* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 24th February, 2020

+ CS(COMM) 51/2018, I.As. 1152-1153/2018 & 9043/2018

KBM FOODS PVT LTD.
..... Plaintiff
Through: Mr. Sourabh Kirpal, Mr. Rupesh
Sushant Singh, Mr. Pravesh Aggarwal
and Mr. Ankit Kaushal, Advs.
versus
SUBHASH TAYAL & ANR
..... Defendants
Through: Mr. Sagar Chandra, Ms. Srijan Uppal
and Ms. Jyotsna Arora, Advs.

CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO

V. KAMESWAR RAO, J. (ORAL)

I.A. 1152/2018 (under Order 39 Rule 1 & 2 read with Section

151 CPC)
1. By this order I shall dispose of the instant I.A. filed under
Order 39 Rule 1 & 2 read with Section 151 CPC by the plaintiff
with the following prayers:-

“Therefore in view of the above it is most respectfully

prayed that this Hon'ble Court may in the interim, pending
the disposal of the instant matter, grant the following
interim reliefs -

CS(COMM) 51/2018 Page 1

 a) Order of interim injunction restraining the
Defendants, its principal officers, family members,
servants, agents, dealers, distributors, retailers and
anyone acting for and on its behalf from manufacturing,
selling, offering for sale or advertising using the impugned
products under the mark/logo/label/packaging GAI
CHAAP &Cow Device for any spices/masalas or any other
mark/logo/label/packaging which in violation to the
Plaintiff's rights in the mark/logo/label/packaging GAI
CHAAP & COW Device in respect of spices/masala
products or any other cognate and allied goods;

b) Order of interim injunction restraining the

Defendants, its principal officers, family members,
servants, agents, dealers, distributors, retailers and
anyone acting for and on its behalf from manufacturing,
selling, offering for sale or advertising using the impugned
products under the mark/logo/label/packaging GAI
CHAAP & Cow Device for any spices/masalas or any
other mark/logo/label/ packaging which in violation to the
Plaintiff's Copyrights in the label/packaging GAI CHAAP
& COW Device;

c) Pass any other ex parte ad interim orders, in terms

of the above;

d) Pass any other orders as this Hon'ble Court may

deem fit in the interest of justice.”

CS(COMM) 51/2018 Page 2

 2. It is the case of the plaintiff and so contended by Mr.
Saurabh Kirpal that the plaintiff is indulged in the business of
manufacturing and sale of Spices under its well-known trademarks
“GAI CHAAP” and “COW (device)” since 1969. The plaintiff
bona fide adopted the said trademarks in 1969 through its
predecessor in title, which was a partnership firm by the name of
Karol Bagh Masala Suppliers Company (KBMSC) in respect of its
high-quality Spices / goods.

3. The plaintiff's aforesaid predecessor initially had two

partners: 1) Om Prakash Aggarwal (OPA) and 2) Kishan Chand
Gupta, vide Partnership Deed dated April 22, 1969. OPA has three
sons: 1) Dinesh Kumar Aggarwal (DKA); 2) Sanjay Aggarwal (SA)
and 3) Vikas Aggarwal (VA). On October 29, 1995, Kishan Chand
Gupta retired from the said partnership firm and on October 30,
1995, DKA and SA were inducted into the aforesaid partnership
firm.

4. In 2001, a company by the name of KBM Spices Pvt. Ltd.

(now known as M/s KBM Foods Pvt. Ltd., the plaintiff herein) was
incorporated. The partners of the partnership firm OPA, SA and
DKA became Directors of the said company. Thereafter, in the year
2002 the said Partnership firm by virtue of Dissolution Deed dated
January 23, 2002 was dissolved and its complete rights, assets,
liabilities and business were succeeded by the plaintiff including its
trademark rights, know-how and goodwill. According to
Mr. Kirpal, the main object of the plaintiff Company as stated in the
Memorandum of Association was to acquire and take over the

CS(COMM) 51/2018 Page 3

 running business of the said partnership firm. He stated that all the
trademarks applications of the plaintiff's predecessor firm were
assigned to the plaintiff vide Assignment deed dated January 30,
2002.

