# M/S Kapila Krishi Udyog Ltd v. M/S Kamdhenu Cattle Feeds (P) Ltd

- **Citation:** (2019) 4 ILRA 1011
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-26
- **Case number:** FAFO No. 2622 of 2019
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-kapila-krishi-udyog-ltd-v-m-s-kamdhenu-cattle-feeds-p-ltd-44911
- **Pages:** 5

## Headnote

A. Civil Law - Code of Civil Procedure,
1908 - Order 39, Rule 1 & 2 - Temporary
Injunction - Power of appellate court -
Appellate
court should be slow
in
upsetting order granting or rejecting a
temporary
injunction
-
Merely
a
possibility of the appellate court to arrive
at a different conclusion on basis of the
same facts and evidence will not justify
interference with an order granting or
rejecting temporary injunction.

B. Civil Law - Code of Civil Procedure,
1908 - Order 39, Rule 1 & 2 - Specific
Relief Act - Section 41(h) - Temporary
injunction - to restrain from using the
Trade Mark - Temporary Injunction
refused - as Plaintiff have equally
effective relief by pursing the pending
and alive issue under Section 57 of the
Trade Marks Act before the Intellectual
Property Appellate Tribunal.

Trial
court
while
dismissing
temporary
injunction application examined facts stated on
affidavits, facts pertaining to the other
litigation existing between the parties - noticed
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
that the issue is still alive and pending
consideration
before
Intellectual
Property
Appellate Tribunal - Held - Order is neither
perverse nor the trial court failed to exercise
or exceeded jurisdiction vested with it. No
case made out for interference in appellate
jurisdiction.

First Appeal from Order dismissed. (E-5)

## Text

4 All. M/S Kapila Udyog Ltd. Vs. M/S Kamdhenu Cattle Feeds (P) Ltd.
1011
if one or more vehicle caused accident
and how tribunal can arrive on conclusion
regarding identity of vehicle and period of
continuation of coverage of risk.

26. Thus in view of the above
discussion, in absence of valid and
effective insurance policy, Insurance
Company is not liable to pay any
compensation and only the respondentAnthoni John, owner of the alleged
vehicle No. UP 78 N 8663, is liable to pay
the compensation along with the interest
to the claimant-respondents of both the
M.A.C.P. No. 117/2001 and 119/2001.

27. Accordingly, both the appeals
F.A.F.O. No. 2256 of 2010 (National
Insurance Company Ltd. vs. Smt. Lalmati
Devi and others) and F.A.F.O. No. 2257 of
2010 (National Insurance Company Ltd. vs.
Smt. Reeta Devi and others) are allowed.
The judgments and awards dated 24.4.2010
passed by the Tribunal in M.A.C.P. No.
117/2001 (Smt. Reeta Devi and others vs.
Anthoni John and others) and M.A.C.P. No.
119/2001 (Smt. Lalmati Devi and others vs.
Anthoni John and others) are modified to the
extent
as
discussed
above.
Insurance
company is exonerated from its liability to
pay the compensation. Registry is directed to
refund the statutory amount paid by the
appellant-Insurance
Company,
if
not
remitted to the Tribunal. The respondentowner of the alleged vehicle is directed to
pay the compensation awarded in both the
aforesaid petitions along with up to date
interest within a period of one month to
claimants of both the appeals.

28. Office is directed to send back
the lower court record of both the appeals
along with the copy of this judgment to
the Tribunal for its compliance.
----------
(2019)12 ILR A1011

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2019

BEFORE
THE HON'BLE GOVIND MATHUR, C.J.

FAFO No. 2622 of 2019

M/S Kapila Krishi Udyog Ltd. ...Appellant
Versus
M/S Kamdhenu Cattle Feeds (P) Ltd.
 ...Respondent

Counsel for the Appellant:
Sri Anurag Khanna, Sri Kartikeya Saran,
Sri Devesh Saxena

Counsel for the Respondent:
Sri Abhinava Krishna Srivastava, Sri
Saurabh Srivastava

A. Civil Law - Code of Civil Procedure,
1908 - Order 39, Rule 1 & 2 - Temporary
Injunction - Power of appellate court -
Appellate
court should be slow
in
upsetting order granting or rejecting a
temporary
injunction
-
Merely
a
possibility of the appellate court to arrive
at a different conclusion on basis of the
same facts and evidence will not justify
interference with an order granting or
rejecting temporary injunction.

