The case involves a commercial dispute relating to trademark infringement, search and seizure, and ex-parte injunction orders passed by the Civil Judge, Senior Division, Nalbari, Assam. The petitioner, engaged in manufacturing food products, challenged the orders appointing an Advocate Commissioner for search and seizure, as well as an ex-parte injunction restraining him from using a similar trademark. The case raises significant legal questions regarding due process in ex-parte injunctions and procedural propriety under the Commercial Courts Act, 2015 and Civil Procedure Code, 1908 (CPC).

Factual Background: The petitioner, Birendra Prasad Sah, manufactures and sells food products, including "Matar Mixture," in Siliguri, West Bengal. On 03.11.2023, officials along with the police entered his factory, seized packaging rolls, and halted production based on an order obtained ex-parte.The respondent, Debendra Jalewal, filed Commercial Suit No. 03/2023 alleging that the petitioner was using a deceptively similar trademark "Krisaan" to his registered trademark "Krishan."The Civil Judge, Nalbari, passed ex-parte orders on 05.10.2023, granting:Misc (J) Case No. 27/2023: Appointment of an Advocate Commissioner for search and seizure under Order 26 Rule 9 CPC.Misc (J) Case No. 28/2023: Ex-parte injunction under Order 39 Rules 1 and 2 CPC, restraining the petitioner from selling products with similar artistic work. The petitioner argued that he was not served any prior notice, violating Order 39 Rule 3 CPC.

Petitioner's Submissions: Violation of due process: The ex-parte orders were obtained without serving notice, depriving him of the opportunity to present his case. Delay in urgency claim: The applications for injunction were filed on 25.08.2023, while the orders were passed on 05.10.2023 (after 42 days), contradicting the claim of urgency. Illegality of search and seizure order: The appointment of an Advocate Commissioner was without notice, violating Order 26 Rule 18 CPC. Improper execution: His son was forced to sign seizure documents without explanation. Lack of prima facie case: The court failed to assess the validity of the defendant’s trademark registration before granting an injunction.Wrong choice of forum: An appeal under Order XLIII Rule 1(r) CPC was available, making the revision petition under Article 227 of the Constitution improper. Cited precedents:Cadila Healthcare Ltd. vs. Cadila Pharmaceuticals Ltd. (2001) 3 SCC 1 – Comparative similarity test in trademark cases. Rajbir Kaur vs. S. Chokesiri (1988 AIR SC 1845) – Principles for granting injunctions.

Respondent's Submissions:Prior use and trademark registration: The respondent has used "Krishan" since 2017 and holds a valid trademark under Class 30, registered on 26.05.2019 (valid till 2028).Similarity between marks: The petitioner’s mark "Krisaan" is deceptively similar to "Krishan," differing by only one letter, indicating bad faith. Legality of search and seizure: The Advocate Commissioner acted within authority under Order 26 Rule 9 CPC. Maintainability of revision petition:Section 13 of the Commercial Courts Act, 2015, provides an appeal remedy under Order XLIII Rule 1(r) CPC, making the Article 227 petition improper. Cited Decision: A. Venkatasubbiah Naidu vs. S. Chellappan (2000) 7 SCC 695 and Jagdish Singh vs. Ambalal (2014) 10 SCC 610 – High Courts should not entertain Article 227 petitions when statutory appeals exist.

Judicial Analysis and Citations:Trademark Infringement and Ex-Parte Injunctions.The Delhi High Court in Dabur India Ltd. vs. Emami Ltd. (FAO (OS) (COMM) 171/2023) held that: An injunction against a registered trademark holder is improper unless the court determines the invalidity of the registration. If a defendant is already in the market before suit filing, they must be allowed to oppose an interim injunction. The Supreme Court in Wander Ltd. vs. Antox India (1990 Supp SCC 727) stated that injunctions in IP cases should not be granted ex-parte without proper scrutiny. The Delhi High Court in Silvermaple Healthcare vs. Dr. Ajay Dubey (regarding DHI vs. DFI hair treatment trademarks) refused an ex-parte injunction without allowing the defendant to file a reply. Search and Seizure Without Notice: The Gauhati High Court noted that Order 26 Rule 18 CPC requires notice before execution of a commission.Similar rulings in Mohar Yadav vs. Pramod Yadav (2021 SCC Jhk 544) and Virudhunagar Hindu Nadargal Dharma Paribalana Sabai vs. Tuticorin Educational Society (2019) 9 SCC 538 emphasize that High Courts should not entertain Article 227 petitions where statutory appeals exist.

Court’s Reasoning and Decision:Ex-Parte Orders Were Procedurally Flawed: Order 39 Rule 3 CPC was violated as no notice was served before granting an injunction. The absence of urgency (42-day delay in passing the order) weakened the ex-parte claim. Search and Seizure Order was Irregular.The appointment of an Advocate Commissioner without notice violated Order 26 Rule 18 CPC. The execution of seizure without proper documentation and explanation to the petitioner’s son was irregular.Revision Under Article 227 Was Not Maintainable:An appeal under Order XLIII Rule 1(r) CPC was the correct remedy instead of invoking Article 227.The petition was dismissed on procedural grounds despite the flaws in the original orders.

Conclusion:This case highlights the importance of procedural fairness in ex-parte injunctions and search orders in trademark disputes. While the court recognized the irregularities in the orders, it ultimately dismissed the petition as not maintainable due to the availability of an alternate remedy (appeal under Order XLIII Rule 1(r) CPC). The ruling underscores that ex-parte orders in commercial disputes should only be granted with strict adherence to procedural safeguards.

Case Title: Birendra Prasad Sah Vs. Debendra Jalewal
Case No.: CRP(IO)/68/2024
Date of Order: 24.01.2025
Neutral Citation: GAHC010200732024
Court: Gauhati High Court (High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
Judge: Honourable Mrs. Justice Malasri Nandi

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Written By: Advocate Ajay Amitabh Suman, IP Adjutor - Patent and Trademark Attorney
Email: ajayamitabhsuman@gmail.com, Ph no: 9990389539