5. In the year 2000, members of the Aggarwal family had

taken over the defendant No. 2 Company in their individual
capacity, with the partnership firm as well as the plaintiff playing no
role in it. In 2004 to maintain family peace, it was agreed between
the Aggarwal family members that GAI CHAAP and its goodwill
with respect to Spices will be the sole property of plaintiff; with
respect to Besan and Chana dal it will be the sole property of M/s
Iskon Global Pvt Ltd. and with respect to mustard oil it will be the
sole property of M/s Radha Kishan Gobind Ram Ltd., defendant
No. 2 herein.

6. To honour this agreement, on September 01, 2004, SA

resigned from plaintiff Company and defendant no. 2 Company as a
Director. DKA also retired from M/s Iskon Global Pvt. Ltd. and
defendant No. 2 Company as Director and VA was inducted into
defendant No. 2 Company as a Director. OPA remained as the
Director and authorized signatory of all the three aforesaid
companies. Mr. Kirpal has laid stress on the fact that all these
changes inter-se the aforesaid companies were done on the same
date i.e. September 01, 2004.

7. It is his submission that thirteen days after the aforesaid

changes, inter se the companies, the aforesaid agreement was
formalized in writing on September 13, 2004 by virtue of which a

CS(COMM) 51/2018 Page 4

 written Family Agreement was duly executed. He stated that the
Agreement is clear that the rights over the trademark GAI CHAAP
with respect to Spices will remain with the plaintiff only. Defendant
No. 2 has in its written statement itself clearly claimed that till the
year 2011, VA, Director of defendant no. 2 was not very active in
the family business, and hence would not have personal knowledge
of the events prior to 2011, and thus cannot testify with regard to the
same. Mr. Kirpal stated that the parties to the said Agreement had
acted and made trademark applications to the Trademark Registry
according to the aforesaid family agreement. M/s Iskon Global
Private limited applied for the trademark GAI CHAAP only for
Besan. The defendant no. 2 first only applied for trademark GAI
CHAAP (LABEL) for class 29 for goods including edible oil, on
June 21, 2004. It very recently applied for JEE OM JEE GAI
CHAAP (Label) for red chili powder in class 30 on May 15, 2017,
which has been opposed by the plaintiff. He stated that the plaintiff
s current audited turnover for its Spices product under the trademark
GAI CHAAP and COW (Device) is more than `84 crores, while
defendant no. 2's current audited turnover as per its own claim is
approx. `7 crores for its wheat, oil and Spices products combined.

8. It is his submission that conduct of defendant no. 2 has been

dishonest. He stated that while defendant no. 2 in its written
statement is claiming to be manufacturing Spices under the
trademark GAI CHAAP since the year 2001-2002, on the other
hand in several of its own documents and official documents, it has
claimed and represented itself to be indulged in business of various
goods except Spices, such as: (a) its own Balance Sheets for the

CS(COMM) 51/2018 Page 5

 assessment years 2008-2009, 2009-2010, 2012- 2013, 2013-2014;
(b) Form DVAT 16 submitted by defendant no.2 to the VAT
department from the year 2014-2016; (c) Its advertisement dated
August 25, 2014; (d) Office of Director of the Income Tax
(Investigation) - II's proposal of centralization of M/s KBM Spice
group of cases dated March 07, 2005 and (e) Income Tax
department’s assessment order dated December 09, 2009.
According to him, despite the existence of the aforesaid documents,
the defendant no. 2 had played fraud upon this Court by claiming to
be using trademark GAI CHAAP with respect to Spices from the
year 2000 in its suit bearing no. CS (COMM) 28/2018 filed against
a third party, which was subsequently settled by defendant no. 2 in a
mala fide manner upon realizing its fraud being exposed. In
substance, he stated that defendant no. 2 has claimed different usage
date of trademark GAI CHAAP with respect to Spices in different
documents thereby taking contradictory stand and lying on oath.

