><\/blockquote>\n
\t\t\ta copy of the plaint;<\/p><\/blockquote>\n
\t\t\tand<\/p>\n
\t\t\tcopies of documents
\n\t\t\ton which the applicant relies, and <\/p>\n
(b) to file, on the day
\non which such injunction is granted or on the day immediately
\nfollowing that day, an affidavit stating that the copies aforesaid
\nhave been so delivered or sent.]<\/p>\n
18.\tThe
\nrelevant portion of the impugned order reads thus:\n<\/p>\n
?S… I have a reason
\nto believe that the defendant has issued reply to the notice given by
\nthe plaintiff and has claimed to be bonafide in such manufacturing
\ndrugs.  It is claimed that there are number of drugs suffixing with
\nMac manufactured by the defendant.  However, it is pertinent to not
\nthat not a single drug except the drug in dispute has such
\nresemblance as ?SGERIMAC??.  The size and color of the tablets is
\nalso resembling.  Both the companies are engaged in manufacturing
\nAntibiotic drugs and there is a reason for me to believe that if the
\ninjunction at this stage is not issued ex-parte, the defendant will
\nbe able to enjoy the benefit of the goodwill earned by the plaintiff
\ncompany under the pretext of deceptively similar name of the drug…??\n<\/p>\n
19.\tThe
\nquestion which arises is as to whether the said order is in disregard
\nto or in violation of the provision under Rule 3 of Order 39.  While
\nconsidering the provision under Rule 3 of Order 39, the Hon’ble Apex
\nCourt has, in the judgement in the case of Shiv kumar Chadha vs.
\nMunicipal Corporation of Delhi and Others reported in 1993(2) GLH 778
\nheld  as under:\n<\/p>\n
\t?S32.\t\tPower
\nto grant injunction is an extraordinary power vested in the Court to
\nbe exercised taking into consideration the facts and circumstances of
\na particular case.  The Courts have to be more cautious when the
\nsaid power is being exercised without notice or hearing the party who
\nis to be affected by the order so passed. That is why Rule 3 of
\nOrder XXXIX of the Code requires that in all cases the Court shall,
\nbefore grant of an injunction, direct notice of the application to be
\ngiven to the opposite party,  except where it appears that object
\nof granting injunction itself would be defeated by delay. By the
\nCivil Procedure Code (Amendment) Act,1976, a proviso has been added
\nto the said rule saying that ?Swhere it is proposed to grant an
\ninjunction without giving notice of the application to the opposite
\nparty, the Court shall record the reasons for its opinion that the
\nobject of granting the injunction would be defeated by delay…??\n<\/p>\n
\t\t\t\t\t(Emphasis supplied)<\/p>\n
20.\tWhen the learned
\ncourt grants an order of injunction without prior notice, then the
\nother side not only has a reasonable expectation but also has a right
\nto know which are the facts and aspects or factors of the subject
\nmatter which appealed to or weighed with the learned court.  The
\nother side expects to know the reasons which convinced the learned
\ncourt to grant exparte injunction so that it can while responding to
\nand opposing the notice of motion, effectively address and deal with
\nthe same.  Further, when appeal against  the order is provided under
\nthe Code, then the appellate court also expects to know the reasoning
\nof the Court which convinced it to pass the order of injunction
\nwithout prior notice.  Not only this, it is also necessary that the
\nreasons recorded in the order be so recorded that it would amply
\nclarify as to on what basis or for which reasons the learned court
\nbelieved that a prior notice of atleast one week or three days would
\ndefeat the object of granting injunction.  The said provision under
\nRule 3 Order 39 postulates an additional requirement which the
\nlearned court is required to consider before an order of injunction.
