SANDEEP BRIJAL SHARMA AND ANR vs THE STATE OF MAHARASHTRA AND ORS
- Court
- Bombay High Court
- Case type
- Interim Application
- Decided on
- 09-03-2026
2026:BHC-OS:6099
NEETA SAWANT
IAL 35091 OF 2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.35091 OF 2025
IN
COMMERCIAL IP SUIT (L) No.27106 of 2025
...Applicant/Defendant
Elder Neutraciticals Private Limited
...Plaintiff
IN THE MATTER BETWEEN
Elder Prroject Limited
V/s.
Elder Neutraciticals Private Limited ...Defendant
WITH
INTERIM APPLICATION (L)NO.27598 OF 2025
IN
COMMERCIAL IP SUIT (L) No.27106 of 2025
Elder Prroject Limited
...Applicant/Defendant
IN THE MATTER BETWEEN
Elder Prroject Limited
...Plaintiff
V/s.
Elder Neutraciticals Private Limited ...Defendant
________________
Mr. Karl Tamboly with Mr. Bhupesh Dhumatkar, Mr. Rohit Pandey &
Mr. Bhavin Shah i/b Mr. Dinesh Dubey, for Plaintiff & for Applicant in
IAL/27598/2025
Mr. Hiren Kamod with Mr. Nihit Nagpal, Ms. Nisha Kaba, Mr. Abhijit
Singh, Mr. Anees Patel & Ms. Areen Shaikh, for Defendant & for
Applicant in IAL/35091/2025
________________
Digitally
signed by
NEETA
SHAILESH
SAWANT
Date:
2026.03.09
19:58:29
+0530
NEETA
SHAILESH
SAWANT
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NEETA SAWANT
IAL 35091 OF 2025
CORAM: SANDEEP V. MARNE, J.
RESERVED ON: 18 FEBRUARY 2026.
PRONOUNCED ON: 09 March 2026.
JUDGMENT:
1) This is an action by the Plaintiff complaining of
infringement and passing off in respect of its registered trademark
used by it for manufacture and sale of its pharmaceutical and
medicinal products. It is Plaintiff’s case that the Defendant’s mark
is identical with and/or deceptively similar to the Plaintiff’s mark
and that the Defendant is using the impugned mark in respect of
identical goods. In its Suit, Plaintiff filed application for temporary
injunction. On 26 September 2025, the Plaintiff persuaded this Court to
pass an ex-parte ad-interim injunction in its favour inter alia restraining
the Defendant from using the mark
or any other deceptively
similar mark containing the word ELDER. This Court also appointed
Court Receiver for sezuire of goods of the Defendant. Upon being
served with ex-parte ad-interim injunction order, the Defendant has
filed Interim Application (L) No.35091 of 2025 seeking vacation of the
ex-parte
ad-interim injunction order dated 26 September 2025 under
Order 39 Rule 4 of the Code of the Civil Procedure, 1908 (the Code) .
With the consent of parties, Defendant’s application for vacation of ad-
interim injunction and Plaintiff’s application for temporary injunction
are taken up for hearing together.
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F ACTS
2) Plaintiff’s pleaded case in the Plaint is that it was originally
incorporated under the Companies Act, 1956 in the name as ‘Kenex
Projects Limited’ on 4 July 1985. The name of the Company was
changed from ‘Kenex Projects Limited’ to ‘Elder Projects Limited’ on 16
September 1992. The registered office of the Company was also changed
from Shillong to Mumbai. On 16 August 2022, Plaintiff has changed its
name from ‘Elder Projects Limited’ to ‘ELDER Prrojects Limited’. The
Plaintiff is in the business of manufacturing, selling and trading of
range of medicines, ointments, eye drops, etc. since 1992-93. Plaintiff
since 1992-93. According to the
claims use of the device mark
Plaintiff, the trademark has achieved significant goodwill and
popularity with products sold in Class-5 specially medicines, ointments,
eye drops, etc. Plaintiff claims to have coined the mark and has been
using the same without any objections or interruptions. Plaintiff also
claims itself to be a prior user of the mark.
3) The Plaintiff applied for registration of the mark
on
31 August 2018 in Class 5 of the Trade Marks Act, 1999 (Trade Marks
Act) . The Application was allowed on 12 June 2024 and thereafter
Plaintiff’s trade mark has been registered. Plaintiff also applied for
registration of copyright for the label and the
registration certificate dated 5 February 2020 has been issued in its
name.
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4) Plaintiff claims that in May 2025, its distributors brought to
its notice Defendant’s products bearing the impugned mark. According
to the Plaintiff, Defendant has made cosmetic changes to Plaintiff’s
trade mark and started using the mark
. According to the Plaintiff,
Defendant has replicated the word ‘ELDER’ in identical style and colour
as used in Plaintiff’s registered trademark with few cosmetic changes
added to the infringing trademark. That the word ‘ELDER’ is written in
identical manner as that of Plaintiff’s registered trade mark, which is
most prominent feature of the infringing mark. Plaintiff took search in
the registry of Trade Marks and found that the Defendant has applied
for registration of word mark ELDER NEUTRACITICALS on 28 March
. It
2025, but has not applied for registration of the device mark
is pleaded that the Defendant has claimed use of the alleged word mark
since 19 January 2015, but the Plaintiff noticed products of the
Defendant bearing the infringing mark in May-2025. Plaintiff claims to
have come across numerous products marketed by the Defendant using
infringing trademark.
5) The Plaintiff accordingly addressed Cease and Desist Notice
dated 27 June 2025 to the Defendant, which replied to the same on 4
July 2025 denying the allegations. Since the Defendant failed to stop
use of the infringing mark, the Plaintiff has filed the present Suit
complaining infringement of its registered trademark and passing off.
In its Suit, the Plaintiff has filed Interim Application (L) No.27598 of
2025 seeking temporary injunction inter-alia for restraining the
Defendant from using the infringing mark. The Plaintiff also sought
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appointment of Court Receiver for raiding the places and registered
offices of the Defendants for seizure of the products of the Defendant.
6) Plaintiff moved Interim Application (L) No.27598 of 2025
and pressed for ex-parte ad-interim injunction against the Defendant.
The Plaintiff impressed upon this Court that the purpose of granting
ad-interim injunction would be defeated by delay in giving notice to the
Defendant. On 26 September 2025, this Court passed ex-parte ad-
interim injunction in favour of the Plaintiff in terms of prayer clauses
(a) and (c) of the Interim Application. This Court also appointed Court
Receiver empowering it to do the acts enumerated in the order. Upon
being served with order of ad-interim injunction, the Defendant
appeared in the Suit and has filed Interim Application (L) No.35091 of
2025 seeking vacation of the ad-interim injunction under Order 39 Rule
4 of the Code. The Plaintiff has filed affidavit-in-reply to that
Application. The Defendant has filed affidavit-in-rejoinder. Since
pleadings in the Interim Application (L) No.35091 of 2025 are complete
the same is taken up for disposal. By administrative order of the
Hon’ble Chief Justice, both Interim Application (Lodg.) No.35091 of
2025 and Interim Application (Lodg.) No.27598/2025 are assigned to
this Court. With the consent of the learned counsel appearing for the
parties, both the Applications are taken up for analogous hearing.
S UBMISSIONS
7) Mr. Kamod, the learned counsel appearing for the
Defendant has canvassed elaborate submissions for vacation of ex-parte
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ad-interim injunction. Additionally, he has also prayed for dismissal of
the application for temporary injunction on the ground that the
Plaintiff has failed to make out any case for grant of temporary
injunction. He submits that the Plaintiff has suppressed material facts
from this Court while applying for ex-parte ad-interim injunction. That
the Plaintiff has not disclosed the fact that the Elder Pharmaceutical
Ltd. ( EPL ), which was incorporated in the year 1983, is the first adopter,
user and registered proprietor of word mark ELDER , and that EPL was
using the mark in the stylised font since the year 1983. That late Mr.
Jagdish Saxena, Managing Director of the EPL is father of Dr. Anuj
Saxena (director of Plaintiff Company) and of Ms. Shalini Kumar
(Director of the Defendant-Company). That the Plaintiff has suppressed
the relationship between its Director and Director of the Defendant.
That Ms. Shalini Kumar also functioned as Director (Sales and
Marketing) of EPL and also happens to be a shareholder in Plaintiff’s
company.
8) Mr. Kamod further submits that the Plaintiff has grossly
suppressed orders passed by the Delhi High Court in other proceedings.
He takes me through the order passed by the Delhi High court in Elder
1
Projects Ltd. Versus. Elder Labs Limited & other in which statement
of Mr. Anuj Saxena was recorded that he did not hold any position in
EPL and that Elder Project Ltd. was doing mere job work for EPL and
that it does not claim any right in the trademark ‘ELDER’ which is
registered in the name of EPL. That Mr. Saxena deposed before the
Delhi High Court that the form submitted with Trade Mark Registry for
1
Order dated 11 February 2018 passed by Delhi High Court in CS(COMM) 59/2019
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claiming right over mark ‘ELDER’ was filed under mistaken belief. That
the Delhi High Court observed in the order that Plaintiff therein raised
false claim and accordingly vacated the interim order passed in its
favour. Mr. Kamod then takes me through the Order in Elder Projects
2
Ltd. and Another Versus. Elder Pharmacia LLP & Others in which the
Delhi High Court held that the EPL has the exclusive right to use the
trademark ‘ELDER’ and that Plaintiff No.1 and Defendant No.1 therein
were both infringers and the case involved senior infringer suing the
junior infringer. The Delhi High Court rejected the prayer for injunction
Capital Plastic Industries Versus. Kappv
relying on its judgment in
3
Plastic Industries . The Delhi High Court rejected the contention of
shared reputation raised by the Plaintiff in respect of the EPL’s
trademark ‘ELDER’. That contrary to the findings of the Delhi High
Court, Plaintiff has falsely claimed independent reputation and
goodwill for trademark ‘ELDER’ from 1992-93. Mr. Kamod then relies on
order of Delhi High Court in Antex Pharma Pvt. Ltd. & Another.
4
Versus. Elder Projects Ltd. & Another in which the Plaintiff herein has
been restrained from giving groundless threats of illegal proceedings
against the Plaintiffs therein in relation to the trademark ‘ELDER’ and
ELDERVIT. He has also relied upon order passed by the Delhi High
Court in Elder Orgichem Private Limited Versus. Elder Prrojects
5
Limited in which ex-parte order secured by Plaintiff by concealing vital
facts is set aside by the Division Bench of Delhi High Court.
2
Order dated 5 April 2019 passed by Delhi High Court in CS (Comm) No.1313 of 2018
3
1998 (8) PTC 182 (Del)
4
Order dated 28 February 2024 passed by Delhi Hich Court in CS(COMM) 178/2024
5
2024 SCCOnline Del 9173
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9) Mr. Kamod then relies upon proceedings initiated by the
Official Liquidator ( OL ) of EPL against the Plaintiff. He invites attention
of the Court to notice issued by the OL on 21 February 2022 and reply
thereof by the Plaintiff, in which the Plaintiff’s director stated that he is
nowhere concerned with trademarks of EPL and that the Plaintiff was
merely a contract manufacturer of EPL from 1994 upto March-2016.
That the Plaintiff confirmed that it did not apply for transfer of any
products from the name of EPL in its name. He relies on report No.36 of
2022 filed by the OL in this Court and order passed by this Court on 3
July 2025 granting liberty to the OL to file OLR identifying the cost
against whom suit for infringement is proposed to be filed. Mr. Kamod
submits that the Plaintiff has concealed pendency of three separate
rectification proceedings filed by Elder Remedies Ltd., Elder
Laboratories Ltd. and Elder Drugs and Pharmaceutical Ltd. against its
registered trademark. That Defendant has also filed rectification
application against Plaintiff’s trademark registration.
10) Mr. Kamod submits that suppression of vital information by
the Plaintiff in the Plaint is a fit ground for vacating the ex-parte ad-
interim injunction and for dismissal of application for temporary
injunction. Relying on judgment of Full Bench of this Court in Abdul
6
Cadur Allibhoy Versus. Mahomedally Hyderally he submits that the
Plaintiff approaching the Court with equitable relief must come with
Ramjas
clean hands. He also relies on judgment of the Apex Court in
7
Fundation and another Versus. Union of Indiaand others in support of
the contention that once the material facts are suppressed or not
6
1901 BLR 220
7
2010 14 SCC 38
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properly brought forward, the Court should not decide on the merits
and vacate the injunction at once. He relies on judgment of Division
Bench of this Court in Keval Ashokbhai Vasoya and another Versus.
8
Saurabhakti Goods Pvt. Limited wherein this Court has discussed
general principles governing grant of ex-parte ad-interim injunctions
and the duty cast upon the Plaintiff while applying for injunction
without notice. He relies on judgment of this Court in Laser Shaving
India Pvt. Limited Versus. Rkrm International Products Private
9
Limited and others wherein the order of ex-parte ad-interim
injunction is vacated by this Court on the short ground of the Plaintiff
withholding the relevant material. He relies on judgment of the
Supreme Court in Bhaskar Laxman Jadhav and others. Versus.
