HIMALYA INTERNATIONAL LTD Vs. HIMALAYA DRUGS COMPANY

JUDGEMENT

(1.) The plaintiff has instituted this suit for recovery of damages in the sum of Rs.1 crore from the defendant, pleading that the plaintiff has suffered commercial, business and market loss and damage to its brand name and reputation on account of defendant's carelessness and negligence in filing CS(OS) No.1105/2010 of this Court and obtaining an ex parte injunction order on absolutely misconceived facts and notions and the defendant has thereby subjected the plaintiff to mala fide and vexatious litigation. It is further pleaded that owing to the said ex parte injunction obtained by the defendant in CS(OS) No.1105/2010, the plaintiff lost the market share of its product '1DAILY' intended to be launched in 2010 and launch whereof was delayed till 2012.

(2.) Though the plaint is replete with incomprehensible language and obvious typographical / grammatical errors but a perusal of the order dated 2nd June, 2010 in CS(OS) No.1105/2010, filed along with the documents, shows that thereby summons of the said suit filed by the defendant against the plaintiff were ordered to be issued and vide ex parte injunction the plaintiff was restrained from using the word 'HIMALYA' in relation to its product nutraceuticals or other products of whatsoever nature till the next date of hearing; it was however clarified that the said order will not preclude the plaintiff herein from legitimate use of the mark 'HIMALYA' in respect of food and frozen food products for which the plaintiff had been using the mark 'HIMALYA' till then.

(3.) This suit was entertained and summons thereof ordered to be issued. The defendant is contesting the suit by filing a written statement inter alia pleading i) that CS(OS) No.1105/2010 in which defendant obtained ex parte injunction against the plaintiff is still pending consideration; ii) that there can be no claim for damages on the basis of an order of the Court; and, iii) that the ex parte order dated 2nd June, 2010 in CS(OS) No.1105/2010 was confirmed on 18th September, 2013.