\nNormally, while granting or refusing interim order, the court would
\ntake into account the well-recognised principles of strong prima
\nfacie case, balance of convenience and irreparable injury which
\ncannot be compensated in terms of money, however, when an injunction
\norder is being passed without prior notice then there is an
\nadditional requirement which is required to be observed, namely,
\nrecording the reasons which convince the court to grant injunction
\norder without prior notice and which leads the learned court to the
\nbelief that the time which would be consumed in issuing prior notice
\nwould frustrate the object of granting injunction.\n<\/p>\n
20.1\tIn view of the
\nproviso of Rule 3 Order 39 it is necessary that the said reason must
\nbe clearly and eloquently spelt out in the order granting exparte
\ninterim injunction.  The said requirement was highlighted by the
\nHon’ble Apex Court when the Hon’ble Apex Court observed, in the
\njudgement in the case of Shiv Kumar Chadha (supra)vide para 34 as
\nunder:\n<\/p>\n
?S…we are quite
\nconscious of the fact that there are other statutes which contain
\nsimilar provisions requiring the court or the authority concerned to
\nrecord reasons before exercising power vested in them.  In
\nrespect of some of such provisions it has been held that they are
\nrequired to be complied with but non-compliance therewith will not
\nvitiate the order so passed.   But the same cannot be said
\nin respect of the proviso to Rule 3 Order 39.   The Parliament
\nhas prescribed a particular procedure for passing of an order of
\ninjunction without notice to the other side, under exceptional
\ncircumstances.  Such ex parte orders have far-reaching effect,
\nas such a condition has been imposed that Court must record reasons
\nbefore passing such order.  It it is held that the compliance of the
\nproviso aforesaid is optional and not obligatory, then the Parliament
\nshall be a futile exercise and that part of Rule 3 will be a
\nsurplusage for all practical purpose.  Proviso to Rule 3 of Order 39
\nof the Code, attracts the principle, that if a statute requires a
\nthing to be done in a particular manner, it should be done in that
\nmanner or not at all.  This principle was approved and accepted in
\nwell-known cases of Taylor v. Taylor, (1875) 1 Ch.D. 426;
\nNazir Ahmed v. Emperor, AIR 1939 PC 253.  This Court has also
\nexpressed the same view in respect of procedural requirement of the
\nBombay Land Tenancy and Agricultural Lands Act in the case of
\nRamchandra Keshav Adke v. Govind Joti Chavare AIR<\/a> 1975 SC\n<\/p>\n
915.??\n<\/p>\n
\t\t\t\t\t(Emphasis Supplied)<\/p>\n
20.2\tIt is in light of
\nthe legal position thus settled by the Hon’ble Apex Court that the
\nimpugned order is required to be examined.  A glance at the order
\nshows that the learned court has taken into account ?Sthe similar
\npurpose or use?? of the two products and that the plaintiff has
\nseveral products in its armour which have prefix GERI and the
\nappellant (original defendant) has various products in its kitty
\nwhich have MAC as the suffix.  After recording the said features
\nemerging from the case before it, the learned court has proceeded to
\nrecord that it has reason to believe that if the exparte injunction
\nwas not granted at this stage then the defendant(i.e. present
\nappellant) would be able to enjoy the goodwill earned by the
\nplaintiff company.  The learned court, except recording the said
\nreason, has not given out any reason from which it can become clear
\nthat for the particular reason the learned court believed that if the
\nnotice for a period of one week or atleast three days before granting
\ninjunction was issued then within that short period of one week or
\nthree days, the object of granting injunction would be defeated.\n<\/p>\n
20.3\tIn the present
\ncase, the said aspect becomes more relevant and necessary, besides
\nthe importance and relevance on account of proviso under Rule 3, in
\nlight of the fact that the appellant has started manufacturing and
\nmarketing its product under the trade mark GEMIMAC since May 2007
\ni.e. since about one year and also for the reason that the plaintiff
\nitself had waited for atleast ten months after issuing the ?Scease
\nand desist notice??.\n<\/p>\n