9. He stated that defendant no. 2 has itself produced no

document prior to November 29, 2014, which can prove that it has
indulged in the business of Spices under the trademark GAI
CHAAP and COW (Device), thereby clearly showing that aforesaid
family agreement was acted upon by all the parties and that
defendant no. 2 has no right over the trademark "GAI CHAAP" and
"COW (device)" with respect to Spices. He pressed for the relief as
prayed for in the application.

10. On the other hand, Mr. Sagar Chandra, learned counsel

appearing for the defendant No.2 had also given a factual matrix of

CS(COMM) 51/2018 Page 6

 the case, inasmuch as, in the year 1969 Partnership Firm M/s Karol
Bagh Masala Suppliers Company (KBMSC) was started by OPA &
one Kishan Chand Gupta carrying on business of Spices, edible oils
and flour. In 1972 OPA adopted the mark GAI CHAAP and COW
(Device). In 1986 Jagdamba Industries (Proprietorship of OPA)
started manufacturing Mustard Oil under TM Gai Chaap and Cow
Logo, which manufacturing stopped in 1992. In 1996 Kishan Gupta
retired as partner of KBMSC and DKA and SA inducted in
KBMSC. In 2000 OPA took over entire shareholding of defendant
No.2 Company and started manufacturing Spices & installed
machines for grinding of Spices. Iscon Global Pvt. Ltd. was
incorporated on August 16, 2001 by OPA & SA to manufacture and
sell Besan and Chana Dal under GAI CHAAP/Cow Logo. KBM
Spices Pvt. Ltd. was incorporated on November 21, 2001 with
OPA, DKA and SA as Directors. In 2004, defendant No.2 started
manufacturing Mustard Oil under the mark GAI CHAAP/Cow
Logo. On September 01, 2004 VA was inducted as a Director and
SA retired from KBM Spices Pvt. Ltd. DKA resigned as Director of
defendant No.2 but was involved in the affairs of company as a
shareholder till 2014. On February 09, 2005 IT Investigation
conducted on the family companies including but not limited to
plaintiff / defendant No.2 and Iscon Global, where KBMSC is listed
as an Assessee. Plaintiff applied for registration of mark KBM in
Class 30 for Spices on September 11, 2007. In 2010-2011, VA
actively started participating in business of defendant No.2. From
the year 2012 onwards, plaintiff used the mark KBM prominently
and Gai Chaap was reduced to a negligible font. In December 2013,

CS(COMM) 51/2018 Page 7

 OPA was a majority shareholder in defendant No.2 and plaintiff.
OPA decided to adopt and launch JEE OM JEE GAI CHAAP / Cow
Logo under defendant No.2 for retail of Spices vide Board
Resolution dated March 24, 2014 (also signed by OPA as Director).
VA was authorized to complete formalities related to Agmark for
ground Spices by the name of JEE OM JEE GAI CHAAP. Pursuant
thereto Agmark application was filed by defendant No.2 for Spices
for the mark JEE OM JEE GAI CHAAP on July 23, 2014.

11. On October 13, 2014, plaintiff filed TM application for

KBM GAI CHAAP Label in Class 29 for various goods including
Mustard Oil. Name of KBM Spices Pvt. Ltd. was changed to KBM
Foods Pvt. Ltd. on May 18, 2015. Plaintiff again filed TM
application for the mark GAI CHAAP in Class 29, 35 and 39 for
various goods and services relating to Mustard Oil on June 18,
2015. According to him, the plaintiff alleges that they came across
advertisement of defendant No.2 JEE OM JEE GAI CHAAP masala
and Spices in July, 2017. He refers to the fact that the plaintiff filed
an opposition against defendant No.2's TM in Class 30 but did not
mention about any of the alleged Agreements. He opposes the
prayer by stating that the plaint does not disclose various material
facts and portrays defendant No.2 as a rank infringer. The alleged
Agreement for Succession, Assessment Deed, Dissolution Deed
have not been disclosed in the plaint and have been filed with the
replication thereby demonstrating that the same is an afterthought.
According to Mr. Chandra, DKA was a shareholder in defendant
No.2 till 2014 and ought to have known about the business of
Spices of defendant No.2. He also stated that OPA was shareholder