10
Karamveer Kakasaheb Wagh Education Society and others in support
of his contention that it is not for a litigant to decide what fact is
material for adjudicating a case and that it is the obligation of the
litigant to disclose all facts of a case and leave the decision making to
the Court.
11) Mr. Kamod further submits that if Plaintiff is found to have
secured order of ex-parte injunction by suppressing the facts, the whole
suit can also be dismissed. In support he relies on judgments of this
11
Court in Shoban Salim Thakur Versus. Chaitanya Arora and Nagina
12
Ramsagar Choube and others Versus. Ajay Mohan and Others
In
support of his contention that Court can even dismiss main proceedings
once it notices suppression of vital facts, he relies on judgment of the
8
2022 SCC OnLine Bom 3335
9
2024 SCC OnLine Bom 4079
10
2013 11 SCC 531
11
Interim Application (L) No. 18278 of 2025,decided on 15 October 2025
12
Interim Application No. 2143 of 2025 decided on 24 June 2025
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13
Apex Court in Prestige Lights Limited. Versus. State bank of India
wherein the Apex Court has upheld order of the High Court dismissing
the Writ Petition after noticing that the material facts were suppressed.
He submits that the same principle has been applied by this Court even
in relation to Suits. Relying on judgment of this Court in Minco India
14
Private Limited Versus. Minco India Flow Elements Private Limited
he submits that this Court has refused to grant the temporary
injunction after noticing that the Plaintiff had not approached the
Court with clean hands.
12) Mr. Kamod further submits that after being caught with
suppression of material fact, the Plaintiff has changed its stance and
has now sought to sing an altogether different song than the one
pleaded in the Plaint. That the Plaintiff has now canvassed before the
Court that it is not claiming any rights in respect of the word mark
ELDER and that it has sued the Defendant for infringement of device
mark
. That the holistic reading of the Plaint clearly reveals that
Plaintiff is actually claiming rights even in respect of the work mark
‘ELDER’. That Plaintiff is playing hide and seek with this Court. That
there is no direct or indirect statement in the Plaint to the effect that
Plaintiff is not claiming any rights in respect of the word mark ELDER.
That Plaintiff is clearly claiming rights both in respect of its label
as well as the word ‘ELDER’. That Plaintiff has also claimed
reputation and goodwill in the trade name ELDER. That Plaintiff has
clearly sought injunction against the Defendant in respect of the word
13
2007 8 SCC 449
14
Interim Application (L) No.12616 of 2024 decided on 6 January 2026
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‘ELDER’ in combination with other words. That in the cease or desist
notice also, Plaintiff has claimed right in respect of the trade name
‘ELDER’ and has called upon the Defendant to change its corporate
name.
13) Mr. Kamod further submits that change in the stand is
clearly afterthought and is aimed essentially at getting over the act of
suppression in respect of the orders passed by the Delhi High Court.
That even the changed stand is dishonest, and an attempt is made to
mislead this Court. That it is not the pleaded case of the Plaintiff in the
Plaint or even in the reply to this Application that Plaintiff was using
and that
two different marks namely ‘ELDER’ and the label
Plaintiff started using the label
only in the year 2018 after the
order of liquidation against the EPL. That on the contrary, Plaintiff has
claimed use of the devise mark
since the year 1992. That even
in law, the argument is untenable as the promising feature of Plaintiff’s
label
is the word ‘Elder’. Secondly, the phonetic reference to
Plaintiff’s label
is by the word ‘Elder’ and nothing more. Thirdly
the consumers would refer to the pharmaceutical products bearing
Plaintiff’s label
as ‘Elder’. That the law does not recognize such
artificial distinction. He would therefore submit that even the changed
stand by the Plaintiff during the course of arguments cannot save it
from the consequences of suppression.
14) Without prejudice to the plea for vacation of ex-parte ad-
interim injunction on the ground of suppression, Mr. Kamod submits
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that the Plaintiff has otherwise not made out any case for grant of
temporary injunction. That Plaintiff himself is an infringer of EPL’s
trademark. That it has secured registration by grossly misrepresenting
the Trademark Registry. That if Plaintiff was to disclose the relevant
material before the Registrar, the registration would not have been
granted in its favour. That in any case, the Court deciding entitlement
to temporary injunction can go behind registration. He submits that
Court can also go into the question of validation of registration while
deciding application for temporary injunction. In support, he relies on
Lupin Limited Versus. Johnson and
judgment of this Court in
15
Johnson . He also relies on judgment of this Court in Pidilite
16
Industries Limited V/s. Poma Ex Products in support of his
contention that mere failure to oppose registration is not a ground for
grant of temporary injunction in favour of the Plaintiff. He submits that
the Plaintiff has described itself as a mere contract manufacturer of EPL
under the trademark ‘ELDER’ and therefore cannot sue Defendant for
infringement. In support, he relies on judgment of this Court in IPCA
17
Laboratories Limited Versus. Savita Pharmaceuticals Pvt. Limited .
That Plaintiff’s case of prior use is also false as Defendant has been
using the impugned mark since 2015.
15) On above broad submissions, Mr. Kamod would pray for
ex-parte
vacation of injunction as well as for dismissal of application for
temporary injunction.
15
2014 SCC OnLine Bom 4596
16
2017 SCC OnLine Bom 7237
17
2002 SCC Online Bom 689
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16) Mr. Tamboly the learned counsel appearing for Plaintiff
submits that Plaintiff is a registered owner of the trademark, which is
infringed by the Defendant. Plaintiff is also an admitted prior user of
the mark. That Plaintiff has obtained registration of device mark
with three leaves with the word ‘ELDER’ written in a distinguishable
stylised font in blue colour as it is evident in the registration certificate.
That Defendant has not obtained any registration for the mark
displayed on its products. That the use claimed of the mark ELDER by
Defendant is since 19 January 2015 as opposed to Plaintiff’s use of the
mark since 1992-93. That Defendant has used the word in identical
stylized font with blue colour in their logo displayed on their products.
That Plaintiff has common law right to seek injunction against the
Defendant based on prior use. He relies on judgment of Delhi High
Court in Anjani Kumar Goneka and another Versus. Goenka Institute
18
of Education and Research
17) Mr. Tamboly further submits that the test lies in copying of
essential features of trademark or trade dress and even if there are
slight differences in parts of the mark, infringement is established, if
the parts are put together in a way that the whole mark is not made
dissimilar. In support, he relies upon judgment of this Court in Marico
19
Limited Versus. Zee Hygine Products Pvt. Ltd. and others . He also
relies on judgment of the Apex Court in Pernod Richard India Private
20
Limited and another Versus. Karanveer Singh Chhabra laying down
18
ILR 2009 III DELHI 758
19
2025 SCC Online Bom 2541
20
2025 SCC Online SC 1701
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the principles for consideration while granting injunction in case of
infringement action. That since Plaintiff is a registered user of the
device mark and the logo and since Defendant has knowingly adopted a
deceptively similar mark, Defendant has rightly been restrained from
using the mark.
18) Mr. Tamboly further submits that Plaintiff has no objection
to the Defendant using the word mark ‘ELDER’ so long as the same is
not styled in the same font and colour as that of Plaintiff’s registered
mark. That there is no suppression of any material fact. That the
,
present suit is for infringement of Plaintiff’s registered mark
Elder Projects Ltd. Versus Elder Labs Ltd Elder
whereas in . (supra) and
Projects Ltd. Versus. Elder Pharmacia LLP and ors. (supra), the suits
involved different mark ‘ ELDER’, which was registered in the name of
EPL. That facts of CS Comm. Suit No. 1313/2018 are disclosed in
paragraph 23 of the Plaint wherein it has been specifically made clear
that the mark in the said suit was not registered mark mentioned in the
present suit. That therefore the four orders of Delhi High Court relied
upon by the Defendant have absolutely no bearing on the issues
involved in the present suit. He relies on judgment of this Court in
International Association of Lions Club Versus. Association of Lions
21
India and others in support of his contention that to arrive at a case
of suppression of facts which disentitles a party to any relief, facts
suppressed must be material to the outcome of dispute. That since the
marks involved in suits before the Delhi High Court are entirely
different than the mark involved in the present suit, it cannot be
21
2008 SCC Online Bom 1720
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contended that Plaintiff has suppressed any material fact. He also relies
on judgment of the Apex Court in Government of NCT of Delhi and
22
Another Versus. BSK Realtors LLP and Another
19) Mr. Tamboly would further submit that the allegation of
suppression of relationship between the directors of Plaintiff and
Defendants is misplaced as the suit does not involve family dispute, but
a dispute between two incorporated companies having separate and
distinct entities involved. That the mark ‘ ELDER’ was not registered in
the name of Mr. Jagdish Saxena but the same was registered in the
name of EPL. That therefore the mark is not the personal property of
Mr. Jagdish Saxena, which could be claimed by his legal heirs. He relies
on affidavit-in-reply filed by Ms. Shalini Kumar in Company Petition
No. 488 of 2015 wherein she denied occupation of position as Director
of EPL.
20) Mr. Tamboly further submits that the registration of
Plaintiff’s mark has been secured after following the procedure laid
down as per law. That the application has undergone scrutiny by the
Examiner of Trade Marks, publication, opposition by third parties,
hearings granted to them etc. That Defendant never objected to
Plaintiffs application and filed rectification application only after
Plaintiff got its mark registered and after filing of the present suit. That
the OL has also not objected /opposed Plaintiff’s usage of the registered
mark. That no order has been passed in OLR No. 36/2022 against the
Plaintiff. That Plaintiff’s undertaking not to claim any rights in the
marks registered in the name of EPL is irrelevant for decision of the
22
(2024) 7 SCC 370
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present suit, which involves an altogether different device mark
registered in the name of the Plaintiff. That in Lupin Limited (supra)
this Court has held that Court can question validity of registration only
if the same is fraudulent or shocks conscience of the Court. He relies on
judgment of the this Court in Eurobond Industries Private Ltd. Versus
23
Euro Panel Products Pvt. Ltd. in which it has been held that heavy
burden lies on the Defendant to rebut the strong presumption that a
registered mark creates in favour of the Plaintiff. That Plaintiff has not
obtained the registration by fraud.
21) On above broad submissions, Mr. Tamboly would pray for
dismissal of Defendant’s Interim Application for vacation of ad-interim
injunction and for making Plaintiff’s application for temporary
injunction absolute.
R EASONS AND A NALYSIS
22) Plaintiff has sued the Defendant alleging infringement of
its registered trademark
and for passing off. Plaintiff’s claim is
thus based on registration granted in its favour by the Trade Mark
Registrar vide certificate dated 12 June 2024 in respect of the mark
. The registration is in respect of pharmaceutical products,
veterinary and sanitary preparations, diabetic substances, etc. Plaintiff
also claims prior use of the mark since 1992-93. Plaintiff has
complained in the suit that in May 2025, it noticed Defendant’s
23
2018 SCC Online Bom 6123
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pharmaceutical products using the mark
and has accordingly
filed the present Suit. Plaintiff moved this Court on 26 September 2025
without notice to Defendant and persuaded this Court to pass ad-
interim injunction in its favour in terms of prayer clauses (a) and (c) of
the IA, which read thus
a) Pending the hearing and final disposal of the Suit, the Defendant
by its servants, agents and distributors or representatives and the like
be restrained by an order of injunction from using the marks/labels
and/or any other mark or the impugned mark being
or any other deceptively similar mark containing the impugned words
ELDER written in a stylized manner or in any manner which is
identical with and/or deceptively similar to all the registered
so as to infringe the Applicants said registered trademark in
relation to any of its goods.
(c) Pending the hearing and final disposal of the suit, this Hon’ble
Court be pleased to appoint a Court Receiver and/ or a court
commissioner and direct the officers to raid the places and
registered offices, godowns of Defendant and also the retailers and
distributors of the Defendants and cease the accounts books,
registers, computer, voucher books, invoices, laptops, computer
floppies, hard disks, pen drives and accounts stored in the computer,
or
laptops and products which bear the marks/labels
and/or any other mark or the combination of impugned
marks/labels mark or any other deceptively similar label containing
the impugned marks written in a stylized manner or in any manner
which is identical with and/or deceptively similar to all the registered
trademarks and also the books of accounts, computer
software used for maintaining records and accounts online.;
23) While granting ex-parte ad-interim injunction, this Court
granted liberty to the Defendant to apply for variation, modification or
recall of the order by giving prior notice to the advocate for the
Plaintiff. The Defendant has accordingly filed Interim Application (L.)
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No. 35091/2025 seeking vacation of ex-parte injunction granted vide
order dated 26 September 2025.
V ACATION OF A D -I NTERIM I NJUNCTION D UE TO S UPPRESSION
24) Defendant has claimed gross suppression of facts by the
Plaintiff while seeking ex-parte ad-interim injunction and has
accordingly sought vacation thereof under Order 39 Rule 4 read with
Section 151 of the Code.
