CHETAN ADESARA Vs. SANTOSH KUMAR VERMA

JUDGEMENT

(1.) The present C.M.P has been filed for quashing the order dtd. 17/3/2021 passed by the learned District Judge-I-cum-Presiding officer, Commercial Court, Jamshedpur in Original Suit No. 07 of 2016 whereby the petition filed by the plaintiffs-petitioners under Sec. 45 of the Indian Evidence Act, 1872 (hereinafter referred to as ..the Act, 1872..) has been dismissed and the plaintiffs.. evidence has been closed. The petitioners have also prayed for directing the learned Court below to proceed further with the said suit in accordance with law.

(2.) The factual background of the case, as stated in the C.M.P, is that the petitioners are the business partners of a registered partnership firm, namely, "Chhaganlal Dayaljee" which is carrying on the business of buying, marketing, trading, retailing and selling of jewellery made of gold, silver, diamond, precious metals as well as crystal stones and other items. The said business was started by Late Chhaganlal Dayaljee in the year 1918 and the petitioners are the descendants of said Chhagalal Dayaljee. In order to protect their trademark, the petitioners have also obtained a registered trademark in the name and style of "Chhaganlal" or "Chhaganlal Dayaljee". They have also developed a logo which is used in the bills, packaging materials and is prominently displayed on the display board. In February, 2015, the petitioners came to know that the defendant-respondent opened a shop in the name and style of "Chhaganlal Gopalji" and "Chhaganlal Madanlal and Sons" using the trademark of the petitioners. Thereafter, the petitioners instituted a suit being Original Suit No. 07 of 2016 under Sec. 134 of the Trademarks Act, 1999 (hereinafter referred to as ..the Act, 1999..) against the respondent seeking the following reliefs:

(3.) During the pendency of the said suit, the petitioners filed a petition dtd. 16/9/2016 under Order XXXIX Rules 1, 2 and 7 read with Sec. 151 of the CPC seeking temporary injunction restraining the respondent from infringing the petitioners.. registered trademark. However, the said petition was dismissed by the learned Presiding officer, Commercial Court, Jamshedpur vide order dtd. 17/4/2017. Thereafter, the petitioners preferred appeal against the said order being Commercial Appeal No. 4 of 2019 before this Court, which was also dismissed vide order dtd. 5/2/2020. Thereafter, the petitioners preferred appeal being S.L.A. (Civil) No. (S) 9343 of 2020 before the Hon'ble Supreme Court, which was also dismissed vide order dtd. 11/1/2021 directing the learned Commercial Court to decide the said suit preferably within a period of six months from the date of the order of the Hon'ble Supreme Court. The petitioners adduced altogether six witnesses to substantiate the issues framed by the learned Court below. P.W.6 (Yusuf Mohammad) has stated in his examination-in-chief that the respondent had sold a silver coin on 19/12/2015 to him representing himself as a branch of "Chhaganlal Dayaljee Jewellers" which was run by the petitioners. The said silver coin was exhibited on admission by the said witness (P.W.6) and was marked as Ext. 1M. Thereafter, the petitioners filed a petition dtd. 17/3/2021 under Sec. 45 of the Act, 1872 praying therein to send the silver coin exhibited by the P.W.6 to a licensed hall-marker to determine the ingredients and quality of the same. However, the said petition was dismissed by the learned Court below vide the impugned order dtd. 17/3/2021. Hence, the present C.M.P.