CS(COMM) 51/2018 Page 8

 of defendant No.2 till 2015 and a Director till 2016 and also a
majority shareholder of plaintiff, which fact has been concealed. He
also stated that defendant No.2 is an Associated Company and loan
was advanced by defendant No.2 to the plaintiff. In this regard, he
relies on the financial statement of defendant No.2 of 2012 and
2013. In any case, he states that the alleged family agreement of
2004 was not signed by VA, though he was inducted as a Director
on September 01, 2004. He also submitted that there is an honest
and bona fide use of the mark GAI CHAAP by defendant No.2 as
joint proprietor of the trademark and with the consent of OPA. In
this regard, he reiterates his submission that the trademark GAI
CHAAP was adopted by OPA in and around 1972 and has been in
continuous use since then for goods being masala, edible oil, atta
etc. by the family members through various firms/companies
incorporated &founded by them with OPA. The trademark GAI
CHAAP is a family trademark and is the legacy of OPA. He also
stated that defendant No.2 was in the business of manufacturing
Spices since 2000. Defendant No.2 in 2004 started retailing mustard
Oil under the mark GAI CHAAP and further in 2013-2014 started
using the mark JEE OM JEE GAI CHAAP for retail of Spices as
suggested by OPA and applied for registration for the same. In this
regard, he stated that OPA was a shareholder in defendant No.2 in
2013-2014 & Director till 2016 and was also a shareholder of
plaintiff at the same time. Thus, OPA and plaintiff were aware of
the use of the mark JEE OM JEE GAI CHAAP for Spices by
defendant No.2 in 2013-2014 and did not object to the same and
OPA encouraged defendant No.2 to use the said mark for Spices

CS(COMM) 51/2018 Page 9

 since plaintiff was using the mark KBM prominently and made GAI
CHAAP significantly smaller in the mark. He also highlighted the
fact that the Board Resolution dated March 24, 2014 signed by OPA
vide which VA was authorized to complete formalities related to
Agmark for ground Spices by the name of JEE OMJEE GAI
CHAAP.

12. He has, in support of his submission relied upon the

following documents.

(i) Letter of Municipal Corporation of Delhi dated August 23,

2002 signed by OPA;

(ii) Indemnity Bond dated August 20, 2002 of OPA and witness
of the said Bond is DKA;

(iii) Sales Tax Registration dated November 30, 2004 in favour

of defendant No.2 showing re-sale of kirana items;

(iv) On September 09, 2005 Inventory of goods found during IT

Raid at defendant No.2’s premises includes Spices;

(v) Certificate of Importer-Exporter Code dated May 22, 2007;

(vi) Affidavit of OPA dated September 02, 2009 stating that

defendant No.2 is the manufacturing unit of Spices and mustard oil;

(vii) Memorandum for Manufacturing Enterprise dated January

07, 2010 acknowledgement of defendant No.2 business from Office
of Commissioner of Industries since September 10, 2004.

CS(COMM) 51/2018 Page 10

 (viii) Notice from Food Safety Officer dated December 09, 2014
to defendant No.2;

(ix) Invoice for promotion of Gai Chaap Masala of the years

2013, 2014 and 2015;

(x) Balance Sheet dated September 04, 14 of 31st March, 2014

of defendant No.2 as signed by OPA;

(xi) Form C of Department of Food Safety dated September 26,

2016;

(xii) Balance Sheets of defendant No.2 of the years 2014-15,

2015-16 and 2016-17 showing Spices;

(xiii) Form C of Central Sales Tax of defendant No.2 showing

Kiryana Items.