25) Order 39 Rules 1 and 2 of the Code empowers the Court to
grant temporary injunction during pendency of suit. Ordinarily under
Order 39 Rule 3 of the Code, the Court needs to direct issuance of notice
to the opposite party before granting injunction. The only exception
recognized under Rule 3 is where it appears to the Court that the object
of granting injunction would be defeated by the delay. Under Proviso to
Rule 3, while granting injunction without issuing notice to the opposite
party, the Court needs to record reasons as to why it appears to it that
the object of granting injunction would be defeated by delay.
26) Under the first Proviso to Rule 4 of Order 39, if a party has
unknowingly made a false or misleading statement in relation to a
material particular and the injunction is granted without notice to the
opposite party, the Court can vacate the injunction unless, for reasons
to be recorded, it considers that it is not necessary to do so in the
interest of justice. However, for invoking the first Proviso for vacation of
exparte injunction, the false or misleading statement must be in
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relation to a ‘material particular’ which would affect the mind of the
court while considering grant of injunction.
27) In the present case, Defendant has accused Plaintiff of
suppression in respect of four aspects viz. (i) suppression of registration
and use of the trademark ‘ ELDER ’ by EPL, (ii) relationship between the
directors of the Plaintiff and Defendants and their past positions in
EPL, (iii) suppression of orders passed by the Delhi High Court against
the Plaintiff in respect of ‘ ELDER’ mark and (iv) suppression of
proceedings initiated by the OL of EPL against the Plaintiff. I proceed to
examine allegation of suppression raised by the Defendant in respect of
each of the four aspects and its effect on Plaintiff’s entitlement for
temporary injunction.
28) To examine the allegation of suppression raised by the
Defendant, it would be necessary to consider the case pleaded by the
Plaintiff in the Plaint. Plaintiff has raised following averments in the
Plaint in support of its claim to
mark:
6. The Plaintiff has been using the device mark
since
1992-1993 (Hereinafter referred to as "registered trademark"). The
mark is distinct from the other marks bearing the word ELDER. There
are 3 leaves like structure in grey colour and besides the leave the
word ELDER is written in stylised font and in Blue colour (cyan: 100
and Magenta: 89. The registered trade mark was being exclusively
used by the Plaintiff alone since 1992-1993 and continues to be
used till date. Hereto annexed and marked as Exhibit -"D" are copies
of some of the stationary used by the Plaintiff bearing the said
trademark since 1992-1993 till date.
7. The Plaintiff has been in the business of manufacturing, selling and
trading of range of medicines, ointments, eye drops and other
medicines etc. since 1992-1993. The Plaintiff has extensively and
exclusively been using the said trademark for over three (3)
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decades now. The said trademark has achieved significant goodwill
and popularity in the eyes of the customers and persons dealing with
products sold in Class 5 specially medicines, ointments, eye drops etc.
8. The Plaintiff has been regularly conducting business since 1992-93
till date. The Plaintiff has huge turnover and business due to the
popularity enjoyed due to high quality products and standards
maintained by the Plaintiff with respect to its products. The Plaintiff
has also widely publicised the mark in various advertisement's and
print media. The Plaintiff has coined the mark and have been
using the mark without any objections or interruptions . The
Plaintiff is the prior user of the registered trademark in its
entirety.
9. From 1992-93 till 2018 the Plaintiff did not think it necessary to
register the said registered trademark as the business was operating
smoothly without any obstructions. In 2018, the Plaintiff thought that
with changing times, the company needed to protect its trademark as
there were many infringers using the mark Elder. Therefore, the
Plaintiff applied for the registration of the device mark
in the
trademark registry. The Plaintiff applied for the registration of the
said trademark on 31st August, 2018 in Class 5 of the Trademarks Act
bearing Application No. 3931941. Hereto annexed and marked as
Exhibit "E" is a copy of the Application No. 3931941 dated 31 August,
2018.
10. The Plaintiff also has a Copyright NOC Label bearing registration
on the left top corner of the label
with 2 arches ("Label"). The same is as under
No. 2153/2020-CO/A, with
applied under the Copyright Act, for registration of its packaging
design bearing the ELDER, was also allowed by the Copyright Registry
and therefore, the Plaintiff is also registered owner of the packaging
design bearing the trademark under diary registration No. 2153 / 2020
CO/A, TMR- CC No. 97155 under the Copyright Act, 1957 as well. The
registration certificate was issued on 05/02/2020. Hereto annexed and
marked as Exhibit - "F" is the copy of Certificate issued by copyright
registry in favour of the Plaintiff.
11. The trademark application bearing No. 3931941 was allowed and
notified in Trademark Journal No. 2162 on 12th June, 2024 and
thereafter it was registered with the Trademark registry bearing
Certificate No. 3603833. Hereto annexed and marked as the Exhibit "G"
is a copy of the trademark registration certificate.
(emphasis and underlining added)
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29) Thus, Plaintiff has approached this Court with a plain case
that it has coined the mark
and that it has been using the same
since 1992-93. Plaintiff has averred that the mark
has been
exclusively used by it for over three decades. It is pleaded that though
the use is since 1992-93, Plaintiff felt the need to register the same in
the year 2018 and accordingly it applied for registration and secured the
same on 12 June 2024. Plaintiff has thus approached the Court by
representing that it is the originator of the
mark, which it has
been using exclusively since 1992 for manufacture and sale of
pharmaceutical and medicinal products.
UPPRESSION BOUT S EGISTRATION ND SE F ARK
S A EPL’ R A U O M ‘ELDER’
30) In its application for vacation of ad-interim injunction, the
Defendant has brought on record the fact that a company named Elder
Pharmaceuticals Ltd. ( EPL ) was incorporated in the year 1983 and that
it is the first adopter, user and registered owner of the trademark
‘ ELDER ’ bearing Registration No.2195882 in a Class-5. Defendant has
produced copy of registration certificate of ‘ ELDER ’ mark in favour of
EPL issued by the Trade Mark Registry. Defendant has also brought on
record use of the word mark ‘ELDER’ in a stylized font
by
producing on record few documents relating to the years 1988, 1996,
2010 and 2014. However, Plaintiff has completely suppressed the above
position of registration and use of ‘ ELDER ’ mark by EPL since 1983 and
the
has on the contrary pleaded in paragraph 8 of the Plaint that ‘
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Plaintiff has coined the mark ’. The use of the mark is pleaded by the
Plaintiff since the year 1992-93.
31) Plaintiff has thus suppressed the material fact that EPL is
the originator of the registered mark ‘ELDER’. It is not Plaintiff’s
pleaded case that though EPL has registration in respect of the mark
‘ ELDER ’, Plaintiff adopted stylized version of the mark which is
different and distinct from EPL’s mark. There is no pleading to the
effect that pharmaceutical and medicinal products were being
simultaneously manufactured and sold by EPL under ‘ ELDER’ mark and
mark. On the contrary it has come on record
by Petitioner under
that Plaintiff was a mere contract manufacturer of medicines for EPL
till 2016 and which aspect is being discussed in greater details in latter
part of the judgment. Plaintiff has thus completely suppressed the
factum of EPL’s use and ownership in respect of registered mark
‘ ELDER ’.
UPPRESSION ABOUT ELATIONSHIP ETWEEN IRECTORS AND HEIR
S R B D T
A SSOCIATION WITH EPL
32) Defendant has also brought on record the fact that the
director of Plaintiff Mr. Anuj Jagdish Saxena, who has verified the plaint
and affirmed the affidavit in support of the application for temporary
injunction, is the real brother of the director of the Defendant Ms.
Shalini Kumar. It is also brought on record that Late Mr. Jagdish Saxena
was the erstwhile Managing Director of EPL and was the father of the
siblings. Defendant has also brought on record that Ms. Shalini Kumar
functioned as Director (Sales and Marketing) in the EPL. Letter of her
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appointment as Director in EPL issued on 1 October 1996 and her
discontinuation from EPL vide letter dated 2 December 2014 is also
brought on record. Few documents relating to remuneration earned by
Ms. Shalini Kumar from EPL are also produced on record by the
Defendant. It has also come on record through proceedings before the
Delhi High Court that Plaintiff-Company used to do mere job work for
EPL and used to manufacture medicines for them. Additionally,
Defendant has brought on record application dated 27 June 2018
submitted by the director of the Plaintiff, Mr. Anuj Jagdish Saxena to
the Trademarks Registry for change in the name of Registration
Certificate of the mark ‘ ELDER ’ from EPL to Mr. Anuj Jagdish Saxena.
Plaintiff’s director thus made an attempt to seek transfer of ownership
in ‘ELDER’ mark by using his capacity as son of Mr. Jagdish Saxena.
33) Plaintiff has however suppressed that the director of the
Defendant is the sister of director of Plaintiff, her association with EPL
and Plaintiff’s own connection as mere medicine manufacturer for EPL.
Plaintiff has also not disclosed the attempt made by its director to seek
transfer of ownership in ‘ELDER’ mark from EPL to himself.
34) In my view, suppression of the first two factors of EPL’s
ownership and use of ‘ELDER’ mark since 1983 and the past association
inter-se
of directors of Plaintiff and Defendant, as well as their
relationship was clearly material for the purpose of deciding Plaintiff’s
entitlement to temporary injunction. The facts relating to the above
two aspects were material and ought to have been disclosed by the
Plaintiff in the Plaint or in Application for temporary injunction.
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Plaintiff however choose to suppress the same and came with a plain
story as if he is the originator of the trademark in question and that a
unconnected entity (Defendant) was selling products by infringing its
mark. The suppression was aimed at preventing this Court from
knowing the position that the two siblings have adopted different
versions of the mark owned by their father’s company.
UPPRESSION OF RDERS OF ELHI IGH OURT
S O D H C
35) The third aspect of suppression is more disturbing. This
relates to non-disclosure of four orders passed by the Delhi High Court
against the Plaintiff. The details of the said four orders are as under:
35.1) Plaintiff filed C.S. (Comm) No. 59 of 2019 against an entity
named Elder Labs Limited before Delhi High Court complaining of
infringement of ‘ ELDER’ mark. While considering its application for
temporary injunction, the Delhi High Court recorded deposition of Dr.
Anuj Saxena on 11 February 2019 wherein he stated as under :
CS(COMM) 59/2019
Statement of Anuj Saxena, S/o late Sh. Jagdish Saxena, aged 52 years,
R/o 271, Kalpataru Pinnacle, Goregaon-West, Mumbai on S.A.:
I am a medical doctor having passed MBBS in the year 1991. I am the
Managing Director of Elder Projects Limited. This company was
incorporated in the year 1992. It is a public limited company which is
not listed now. I have not held any position in Elder Pharmaceuticals
Ltd. My father Mr.Jagdish Saxena was the Managing Director of Elder
Pharmaceuticals Ltd. and after his death in 2013, my brother Alok
Saxena became the Managing Director of that company. Elder
Pharmaceuticals Ltd. was wound up by the order of Bombay High
Court dated 04th December, 2017. As per the report of the auditors, it
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was alleged that Rs.1,300 crores was siphoned out of the Elder
Pharmaceuticals Ltd. Elder Projects Ltd. were doing job work for
Elder Pharmaceuticals Ltd. and were manufacturing the
medicines for them. After the liquidation of Elder
Pharmaceuticals Ltd., the plaintiff company commenced the
production of the medicines in their own name in December,
2017 to January, 2018 . The turnover of the plaintiff company in
which the mark 'Elder' has been used, is approx. Rs.200 crores for this
financial year. The plaintiff company does not claim any right of
the trademark Elder which is registered in the name of Elder
Pharmaceuticals Ltd. The Form TM-P submitted to the trademark
registry claiming right over the trademark ‘Elder’ was filed under
a mistaken advice.
In paras 3 and 8 of the judgment dated 04th December, 2017 of
Bombay High Court in company petition for liquidation, I have been
mentioned as CEO of the Elder Pharmaceuticals Ltd. but I deny
holding that charge. In the Form TM-P dated 27th June, 2018, I have
mentioned being the owner and director of Elder Pharmaceuticals Ltd.
but I deny the statement recorded therein.
(emphasis added)
Thus, Dr. Anuj Saxena (director of Plaintiff) admitted that Plaintiff was
doing mere job work for EPL and was manufacturing medicines for
them. He admitted that only after liquidation of EPL, Plaintiff
‘commenced’ the production of the medicine ‘in their own name’ in
December 2017 to January 2018. He specifically stated that Plaintiff did
not claim any right in the trademark ‘ELDER’ which is registered in the
name of EPL. He further deposed that Form TM-P filed for transfer of
registration of ‘ELDER’ in his name was filed under mistaken advise.
The Delhi High Court took strong note of the conduct of the Plaintiff
and passed following order on 11 February 2019:
1. Further arguments heard.
2. During the course of hearing, this Court recorded the statement of
Mr. Anuj Saxena, Managing Director of plaintiff and Ms. Rubi
Mukopadhyay, Director and Mr. Aditya Balasaria, CEO of defendant on
oath in exercise of power under Section 165 of the Indian Evidence
Act.