20.4 The learned court
\ndoes not appear to have addressed and\/or considered the said feature
\nof the present case.  The learned court also does not appear to have
\naddressed the issue that if the concern for general public was, as is
\nnow claimed by the plaintiff on the ground that the alleged phonetic
\nand visual similarity would result into deceiving people, so
\nimportant in its mind, then in that event the plaintiff would have
\nimmediately moved the court after it received reply dated 03.07.2007
\nand would not have waited until 29.05.2008.\n<\/p>\n
21.\tIt is true that if
\nthere is a case of ?Sprior-user?? in passing off action then such
\ndelay would not and does not affect the plaintiff’s case for interim
\ninjunction and if it is prima facie noticed by the court that there
\nis a phonetic and\/or visual similarity and that such similarity
\nbetween competing trade marks is deceptive and confusing then
\ninjunction ought to be granted.   As held by the Hon’ble Apex Court
\nin the case of Cadilla Healthcare Ltd. vs Cadilla Pharmaceuticals
\nLtd.<\/a> granting interim injunction, once such deceptive and confusing
\nsimilarity is prima facie established is all the more necessary in
\nmatters involving pharmaceutical and medicinal preparations.  The
\nHon’ble Apex Court, in this regard, has observed in the said case of
\nCadilla Healthcare Ltd (supra) that drugs have a marked difference in
\nthe composition with completely different side effects, and that the
\ntest should be applied strictly as the possibility of harm resulting
\nfrom any kind of confusion can have unpleasing if not disastrous
\nresults, and that the courts need to be particularly vigilant where
\nthe defendant’s drugs, of which passing off is alleged, is meant for
\ncuring the same ailment as the plaintiff’s medicine but the
\ncompositions are different and that the confusion is more likely in
\nsuch cases and the incorrect intake of medicine may even result in
\nloss of life or other serious health problems and that the Schedule H
\ndrugs are those which can be sold by the Chemist only on the
\nprescription of the doctor but Schedule L drugs are not sold across
\nthe counter but are sold only to the hospitals and clinics. It is
\ntrue that the Hon’ble Apex Court in the case of Cadilla Healthcare
\nLtd (supra) has emphasized that the courts need to be particularly
\nvigilant and prompt in making appropriate order of interim injunction
\nif the prima facie case of deceptive similarity is made out.  It is,
\nhowever, difficult to accept the contention of Mr. Nanavati for the
\nopponent that requirement provided under Rule 3 of Order 39 and its
\nproviso is to be or can be lightly given a go-bye or appeal court
\nshould readily or easily assume, though not recorded in or not to be
\nfound in the order, that the learned court has fully satisfied itself
\nthat the delay in issuing notice would defeat the injunction’s
\nobjective.  It is relevant to note that in the said judgement the
\nHon’ble Apex Court has not considered the propriety or
\nmaintainability of an exparte ad-interim order without prior notice.
\nIt is also difficult to not consider the importance of the
\nrequirement prescribed under the said provision, as emphasized by the
\nHon’ble Apex Court in the case of Shiv Kumar Chadha (supra).\n<\/p>\n
22.\t As regards the
\njudgement of the Hon’ble Apex Court in case of Laxmikant V. Patel,
\nthe Hon’ble Apex Court has observed that once a case of passing off
\nis made out grant of prompt exparte injunction is proper, however,
\nthe legality or propriety and maintainability of order not fulfilling
\nthe requirement of recording reasons for waiving prior notice was not
\nthe issue in the said case and further more the Hon’ble Apex Court
\nhas also observed that there was no delay, unlike present case, in
\nbringing passing off action. Likewise in the judgement in the case of
\nR.N.Bhagat also the issue of maintainability or propriety of exparte
\ninjunction without recording reasons for waiving Notice was not in
\nissue before this Court but the legality and maintainability of order
\ngranted after hearing both sides was in issue. In the judgement in
\nthe case of K.K. Puri the Hon’ble Jammu and Kashmir High Court
\ncategorically recorded, while granting exparte order on 22.7.1993