13. He submitted that the conduct of the plaintiff is mala fide.

In this regard, it is his submission that the plaintiff filed application
for KBM GAI CHAAP (Label) in Class 29 on October 13, 2014 and
GAI CHAAP in Class 29 on June 18, 2015 for goods including Oil
and GAI CHAAP in Class 39 on June 18, 2015 for packaging and
storage of Mustard Oil and GAI CHAAP in Class 35 on June 18, 15
which also includes Mustard Oil. He stated that the plaintiff filed
opposition against defendant No.2’s TM JEE OM JEE Label under
Class 30 in November, 2017. No averment of alleged family
agreement has been made therein. Plaintiff’s Agmark
license/certification was cancelled on September 28, 2016 and FIR
was lodged against them. He also highlighted the fact that the suit

CS(COMM) 51/2018 Page 11

 was filed by plaintiff only when VA filed partition suits in
Gurugram District Court in July, 2017.

14. Mr. Chandra has also highlighted the fact that plaintiff has
been using the KBM prominently and the initial TM applications
are filed for the mark KBM only. Applications for the mark GAI
CHAAP filed recently in 2014-15 except one in 2010. Plaintiff
stopped using the mark GAI CHAAP in a stand-alone manner and
started using KBM Gai Chaap with more prominence to KBM and
Gai Chaap's font reduced to negligible. Plaintiff did not prosecute
the TM applications filed by OPA and KBMSC applied in 1996/97.

15. Mr. Chandra has also taken a plea of delay and

acquiescence, inasmuch as OPA was a shareholder in defendant
No.2 till 2015 and Director till 2016 and DKA was director till 2004
and shareholder till 2014. Defendant No.2 is manufacturing Spices
since 2000, manufacturing and retailing mustard oil since 2004 and
retailing Spices under the TM JEE OM JEE GAICHAAP since
2014. Plaintiff and defendant No.2 supply goods to common traders
Ram Bilas Pawan Kumar & Rewari Kiryana Store to state that these
facts clearly show that the plaintiff knew the factum of the
defendant No.2 using the trademark JEE OM JEE GAICHAAP
(Cow device) but had not objected to it, since then and the suit
having been filed in the year 2017, surely hit by delay and laches.

16. In the last, it is his submission that the alleged family

agreement on which reliance has been placed by the plaintiff, is not
in consonance with the conduct of the parties. He submitted, in the

CS(COMM) 51/2018 Page 12

 given facts, the interim relief as sought for should not be granted
and the application be dismissed.

17. Having heard the learned counsel for the parties, and noting
the submissions made by them, it is noted that KBMSC a
partnership firm was dissolved and a Company KBMSC Spices Pvt.
Ltd. was incorporated (now KBM Foods Private Limited). The
partners became the Directors of the Company (plaintiff). On the
partnership being dissolved, the rights and liabilities including the
trademark “GAI CHAAP” and “COW (device)” were taken over by
the Company (plaintiff). This is clearly seen from the Agreement of
Succession of Business dated January 23, 2002. It appears that in
the year 2002, OPA and members of the Aggarwal family had taken
over the defendant No.2, Company.

18. It is the case of the defendant No.2 that it started

manufacturing / trading in Spices. A third Company M/s Iskon
Global Pvt. Ltd. was incorporated on August 06, 2001, by OPA and
SA. It was the contention of Mr. Kirpal, that to maintain family
peace a family settlement dated September 13, 2004 was entered
upon by the above three Companies through their Directors wherein
it was decided that the plaintiff Company shall manufacture / trade
in Masalas in the brand name of GAI CHAAP with COW (Device).
Similarly, M/s Iskon Global Pvt. Ltd. shall manufacture / trade in
Basen and Channa Dal and defendant No.2 Company shall
manufacture / trade in mustard oil.

19. I may state here that this agreement has been referred to by
the plaintiff in para 4 of the plaint. The defendant No.2 Company

CS(COMM) 51/2018 Page 13

 deny the agreement as being forged and fabricated. Suffice would it
be to state that it is the case of the defendant No.2 itself that VA
started participating in business of defendant No.2 from the year
2010-11. It was the plea of Mr. Kirpal that VA may not be having
any personal knowledge of happenings prior to that period.

