Aasife Biriyani (P) Ltd.     V/S     Bhasitrahaman

02 Jul Aasife Biriyani (P) Ltd.     V/S     Bhasitrahaman

Would suppressing the pendency of another proceeding in the same matter result into dismissal of interim order and the application of the respondent??

The present suit is filed by the appellants Aasife Biriyani (P) Ltd., in the Honourable High Court of Madras before Honourable Justice P.T. Asha, seeking an interim injunction restraining the respondent from infringing the registered trademark of the applicant. [O.A. Nos. 699 to 702 of 2020, Decided On: 04.02.2021]

The appellants have knocked the doors of the court on the ground that the Franchisee appointed by him had not only failed to pay the Franchisee fee but has also created two trademarks similar in colour and appearance to that of the appellants’. Considering the fact that there had been a violation of the terms of the Franchise Agreement, the appellant has pleaded for various orders of interim injunction.

The reliefs claimed by the appellant are an interim injunction restraining the respondent from infringing the registered trademark of the appellant having registration number 3768877, or any other logo or artistic work that was identical or deceptively similar to the said registered trademark of the appellant in class 43. The appellant has also prayed for an interim injunction restraining the respondent, from using the word mark “Aasifaa Biryani” or label mark ‘Asifaa’ artistic work, or any other work /device that are identical or deceptively similar to the said mark of the appellant in respect of providing food and drinks, temporary accommodation, and thereby restraining the respondent in any manner from passing off and also from in any manner violating the copyright of the appellant.

After hearing the counsel, the court had initially granted an order of injunction on 16.12.2020 in all the above applications. After the respondent entered appearance he brought to the notice of the court the fact that the appellants herein had earlier filed a suit OS. No. 362 of 2019 on the file of the Principal District Court, Chengalpet against the respondent making the very same allegations and seeking an injunction restraining the respondent from using trade name/trademark “ANIFA”, which was the subject matter of A. Nos. 701 and 702 of 2020 and the said suit was still pending before the Principal District Court, Chengalpet and that the appellant was guilty of forum shopping and therefore was not entitled to any order of injunction. Further the cause of action for the suit was the Franchise Agreement dated 15.03.2018 which is the very same cause of action that has been pleaded in the current applications.

In the said suit, the respondent had entered appearance and a detailed written statement had also been filed.

The court in the present suit noted that it appeared that no interim orders had been granted to the appellants in the said suit, though they had taken out an application for interim orders. Thereafter this court had been moved. While the proceedings were pending before this court, the appellants had moved the Principal District Court, Chengalpet with an application to advance the hearing of the suit so as to enable them to withdraw the said suit. The court noted that such an application had been filed only after the respondent had appeared before this court and brought to the notice of this court the suit OS. No. 362 of 2019. According to the present court, the conduct of the appellant was nothing short of forum shopping and this conduct had to be deprecated.

The relief of injunction being a discretionary relief has to be granted to a person who has come to the court with clean hands and who has not suppressed any fact from the court.

The appellant who has filed the suit as early as in October 2019 and who had been diligently contesting the same before the District Court, Chengalpet moved this court totally suppressing the pendency of the proceedings before that court. Thus in the light of the above, this court did not deem it fit to continue the interim orders and the applications were dismissed.