Case Title: G. M. Sheik & Ors. v. M/s Raja Biri Private Ltd & Ors.
The Kerala High Court observed that the scope of granting ad interim injunction is limited and caution must be exercised while granting such a relief. The Hon’ble Bench also specifically observed that the scope of relief to grant interim injunction should be pertaining to the matters incorporated under Section 135(2) of the Trade Marks Act, adding that the provision cannot have any exhaustive application.
The preliminary objection raised before the Court was that the appeal will not stand the test of legality. There is no provision for appeal against an ex-parte interim order and hence it cannot be sustained in view of the legal position settled by the Apex Court in A.Venkatasubbiah Naidu v. S.Challappan and Ors.
The Court proceeded to examine Section 135 and observed that its purpose is akin to that of an attachment before judgment under Order XXXVIII Rule 5 C.P.C. It is for the purpose of preserving and protecting the interest of the plaintiff and the award that may be passed for payment of damages, costs and other pecuniary remedies, the property of the defendant or his assets can be preserved and protected by way of an ad interim injunction and not for the purpose of preventing any violation of passing off or infringement.
It further added that “An injunction can be granted only pertaining to the matters included in clauses (a) to (c) to subsection (2) of Section 135 of the Trade Marks Act. While ordering ad interim injunction and ex parte ad interim injunction, the court must be more vigilant and cautious about the exception carved out under sub-section (3), and there should be a prima facie satisfaction that the matter would not fall under the exception so carved out, besides the grounds available for the exercise of jurisdiction under sub-section 2 of Section 135 of the Act.”