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3. This Court is of the prima facie view that the plaintiff has raised
false claims before this Court. The consequences of raising the false
claim shall be considered on the next date of hearing.
4. Mr. Amit Sibal, learned senior counsel for defendant has handed
over two compilations of documents which are taken on record.
5. List for continuation of the arguments on 14th February, 2019 at 5.
02:30 PM.
6. Interim order not to continue.
7. Copy of this order as well as statements be given dasti to counsels
for the parties under signatures of the Court Master.
Thus, prima-facie finding of raising false claims is recorded against the
Plaintiff. Plaintiff however chose to suppress the proceedings and order
passed by the Delhi High Court. Suppression of proceedings of this suit
assumes significance also because it falsifies claim of Plaintiff that it
has been exclusively manufacturing and selling the products under
mark since 1992-93 as Plaintiff has sued for ‘ ELDER ’ mark in
2019.
35.2) Plaintiff sued Elder Pharmacia LLP and ors . in C.S.
(Comm.)1313 of 2018 again in respect of ‘ ELDER ’ mark. The Delhi High
Court took note of deposition of Dr. Anuj Saxena as well as the order
passed in Suit against Elder Labs Limited and proceeded to consider the
issue as to who is the owner of the Trademark ‘ ELDER ’ and/or ‘ELDER’
logo. The Delhi High Court held in paras-19 to 20 as under:
19. The trademarks 'ELDER' or 'ELDER' logo that are subject matter of
the present suit are registered trademarks. The Plaintiffs concede that
the proprietor of the said registered trademark is the Company in
liquidation-EPL. The said registrations in favour of EPL are presently
valid, renewed and in force. Thus, there cannot be any gainsay that it
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is EPL who is the registered Proprietor of the trademark 'ELDER' and
'ELDER' logo in India and has the exclusive right to use the said
trademark.
20. We are now poised with the question concerning the right of the
Plaintiffs to use the said trademark. The answer to this question would
also resolve and expound the right of the Plaintiffs to maintain the
action of passing off in respect of the said trademark. Plaintiff No. 1
started using the mark 'ELDER' and 'ELDER' logo for manufacturing
the medicines for the registered proprietor- EPL since 1992. In this
arrangement, ELDER was also used as a part of the corporate name of
the Plaintiff No. 1. Although no written agreement is shown to the
court, but since this use was not objected to by EPL and was within it's
knowledge, it could at the highest be considered as a "permitted
permitted use" use under Section 2(r)(ii)(c) of the Trade Marks Act,
1999 (herein after referred to as the 'Act'). Post liquidation
proceedings, Plaintiffs have embarked upon using the trademarks in
relation to the goods manufactured sold under their own name. This is
without permission or consent of EPL and thus such use of the 'ELDER'
mark in relation to the goods and as part of the corporate name of
Plaintiff No.1 can't be characterized as "permitted use" and it would
amount to infringement as provided in Section 29 sub clause (1),(3)
and (5) of the Act.
The Delhi High Court thereafter considered the plea raised on behalf of
the Plaintiff that it shared reputation and goodwill in ‘ ELDER ’ mark
with EPL and negatived the same by holding in para-23 as under:-
23. In the present case, the first constituent of passing off action-
acquisition of reputation or valuable goodwill, requires a deeper
probe. EPL started manufacturing and trading of medicines, under the
trademark 'ELDER' and 'ELDER' logo from the year 1983. This resulted
in establishing goodwill and reputation in the said brand name.
Plaintiffs are staking claim on the said reputation. There is no doubt
in the mind of the Court that if the trademark 'ELDER' and 'ELDER'
logo were perceived as household names, the reputation and goodwill
attached to the said trademarks belongs to EPL. The products under
the trade name 'ELDER' and 'ELDER logo created a nexus or an
association or a trade connection amongst the members of the public
with EPL alone. Plaintiff No. 1 has attempted to stake claim on this
reputation and goodwill by raising the plea of 'shared reputation' in
respect of the said marks from the year 1992 till December 2017. The
Court is however not convinced with the stand taken by Plaintiff No. 1.
The Managing Director of the Plaintiff No.1 in his statement dated
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11th February 2019 confirms that Plaintiff No.1 was merely doing a
job work for EPL. He has categorically stated that the Plaintiff's
Company does not claim any right in the trade mark ELDER which is
registered in the name of EPL. In light of the said statement made on
oath, Plaintiffs cannot claim to have earned shared reputation in the
trademarks. Curiously, in the suit, goodwill is claimed in conjunction
and jointly with EPL as it's sister concern and there is no pleading or
assertion of "shared reputation" as was urged at the time of the
arguments. Therefore, use of the trademark 'ELDER' and 'ELDER'
logo by Plaintiff No. 1 from the year 1992 till 2017 can only be
considered as a permitted use and nothing beyond. Plaintiff No.1
cannot stake claim in the reputation associated in respect of the
'ELDER' mark. It would only be the official liquidator attached to
Bombay High Court, the custodian of the assets of EPL who can
rightfully claim benefit of the reputation and the good will associated
with the said marks. Plaintiff No. 1 cannot assert goodwill and
reputation in the said marks and file a suit for passing off .
(emphasis and underlining added)
Even the plea of independent reputation was rejected by the Delhi High
Court by holding in para 25 as under:
25. The next question that arises for consideration is - whether the
Plaintiffs can claim independent reputation in the marks from
December 2017? To find the answer to this question, one would have
to first ascertain whether Plaintiffs can use the mark in the first place.
Plaintiffs first attempted to claim rights over the registered trademark
'ELDER 'by filing an application (TM-P) to the Trademark Registry,
seeking transfer of the said mark in favour of (Plaintiff No. 2). Mr. Anuj
Saxena, (Plaintiff No. 2), admits the filing of the said application, but
pleads that the said action was initiated under a mistaken advice.
After being unsuccessful in this attempt, Plaintiffs started using the
trademarks and now asserts to have built up goodwill on the basis of
the sales figures. This reputation is on account of infringing
activities and therefore, to my mind, the same cannot satisfy the
first element of the classic trinity of passing off as noted above .
(emphasis added)
In paragraphs 27 and 29 of the judgment, the Delhi High Court held
that both Plaintiff as well as Defendant No.1 therein were infringers
and that the case involved senior infringer suing the junior infringer.
The Delhi High Court held thus:
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27. The argument of prior use is unsustainable in the facts of the
present case. The case of Century Trader (supra) relied upon by
Plaintiff No.1 lays down a well settled proposition in law. The
Supreme Court in S. Syed Mohideen (supra) has held that the rights
conferred by registration are subject to the rights of the prior user of
the trade mark. The aforesaid judgements, discuss and confirm the
proposition that has been settled in N.R. Dongre v. Whirlpool Corpn
reported in (1996) 5 SCC 714. However, these judgments have no
application to the facts of the case. It is also apposite to note that
there is also a categorical contradiction in the stand taken by the
Plaintiffs on this issue . On one hand Plaintiff No.1 claims to have
continuously and extensively used the said trade mark since 1992
as a manufacturer and on the other hand Plaintiffs claims that
upon liquidation of EPL, it has been independently
manufacturing the medicines with the 'ELDER' mark. The
independent use by the Plaintiff No.1 since December 2017 is
admittedly with full knowledge of registration of EPL in respect
of the trade marks in question. Such use constitutes
infringement of the registered trade mark of EPL under Section
29 (1) read with Section 29 (3) of the Act. If the acts of the Plaintiff
No. 1 are infringing, it is not that Defendant No. 1 is any better. The
activities of Defendant No. 1 also appear to be in contravention of
Section 29 of the Act. Thus, before the Court, both the Plaintiff
No.1 and the Defendant No. 1 are infringers. Therefore it is a case
of a senior infringer suing a junior infringer. Mr. Lall admitted this
position, but argued that the infringing activities of the Defendant No.
1 cannot be injuncted in an action of passing off brought by the
another infringer. The judgment of Capital Plastic Industries (supra),
relied upon by the Defendant No.1 becomes relevant on this
proposition. This Court in a suit for injunction, held that one pirator
cannot sue another one. The relevant portion reads as under:-
"9.....Even otherwise in my opinion the plaintiff is not entitled to any
relief on the basis of this mark. Both the plaintiff as well as the
defendant are pirators. They have copied and adopted this mark which
already stands registered in the name of Plasticrafters Limited,
Premier Insurance Building, Wallace Road, Karachi. None of them is
entitled to claim any relief on the basis of this mark. Even otherwise
the plaintiff has not been able to establish that he has acquired a
valuable goodwill or reputation in respect of the mark RAHBER. The
plaintiff has not been able to prima facie establish and fulfill the
requirements of a passing off action. The result is that the plaintiff is
not entitled to the interim relief at this stage."
29. In this case as well, Plaintiffs are infringing a registered trademark.
Thus they cannot claim rights in the said mark for bringing an action
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of passing off against another infringer. Hence the plea of seniority in
the present case is immaterial and the Court would refrain from
injuncting the Defendants on the basis of the prior user of the mark by
the Plaintiff No. 1.
(emphasis added)
The Delhi High Court negatived the case of the Plaintiff by observing in
paragraph 30 as under:
30. As noted above, the plaint gives an impression that the Plaintiffs
are the successors of the trademarks 'ELDER' and 'ELDER' logo which is
factually false and untrue.
35.3) Antex Pharma Pvt. Ltd. & Another sued the Plaintiff for
issuing groundless threats by filing CS (COMM) Suit NO. 178 of 2024.
The Delhi High Court took note of the order passed in the case of Elder
Pharmacia LLP and ors. and held in paragraphs 9.5 and 11 of the order
dated 28 February 2024 as under:
9.5 The Defendants do not possess any right over the trademark
ELDER', which is in fact registered in the name of another company-
Elder Pharmaceuticals Ltd. By way of judgment dated 5th April, 2019,
this Court has declared that the trademark 'ELDER' belongs only to
Elder Pharmaceuticals Ltd., which company is presently in liquidation.
The said judgment has not been assailed and thus has attained
finality. In light of this judgment, the Defendants certainly cannot
assert any proprietary claim over, the trademark 'ELDER'. Rather, only
Elder Pharmaceuticals Ltd., through the Official Liquidator who is in
custody of said company's assets, would be permitted to raise any
grievance regarding the Plaintiffs use of the trademark 'ELDER'.
11. This finding unequivocally establishes that the ownership and
exclusive right to use the ELDER' trademark and logos rest with Elder
Pharmaceuticals Limited (referred to as 'EPL' in the above extract),
which contradicts the Defendants' claims in the disputed article.
Therefore. Defendant No. 1 cannot assert rights over the trademark
'ELDER' and seek to restrain other entities from using the said
trademark. The news artic placed on record suggests that Defendant
No. 1, through their Managing Director (Defendant No. 2), are acting
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in a manner which is contrary to the findings rendered by this Court in
the aforenoted judgment.
35.4) Plaintiff filed suit against Elder Orgichem Pvt. Ltd and
secured ex-parte injunction from Single Judge of Delhi High Court. The
Division Bench in Elder Orgichem Pvt. Ltd noted the submission that
injunction order was obtained by concealing important and vital facts
from the learned Single Judge. After being accused of suppression, the
Plaintiff agreed for setting aside the order passed by the learned Single
Judge and for fresh decision of application for temporary injunction.
The Delhi High Court specifically granted liberty to the Defendant
therein to raise the issue of suppression while opposing discretionary
relief of injunction.
36) All the four orders referred to above are suppressed by the
Plaintiff wherein it is repeatedly denied the relief in respect of ‘ ELDER ’
mark by the Delhi High Court. By suppressing repeated denial of
injunctive relief in respect of ‘ ELDER’ mark, Plaintiff pressed
application for ad-interim injunction without notice to the Defendant
and persuaded this Court to pass order dated 26 September 2025. In my
view, the four orders passed by the Delhi High Court have material
bearing on the issue involved in the present case and disclosure thereof
would have most certainly cautioned this Court while considering the
issue of grant of injunction without issuing notice to the Defendant.
More importantly, filing of four proceedings before Delhi High Court in
respect of ‘ELDER’ mark belies the story of Plaintiff that it has been
mark since 1992-
manufacturing and selling products by using
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93. The orders show that as late as in December 2024, Plaintiff was
suing, threatening parties in respect of ‘ ELDER ’ mark and not
mark.