B. Civil Law - Code of Civil Procedure,
1908 - Order 39, Rule 1 & 2 - Specific
Relief Act - Section 41(h) - Temporary
injunction - to restrain from using the
Trade Mark - Temporary Injunction
refused - as Plaintiff have equally
effective relief by pursing the pending
and alive issue under Section 57 of the
Trade Marks Act before the Intellectual
Property Appellate Tribunal.

Trial
court
while
dismissing
temporary
injunction application examined facts stated on
affidavits, facts pertaining to the other
litigation existing between the parties - noticed
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
that the issue is still alive and pending
consideration
before
Intellectual
Property
Appellate Tribunal - Held - Order is neither
perverse nor the trial court failed to exercise
or exceeded jurisdiction vested with it. No
case made out for interference in appellate
jurisdiction.

First Appeal from Order dismissed. (E-5)

(Delivered by Hon'ble Vivek Varma, J.
under Chapter VII, Rule 1(3) of the
Allahabad High Court Rules, 1952)

1. By the judgment impugned dated
7th August, 2019, learned Additional
District Judge, 23, Kanpur Nagar has
dismissed an application preferred by the
appellant-plaintiff (hereinafter referred as
appellant) under Order 39, Rules 1 and 2
of Code of Civil Procedure, 1908.

2. The material facts of the case are
that
the
appellant
is
a
company
incorporated under Companies Act and is
engaged
in
the
business
and
manufacturing and sale of cattle feed. The
product of the company is having its
brand name and trade mark as "Kapila
Pashu Ahar".

3.

The
defendant-respondent
(hereinafter referred to as the respondent) is
also a company incorporated under the
Companies Act and is also engaged in the
business of manufacture and sale of cattle
feed. The Directors of both the companies are
from one family. Sarv Sri Saurabh Shivhare
and Samir Shivhare Sons of Late Sri Ramesh
Shivhare are Directors of the appellant
Company and Sri Surendra Nath Shivhare,
real brother of Late Sri Ramesh Shivhare is a
Director of respondent Company.

4. The respondent Company was
formed prior to the appellant and Sarv Sri
Ramesh Shivhare and Surendra Nath
Shivhare were its owners and promoters.
This company had its brand name and
trade mark as "Kapila Pashu Ahar" (Trade
Mark No.597524). Unfortunately, Sri
Ramesh Shivhare died on 2nd July, 2004.
After his death a business sale agreement
was executed between the respondent and
appellant company, in result business of
the respondent as a whole was said to be
sold to the appellant.

5. An application was preferred by
the appellant on 28th March, 2016 in
terms of Section 45 of the Trade Marks
Act, 1999 before the Deputy Registrar of
the Trade Marks. By an order dated 15th
December, 2017, the Deputy Registrar
ordered that M/s Kapila Krishi Udyog
Limited (appellant) shall remain on a
register of trade marks as subsequent
proprietor of the Trade Mark No.597524.

6. Being aggrieved by the order dated
15th December, 2017, the respondent-
petitioner preferred C.M. No.40954 of 2017
before the High Court of Delhi. A Writ
Petition (C) No.10037 of 2017 arising out of
the same dispute too was under consideration
before the Delhi High Court at that time. The
High Court vide its order dated 19th
December, 2017 disposed of both the petitions
by reserving right of the petitioner to
challenge the order dated 15th December,
2017 by availing remedy under Section 57 of
the Act of 1999. Validity of the order dated
19th December, 2017 passed by learned
single Bench of Delhi High Court was further
questioned by the respondent by way of letter
patent appeal. The appeal aforesaid came to
be disposed of under the order dated 16th
April, 2018 that reads as follows:-

"In the present appeal, the
grievance is with respect to the adverse
4 All. M/S Kapila Udyog Ltd. Vs. M/S Kamdhenu Cattle Feeds (P) Ltd.
1013
observations contained in the order of the
Deputy
Registrar
of
Trademarks
[hereafter "the DR"] dated 15.12.2017. In
that order, the appellant was asked to
seek its remedies under Section 57 of the
Trademarks Act, 1999. It is brought to the
notice of the Court that the observations
in previous order dated 20.10.2017 on the
issue of registration which is the subject
matter of the application before the
Intellectual Property Appellate Board
(IPAB)
under
Section
91
of
the
Trademarks Act, would come in the way.

