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2006 DIGILAW 2003 (DEL)

DIAMED AG v. MOREPEN LABORATORIES LTD.

2006-11-03

HIMA KOHLI, MUKUNDAKAM SHARMA

body2006
( 1 ) THIS appeal is directed against the order dated 19. 10. 2006 passed by the learned Single Judge in the suit registered as CS (OS) No. 2013/2006. In the aforesaid suit, an application for grant of temporary injunction was also filed, which was registered as I. A. No. 11836/2006. The learned Single Judge took up the suit as also the injunction application for consideration and issued notice in the suit making it returnable on 4th December, 2006. After issuing notice in the suit, notice was also issued on the said application making the same returnable on 4th December, 2006. In the same order, the learned Single Judge has referred to the averments made in the plaint and the submissions made by the counsel for the plaintiff/respondent No. 1 and after considering the statements, recorded that the plaintiff has made out a prima facie case and that there also exists balance of convenience in favour of the plaintiff and against the defendant and that the plaintiff would suffer irreparable loss and injury which cannot be compensated in terms of money in the event an ex parte ad interim injunction order is not granted in its favour. After being satisfied of all the aforesaid factors for grant of injunction, the learned Single Judge granted injunction restraining the defendants and all persons acting on their behalf from acting in pursuance to letter dated 4th July, 2006 and from committing breach of any of its obligations under the agreement dated 01. 01. 2001. The defendants had also been restrained from using in any manner, the entire data of the Diagnostic Division of the plaintiff company, including the list of the customers/clients of the plaintiff company along with the cost-sheet with import tariff, sales data and profitability statement since February, 2001. ( 2 ) THE aforesaid order granting ad interim ex parte injunction is under challenge in this appeal on which we have heard the learned counsel for the appellant as also the counsel appearing for respondents No. 1 and 2. It is contended before us that the learned Single Judge completely ignored the provisions of Order XXXIX Rules 1 and 2 and also the provisions of Order XXXIX rule 3 and Order XXXIX Rule 3 (A) of the CPC while passing the order of aforesaid injunction. It is contended before us that the learned Single Judge completely ignored the provisions of Order XXXIX Rules 1 and 2 and also the provisions of Order XXXIX rule 3 and Order XXXIX Rule 3 (A) of the CPC while passing the order of aforesaid injunction. ( 3 ) DURING the course of arguments, counsel for the appellant has submitted that although the appellant has admittedly been served with the summons of the suit and notice of the application was served on or about on 21st/22nd October, 2006, despite the said fact, the appellant is yet to enter appearance in the suit. It is also admitted position that the appellant has neither appeared in the suit, nor filed any written statement or reply to the application under order XXXIX Rules 1 and 2 CPC, nor filed any application seeking vacation of the injunction or for praying for advancing the date of hearing of the injunction application. The appellant has filed the present appeal and the counsel appearing for the appellant, while pressing the appeal, has submitted that it is not necessary for him to appear before the learned Single Judge and pray for vacation of the stay operating against it, or for early hearing, as a right is vested on the appellant to file an appeal as against the aforesaid order. ( 4 ) IT is true that an appeal would lie and could be preferred as against the said ad interim injunction granted by the learned Single Judge, but in our opinion, the learned Single Judge has exercised a discretion upon going through the averments made in the plaint on the basis of the documents placed before her. The learned Single Judge has referred to extensively the averments made in the plaint and the submissions of the counsel for the plaintiff in the impugned order and, therefore, we refrain from reiterating the same herein for the sake of brevity. A perusal of the order also makes it crystal clear that the learned Single Judge duly considered all the facts of the case as set out by the plaintiff supported by material placed before her. A perusal of the order also makes it crystal clear that the learned Single Judge duly considered all the facts of the case as set out by the plaintiff supported by material placed before her. If, however, it is possible for the appellant to show that the factual and legal consideration of the learned Single Judge is erroneous and wrong and if the appellant, who has been arrayed as defendant No. 2 in the suit, brings to the notice of the learned Single Judge any error or mistake committed by her while granting injunction in the matter or furnishes facts which according to the appellant, were intentionally not revealed by respondent No. 1 in its pleadings, we have no hesitation in saying that such an order could also be vacated and/or modified, as the case may be by the learned single Judge. It is also submitted before us that the learned Single Judge has not recorded her reasons as required to be statutorily recorded while passing the impugned order. We are of the considered opinion that the learned Single judge has referred at length to the averments made in the plaint and also the submissions of the counsel for the plaintiff and on the basis of the same, she was satisfied for the reasons based on such averments that a case for grant of ad interim injunction is made out and accordingly issued the said order. The view taken by the learned Single Judge, at this stage, is only a prima facie view, which on the material placed before her, was a possible view. In appeal, we cannot look into the case which the appellant might set up as a defence to the plaintiff's prayer at the stage when the defendants/appellants will appear before the learned Single Judge and oppose the application on merits. We have recorded herein before, if according to the appellant there is any mistake or error in the said order, the same also could be pointed out by the appellant by filing an application praying for vacation of the interim injunction or in the reply to be filed against the injunction application. The appellant also has the liberty to file application for advancing date of hearing of the application for injunction in which case, we are sure that the learned Single Judge would consider the prayer in accordance with law. The appellant also has the liberty to file application for advancing date of hearing of the application for injunction in which case, we are sure that the learned Single Judge would consider the prayer in accordance with law. ( 5 ) IN the course of arguments, learned counsel for the respondent No. 2 states that he is supporting the case of the appellant and they were willing to appear before the learned Single Judge and argue the stay application, if the same could be considered to be made a time-bound process. Learned counsel for the respondent No. 1 also assures us that they are agreeable to advancing the date of hearing and shall co-operate in disposing of the stay application. We may also refer to the decision of a Division Bench of this Court in allied Nippon Ltd. and Anr. v. M/s Allied Motors reported as 80 (1999) Delhi Law times 38 (DB) which was rendered by relying on the decision of the Supreme Court in Wander Ltd. v. Antox India Pvt. Ltd. , 1990 (Suppl.) SCC 727 wherein it was held that the mere fact that while hearing a appeal, the Division Bench could be persuaded to take a different view, which could be another possible view, would not be a ground for interference in the exercise of discretion of learned Single judge. It was also held in the said case that in appeal, the appellate court would not look into the case, which the appellant could set up as a defence to the plaintiff's prayer at the stage when the defendants/appellants would appear before learned Single Judge and oppose the application on merits. In our consideration, the factual matrix of the said case decided by the Division Bench is similar to the facts of the present case. We, therefore, believe that we are required to follow the principles laid down therein. ( 6 ) IN terms of the aforesaid view, which was taken by the Supreme Court and the Division Bench of this Court and in the light of our observations made hereinabove, we are not inclined to entertain the appeal. It shall be open to the appellant to approach the learned Single Judge with appropriate application seeking vacation of order of injunction also with a prayer for preponement of the date which when filed shall be considered by the learned Single Judge in accordance with law. It shall be open to the appellant to approach the learned Single Judge with appropriate application seeking vacation of order of injunction also with a prayer for preponement of the date which when filed shall be considered by the learned Single Judge in accordance with law. In terms of the aforesaid order, the appeal stands disposed of.