37) The allegation of suppression in respect of orders passed by
the Delhi High Court is sought to be salvaged by Mr. Tamboly by relying
on averments in paragraph 23 of the Plaint. Plaintiff had issued cease
and desist notice to the Defendant on 27 June 2025. In its reply dated 4
July 2025, Defendant relied upon order dated 5 April 2019 passed by the
Delhi High Court in the case of Elder Pharmacia LLP and ors . While
disclosing receipt of response from the Defendant and while dealing
with the contents of the response, the Plaintiff has averred in paragraph
23 of the Plaint as under:
23. The Defendant replied to the cease-and-desist notice on 4th July,
2025 and denied all the allegations. The Defendant relied upon an
order dated 5th April, 2019 passed in CS Comm No. 1313 of 2018
passed by the Hon'ble High Court of Delhi to deny the rights of the
Plaintiff in its registered trademark. The order does not adjudicate any
issues raised in the cease-and-desist notice addressed by the Plaintiff
herein. The Defendant's reliance on the said order to deny the Plaintiff
its rights in its registered trademark is totally misconceived and wrong
interpretation of the said order. The Hon'ble High Court, Delhi passed
the order in light of the pleadings and facts of that suit. The
infringement action in that suit was based on the mark owned by Elder
Pharmaceutical Ltd which has now lapsed and was not renewed
thereafter. The infringement action in CS Comm No. 1313 of 2018 was
not the registered trademark mentioned herein. The facts and
circumstances have since the passing of the order, changed and
therefore, the Defendant's reliance on the orders passed in the
proceedings have no relevance as of date. The Defendant's claim that
the Defendant being a daughter of late Mr. Jagdish Saxena has a right
over the trademark Elder is also incorrect. There is no trademark
which was registered in the name of Mr. Jagdish Saxena till date. As
mentioned in Defendant's own reply the Elder was once upon a time
registered in the name of Elder Pharmaceuticals Ltd which does not
exist anymore. The Plaintiff craves leave to refer and rely upon the
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entire record and proceedings of CS Comm No. 1313 of 2018 and all
the other proceedings previously filed by the Plaintiff and shall
produce it as and when called for by this Hon'ble Court. The Defendant
has admitted the registration of the mark in favour of the Plaintiff.
Hereto annexed and marked as Exhibit -"L" is a copy of the reply of the
Defendant dated 4th July, 2025.
38) Thus, the Plaintiff did not, on its own, disclose any of the
four orders passed by the Delhi High Court and upon Defendant relying
on order passed in Elder Pharmacia LLP , Plaintiff has pleaded in
paragraph 23 of the Plaint that the said order does not adjudicate any
issues raised in the cease-and-desist notice addressed by the Plaintiff
and that the order was passed by the Delhi High Court in the light of
pleadings and facts of that case and that infringement action therein
was based on mark owned by EPL, which has now lapsed. It is further
pleaded that the infringement action in that suit was not for registered
trademark mentioned in the present suit. It is further pleaded that facts
of the case have since changed and therefore the order passed by the
Delhi High Court has no relevance. In my view, the averments in
paragraph 23 of the Plaint cannot be termed as honest disclosure in
respect of EPL’s ownership and use of the registered mark, claims raised
by the Plaintiff in respect of ‘EDLER’ mark and repeated denial of relief
in relation to said mark by the Delhi High Court. I am therefore fully
convinced that the Plaintiff has deliberately suppressed passing of
orders in four proceedings by Delhi High Court against it. The
suppression is of material particulars and the same is aimed at
misleading this Court in passing injunction order without notice to
Defendant.
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S UPPRESSION OF OL P ROCEEDINGS
39) The fourth category of suppression is with regard to the
proceedings initiated by OL of EPL. EPL went into liquidation on 19
September 2016. The OL of EPL had addressed letter to the Plaintiff and
after receipt of its response, Plaintiff was called for a meeting on 22
February 2022 and was directed to clarify six enumerated queries in the
letter dated 21 February 2022. Plaintiff submitted written response on
28 February 2022 to the OL. The response given by the Plaintiff in
respect of query no.1, 3, 5 and 6 is relevant, which reads thus :-
Dear Sir,
I, Dr. Anuj J. Saxena, being Director of the Elder Projects Ltd., under
receipt of your Notice dated 21/02/2022 bearing No. OL/ Liquidation
Section-VI/6565, having office address at, 301-302, Kunthu Commerce
Centre, 3rd Floor, Plot No.174, Near Ayyappa Temple, Bangur Nagar,
Goregaon (West), Mumbai 400104, in response to your letter dated
21/02/2022 for providing of relevant documents under Notice, I am
maling my submission as under:
1. The details (lists) of the trademark, which Elder
Pharmaceuticals Limited (in liquidation) was using and known to
you. The role of Elder Projects Limited associated with such
products up to the liquidation period.)
With respect to Sr. No. 1, of receipt Notice, I say that Elder Projects
Limited was, and till date, is nowhere concerned with Trademarks of
the Elder Pharmaceuticals Limited (in liquidation) under name of
Elder Projects Limited.
However, we are providing some details of the products of Elder
Pharmaceuticals Limited (in liquidation) which is known to Elder
Projects Limited with their trademark registry status; hereby relying
as Annexure-1.
3. Whether Elder Projects Limited was using /involved
/associated/manufacturing/ marketing any of the product which
was licensed in favour of Elder Pharmaceuticals Limited (in
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liquidation) has a trademark in its favour? If yes, the details
thereof)
With respect to Sr. No.3, I say that Elder Projects Limited was a
contract manufacturer for Elder Pharmaceuticals Limited (in
liquidation) for the Brand name "Eldervit-12 injection". The above said
arrangement betwen both the Companies was started somewhere
around 1994 upto the period March 2016.
Other than this Elder Projects Ltd was not associated in.
marketing/manufacturing any other brands of Rider Pharmaceuticals
(In
liquidation).
5. In the case, such that Elder Projects Limited is using or has
been using the trademark issued in favour of Elder
Pharmaceuticals Limited (in liquidation) then details of revenue
so generated may be produced.
6. Whether Elder Projects Limited has applied /made an
application for trademark for a product which was licensed to
Elder Pharmaceuticals Limited (in liquidation), if yes, the dates
of such applications and status thereof
With respect to Sr. No. 5 & 6, Elder Projects Limited had applied for
three (3) brands i.e. ELDER FLUMOL, AMPM PLUS and AMPM
SPECIAL, where Trade Mark registry has advertised the same in Trade
Mark Journal also. At current scenario all the 3 brands which Elder
Projects Limited had applied are opposed by other companies.
( emphasis added )
40) Thus, in its response to the OL, Plaintiff specifically stated
that it was nowhere concerned with the trademarks of EPL till 28
February 2022. It further stated that Plaintiff was a mere contract
manufacturer for EPL and that such arrangement started in 1994 and
continued upto March 2016. It stated that the Plaintiff was not
associated with marketing/manufacture of any other brands of EPL.
Plaintiff further stated that it had applied for only 3 brands of ELDER,
FLUMOL, AMPM PLUS AND AMPM SPECIAL. Thus, the stand taken by
the Plaintiff in its reply to the OL on 28 February 2022 is diametrically
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opposite to its claim in the present suit. The said response is however
conveniently suppressed by the Plaintiff in the present suit.
41) It appears that the OLR-36 of 2022 is filed by the OL before
this Court seeking directions against the Plaintiff regarding
unauthorized use of mark ‘ELDER’ registered in the name of EPL and by
order dated 3 July 2025, this Court has granted liberty to OL to file OLR
identifying the Companies against whom the suit for infringement is
proposed to be filed. It appears that the Plaintiff has been duly
represented in those proceedings before this Court which is clear from
order dated 3 July 2025. However, all the proceedings relating to the OL
of ELP are conveniently suppressed by the Plaintiff in the present suit.
E FFECT O F S UPPRESSION
42) It is well settled position that injunction is an equitable
relief and a party seeking the same must approach the Court with clean
hands. The relief of temporary injunction can be denied to a party only
on the ground of he not approaching the Court with clean hands. An
instructive judgment on the issue is Abdul Cadur Allibhoy (supra) in
which the Full Bench of this Court has emphasized the requirement of
Plaintiff approaching the Court with clean hands. In relation to use of
trademark, the Court observed that if the Plaintiff himself is found
selling goods of another or if his trademark gives a false description of
the article, he violates the rule on which he seeks relief against the
Defendant.
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43) In Ramjas Foundation (supra), the Apex Court has held
that it is the duty of the plaintiff to state the whole case fully and fairly
before the Court. It has held that when Defendant applies for vacation
of injunction on the ground that material fact has been suppressed or
has not been properly brought forward, the Plaintiff must be told that
the Court would not decide as the faith of the Court is broken and the
injunction must be vacated. It is held in paras-21, 22, 23 and 24 as
under:
21. The principle that a person who does not come to the court
with clean hands is not entitled to be heard on the merits of his
grievance and, in any case, such person is not entitled to any
relief is applicable not only to the petitions filed under Articles
32, 226 and 136 of the Constitution but also to the cases
instituted in others courts and judicial forums. The object
underlying the principle is that every court is not only entitled but is
duty bound to protect itself from unscrupulous litigants who do not
have any respect for truth and who try to pollute the stream of justice
by resorting to falsehood or by making misstatement or by
suppressing facts which have a bearing on adjudication of the issue(s)
arising in the case.
22. In Dalglish v. Jarvie [(1850) 2 Mac & G 231 : 42 ER 89] , Mac & G at
p. 238, Lord Langdale and Rolfe, B. observed: (ER p. 89)
“It is the duty of a party asking for an injunction to bring under
the notice of the court all facts material to the determination of
his right to that injunction; and it is no excuse for him to say that
he was not aware of the importance of any fact which he has
omitted to bring forward.”
Castelli Cook
23. In v. [(1849) 7 Hare 89: 68 ER 36] , Hare at p. 94,
Wigram, V.C. stated the rule in the following words: (ER p. 38)
“… a plaintiff applying ex parte comes … under a contract
with the court that he will state the whole case fully and
fairly to the court. If he fails to do that, and the court finds,
when the other party applies to dissolve the injunction, that
any material fact has been suppressed or not properly
brought forward, the plaintiff is told that the court will not
decide on the merits, and that, as he has broken faith with
the court, the injunction must go .”
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24. In Republic of Peru v. Dreyfus Bros. & Co. [55 LT 802] , LT at p.
803, Kay, J. held as under:
“I have always maintained, and I think it most important to
maintain most strictly, the rule that, in ex parte applications to
this Court, the utmost good faith must be observed. If there is
an important misstatement, speaking for myself, I have never
hesitated, and never shall hesitate until the rule is altered, to
discharge the order at once , so as to impress upon all persons
who are suitors in this Court the importance of dealing in good
faith in the Court when ex parte applications are made.”
emphasis added
( )
44) In Prestige Lights Limited (supra), while dealing with the
issue of suppression in a petition filed before the High Court under
Article 226 of the Constitution of India, the Apex Court has held in
paras-33 and 34 as under:
33. It is thus clear that though the appellant Company had
approached the High Court under Article 226 of the Constitution, it
had not candidly stated all the facts to the Court. The High Court is
exercising discretionary and extraordinary jurisdiction under Article
226 of the Constitution. Over and above, a court of law is also a court
of equity. It is, therefore, of utmost necessity that when a party
approaches a High Court, he must place all the facts before the Court
without any reservation. If there is suppression of material facts on
the part of the applicant or twisted facts have been placed before
the Court, the writ court may refuse to entertain the petition and
dismiss it without entering into merits of the matter.
34 . The object underlying the above principle has been succinctly
stated by Scrutton, L.J., in R. v. Kensington Income Tax
Commrs . [(1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)] , in the
following words:
“it has been for many years the rule of the court, and one which
it is of the greatest importance to maintain, that when an
applicant comes to the court to obtain relief on an ex parte
statement he should make a full and fair disclosure of all the
material facts—facts, not law. He must not misstate the law if he
can help it— the court is supposed to know the law. But it knows
nothing about the facts
, and the applicant must state fully and
fairly the facts, and the penalty by which the court enforces that
obligation is that if it finds out that the facts have not been fully
and fairly stated to it, the court will set aside, any action which it
has taken on the faith of the imperfect statement.”
( emphasis supplied )
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45) Though the above observations are made in the context of a
Writ Petition filed under Article 26 of Constitution Of India, the same
has been repeatedly followed by this Court while dealing with the issue
of vacation of ex-parte injunction based on suppression in suits as well.
46) In Bhaskar Laxman Jadhav (supra), the Apex Court has
held that it is not for a litigant to decide what fact is material for
adjudicating a case and what is not material. It is the obligation of a
litigant to disclose all the facts of the case and leave the decision
making to the Court. It is held that it is a duty of the litigant to come
upfront and clean with all material facts and then leave it to the Court
to determine whether or not a particular fact is relevant for arriving at
the decision. It has held in paras-44 and 47 of the judgment as under :-
44. It is not for a litigant to decide what fact is material for
adjudicating a case and what is not material. It is the obligation
of a litigant to disclose all the facts of a case and leave the
decision-making to the court. True, there is a mention of the order
dated 2-5-2003 in the order dated 24-7-2006 passed by the JCC, but
that is not enough disclosure. The petitioners have not clearly
disclosed the facts and circumstances in which the order dated 2-5-
2003 was passed or that it has attained finality.
