FAO (COMM)/65/2024 of PARDEEP KUMAR PROPRIETOR OF T.G. SOLAR PUMP Vs PRAKASH ENTERPRISES & ORS.

*IN THE HIGH COURT OF DELHI AT NEW DELHI+FAO (COMM) 65/2024 & CM APPL. 21504-05/2024PARDEEP KUMAR PROPRIETOR OF T.G. SOLAR PUMP

..... AppellantThrough:Mr.HarishKumar,Ms.ShreyaGagneja,Mr.MukundYadav,andMs.Meenakshi, Advocates.

versus

PRAKASH ENTERPRISES & ORS...... RespondentsThrough:Nemo.

CORAM:HON'BLE MR. JUSTICE VIBHU BAKHRUHON'BLE MS. JUSTICE TARA VITASTA GANJUO R R

%10.04.2024

1.The appellant has filed the present appeal impugning an order dated19.03.2024(hereaftertheimpugnedorder)passedbythelearnedCommercial Court in CS (COMM) No.184/2024 captioned Pradeep Kumarv. Prakash Enterprises.

2.In terms of the impugned order, the learned Commercial Court haddeclined the request of passing ad interim injunction restraining therespondents (arrayed as defendants in the suit) from infringing its registereddesigns as set out in the plaint.The appellant’s application under Order 39Rule 1 & 2 of the Code of Civil Procedure, 1908 (hereafter the CPC) has notbeen rejected, however his request for ad interim order to the aforesaideffect was not acceded to. The appellant had also filed the application forappointment of the local commissioner under Order 26 Rule 9 of the CPC.Although, the impugned order indicates that the arguments on the saidapplication were heard, however, the same was not considered in theimpugned order.

3.The appellant had filed the above captioned suit alleging infringementof his registered designs in respect of Solar Panel Trolleys (hereafter SPT).The appellant claimed that it had nine registered designs in respect of SPTsand the respondents were fabricating SPTs, which are similar to the saidregistered designs.In his plaint, the appellant also set out the images of hisSPT constructed in accordance with the registered design as well as those,which were allegedly fabricated by the respondents.

4.It is also alleged by the appellant that on earlier occasion respondentno.1 was found to be infringing the appellant’s design and policecomplaint in this regard was also filed against respondent no.1. In the saidproceedings, respondent no.1 had given an undertaking that he would notinfringe the appellant’s registered designs.

5.The learned Commercial Court had noted that apart from respondentno.1 furnishing undertaking to the appellant, none of the other respondentshad furnished any such undertaking.The learned Commercial Court hadnoted that no cease-and-desist notice was issued to respondent no.2.

6.The ad interim order sought by the appellant was denied principallyon the ground that the appellant had not placed anything on record toestablish that the designs of SPTs allegedly manufactured and sold byrespondent no.2 to 6 are not registered.The learned Commercial Court hasalso noticed that the invoices placed on record by the appellant in respect ofthe SPTs sold by the respondents did not mention the design or details.Additionally, the learned Commercial Court also noted that no photographsof SPT allegedly sold by respondent no.1 placed on record.

7.We are unable to accept that the ad interim order could be denied only

on the aforesaid basis. The appellant had provided details of his registereddesigns. There is no material to indicate that any of the SPTs manufacturedby the respondents were based on the design registered in their favour.

8.More importantly, the learned Commercial Court had not consideredthe appellant’s request for appointment of the local commissioner.It iscontended by the learned counsel for the appellant that if notice of theapplication is issued to the respondents, they would secret the goodsmanufactured by them and neither the goods nor the respondents would betraceable thereafter.

9.In view of the above, we consider it apposite to set aside theimpugned order and remand the matter to the learned Commercial Court toconsider afresh and in particular the application of the appellant forappointment of the local commissioner without issuing any notice to therespondents.

10.The matter be placed before the learned Commercial Court on23.04.2024. The appellant shall appear before the learned Commercial Courton the said date of hearing.

11.The appeal stands disposed of in the above terms.Pendingapplications also stand disposed of.

12.Order dasti under signature of Court Master.

VIBHU BAKHRU, J

APRIL 10, 2024

TARA VITASTA GANJU, J

FAO (COMM) 65/2024