KHAITAN INDIA LIMITED Vs. KULDEEP MEHTA

JUDGEMENT

(1.) Plaintiff has caused substituted service. Mr. Ahmed, learned advocate appears on behalf of plaintiff in support of this application for, inter alia, injunction restraining respondents/defendants from selling or causing to be sold bicycles or any other product with any mark and label or using the name 'Khaitan'. He draws attention to registration of the mark of his client as disclosed from page 222 onwards. The mark is of the name 'Khaitan' written in a particular style or manner. He refers to supplementary affidavit of his client, filed earlier, disclosing photographs of bicycles, in which the name has been used. He submits, as such this is a case of infringement of registered mark by defendant no.1 selling the product on platform of defendant no.2. He relies on judgment of Supreme Court in Laxmikant V. Patel versus Chetanbhai Shah reported in (2002) 3 SCC 65, to paragraphs 13 and 14 in which Supreme Court declared that plaintiff must prove a prima facie case, availability of balance of convenience in his favour and his suffering an irreparable injury in the absence of grant of injunction. Actual damage need not be proved for grant of injunction.

(2.) Defendant no.1 goes unrepresented. Ms. Lahiri, learned advocate appears on behalf of defendant no.2. She submits section 79 in Information Technology Act, 2000 exempts her client, an intermediary, from liability. Supreme Court in Shreya Singhal versus Union of India reported in (2015) 5 SCC 1, in paragraph 122 had declared that actual knowledge in case of any intermediary would be a Court order asking it to expeditiously remove or disable access to certain material and failure to do so thereupon will disentitle intermediary to exemption. Mr. Ahmed submits, this should not prevent plaintiff from establishing at trial, disentitlement of defendant no.2 to claim exemption.

(3.) Submissions recorded above on behalf of plaintiff constitute prima facie satisfaction of Court to pass order in terms of prayer (a) of the application. Since this application has been dealt with upon notice, it is disposed of on the direction above. Contention regarding exemption urged by defendant no.2 has not been gone into as may be urged at trial.