47. A mere reference to the order dated 2-5-2003, en passant, in the
order dated 24-7-2006 does not serve the requirement of disclosure. It
is not for the court to look into every word of the pleadings,
documents and annexures to fish out a fact. It is for the litigant to
come upfront and clean with all material facts and then, on the
basis of the submissions made by the learned counsel, leave it to
the court to determine whether or not a particular fact is
relevant for arriving at a decision. Unfortunately, the petitioners
have not done this and must suffer the consequence thereof.
(emphasis added)
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47) The Division Bench of this Court in Keval Ashokbhai
Vasoya (supra) has summarized the principles relating to the duties
that fall on the applicant who applies for injunction without notice. The
duties and their underlying principles have been discussed by this Court
in Single Bench judgment in Sun Pharmaceutical Industries Ltd
24
Versus. Emil Pharmaceutical Industries Pvt. Ltd. , which are reiterated
by the Division Bench in Keval Ashokbhai Vasoya . The Division Bench
has also noted the summation of principles in English judgment in
25
Alexendar Tugushev v. Vitaly Orlo . It would be apposite to extract
only the relevant portions of the judgment of Division Bench in
paragraphs-16, 17 and 18 for facility of reference:
16. While we take these principles as settled, they appear to us to indicate
that in applying for an injunction without notice, there is a duty that falls on
the applicant. These duties and their underlying principles were culled out in
paragraph 5 of Sun Pharmaceuticals :
5. To avoid ambiguity, I take the liberty of briefly summarizing the key
principles I believe apply to every ex parte application. I do so because
I believe an application for leave to move ex parte can never be
granted for the asking or automatically.
(a) The general principle is that the Court will hear both sides before
rendering a decision. This is the essence of any adversarial justice-
delivery process and based on the fundamental rule of natural justice
and fairness, audi alteram partem. An ex parte application, without
notice to or hearing, the other side is, therefore, the exception, a
derogation from this general principle .
(b) It is every advocate's and every court's paramount duty, of the very
first importance, to ensure the integrity of the judicial process. When,
therefore, a court is asked to depart from the general and general rule,
it must be able to rely on the applicant (who or which is appearing
without an opponent on notice) to present its case fairly and evenly.
This means that the applicant's case must contain a disclosure or
statement of an anticipated defence or arguments likely in opposition.
In turn, this means that an applicant seeking an ad-interim relief
without notice must make a full and reasonably accurate
24
IAL-10937 of 2021 in Comm. IP Suit NO.10928 Of 2021
25
(2019) EWHC 2031
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disclosure of material facts and must invite the court's attention
to factual, legal and procedural issues. On the factual issues to be
disclosed, the applicant need only disclose as much — but every bit as
much — as is within his knowledge, or that which, with reasonable
efforts, he could discover. Material in the public domain, including in
open registries, falls within this class of factual material.
(c) The disclosure and statement in the application or plaint must be
neutrally and objectively presented so that the court has confidence in
the case brought. Merely annexing a slew of documents does not, of
itself, serve this purpose.
xxx
(e) Ex parte applications are, by definition, moved in urgency. This
must be demonstrated too. The compilation of relevant material may
be less than optimally organized in view of the urgency, but the
urgency does not excuse the need for a sufficient disclosure. The
requirement is not of the fullest and most complete disclosure but
enough to make the court cognisant of the likely issues and possible
defences. A detailed analysis of every single possible point is not
required. Undoubtedly, the requirement of disclosure relates to
relevant material, and kept within sensible limits. The disclosure must
be proportionate, and the task is not the pursuit of perfection (for it
will always be argued that the disclosure might have been bettered).
The disclosure requirement is, above all, a safeguard to ensure
that the court is not misled on a material and relevant aspect.
17. We believe this to be only a summation of long-settled law. It has been the
law in this country and in England, where orders without notice are common.
These include freezing orders in Mareva injunctions, frequently granted
without notice on affidavit material alone, and Anton Piller search-and-
seizure orders, typically without notice. The underlying principles were
succinctly set out in a decision of 26th July 2019 by the Hon'ble Mrs. Justice
Carr, sitting in the Commercial Court of England and Wales, a Division of
Alexendar Tugushev Vitaly Orlov
High Court in v. She had before her a non-
disclosure application, i.e., an application saying that the plaintiff had failed
to make the required disclosures. Saying the law was not contentious, Carr J
set out the general principles in this way:
7. The law is non-contentious. The following general principles can be
distilled from the relevant authorities by way of summary as follows:
i) The duty of an applicant for a without notice injunction is to
make full and accurate disclosure of all material facts and to
draw the court's attention to significant factual, legal and
procedural aspects of the case ;
ii) It is a high duty and of the first importance to ensure the integrity
of the court's process. It is the necessary corollary of the court being
prepared to depart from the principle that it will hear both sides
before reaching a decision, a basic principle of fairness. Derogation
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from that principle is an exceptional course adopted in cases of
extreme urgency or the need for secrecy. The court must be able to
rely on the party who appears alone to present the argument in a way
which is not merely designed to promote its own interests but in a fair
and even-handed manner, drawing attention to evidence and
arguments which it can reasonably anticipate the absent party would
wish to make;
iii) Full disclosure must be linked with fair presentation. The judge
must be able to have complete confidence in the thoroughness and
objectivity of those presenting the case for the applicant. Thus, for
example, it is not sufficient merely to exhibit numerous
documents ;
iv) An applicant must make proper enquiries before making the
application. He must investigate the cause of action asserted and the
facts relied on before identifying and addressing any likely
defences. The duty to disclose extends to matters of which the
applicant would have been aware had reasonable enquiries been
made. The urgency of a particular case may make it necessary for
evidence to be in a less tidy or complete form than is desirable. But no
amount of urgency or practical difficulty can justify a failure to
identify the relevant cause of action and principal facts to be relied
on;
v) Material facts are those which it is material for the judge to
know in dealing with the application as made . The duty requires
an applicant to make the court aware of the issues likely to arise and
the possible difficulties in the claim, but need not extend to a detailed
analysis of every possible point which may arise. It extends to matters
of intention and for example to disclosure of related proceedings in
another jurisdiction;
xxx
ix) If material non-disclosure is established, the court will be
astute to ensure that a claimant who obtains injunctive relief
without full disclosure is deprived of any advantage he may
thereby have derived ;
xxx
xi) The court will discharge the order even if the order would still
have been made had the relevant matter(s) been brought to its
attention at the without notice hearing. This is a penal approach
and intentionally so, by way of deterrent to ensure that
applicants in future abide by their duties;
xxx
18. We take this branch of the law as now firmly settled.
(emphasis added)
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48) Thus, as held by the Division Bench in Keval Ashokbhai
Vasoya , injunction without notice to the other side is an exception and
a derogation from the general principles of hearing both the sides
before rendering decision on injunction. It is the duty of the applicant
applying for injunction without notice to make full and accurate
disclosure of all material facts and full disclosure must be linked with
fair presentation. Material facts are those which are material for the
Judge to know while dealing with an application so made. The duty
requires applicant to make the Court aware of the issues likely to arise
and the possible difficulties in the claim though it need not extend to a
detailed analysis of every possible point which may arise. If material
non-disclosure is established, the Court has to ensure that the applicant
who obtains injunctive relief without full disclosure is deprived of any
advantage, he may have arrived.
49) In Laser Shaving India Pvt. Limited a Single Judge of this
Court has vacated the ex-parte ad-interim injunction after noticing that
the Plaintiff therein had suppressed the documents filed by it before
Trademarks Registry and reply given to cease and desist notice issued
by another entity containing contradictory stand. Reference in this
regard can also be made to the judgment of this Court in Shantapa
26
alias Shantesh Kalasgond Versus M/s. Anna which is relied in Laser
Shaving India Pvt. Limited.
50) In Nagina Ramsagar Choube (supra) and Shoban Salim
Thakur (supra) this Court has gone to the extent of dismissing the Suit
26
AO No. 915 OF 2023 decided on 30 November 2023
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when it found that ex-parte ad-interim injunction was secured by
suppression of material facts. The Court also directed payment of
exemplary costs in both the decisions against the Plaintiffs, who had
indulged in suppression of facts.
51) The law thus is fairly well settled that Plaintiff has a duty to
make full disclosure of all material facts and it is not for the Plaintiff to
decide which fact is material and which is not. Plaintiff cannot first
indulge in suppression of facts and upon being caught, raise a defense
that what is suppressed is not material. Mr. Tamboly has relied upon
judgment of this Court in International Association of Lions Club
(supra) in support of his contention that to arrive at a case of
suppression of facts which disentitles party to any relief, the facts
suppressed must be material to the outcome of the dispute. In case
before this Court, the Defendants therein had accused Plaintiff of non-
disclosure of facts of institution of civil suit before the District Court of
Jabalpur and it was contended that Plaintiff was not entitled to
discretionary relief of injunction on account of suppression. This Court
considered whether Plaintiffs were obliged to disclose the fact of
institution of the said suit filed in representative capacity by another
person under Section 120 of the Trade and Merchandise Marks Act,
1950, which provision envisaged for a direction against a person who
threatens an action or proceeding for infringement of trademark. This
Court referred to various judgments and held that the scope of such suit
was very limited where only justifiability of threats given by the
Defendant could be adjudicated therein. This Court further held that
any other finding recorded in such a Suit becomes irrelevant in the
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context of limited scope of enquiry. It is in the light of these peculiar
facts that this Court held that it was not necessary for the Plaintiff
therein to disclose filing of the suit before Jabalpur Court. Therefore,
the judgment in International Association of Lions Club is clearly
distinguishable and would have no application to the facts of the
present case, where there is suppression of material necessary for
deciding Plaintiff’s entitlement to temporary injunction.
52) Mr. Tamboly has also relied on judgment of the Apex Court
Government of NCT of Delhi
in (supra) in support of the contention
that the suppression must be of facts material to the dispute. Referring
to its judgments in S.J.S. Business Enterprises (P) Limited Versus.
27
State of Bihar and others and Arunima Baruah Versus. Union of
28
India and others the Apex Court has held in para 33 to 37 as under:
F.2. Suppression of material facts by appellants
33. The counsel on behalf of the landowners have contended that the
conduct of the appellants disqualifies them from seeking any relief.
They assert that the appellants filed the present appeals, specifically
under Group B-1, without disclosing that civil appeals filed by another
appellant/authority against the same impugned order has already
been dismissed. Furthermore, this action is deemed as providing an
inaccurate declaration under Order XXI Rule 3(2) of the Supreme
Court Rules, 2013.
34. Before addressing the aforesaid contention, we may refer to the
law laid down in this regard.
35. A Bench of two Hon'ble Judges of this Court in S.J.S. Business
Enterprises (P) Ltd. v. State of Bihar
held that a fact suppressed
must be material; that is, if it had not been suppressed, it would
have influenced the merits of the case . It was held thus
27
(2004) 7 SCC 166
28
(2007) 6 SCC 120
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“ 13 . As a general rule, suppression of a material fact by a litigant
disqualifies such litigant from obtaining any relief. This rule has
been evolved out of the need of the courts to deter a litigant from
abusing the process of court by deceiving it. But the suppressed
fact must be a material one in the sense that had it not been
suppressed it would have had an effect on the merits of the
case. It must be a matter which was material for the
consideration of the court, whatever view the court may have
taken [ R. v. General Commrs. for the purposes of the Income Tax Act
for the District of Kensington , (1917) 1 KB 486 : 86 LJKB 257 : 116 LT
136 (CA)] …
xxx
36. Further, a Bench of two Hon'ble Judges of this Court in Arunima
Baruah v. Union of India
following the aforesaid dictum, held thus :
“ 12 . It is trite law that so as to enable the court to refuse to
exercise its discretionary jurisdiction suppression must be of
material fact. What would be a material fact, suppression whereof
would disentitle the appellant to obtain a discretionary relief,
would depend upon the facts and circumstances of each case.
Material fact would mean material for the purpose of
determination of the lis, the logical corollary whereof would
be that whether the same was material for grant or denial of
the relief. If the fact suppressed is not material for
determination of the lis between the parties, the court may
not refuse to exercise its discretionary jurisdiction. It is also
trite that a person invoking the discretionary jurisdiction of the
court cannot be allowed to approach it with a pair of dirty hands.
But even if the said dirt is removed and the hands become clean,
whether the relief would still be denied is the question.”
37. Law is well settled that the fact suppressed must be material
in the sense that it would have an effect on the merits of the
case . The concept of suppression or non-disclosure of facts transcends
mere concealment; it necessitates the deliberate withholding of
material facts—those of such critical import that their absence would
render any decision unjust. Material facts, in this context, refer to
those facts that possess the potential to significantly influence
the decision-making process or alter its trajectory. This principle
is not intended to arm one party with a weapon of technicality
over its adversary but rather serves as a crucial safeguard against
the abuse of the judicial process.
