Inbrew Beverages Pvt. Ltd. v. Mount Distilleries Limited

Judgment

#1. The Petitioner herein, who was the Plaintiff before the Learned Commercial Court, East Sikkim, at Gangtok, filed a Suit for Infringement, Passing off of Trade Mark, Infringement of Copyright, Injunction and other consequential reliefs, under Sections 28(1) and 29 of the Trade Marks Act, 1999, against the Defendant/ Respondent. The Suit was valued at ₹ 1,00,00,000/- (Rupees one crore) only.

The original Plaintiff was the United Spirits Limited (USL). The business was later taken over by the present Petitioner who was thereby transposed as the Plaintiff. After closure of the evidence before the Commercial Court and when the matter was fixed for final arguments, the Petitioner filed a Petition under Order XI Rule 1(5), read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter, “CPC”), dated 28-09-2023, pertaining WP(C) No.31 of 2024 2 Inbrew Beverages Pvt. Ltd. vs. Mount Distilleries Limited disclosure, discovery and inspection of documents in suits, vide which, the Petitioner sought to file the following documents; (i) Original certificate for use in legal proceedings for the trade mark registrations 296836 dated 12-06-1974; 544357 dated 15-12-1998; 949492 dated 05-01-2004 and 2000458 dated 27-11-2015; (ii) Certified copy of Design Registration No.216986 dated 03-07-2008; (iii) C.A. Certificate showing sales incurred by the Plaintiff in respect of brandy under the trade mark Honey Bee; and (iv) Usership Agreement, dated 01-01-2015, between USL and the Defendant.

#3. Advancing the plea that the Petition be allowed, Learned Counsel for the Petitioner submitted that the Suit was filed in the year 2018. The entire evidence of the litigating parties was recorded and completed in June, 2022. The USL was taken over by Inbrew Beverages Pvt. Ltd., the present Petitioner Company on 30- 09-2022, who stepped into the shoes of the original Plaintiff. The present Petitioner, while examining the documents handed over to it by the USL and relied on in the dispute, applied for the “certified to be true copies” of the documents from the Trade Mark Registry, located at New Delhi, which were accordingly made available. The Petitioner then sought to file the documents before the Commercial Court, but their Petition under Order XI Read with Rule 5(1) supra was rejected vide the impugned Order dated 24-11-2023, in I.P.R. Suit No.01 of 2018. That, disallowing the Petitioner to file these documents would be to their prejudice, as the original Plaintiff had failed to take necessary steps and the Petition ought to be allowed to rely on the documents to substantiate their case. Hence, the impugned Order be set aside and the instant Petition be allowed. WP(C) No.31 of 2024 3 Inbrew Beverages Pvt. Ltd. vs. Mount Distilleries Limited

#4. Learned Counsel for the Respondent, Defendant before the Commercial Court, in the first instance raised the question of maintainability of the Petition under Article 227 of the Constitution of India by relying on the decision of Rajendra Diwan vs. Pradeep Kumar Ranibala and Another1 wherein the Supreme Court has inter alia held that, the powers under Article 227 of the Constitution is to be used sparingly and only when there is a perversity, arbitrariness or unreasonableness, in the order of the Courts below. That, the writ jurisdiction of the High Court cannot be converted into an alternative appellate forum in the absence of provision of appeal in the eyes of law. That, documents sought to be furnished now as “certified to be true copies”, were in fact submitted before the Commercial Court as photocopies along with the Plaint. That, during the entire course of trial the Petitioner failed to take steps to furnish certified copies. The evidence of both parties have since concluded and the matter fixed for final arguments. The Petitioner, who has stepped into the shoes of the original Plaintiff, cannot now claim ignorance of the non-filing of certified copies or put forth grounds of difficulties in obtaining the certified copies. That, the defence of the Defendant has been disclosed in its entirety during the trial and should these documents now be allowed, it would be prejudicial to the Defendant, as the Petitioner‟s attempt is to fill the loopholes in their case. The Petition thereby deserves a dismissal.

#5. Having heard the Learned Counsel for the parties in extenso and perused the documents, it is relevant to refer to the statutory provision in the Commercial Courts Act, 2015 (hereinafter, “the Act”), Section 8 of the Act provides as follows; 1 (2019) 20 SCC 143 WP(C) No.31 of 2024 4 Inbrew Beverages Pvt. Ltd. vs. Mount Distilleries Limited “8. Bar against revision application or petition interlocutory order.─Notwithstanding against an anything contained in any other law for the time being in force, no civil revision application or petition shall be entertained against any interlocutory order of a Commercial Court, including an order on the issue of jurisdiction, and any such challenge, subject to the provisions of section 13, shall be raised only in an appeal against the decree of the Commercial Court.”

#6. The scope and ambit of Section 8 of the Act is explicit and specifically bars revision, application or petition against an interlocutory order of a Commercial Court, including an order on the issue of jurisdiction. The Section elucidates that any such challenge, subject to the provisions of Section 13, shall be raised only in an Appeal against the decree of the Commercial Court, meaning thereby that any challenge to an interlocutory order must be raised through an Appeal, against the final decree of the Commercial Court.

#7. However, it is clarified herein that, the bar engrafted in Section 8 of the Act will not apply to the supervisory jurisdiction under Article 227 of the Constitution of India. In this context, relevant reference is made to the observation of the Gujarat High Court in State of Gujarat vs. Union of India and Others2 wherein it was observed that the bar contained in Section 8 of the Act against entertaining of civil revision application or petition provided under any other law for the time being in force, shall not be applicable with respect to the petitions under Article 227 of the Constitution and it shall not affect the rights of the aggrieved party to invoke the jurisdiction of the High Court under Article 227 of the Constitution. (i) The High Court of Madras in Ramanan Balagangatharan vs. Rise East Entertainment Private Limited, rep by its Authorized Signatory 2 2018 SCC OnLine Guj 1515 WP(C) No.31 of 2024 5 Inbrew Beverages Pvt. Ltd. vs. Mount Distilleries Limited Easwara Chandra Vidyasagar Pentala3 emphasised that the bar engrafted in Section 8 of the Act will not apply to the supervisory jurisdiction under Article 227 of the Constitution. (ii) A Division Bench of this High Court in Glenmark Pharmaceuticals Limited vs. Union of India and Others4 observed as follows; “10. It is relevant also to notice that the doctrine of judicial comity or amity, requires the Court not to pass an order which would be in conflict with another order passed by a competent court of law. In India Household and Healthcare Ltd. vs. LG Household and Healthcare Ltd.5 the Supreme Court observed that; “19. A court while exercising its judicial function would ordinarily not pass an order which would make one of the parties to the lis violate a lawful order passed by another court.” The above judgment was taken note of and considered by one of us (Biswanath Somadder) in Nirendra Kumar Saha & Ors. vs. Steel Authority of India Ltd. and Ors.6. (i) In Yashita Sahu vs. State of Rajasthan and Others7 the Supreme Court observed as follows; “19. We are of the considered view that the doctrine of comity of courts is a very healthy doctrine. If courts in different jurisdictions do not respect the orders passed by each other it will lead to contradictory orders being passed in different jurisdictions. No hard-and-fast guidelines can be laid down in this regard and each case has to be decided on its own facts. We may, however, again reiterate that the welfare of the child will always remain the paramount consideration.” In light of the above circumstance, this Court is in agreement with the observation of the High Court of Gujarat and High Court of Madras on the issue of Section 8 of the Act and Article 227 of the Constitution as already elucidated above.

#8. Under Article 227 of the Constitution, the High Court is to examine whether the concerned Court had jurisdiction to deal