Unispeed Pharmaceuticals And Others vs Ashok Gagandeep Garg And Another

Manish Pitale, J

Heard learned counsel for the parties. By this application, the applicant/defendant No.2 is seeking modification of the order dated 09.11.2023 passed in Interim Application (Lodging) No. 30842 of 2023.

It is relevant to note that the regular Court passed an order yesterday (07.12.2023), to the effect that this alternate Bench could take up the present application for consideration today, due to non-availability of the regular Bench.

Defendant No.2 is a manufacturer and the plaintiff alleges that the defendant No.2 is a repeated offender, in the sense that on two earlier occasions, the plaintiff had approached this Court to seek ex-parte orders against defendant No.2 to restrain it from manufacturing products that infringed the registered trademarks of the plaintiff.

In the order dated 09.11.2023, this Court observed in paragraph No.23 that since the defendant No.2 had shown complete disregard to earlier orders passed by this Court, ad-interim reliefs deserve to be granted in favour of the plaintiff, including wide-ranging directions for sealing the plant and machinery of the defendant No.2.

Mr. Khandekar, learned counsel for the applicant submits that the ex-parte ad-interim directions granted in the order dated 09.11.2023 and the raid conducted pursuant thereto by the Special Receiver on 04.12.2023, has led to a virtual closing down of the entire manufacturing set-up of defendant No.2. It is submitted that the defendant No.2 manufactures a number of products, most of which have nothing to do with the grievance raised on behalf of the plaintiff in the present proceedings. It is submitted that even if the statements made in the plaint are to be taken into consideration, the entire business of defendant No.2 cannot be brought to a standstill on the basis of such an ex-parte ad-interim order.

It is submitted that the drastic consequences of the said order have impelled the defendant No.2 to file the present application seeking modification thereof.

It is further submitted that while the defendant No.1 may come forward to resist the assertions made on behalf of the plaintiff in the present proceedings as regards infringement of the registered trademark, the business of defendant No.2 cannot be brought to a standstill in such a manner. It is submitted that each day of the business of defendant No.2 being brought to a halt, is causing immense financial loss to defendant No.2, apart from having adverse consequences for about 350 workers associated with the defendant No.2.

On the other hand, Mr. Jamsandekar, learned counsel for the plaintiff submits that there are sufficient pleadings on record alongwith supporting material, to justify the wide-ranging directions issued in the order dated 09.11.2023. It is submitted that this Court specifically took into consideration the earlier orders passed against defendant No.2, which were not abided by and that therefore, the order dated 09.11.2023 does not need to be modified in any manner. It is submitted that this Court may grant time to file detailed reply to the present application, to indicate the material that has been unearthed during the execution of the aforesaid order and the raid conducted on 04.12.2023. The learned counsel for the plaintiff sought to rely upon certain material, including photographs said to have been clicked during the course of raid conducted on 04.12.2023.

This Court is of the opinion that the plaintiff may place the same on record alongwith reply affidavit to the present application.But, the statements made in the present application seeking modification of the order dated 09.11.2023, show the details of the range of products being manufactured by defendant No.2. There is material on record to indicate that apart from the impugned products and other products, which may be similar to the impugned products, the defendant No.2 appears to be manufacturing wide range of other products. In such a situation, sealing of the entire plant and machinery of defendant No.2 at this stage itself, is certainly resulting in loss of business and a complete halt to the manufacturing activity of defendant No.2. There can be no doubt about the fact that considering the past record of defendant No.2, appropriate directions were required to be issued to ensure that defendant No.2 does not continue violation of such orders/directions issued by this Court. At the same time, entire business of defendant No.2 may not be brought to a standstill, subject to the defendant No.2 giving appropriate undertakings before this Court.

At this stage, the learned counsel for the defendant No.2, on instructions of one of the directors of defendant No.2 present in Court, makes a statement on behalf of defendant No.2 that the said defendant, till the next date of listing, shall not manufacture hematinic syrup of iron, folic acid and Vitamin B12 in any form or nature or any combination thereof. Defendant No.2 further undertakes not to manufacture any syrup having the packaging and colour scheme that is relied upon by the plaintiff in respect of its product.

In the light of the aforesaid specific undertakings given on behalf of defendant No.2, the order dated 09.11.2023 is partially modified and consequently, the Court Receiver/Special Receiver is directed to deseal the plant and machinery of defendant No.2 forthwith. The Court Receiver/Special Receiver is also directed to deseal and release the products other than those forming subject matter of the present suit and earlier suits in which orders were passed against defendant No.2.

Needless to say the order dated 09.11.2023 is modified only to the limited extent indicated hereinabove. The rest of the order shall continue to operate.

The plaintiff is at liberty to file reply affidavit in the present application within one week from today.

List the present application alongwith Interim Application (Lodging) No.30842 of 2023, for further consideration on 21.12.2023.