(emphasis added)
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53) Thus, as held in Government of NCT of Delhi , material
facts refer to those facts that possess the potential to significantly
influence the decision-making process or alter its trajectory. In the
present case, I am fully convinced the material relating to (i) ownership
and use of ‘ELDER’ mark by EPL, (ii) four adverse orders passed by Delhi
High Court, (iii) relationship of directors of Plaintiff and Defendant
with each other and with EPL and (iv) proceedings before Official
Liquidator possess the potential to significantly influence the decision-
making process. If the above material was disclosed, this Court would
ex-parte
not have granted ad-interim injunction in favour of the
Plaintiff and would have issued notice to Defendant. In my view
therefore, the ad-interim injunction granted in favour of the Plaintiff
deserves to be vacated under Order 39 Rule 4 of the Code.
N EW T WIST A DDED IN O RAL S UBMISSIONS TO G ET O VER S UPPRESSION
54) To get over the allegation of suppression, the Plaintiff
seems to have grown wiser and during the course of arguments, an
altogether new twisted case is sought to be presented before the Court.
It is argued on behalf of the Plaintiff that the past litigations before
Delhi High Court and orders passed therein are of no relevance to the
present suit since Plaintiff had attempted to seek enforcement of the
mark ‘ ELDER ’ owned and used by EPL, whereas the present suit is filed
for the purpose of enforcement of stylised mark/label
which
has the unique feature of a particular font in blue colour with three
leaves. It is sought to be clarified that the Suit is not for enforcement of
any rights in the word ‘ELDER’ per se . It is further clarified that Plaintiff
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has no objection to the Defendant using the word mark ‘ELDER’ as long
as the same is not styled in the same font or colour as that of Plaintiffs
registered mark.
55) This twisted case sought to be presented on behalf of the
Plaintiff during the course of oral submissions is totally contrary to the
pleadings. Holistic reading of the Plaint would leave no manner of
doubt that Plaintiff has claimed rights even in the word mark. The
Plaint is replete with phrases such as, ‘ trade name ’, ‘ word ’, ‘ in
combination with other words
’, etc. Some of the averments in the Plaint
are already reproduced above. In paragraph 25 of the Plaint Plaintiff has
pleaded that ‘… Plaintiff has generated substantial reputation and
and trade name ……. Thus,
goodwill in the registered trade mark
any product sold in a similar trade mark, trade name or style by any third
party for pharmaceutical goods is a direct violation of Plaintiff’s
Intellectual Property Rights ’. In paragraph 28 it is pleaded that, ‘ the
Defendant has no right, license or authority to use the impugned mark
. The word and logo of Defendant
is identical which and/or is
deceptively similar to Plaintiffs
trademark ’. In paragraph 30 it is
pleaded that ‘ .. and restrain the defendant …. from using in any manner in
relation to any of its goods and more particularly the marks/labels
or word ‘ELDER ’ in combination with any other words or combination or
modified version of the word ‘ELDER’ as depicted/displayed in the
registered trademark
… .. .’ Again, in paragraph 31, pleadings are raised
Elder’
even in relation to the word ‘ .
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56) The prayers sought in the Plaint are as under :-
a) this Hon'ble Court be pleased to pass Judgment and Decree or order
and restrain the Defendant itself, its servants, agents, representatives
the like an order of perpetual injunction and restrain them from using
in any manner in relation to any of its goods and more particularly the
marks/labels"
or word "ELDER" in combination with other
words or combination or modified version of the word "ELDER" as
depicted/displayed in the said registered trademark and/or any other
marks or any other deceptively similar label containing the impugned
marks written in a stylized manner or in any manner which is
identical with and/or deceptively similar to all the registered and well
known
trademark.
b) This Hon'ble Court be pleased pass an Order, Judgments or Decree
against the Defendants and their servants, agents and distributors and
/ or representatives and the like an order of perpetual injunction and
restrain them from using in any manner and in relation any of the
goods bearing the marks/labels
o r in combination with other
words or combination of modified version of the word
and/or any other marks or the impugned label or any other
deceptively similar label containing the impugned marks written in a
stylized manner or in any manner which is identical with and/or
deceptively similar to all the registered and well known
trademarks and/or other deceptively similar label containing the
impugned words written in a stylized manner or in any manner and/or
any other deceptively similar mark so as to pass off and/or enable
others to pass off the Defendant's goods as and for the goods of the
Plaintiff or in some way connected with the Plaintiff;
( emphasis and underlying added )
57) Thus, there can be no doubt to the position that the Suit is
filed to restrain Defendant even from using the word ‘ELDER’. The
contention that prayer clause (a) in the Plaint is sought to restrain the
Defendant from only using the word ‘ELDER’ as depicted/displayed in
the said registered trademark is factually incorrect. The phrase used in
the prayers “word ‘ELDER’ in combination with other words” is
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disjunctive from the phrase “combination or modified version of the word
‘ELDER’” Thus, a specific prayers are sought in the Plaint to restrain
Defendant from even using the word ‘ELDER’.
58) Plaintiff therefore cannot seek to escape from
consequences of suppression by contending that it was enforcing the
mark ‘ ELDER ’ of EPL in four proceeding before Delhi High Court as
in the present
against enforcement sought for the stylized label
suit.
59) Also of relevance is the fact that Plaintiff has not
specifically pleaded anywhere in the Plaint that it has used the
trademark ‘ELDER’ as well as
simultaneously. It is not the
pleaded case of the Plaintiff that it was selling the products under the
mark ‘ ELDER ’ till liquidation of EPL and that thereafter, it has coined
the mark
. On the contrary, the pleaded case in the Plaint is that
it has been using mark
since 1992-1993 for selling its
pharmaceutical products under that mark. Thus, the whole story of
Plaintiff seeking to enforce rights in respect of the mark ‘ ELDER ’ before
Delhi High Court as contradistict from current claim for the mark
is afterthought, dishonest and belied by the pleadings.
60) Plaintiff’s clarification in the course of oral submissions
( and reiterated in written note of arguments ), that ‘Plaintiff has no
objection to the Defendant using the word mark ‘ELDER’ as long as the
same is not styled in the same font or colour as that of the Plaintiffs
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registered mark’ cannot save the Plaintiff from the consequences of
securing ex-parte ad-interim injunction by suppression of material
facts. It is not Plaintiff’s pleaded case that the Defendant can use the
word mark ‘ELDER’. On the other hand, Plaintiff has sought to restrain
Defendant from using even the word ‘ELDER’.
61) I am therefore convinced that there is gross suppression of
material facts by the Plaintiffs warranting vacation of ad-interim
injunction order granted vide order dated 26 September 2025.
C ONTRADICTORY S TANDS TAKEN BY P LAINTIFF IN DIFFERENT P ROCEEDINGS
TO S UIT ITS C ONVENIENCE
62) While Plaintiff’s claim of having developed reputation in
respect of the mark in the market appears to be questionable, it has
most certainly developed a reputation of taking contradictory stands in
different proceedings to suit its convenience.
63) Before discussing frequent shifts in the stands adopted by
Plaintiff to suit its convenience, it would be necessary to deal with the
plea raised during the course of oral submissions based on provisions of
Section 33 of the Trade Marks Act, which has also turned out to be self-
contradictory. Mr. Tamboly has contended that one of the reasons why
the Delhi High Court refused relief in favour of the Plaintiff in Suit filed
against Elder Pharmacia LLP was because the Plaintiff had relied on
the provisions of Section 33 of the Trade Marks Act and period of 5
years was yet to expire by the time the order was passed by the Delhi
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High Court on 5 April 2019. He particularly relies on observations in
para-22 of the order which reads thus:
22. The Pleadings are factually incorrect and false and particularly
when the use of mark is with knowledge of EPL's registration, it cannot
be termed as honest or bona fide use. On this issue, Plaintiffs have
also relied upon the Section 33 of the Act which provides that if
the proprietor of the registered trademark owner has not
opposed the use of the mark by Plaintiff No.1, it should be
considered that the proprietor has acquiesced the use of the
mark. This plea is erroneous. The aforesaid provision would be
attracted where the acquiescence is for a continuous period of five
years in the use of a registered trademark. Concededly, the use of the
trademark by Plaintiff No. 1 has been only from the year
December 2017 and five years have not lapsed and therefore
Plaintiff No. 1 cannot claim acquiescence.
(emphasis added)
64) Relying on the above quoted observations of the Delhi High
Court, Mr. Tamboly has contended that now period of 5 years has passed
since use of the trade mark by the Plaintiff from the year 2017 and that
therefore Plaintiff is entitled to exercise rights in respect of the mark on
account of provisions of Section 33 of the Trade Marks Act. However,
this position taken by the Plaintiff is contrary to the one which is
sought to be orally argued before me that the Delhi High Court Suits
were for enforcement of mark ‘ ELDER ’ whereas the present suit is for
enforcement of the registered mark
. Going by the Plaintiff’s
own orally argued case, it was seeking to enforce the mark ‘ ELDER ’
before the Delhi High Court upto 19 December 2024 when the order in
Elder Orgichem Private Limited was passed. This would mean that
Plaintiff was not claiming any right in respect of the registered mark
before the Delhi High Court till 19 December 2024. Thus,
reliance on the provisions of Section 33 of the Trade Marks Act is
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contrary to Plaintiff’s own argued case. In fact, this is yet another
inconsistent stand taken by the Plaintiff.
65) Plaintiff is blowing hot and cold and is frequently changing
its colours to suit its convenience. This is clear from the following
conflicting stands taken by Plaintiff:
(i) Pleaded case of use of mark
since 1992
Plaintiff’s pleaded case in the Plaint is that it has been
using the mark
since 1992-93 but felt the need to
register the same on 31 August 2018 when it filed
application for registration of the mark.
(ii) Argued case of use of EPL’s mark ‘ELDER’ till December
2024
After Defendant brought on record the adverse orders
passed by the Delhi High Court, Plaintiff attempts to
wriggle out of consequences of suppression by taking a
stand during the course of oral arguments ( contray to
pleadings ) that what it pursued before Delhi High Court
were rights in respect of mark ‘ ELDER ’ (of EPL), whereas
the present suit is for enforcement of rights in respect of
Plaintiff’s own mark
.
(iii) Argued case of acquiescence by claiming use of
mark
But while attempting to wriggle out of consequences of
suppression of Order passed by Delhi High Court in Elder
Pharmacia LLP by contending that the order is passed in
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respect of ELDER mark and not
mark, Plaintiff
chances upon an opportunity to claim right of acquiescence
under Section 33 of the Trade Marks Act by picking up a
stray observation in the Order and again goes back to its
original pleaded case of use of the mark
for a period
in excess of 5 years without objection.
(iv) Stand before the OL
Before the OL, Plaintiff has taken a stand on 28 February
2022 that it was merely a contract manufacturer of
medicines for EPL and that it never claimed any rights even
in respect of ELDER mark of EPL, which stand is contrary
to the argued case that Plaintiff was enforcing rights in
respect of ELDER mark of EPL before Delhi High Court till
December 2024.
Plaintiffs has then shifted its stands to suit its convenience in different
proceedings. This Court strongly deprecates Plaintiff’s conduct of
approbation and reprobation to suit its convenience.
29
66) In Bhagwat Sharan Versus. Purushottam and others the
Apex Court has held that a party cannot be permitted to approbate and
reprobate at the same time, which principle is based on doctrine of
election. It has held that the party cannot blow hot and cold at the same
time and once a party elects to take a stand, it cannot turn around and
take a opposite stand. In the present case, the Plaintiff is clearly
29
2020 6 SCC 387
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attempting to blow hot and cold at the same time. It is repeatedly
changing its stand as per its convenience which conduct is clearly fatal
to retain the ad interim injunction secured by Plaintiff behind the back
of Defendants by suppressing the material facts.
67) In my view therefore the ad interim injunction order passed
in favour of Plaintiff on 26 September 2025 deserves to be forthwith
vacated on account of gross suppression of material facts by the
Plaintiff.
F ALSE U RGENCY S HOWN F OR E X - PARTE I NJUNCTION
68) Plaintiff applied for ex-parte ad-interim injunction
claiming that in May 2025, its distributors noticed Defendant’s
products bearing the impugned mark. With this urgency, the suit and
application for temporary injunction were moved ex-parte. However
there is ample material on record to indicate that Defendant has been
selling its products with the impugned mark since 2015. At Exhibit-H to
the rejoinder, Defendant has produced order dated 15 December 2015,
which bears the impugned mark. It has produced purchase order 16
January 2016 which also bears impugned mark. There are several such
documents. Defendant’s director is not a stranger to Plaintiff’s director,
they are siblings. Defendant’s director held various posts in EPL. It is
therefore impossible to believe that Plaintiff did not notice Defendant’s
use of the impugned mark since 2015. Thus it is established that the
urgency pleaded by the Plaintiff’s is blatantly false, which is yet
another reason why the ad-interim injunction deserves to be vacated.