In the circumstances, it is
hereby
directed
that
neither
the
observations
in
the
order
dated
20.10.2017 nor the observations of the
DR in the order dated 15.12.2017 shall be
treated as conclusive in any manner nor
be deemed to be a reflection on the merits
of
the
appellant's
application
for
rectification. The appeal is accordingly
disposed of."

7. After disposal of the letters patent
appeal, the appellant preferred a suit
before the Court of learned District Judge,
Kanpur Nagar to have a decree of
permanent injunction in following terms:-

"(A)
That
the
Decree
of
Permanent Injunction may kindly be
passed in favour of the plaintiff and
against the defendant suitably restraining
the defendants or their trustees, servants,
subordinates, representatives, agents and
all other person claiming under or/and
through them from infringing the use of
Plaintiff's said trademarks and labels, any
other trademark containing the words
kapila pashu aahaar and the plaintiff's
Registered Trade Mark aforesaid i.e.,
"Kapila Pashu Aahar", bearing the
Registered Trade Mark No.597524, in any
mode or manner.

8. An application as per Order 39,
Rules 1 and 2 of the Code of Civil
Procedure was also filed by the appellant
to have a temporary injunction against the
defendant to restrain it from using or
interfering or infringing the Trade Mark
No.597524. The application aforesaid
came to be dismissed by the order
impugned dated 7th August, 2019.

9. Learned trial court while
dismissing
the
application
examined
provisions of the Trade Marks Act, the
facts stated by the parties to the
proceedings on affidavits and the facts
pertaining to the other litigation existing
between the parties. The trial court while
meeting with the argument advanced on
behalf of plaintiff-appellant that in light of
the order passed by the single Bench as
well as Division Bench of the Delhi High
Court, the Trade Mark No.597524 is
under absolute ownership of the appellant,
noticed that the issue is still alive and is
pending
consideration
before
the
Intellectual Property Appellate Tribunal.
The trial court, on basis of the documents
filed by the defendant, also noticed that a
suit is also pending before Commercial
Court, Kanpur to declare an agreement
dated 17th May, 2014 regarding "Kapila
Pashu Ahar" void and to prohibit the
defendant-respondent to use that as a
brand name, which was said to be
transferred to the plaintiff-appellant.

10. The trial court in light of the provisions
of Section 38 and Section 41 of the Specific
Relief Act held that plaintiff-appellant can have
equally effective relief by pursing the issue under
Section 57 of the Trade Marks Act before the
Intellectual Property Appellate Tribunal.

11. While pressing the present
appeal, it is submitted that the trial court
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
failed to appreciate that the trade mark
"Kapila Pashu Ahar" was registered in the
name of appellant vide order dated 15th
December,
2017 and
as
such
the
respondent had no right to use the same
for its business. Much emphasis is given
to the fact that validity of the order dated
15th December, 2017 was affirmed by the
Delhi High Court and as such the trial
court erred while holding that the
appellant may avail relief under Section
41 of the Specific Relief Act.

12. It is further stated that the trial
court erred while rejecting the application
for injunction on the count of pendency of
Suit No.1 of 2016 before the Commercial
Court, Kanpur. According to learned
counsel for the appellant, the suit
aforesaid is founded on a different cause
of action and the same has nothing to do
with regard to the permanent injunction
sought
by
the
appellant
in
suit
proceedings no.4 of 2019.

13. While opposing the appeal and
defending the order passed by the trial
court learned counsel appearing on behalf
of the respondent states that whatever
relief claimed by the appellant in Original
Suit No.4 of 2019 has also been sought in
Original
Suit
No.01
of
2016.
An
allegation is also made to the effect that
the appellant under valued the suit just to
avoid the jurisdiction of Commercial
Court, Kanpur Nagar where the Original
Suit No.1 of 2016 is pending.

14. It is asserted that an intentional
effort is made by the appellant to
misrepresent the orders passed by the
Delhi High Court in single Bench as well
as Division Bench just with a view to
avail
a
temporary
injunction
by
misleading the court.