20. It is also the case of Mr. Kirpal that in view of the family
settlement referred to above, the SA resigned from the plaintiff
Company. Similarly, defendant No.1 also resigned from M/s Iskon
Global Pvt. Ltd. and VA was inducted into defendant No.2
Company as the Director. This aspect that VA became Director of
defendant No.2 is conceded by Mr. Chandra in his arguments. It is
also noted that OPA was the common Director in all the three
Companies.

21. It is the case of Mr. Kirpal that parties to the family

settlement had acted and made trademark applications to the
Trademark Registry according to the settlement, inasmuch as M/s
Iskon Global Pvt Ltd. applied for GAI CHAAP only for Basen.
The defendant No.2 had in 2004 applied for trademark GAI
CHAAP (label) in class 29 for goods including edible oils, but very
recently on May 15, 2017 the defendant No.2 applied for JEE OM
JEE GAI CHAAP (label) for red chili powder as well, which is
contrary to the family settlement.

22. It is the case of the defendant No.2 that in 2014 it started

using the mark JEE OM JEE GAI CHAAP for retail of Spices, as
suggested by OPA and accordingly applied for registration. In this
regard, reliance was placed by Mr. Chandra on the Board resolution

CS(COMM) 51/2018 Page 14

 dated March 28, 2014 and also Agmark application dated July 23,
2014 of defendant No.2. In fact, I note that allegation and counter
allegations have been made by the parties against each other that the
opposite party has made applications for registration with the
Trademark Registry for Mark GAI CHAAP in mustard oil by
plaintiff and Spices by defendant No.2.

23. Mr. Kirpal had denied that plaintiff is manufacturing and

trading in mustard oil. He also does not deny the fact that an
application has been filed by the plaintiff for registration of
trademark GAI CHAAP in class 29, mustard oil. Mr. Kirpal during
his submissions has stated that the plaintiff cannot use trademark
GAI CHAAP with COW (Device) for mustard oil. He stated that
the claim of the plaintiff is only with regard to illegal use of
trademark GAI CHAAP with COW, for Spices by the defendant
NO.2.

24. It was the submission of Mr. Chandra that OPA after taking
over the defendant No.2 in the year 2002 has been manufacturing
and trading in Spices also. In this regard, Mr. Chandra had relied
upon the documents like; letter of MCD; indemnity bond dated
February 28, 2002 of OPA; Sales Tax Registration dated November
30, 2004 in favour of defendant No.2 showing resale of kirana
items; inventory as found during Income Tax raid showing Spices;
affidavit of OPA stating, defendant No.2 manufacturing Spices and
mustard oil.

25. On the other hand, Mr. Kirpal had relied upon certain
documents of the defendant No.2 like; (i) balance sheet for

CS(COMM) 51/2018 Page 15

 assessment years 2008-09; 2009-10; 2012-13 and 2013-14; (ii)
advertisement dated August 25, 2014; and (iii) Income Tax
assessment order dated December 09, 2009 to contend that the
defendant No.2 had represented itself to be indulging in business of
various goods excepts Spices. In fact, it was his submission that the
earliest document produced by defendant No.2 which can prove that
it has indulged in the business of Spices under the trademark GAI
CHAAP and COW (Device) is of November 29, 2014.

26. The issue needs to be seen and decided, on facts existing

post 2004 as much reliance was placed by Mr. Kirpal on the family
settlement executed between the companies in the year 2004, which
was apparently signed by OPA, DKA and SA on behalf of the
companies. I may state here that defendant No.2 has denied the
document.

