Bombay High Court Kalki V/S Kalki by Justice GS Patel & Gauri Godse, JJ
ORAL JUDGMENT ( Per GS Patel J) :-
1. The original Defendants in the Commercial Intellectual
Property Suit have come in appeal against a without notice adinterim order dated 15th September 2022 by RI Chagla J. That order
was passed on the application of the original Plaintiff, which is the
Respondent to the Appeal
2. By the impugned order, Chagla J granted a time-limited adinterim injunction and appointed a Court Receiver for a limited purpose. He also passed the necessary directions under Order 39
Rule 3 of the Code of Civil Procedure, 1908 (“CPC”). The order is
operative only until 19th October 2022. Specific liberty is reserved
to the Defendants to apply for a variation of the order with 72 hours
prior written notice to the advocates for the Plaintiff.
3. The suit is a trademark infringement action combined with a
cause of action in passing off. A Leave Petition under Clause 14 of
the Letters Patent to combine the two causes of action is pending.
4. Mr Kirpekar for the Defendants in appeal says that the
Plaintiff’s application could not have been granted without notice.
He claims says that there is extensive suppression in the plaint,
including, importantly, that the Defendant are registered proprietors
of the rival mark although the registration is subsequent to that of
the Plaintiff. Mr Kirpekar also says that while the Plaintiff
mentioned in the plaint that it applied for cancellation of the
Defendants’ mark there is ‘nothing annexed’ to the plaint.
5. To begin with, it is necessary to clarify that the popular and widespread understanding of the expression ‘ex parte’ is misleading. Black’s Law Dictionary3 has these definitions: Ex parte (eks pahr-tee), adv. [Latin, “from the part”] On or from one party only, usu. without notice to or argument from the adverse party . Ex parte, adj. Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested . An ‘ex parte injunction’ is also defined: ex parte injunction. A preliminary injunction issued after the court has heard only the moving party
