SHIBA HEALTH CARE Vs. M J PHARMACEUTICALS LTD

JUDGEMENT

(1.) (1) Heard learned counsel for the parties. (2) I have perused the order dated 3rd April 2008 passed by learned Single Judge of this Court (Coram: B.R. Gavai, J.) in Writ Petition No.2496 of 2008 filed by the petitioner. (3) The learned counsel for the petitioner submitted that at the time of passing of the order by the learned Single Judge of this Court (Coram: P.V. Kakade, J.) on 2nd March 2007 in Appeal from Order No.44 of 2005 the fact that rectification application was pending was not known to the Court. The order passed by this Court on 2nd March 2007 would, therefore, be applicable in view of the provisions of Section 124 (1(b)(ii) of the Trade Marks Act 1999. The petitioner / plaintiff has filed application on 7-4-2008 for stay of further proceedings of the suit till decision of Appeal bearing No.ORA/139/2006/TM/MUM/5261 pending before the Intellectual Property Appellate Board, Chennai, as, according to the petitioner, defendant No.2 has filed said proceedings before the above said Appellate Board at Chennai. (4) The trial Court in its order observed that the plaintiff has produced evidence and thereafter the defendant has adduced the evidence. A reference was given to the order passed by this Court on 2nd March 2007 in the proceedings of Appeal from Order No.44 of 2005. (5) From the material placed on record it seems that the parties have proceeded with the hearing of the suit and are leading evidence. It was informed across the Bar that the suit was filed in the year 2005 and the application for rectification was filed on 10-11-2006 notice of which was received by the petitioner/ plaintiff on 22-11- 2006. (6) In spite of the fact that the petitioner received notice of such rectification proceedings he proceeded to participate with the hearing of the suit. At one stage, he filed a Writ Petition being Writ Petition No.2496 of 2008 challenging order of the trial Court dated 11th March 2008. (7) The issue raised before me at this stage is whether on the application of the plaintiff proceedings of the suit are required to be stayed. (8) Some judgments are cited before me by the learned counsel for the respondents. (9) In the case of M/s. Mayor Brothers v. Vijay Industries, 1985-PTC-208 the Delhi High Court took a view in the facts of the case that the suit was not only for infringement of trade mark but was also for passing off. (10) In the case of Pfizer Products Inc. v. Rajesh Chopra, 2007 (35) PTC 59 (Del.) the Delhi High Court in the facts of the case observed in para 75 thus: -