\nthat the meeting was to be held on 26.7.1993. This fact required and
\njustified the waiver of notice or else the objective of stay would be
\nlost since the meeting would be convened. The reasoning of the
\nlearned Court, though not in very many words, was clearly flowing
\nfrom the order and that is how the Hon’ble Court considered it enough
\nwhile holding that the rule or its proviso does not contemplate
\nspecial manner of recording reasons and that length of reasons is not
\na guide. However, in present case, the facts and order differ
\nmaterially and reason justifying waiver of notice is not recorded
\nwhile dealing with the factors discussed above. In the case of NOCIL
\n(supra) the fact under consideration was the failure of
\napplicant-plaintiff to comply with the proviso of Rule 3 of order 39
\nand not the absence of reasons for waiver of notice. In the judgement
\nreported in AIR 2003 Cal pg. 64 the Hon’ble Court has held that the
\nprovision is not mandatory  and its non-compliance does not render
\nthe order void. This Court in the judgements in AO 261 of 2007 and AO
\n306 of 2007 and AO 378 of 2007 has vacated the orders which did not
\nrecord reasons for waiving notice. As noticed hereinabove in present
\ncase the learned Court has not only not addressed the issue keeping
\nin focus the time lag between the ?Scease and desist notice?? but
\nalso failed to limit the injunction order until returnable date,
\nafter making process returnable after about 20 days, and granted the
\nsame till further orders.\n<\/p>\n
22.1\tWhen the impugned
\norder is examined in light of the law laid down by the Hon’ble Apex
\nCourt with regard to Rule 3 of Order 39 and its proviso, the question
\nwhich arises is as to whether the impugned order contains or gives
\nout the reasoning which convinced the learned court to make exparte
\ninterim injunction.\n<\/p>\n
23.\tMr. Nanavati
\nsubmitted that the entire set of material including the literature of
\nthe appellant’s products, was on the record of the learned court and
\nthe impugned order does disclose that the learned court has looked
\ninto the said material.  It is true that the learned court has
\nrecorded thus: ?SRead the application, affidavit and also perused
\nthe record.  Heard the Ld. Advocate Mr. A.P. Hathi for the
\nplaintiff…??.  \tIt is also true that it may be difficult to
\nconsider the impugned order as an order completely bereft of any
\nreasoning.\n<\/p>\n
23.1\tHowever, as noticed
\nhereinabove earlier, when an order granting exparte injunction is
\npassed, then in addition to the reasoning as regards the strong prima
\nfacie case, balance of convenience and irreparable injury which
\ncannot be compensated in terms of money, the reasons disclosing as to
\nhow and why a prior notice of  period of one week or atleast three
\ndays would so gravely defeat the object of granting injunction that
\nthe plaintiff cannot withstand such short delay also are required to
\nbe recorded.  The impugned order lacks in this requirement and
\nrequires this Court to proceed on assumption that the learned Court
\nmust have satisfied itself about the expediency and only then waived
\nthe notice.  This would defeat the right and expectation of the other
\nside, besides the requirement prescribed by the proviso.\n<\/p>\n
24.\tThe impugned order
\nis also required to be examined in light of the facts of the present
\ncase.  It is pertinent to recall that the plaintiff filed the suit
\nafter almost ten months since the issuance of the ?Scease and desist
\nnotice??.  In the back drop of this vital fact, the learned court
\nought to have addressed the issue that when the plaintiff itself
\nwaited for a period of almost ten months since the ?Scease and
\ndesist notice?? and for almost same period since the appellant
\nstarted marketing the product, how would or how could a period of 7
\nor atleast 3 days defeat the object of granting injunction.\n<\/p>\n
24.1\tIt is as much
\nnecessary to record the reasons in response to such issue as it is to
\nconsider the issue and the order ought to disclose that both aspects
\nhave been met.  As noticed hereinabove earlier, it is not only the
\nother side’s legitimate expectation but also a right to know the
\nreasons which convinced the court to waive notice and to not give a