27. That apart, it is also a conceded case of the plaintiff that the
defendant No.2 has been manufacturing and trading in Spices post
2014. If that be so, the period between 2004-14 attains significance.
Mr. Chandra had relied upon the documents like; (i) copy of
certificate of import exporters code issued by the Ministry of
Commerce to defendant No.2 dated May 22, 2007; (ii) copy of
certificate of Weight and Measurement Department, Govt. of NCT
of Delhi dated January 20, 2008; (iii) copy of affidavit of OM
Prakas Aggarwal to the Delhi Pollution Committee dated October
06, 2009; (iv) copy of documents / inventory prepared during the
Income Tax raid dated February 09, 2005; (v) copy of certificate of
Sales Tax Registration under the Central Sales Tax Rule 1957 to

CS(COMM) 51/2018 Page 16

 defendant No.2 dated February 22, 2005; (vi) copy of
acknowledgement dated January 07, 2010 sent from the Office of
Commissioner of Industries; (vii) print out from whois.com
showing registration of defendant No.2’s website since May 04,
2011; (viii) print out from https://web.archivee.org of defendant
No.2’s website from the year 2011-12 and thereafter, showing use
of mark GAI CHAAP for Spices.

28. The documents relied upon by Mr. Kirpal and Mr. Chandra
in support of their contention does not appeal to the Court. The
documents so relied primarily are declaration before the authorities
which may not necessarily mean the actual sale of Spices / Product
that too with the mark GAI CHAAP and COW (Device).

29. So, the declaration as filed by the defendant No.2 itself

becomes relevant. The earliest application of the defendant no.2 in
class 30 goods for registration of GAI CHAAP was in the year 2013
wherein the user date claimed by defendant No.2 is 2010. In
subsequent, applications filed by defendant No.2 on February 14,
2014 and June 15, 2017 the user date claimed is also 2010. But I
find, no invoice of the year 2010 has been placed on record by the
defendant No.2 to show usage of mark GAI CHAAP with COW
(Device). Rather, the earliest invoice placed by the defendant No.2
on record showing sale of Haldi Powder JEE OM JEE GAI CHAAP
is dated August 02, 2014 (page 218 of the convenience file). So, it
must be concluded that w.e.f. 2014, the defendant No.2 has been
using the mark GAI CHAAP in class 30 goods.

CS(COMM) 51/2018 Page 17

 30. Further, it has to be noted that SA the third brother has
never challenged the family agreement / settlement between the
Companies nor anything has been shown by the counsel for the
defendant No.2 that he also expanded his business under the
trademark GAI CHAAP with respect to the business if the plaintiff
and the defendant No.2.

31. The issue would be as the defendant No.2 been using the
mark GAI CHAAP with COW (Device) since 2014, the filing of the
suit in the year 2018 would disentitle the plaintiff, the prayer in the
present application. The answer to that question has to be in the
negative, in view of the position of law of the Supreme Court in the
case of Midas Hygiene Industries P. Ltd. and Ors. v. Sudhir
Bhatia and Ors., MANU/SC/0186/2004, wherein the Supreme
Court has held mere delay in bringing action is not sufficient to
defeat the grant of injunction where it prima facie appears that
adoption of the mark was itself dishonest.

32. In view of the above discussion and the fact, that the
plaintiff has been using the mark GAI CHAAP with COW (Device)
for Spices since 2004, which aspect is not denied by the defendant
No.2 which is using the said mark from 2014, that is from a later
date, this Court is of the view that the plaintiff has made out a prima
facie case for grant of injunction. Accordingly, this Court taking on
record the submission made by Mr. Kirpal that the plaintiff shall not
indulge in manufacturing / sale of Mustard oil with Mark GAI
CHAAP and COW (Device) restrain the defendant No.2 its
principal officers, family members, servants, agents, dealers,

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 distributors, retailers and anyone acting for and on its behalf from
manufacturing, selling, offering for sale or advertising using the
impugned products under the mark / logo / label / packaging GAI
CHAAP & Cow Device for any Spices / Masalas or any other mark
/ logo / label / packaging which in violation to the Plaintiff's rights
in the mark / logo / label / packaging GAI CHAAP & COW Device
in respect of Spices / Masala products or any other cognate and
allied goods.

33. The application is disposed of.

V. KAMESWAR RAO, J

FEBRUARY 24, 2020/ak

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