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P LAINTIFF ’ S E NTITLEMENT TO T EMPORARY I NJUNCTION
69) Independent of the factor of suppression of material facts,
Plaintiff otherwise does not have any case for grant of temporary
injunction. Plaintiff himself does not have any right in respect of the
word mark ‘ELDER’. Having acted as a mere contract manufacturer of
medicines for EPL under the trade name ‘ELDER’ for several years,
Plaintiff appears to have taken disadvantage of EPL’s liquidation and
has secured registration of the mark
allegedly by suppressing
the facts. The statement of Plaintiff’s director recorded by the Delhi
High Court and its response to the OL on 28 February 2022 leaves no
prima facie
manner of doubt that Plaintiff cannot maintain action for
infringement and/or passing off against the Defendant. It conduct, as
discussed above is such that this Court would otherwise be loathe in
granting any equitable relief in its favor.
70) Plaintiff’s case is mainly premised on registration of mark
granted in its favour. However mere grant of registration in favour of
Plaintiff in respect of the mark
would make no difference and
such registration would not infuse fresh life into Plaintiff’s already
rejected claims by the Delhi High Court. This is particularly because
Plaintiff kept on claiming use of ELDER mark for manufacture and sale
of products until December 2024 before the Delhi High Court. The
registration application for the mark
was made by it in 2018.
Therefore if the mark
was published in 2018, why Plaintiff
claimed use of the mark ‘ELDER’ till December 2024 before the Delhi
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High Court is incomprehensible. It actually creates strong doubts about
the validity of registration.
71) It is also well settled position that the Court considering
temporary injunction need not always be swayed by mere registration
of the mark. In Lupin Limited (supra) the Apex Court has held that
Court can very well go behind Plaintiff’s registration even at the interim
stage so as to arrive at a prima facie finding of invalidation of Plaintiffs
registration. There appears to be substantial material available on
record creating doubts about Plaintiffs entitlement to registration.
Whether Plaintiff had disclosed all the material discussed by this Court
while seeking registration is something which needs to be examined
while deciding Rectification Applications. As of now, it is too dangerous
to blindly accept Plaintiff’s registration of the trademark for grant of
temporary injunction against the Defendant. Though heavy burden lies
on the Defendant to rebut strong presumption in respect of a registered
trademark as held by this Court in Eurobond Industries Private Ltd.
(supra), in my view Defendants have prima facie discharged the said
burden. Plaintiff has played hide and seek before different Courts and
authorities and has changed its stand on multiple occasions as
discussed above. The whole case of the Plaintiff is riddled with
inconsistencies, and it is too dangerous to rely upon Plaintiff’s
registration in respect of the mark
.
72) EPL is the first adopter, user and registered proprietor of
trademark ‘ELDER’. Prima facie Plaintiff can take no advantage of
different style in respect of its label since it is established that even EPL
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has used the stylised font
since 1 January 1988. Mere addition
of colour to that stylised font would not make Plaintiff the first adopter
even in respect of the label
. Plaintiff has sought to contend that
use of the trade name by other parties/persons would not provide a
justification to the Defendant for using the said name if the Plaintiff
has been using the said name much prior to its adoption by the
Defendant. Plaintiff has relied upon judgments of Delhi High court in
30
Essel Packaging Limited. V/s Sridhar anil and Another Anjani
and
Kumar Goenka
(supra). However, in the present case, the very claim of
the Plaintiff of having adopted and used the mark
since 1992-93
is found to be prima facie fallacious in the light of repeated admissions
given by it before Delhi High Court and before OL that it was merely a
contract manufacturer of EPL upto March 2016. Its claim of shared
reputation with EPL is already rejected by the Delhi High Court. On the
is prima facie
other hand, Defendant’s use of the mark
established since 2015 as the Defendant has produced copies of orders,
purchase orders, letter of acceptance etc. indicating the use of mark
.
73) Plaintiff’s reliance on judgment of this Court in Marico
Limited also does not cut any ice. The judgment is relied upon in
support of the proposition that the test of infringement lies in copying
of essential features of a trademark and that even if there are slight
differences in parts of the mark, infringement is established if the parts
are put together in a way that the whole mark is not made dissimilar.
30
2002 SCC online Del 631
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While the proposition sought to be canvassed by the Plaintiff by relying
on judgment in Marico Limited is well settled, the same has little
application to the facts and circumstances of the present case. Here, the
Defendant is not claiming any dissimilarity in the marks. The
Defendant’s claim is that Plaintiff itself is an infringer since it is
unauthorizedly using the trademark of EPL. The Defendant’s case is
. The case
also of prior use than Plaintiff registered mark
therefore does not involve comparison of any parts or features of the
marks or logo. Reliance on judgment in Marico Limited is thus
inapposite.
LAIM OF RIOR SE
C P U
74) Plaintiff has sought action against the Defendant for
passing off based on its claim of prior use. However, even the common
law relief of passing off cannot be prima facie granted in Plaintiff’s
favour. As observed above, Plaintiff has contradicted itself even in
relation to its claim for prior use. It has pleaded in the Plaint that it has
been using the mark
since 1992-93. However, this claim is
contrary to the statement recorded before the Delhi High Court and in
its reply to the OL dated 28 February 2022 in which the Plaintiff has
admitted that he was merely a contract manufacturer for EPL during
1994 till March 2016. These admissions depict that Plaintiff did not
manufacture or sale any pharmaceutical or medicinal products even by
using ‘ ELDER ’ mark till March 2016. Apart from the fact that these
admissions establish falsity in the pleaded case of use of the mark
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for manufacture and sale of pharmaceutical and medicinal
products since 1992-93, the same also kills the case of prior use and
passing off. Secondly, while raising a contradictory claim during the
course of oral arguments that Petitioner was enforcing rights in respect
‘ ELDER ’ mark of EPL in the four suits before Delhi High Court, Plaintiff
once again scores a self-goal by defeating the claim of prior use. Two of
the orders are passed by the Delhi High Court on 28 February 2024 and
19 December 2024 and if the orally argued case of the Plaintiff is to be
believed, it was not claiming any rights qua the mark
till
December 2024. As observed above, the Defendant has produced ample
documents on record to prove use of the mark
since the year
2015. Therefore, even the plea of prior use sought to be raised by the
Plaintiff in support of its claim for passing off is defeated by
contradictions created by the Plaintiff itself.
P LAINTIFF I TSELF IS AN I NFRINGER
75) It is well settled principle that the Plaintiff, who itself is a
pirator, cannot be permitted to sue the Defendant for use of the mark
which is infringed by the Plaintiff. In the present case, as discussed
above Plaintiff clearly claims rights even in respect of word ‘ELDER’.
There is no dispute to the position that ‘ ELDER ’ is registered trade
mark of EPL. Plaintiff has admitted during the course of arguments that
it was seeking to enforce EPL’s mark ‘ ELDER ’ before Delhi High Court
by producing copies of plaints filed in those suits. So far as word
‘ELDER’, is concerned, Plaintiff is an admitted infringer. After having
made unsuccessful attempts to enforce its claims in respect of ‘ ELDER ’
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mark before Delhi High Court, Plaintiff now claims rights in respect of
stylized version of the mark by changing colour and adding a three-leaf
logo to the mark, but by copying same font as used by EPL. It is prima
facie established that even the stylized font mark
was being
used by EPL, which Plaintiff has copied in its device mark by adding
colour to the same. Thus, prima facie Plaintiff itself is an infringer of
EPL’s mark and cannot be permitted to sue the Defendant complaining
of infringement.
76) In IPCA Laboratories Limited (supra) the Plaintiff therein
was found to be the infringer of the mark. This Court referred to the Full
Abdul Cadur Allibhoy
Bench decision in and held in para-45 and 51 as
under:
45. The judgments do support the abstract proposition that a plaintiff
cannot be denied relief on the ground that the plaintiff is himself
using and infringing a third parties registered trade mark.
However, the same are contrary to the judgment of the Full Bench of
this Court in 3 Bom. L.R. 220 .
51. I may however mention that subsequently in Baldev
Singh v. Godran Rubber Plastic Industries , (1999) 79 Delhi Law Times
517, a Learned Single Judge of the Delhi High Court held that a
pirator is not entitled to protection of a trade mark or design.
(emphasis added)
77) By order dated 3 July 2025 passed in OLR 36 of 2022, this
Court has granted liberty to the OL to file OLR against the persons
against whom suits for infringement are proposed to be filed. Plaintiff
has attempted to dissociate itself from ‘ ELDER ’ mark in response dated
28 February 2022 to the OL. However, it is not only orally argued before
me but from perusal of Plaints filed in the three suits of Elder
Pharmacia, Elder Labs and Antex Pharma , it prima-facie appears that
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Plaintiff has pursued rights in respect of the mark ‘ ELDER ’ before the
Delhi High Court. Thus, the action of the Plaintiff in pursuing actions
before the Delhi High Court in respect of mark ‘ ELDER ’ appears to be
contrary to the position taken by it before the OL in reply dated 28
February 2022. This conduct creates prima-facie impression of Plaintiff
itself being an infringer and this is yet another ground why I am not
inclined to grant equitable relief of temporary injunction in favour of
the Plaintiff.
prima facie
78) Plaintiff has thus failed to make out any case for
grant of any temporary injunction in its favour. The Plaintiff would not
is
suffer any irreparable loss since Defendants use of the mark
prima facie established since 2015-16. The balance of convenience is
also heavily tilted against the Plaintiff and in favour of the Defendant
as Defendant’s product are available in the market since 2015 and both
Plaintiff and Defendant are apparently selling products under their
respective marks for quite some time.
C ONCLUSION
79) Considering the overall conspectus of the case I am of the
view that Plaintiff has moved this Court for injunction without notice to
the Defendant by grossly suppressing material facts. It has failed to
disclose all true and material facts and has accordingly disentitled itself
from securing equitable relief of injunction from this Court.
Suppression of material facts has a clear bearing on Plaintiff’s
entitlement to temporary injunction. Suppression of facts by the
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Plaintiff has resulted in a situation where this Court is misled in
believing that object of injunction would be defeated by delay in service
of notice on Defendant. In my view therefore, perfect case is made out
for vacation of ad-interim injunction order dated 26 September 2025.
80) Independent of factor of suppression, Plaintiff otherwise
has failed to make out any prima facie case for grant of temporary
injunction. It has raised inconsistent pleas before various fora. It was
merely a contract manufacturer for EPL and appears to be an infringer
of EPL’s trademark after its liquidation. It is seen that Plaintiff has
dissociated itself from EPL’s trademark ‘ ELDER ’ on multiple occasions
and particularly before the OL. However, when it comes to third parties,
it has claimed rights in respect of EPL’s mark ‘ ELDER ’. In the present
case, Plaintiff’s is once again seeking to enforce EPL’s mark by adding
and by adding three
different colour to the same stylized mark
leaves to the logo. However, even the font used by the Plaintiff in the
mark
is found to be similar to the one used by EPL. Plaintiff has
adopted the false plea of selling medicinal and pharmaceutical products
under the trademark
since 1992-93. It has failed to satisfy the
classic trinity test of reputation/goodwill, misrepresentation and
damage. The conduct of the Plaintiff is otherwise such that it is not
entitled to claim any equitable relief from this Court. Plaintiff has thus
failed to make out any case for grant of temporary injunction.
81) Plaintiff’s act of applying for and securing ex-parte ad-
interim injunction by deliberately withholding the relevant material
from Court has undoubtedly led to immense inconvenience and losses
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NEETA SAWANT
IAL 35091 OF 2025
for the Defendant. Apart from cause of inconvenience and loss to
Defendant due to acts of Plaintiff, this Court cannot remain a mute
spectator to Plaintiff’s acts of suppression and misrepresentation.
Therefore this Court would have been justified in imposing exemplary
costs on the Plaintiff. However as of now, it is not known as to whether
Defendant’s use of the mark is also valid or not. Afterall ‘ELDER’ is the
proprietary mark of EPL and the siblings have adopted different
versions thereof. Therefore, I propose to award a moderate amount of
Rs. 1,00,000/- to the Defendant, more towards token costs, for Plaintiff’s
exparte
misuse of Court’s exceptional power of grant of injunction by
indulging in acts of deliberate nondisclosure.
O RDER
82) I accordingly proceed to pass following order.
i) Interim Application (L) No. 35091 of 2025 filed by the
Defendant is allowed.
ii) Order of ad-interim injunction passed on 26 September 2025,
and as continued from time to time, is vacated forthwith.
iii) Interim Application (L) No. 27598 of 2025 filed by the Plaintiff
is dismissed.
iv) The Court Receiver is discharged without passing of accounts,
subject to payment of all costs, charges and expenses by
Plaintiff.
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NEETA SAWANT
IAL 35091 OF 2025
v) The goods seized by the Court Receiver pursuant to order
dated 26 September 2025 shall be returned to Defendant
forthwith.
vi) Plaintiff shall pay to the Defendant costs of Rs. 1,00,000/-
within 4 weeks.
83) With above directions both the Interim Applications are
disposed of.
[SANDEEP V. MARNE, J.]
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