In the Interim Application (L) No. 33368 of 2022 in the Commercial IP Suit No. 343 of 2022 between Supreme Industries Limited v. Tandhan Polyplast Private Limited, De Penning & De Penning assisted Supreme Industries Limited (the “Plaintiff”) in an application filed by the defendant seeking recall of ex-parte ad-interim order dated 07/10/2022 in relation to a patent infringement case.  

The defendant in its application to vacate the ex-parte order dated 07/10/2022 pressed upon the following: 

  1. The Plaintiff suppressed material facts under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 amounting to falsehood and misleading the Court on two aspects, firstly the matter could not have proceeded ex-parte as notice was already given to the defendant and secondly, non-disclosure of the pendency of another suit wherein limited ad-interim relief was granted; 
  2. Exclusivity claimed by the Plaintiff was prima facie not supported by the material on record as the Plaintiff in the plaint itself claimed that the defendant’s product was ‘similar’ and not ‘identical’. 

 Key Observations :

On the two-fold suppression of the material facts, the Court observed the following:

Firstly, that the Plaintiff had indeed served notice to the defendant as per practice note of the Bombay High Court following which the representation was also entered on behalf of the defendant. Further, it was observed that the matter could not be taken due to the Court’s paucity of time and hence was adjourned at least six times until the matter was listed on 07/10/2022 wherein in the cause list, the defendant advocates name was mentioned but none appeared;

Secondly, the limited ad-interim relief in relation to another suit was in relation to infringement of copyright and not that of patent; hence the cause of actions (in relation to the enforcement of rights) being different there is no suppression of material facts.  

Hence, it was observed that the defendant failed to demonstrate that the Plaintiff indulged in falsehoods in misleading the Court, including suppression of vital information under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908.

On the Plaintiff’s exclusivity, the Court observed that the Court indeed had delved into the product and process patent of the Plaintiff and also concurred with the Plaintiff’s submissions that the words ‘similar’ and ‘identical’ are used interchangeably.

In view of the foregoing, by the pith and marrow test, there was sufficient material in record to continue the ad-interim reliefs and thereby the interim application to vacate the order dated 07/10/2022 by the defendant was rightly dismissed by the Court. 

Nitin Abhishek

Trademark Attorney

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