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Judgment
C. Hari Shankar, J.
CM APPL. 11911/2026 (condonation of delay in filing review petition)
This application seeks condonation of delay of 243 days in filing the review petition.
For the reasons stated in the application, the delay is condoned.
The application is allowed.
REVIEW PET. 90/2026
The appellant had, in this appeal, urged both infringement and passing off.
By the order under review, we had noticed this fact and had found that on the aspect of whether the appellant would be entitled to plead infringement, had expressed a view that, as we were not in agreement with the judgment of the earlier Division Bench in Raj Kumar Prasad v. Abbott Healthcare Pvt. Ltd1 and Corza International v. Future Bath Products Pvt Ltd2, which held that an infringement suit would lie, referred the matter to the larger Bench to decide the issue framing questions for that purpose.
Incidentally, we may note that, after the order under review was passed, we were shown the judgment of the Supreme Court in S. Syed Mohideen v. P Sulochana Bai3 which clearly holds that an infringement suit would not lie against a registered trademark. We have, thereafter, followed the said decision.
Be that as it may, Mr. Narula’s contention is that as the aspect of infringement has been referred to a larger Bench and he had also pleaded passing off, the Court may proceed to decide the issue of passing off.
We are afraid that is not possible. The appeal cannot be decided in part. In case Mr. Narula seeks to give up the plea of infringement, he would have to move an appropriate application for that purpose and, in case, such an application is moved, the Court would take a call.
So long as Mr. Narula is pressing the aspect of infringement, we cannot alter the order under review passed by us.
The review petition is disposed of accordingly.