\nperiod of atleast 2-3 days  to the other side by issuing notice
\nbefore granting interim injunction.\n<\/p>\n
24.2\tOn perusal of the
\nimpugned order it is difficult to say that the learned court has
\ndisclosed the reasons which weighed with it for not issuing prior
\nnotice and for waiving the said requirement and issuing exparte
\ninterim injunction.\n<\/p>\n
25.\tIn light of the
\nfacts of the present case and on perusal of the operative part of the
\nimpugned order, which gives out that the returnable date of the
\nprocess issued by the court in respect of the notice of motion is
\n18.06.2008, it would be of little consequence now to set aside the
\norder and it is now also not of any effective or practical purpose to
\ndecide as to whether the impugned order, which apparently lacks in
\nthe reasoning as regards the issue on hand, should be quashed and set
\naside or not inasmuch the process is, as noticed hereinabove earlier,
\nmade returnable on 18.06.2008.  While dealing with the appeal, it is
\nalso relevant for this Court to note that the impugned order is dated
\n29.05.2008 and the appeal is filed in the Registry on 10.06.2008 and
\ncirculated on 11.06.2008 whereafter it came to be adjourned with
\nconsent of the appellant for a day so as to enable the opponent i.e.
\nthe original plaintiff to file reply affidavit.\n<\/p>\n
26.\tWith regard to the
\nimpugned order an additional feature is also required to be noted
\nviz. the trial court has not only failed to expressly record the
\nreasons which convinced it to make exparte order, but the learned
\ncourt has also granted a blanket and unlimited injunction\/stay order.\n<\/p>\n
26.1\tIt is pertinent
\nthat though process is made returnable on 18.06.2008, the injunction
\nin terms of paras 38(a) and 38(b) is granted ?Suntil further
\norders??.  In this way, the learned court not only granted exparte
\ninjunction, and without recording reasons which convinced it to pass
\nsuch an order, but it did not even think it necessary to restrict the
\noperation of such exparte injunction order until returnable date
\nonly.\n<\/p>\n
26.2\tIt is beyond
\ncomprehension as to why the exparte injunction order is not
\nrestricted atleast until returnable date.  That is the least which
\ncould have been done and ought to have been done by the learned
\ncourt.\n<\/p>\n
26.3\tIt is, as observed
\nabove, not considered necessary or expedient at this juncture to
\nfurther examine the issue as to whether the impugned order should be
\nquashed or set aside or not because the process is made returnable on
\n18.06.2008 and also for the reason that even the appellant has,
\nthough it preferred to approach this court by way of this appeal, not
\nconsidered it necessary and appropriate to immediately file its reply
\nto the notice of motion on or before the suit.\n<\/p>\n
26.4\tThe appellant
\nherein could have very well forwarded its reply to the opponent and
\nplaced it on record of the Civil Suit proceedings. However, the
\nappellant has not followed such course of action.  This Court is
\ninformed, in reply to the query, that it is not done even as of today
\nby the appellant.  This should deprive the appellant of the relief of
\nquashing of the order from the date when granted.\n<\/p>\n
27.\tUpon having noted
\nthat the impugned order falls short of the requirement prescribed by
\nRule 3 Order 39 and its proviso and does not comply with the said
\nrequirement and the direction of granting injunction until further
\norder is also unwarranted and unreasonable, this Court is of the view
\nthat in the peculiar facts of the case, the following order and
\ndirections would suffice and serve the interest of justice and the
\nsubject appeal can be, justifiably, disposed of with below mentioned
\ndirections.\n<\/p>\n
\tThe interim injunction
\n\tgranted by order dated 29.05.2008 is restricted and limited until
\n\t18.06.2008 and shall not operate beyond 18.06.2008.  However, it
\n\twould be open for the learned court to pass appropriate order,
\n\tincluding similar or any other order of injunction, after hearing
\n\tthe parties.\n<\/p>\n
\tThe appellant herein
\n\tshall positively file its reply-response to notice of motion (and if
\n\tit so desires to the suit also) before or atleast on 18.06.2008 with