15.

Heard
learned
counsels,
considered the argument advanced and
also perused the documents annexed with
the memo of appeal.

16. Before coming on merits of the
case, it would be appropriate to mention
that an appellate court while hearing a
miscellaneous
appeal
questioning
correctness of an order passed under
Order 39, Rules 1 and 2 of the Code of
Civil Procedure, granting or rejecting a
temporary injunction, should be slow in
upsetting a decision of a trial court.
Merely a possibility of the appellate court
to arrive at a different conclusion on basis
of the same facts and evidence will not
justify interference with an order granting
or
rejecting
temporary
injunction.
However, the trial court while disposing
of an application under Order 39, Rules 1
and 2 of the Code of Civil Procedure must
apply its judicial mind to the material
which is placed on record. Every piece of
evidence produced by the either party
must be considered in deciding the
existence of a prima facie case to justify
issuance of a temporary injunction. No
such injunction should be issued unless
the court is thoroughly satisfied about
existence of prima facie case in addition
to the factors pertaining to the balance of
convenience and irreparable injury that
may be caused to either party.

17. Applying the above principle to
the instant case, I may state at the outset
that the trial court while rejecting the
application has considered the affidavits
filed by the plaintiff-appellant in support
of
the
application
for
temporary
injunction and also the affidavits filed on
behalf of the respondent. The trial court
on going through the plaint of Original
Suit No.1 of 2016 concluded that the
4 All. Ram Naik Misra & Anr. Vs. Km. Gauri & Ors.
1015
relief claimed therein is similar to the
relief of permanent injunction sought in
Original Suit No.4 of 2019. The trial court
also examined effect of the proceedings
pending
before
Intellectual
Property
Appellate Tribunal and held that in light
of the relevant provisions of the Specific
Relief Act, the appellant may have the
same relief in the proceedings aforesaid.
So far as the orders passed by Delhi High
Court are concerned, I am also satisfied
that in light of the orders passed in letters
patent appeal, it cannot be said that the
issue with regard to trade mark has
acquired finality between the parties. The
Division Bench of Delhi High Court in
quite specific terms
held that the
respondent herein may avail remedy
under Section 57 of the Trade Marks Act,
1999 and the observations made by the
Deputy Registrar of Trade Marks under
order dated 15th December, 2017 as well
as under the order dated 20th October,
2017 shall not be treated as conclusive in
any manner and shall also not be deemed
to the reflection of the merits of the
appellant's application for rectification.

18. In view of whatever stated
above, I do not find any just reason to
arrive at the conclusion that the trial court
failed to appreciate its judicial mind while
examining the material available on
record
or
that
failed
to
exercise
jurisdiction vested with it while rejecting
the application under Order 39, Rules 1
and 2 of the Code of Civil Procedure,
1908. The order is neither perverse nor
the trial court failed to exercise or
exceeded jurisdiction vested with it. No
case hence, is made out for interference in
appellate jurisdiction.

19. The appeal hence, is dismissed.
----------
(2019)12 ILR A1015

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.11.2019

BEFORE
THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

First Appeal No. 53 of 2018
&
First Appeal No. 55 of 2018

Ram Naik Misra & Anr. ...Appellants
Versus
Km. Gauri & Ors. ...Respondents

Counsel for the Appellants:
Prabhat Kumar

Counsel for the Respondents:
Ramakar Shukla

A. Family & Personal Laws - Guardian
and Wards - Custody of minor to
Maternal Grandfather - Considerations
for Custody of child / minor - Paramount
considerations are welfare and wish of
minor
child
-
Maternal
grandfather
taking care of the minor children and
providing proper education - Minors
stated before court that they want to live
with
maternal
grandfather
-
Custody/guardianship of minor children
given to Maternal grandfather with their
father given visitation rights.

Mother of children committed suicide -
maternal grandfather filed case for appointing
himself as the guardian of minor children -
Family Court directed custody/guardianship of
minor children to the Maternal Grandfather
and not to father - Held - Minor children aged
about 15 yrs & 13 yrs - mature enough to give
their opinion - stated before court that they
want to live with maternal grandfather & do
not want to live with their father - Record
showed Maternal Grandfather is taking care of
the minor children and providing proper
education - father is the natural guardian of