\n\ta copy to the plaintiff and shall not seek any further time to file
\n\treply to the notice of motion and\/or suit.  In the event the
\n\topponent prays for further time it would be open for the trial court
\n\tto pass any appropriate order after hearing the parties to the
\n\tproceedings.\n<\/p>\n
\tIf the appellant
\n\t(original opponent) files its reply-response before or atleast on
\n\t18.06.2008 then it would be open to the plaintiff to file rejoinder,
\n\tif need be, on or before 20.06.2008 and the learned court would
\n\tthereafter proceed to hear and decide the matter i.e. the injunction
\n\tapplication on urgent basis, and if the roster so permits, by
\n\thearing the same on day to day basis.\n<\/p>\n
\tIn the event the
\n\tplaintiff has not to file any rejoinder then it would disclose the
\n\tsaid decision on 19.06.2008 and the hearing of the injunction
\n\tapplication shall, in that event, commence from 19.06.2008 and the
\n\tlearned court need not wait till 20.06.2008.\n<\/p>\n
\tIt would be open to the
\n\tlearned court to pass appropriate order, though not of unlimited
\n\tnature, to protect the interest of the parties and subject matter of
\n\tthe suit, until the hearing of the injunction application is
\n\tconcluded and the order with regard to the interim injunction is
\n\tpassed. But this can be done after hearing and taking into account
\n\tthe submissions of the parties to the proceedings.\n<\/p>\n
\tThe original plaintiff
\n\ti.e. the present opponent would maintain, separately, accounts of
\n\tproduction, sale, receipts etc of the product in question from
\n\t29.05.2008 onwards until further orders in this regard are made by
\n\tthe learned court and it shall file the same on the record of the
\n\tsaid suit, every fortnight.\n<\/p>\n
28.\tThe learned court
\nwould pass appropriate order, including interim order on merits after
\nhearing the parties and without being influenced by this order and by
\ntaking into account the well settled and recognised principles
\nrelevant for deciding the passing off action and prayer for interim
\nrelief in passing off action.\n<\/p>\n
29.\tThis Court is
\nconscious of the limitation in dealing with appeal from order against
\nan ad-interim and discretionary order, however, when it is shown that
\nwhile passing the discretionary order, the learned court has failed
\nto observed the conditions prescribed by the Code then, it is
\nnecessary and justified for the appellate court to step-in and
\ninterject.  In the present case, the learned court, not only passed
\nexparte order after passage of almost ten months since the cease and
\ndesist notice and failed to disclose the reasons as to why the laxity
\non the part of the plaintiff was not considered a ground sufficient
\nenough for issuing prior notice of atleast three days, but the
\nlearned court also failed to make the process issued on notice of
\nmotion immediately and has made it returnable after almost 20 days
\nand granted an unlimited injunction i.e. did not restrict the
\ninjunction till the date on which the notice is made returnable.  It
\nis in this view of the matter and in light of the aforesaid
\ndiscussion that this Court considered it appropriate to issue the
\naforesaid directions and to restrict the injunction till 18.06.2008
\ni.e. the returnable date of the notice.  Hence the aforesaid order.\n<\/p>\n
30.\tWith the aforesaid
\nobservations and directions, this appeal is disposed of.  No order as
\nto costs.  In view of the order passed in the Appeal From Order,
\nCivil Application shall not survive and is accordingly disposed of.\n<\/p>\n
\t\t\t\t\t\t\t\t(K.M. THAKER,
\nJ.)<\/p>\n
Divya\/\/<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Macleods vs Alembic on 13 June, 2008 Author: K.M.Thaker,&Nbsp; Gujarat High Court Case Information System Print AO\/192\/2008 19\/ 27 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 192 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-164508","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nMacleods vs Alembic on 13 June, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/macleods-vs-alembic-on-13-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Macleods vs Alembic on 13 June, 2008 - 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