TaxTMI 
TaxTMI 
2009 (9) TMI 1067
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....22nd July, 2009 directing that the plaintiffs should comply with the requirements of Order XXXIX Rule 3 CPC within one week, the plaintiffs did not serve upon the Applicants within one week a copy of the plaint, the applications, the affidavits and documents filed by the plaintiffs along with the Plaint. It is stated that this Court had appointed Local Commissioners to visit the Defendants. premises to examine the records including electronic records and seize any incriminating evidence to establish if the Defendants were carrying on business by using the words `AGI', `AGI Logistics' and `AG Freight' and whether they were dealing with the customers of the plaintiffs. It is stated that even at the time of the visit of the Local Commissioner to the premises of Applicants/Defendants on 23rd July 2009 in Gurgaon, the complete set of papers were not served on the Applicants/Defendants or their counsel. It is further stated that at the time of the visit of the Local Commissioner, counsel for the Defendants had asked for copy of the plaint and entire documents from the counsel for the plaintiffs assisting the Local Commissioner but this was declined. 5. It is stated in the ....
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.... copies of identical letters dated 23rd July 2009 addressed to each of the Defendants. A copy of the postal receipt affixed thereto again shows the total weight of the packet in which it was sent to be 25 gms. and the postage paid to be Rs. 24/- each and the date of dispatch to be 24th July 2009. There is no other document attached to this affidavit which purports to be filed by way of the compliance of the Order XXXIX Rule 3 CPC. 8. Counsel for the plaintiffs does not dispute that the complete set of the papers were delivered to the counsel for the Defendants/applicants only on 4th August 2009 in this Court when notice was first issued in this application. 9. There can be no manner of doubt that in the face of the above admissions by the counsel for the plaintiffs that the requirement of Order XXXIX Rule 3 CPC was not complied with. The said provision reads as under: 3. Before granting injunction, Court to direct notice to opposite party-- The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the oppos....
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....rte ad interim injunction. 12. The mandatory nature of the requirement of the provision has been emphasized by the Supreme Court in A. Venkatasubbiah Naidu v. S. Chellappan AIR 2000 SC 3032 and this Court in Himalaya Drug v. SBL Ltd. 1996 III AD (Delhi) 853. There is a logic behind insisting that a plaintiff who obtain an ex parte ad interim injunction order should, at the earliest point in time, deliver to the party against whom such injunction has been granted, all the documents on the basis of which such injunction was granted. This is to enable the opposite party to know what the case against it is and to approach the court at the earliest point in time to seek, if necessary, a variation of the interim order. 13. In this context following observations of the Supreme Court in Shiv Kumar Chadha v. MCD (1993) 3 SCC 161 are relevant: 34. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 the Code. Before the proviso aforesaid was introduced, Rule 3 said "the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of....
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....in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor (1875) 1 Ch.D. 426, Nazir Ahmed v. Emperor AIR 1939 PC 253. This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare AIR 1975 SC 915. 14. If the Court were to take a lenient view and not insist on strict compliance with the mandatory requirement of Order XXIX Rule 3, then it would be possible for most plaintiffs to continue to enjoy an ad interim ex parte stay in their favour for any length of time and plead genuine mistake by their counsel for non-compliance. Numerous suits accompanied by applications seeking urgent ex parte reliefs are filed in our courts everyday. The court, on a perusal of the documents filed before it, forms a prima facie view for grant of an parte ad interim injunction against the opposite party, even in the absence of the opposite party. The Court at that stage has no means of knowing what the version of the opposite party is. The court, therefore, makes such interim order both time bound and conditional. The conditio....
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....d to be changed'. 21. It requires to be noted that the grievance of the plaintiffs is that the Defendant No. 7 by adopting the name of AG Freight Carriers Pvt. Ltd., is in fact infringing the trademark, trade name/corporate name of the plaintiff No. 1. Counsel for the plaintiffs, while not denying that the aforesaid letter was written to the ROC, states that the concern of the plaintiff is also that the Defendant No. 7 should not deal with the clients/customers of plaintiff No. 1. 22. Counsel for the Applicant/Defendant No. 7 has placed on record an e- mail dated 28th April 2006 by Defendant No. 3 Mr. Rahul Mehra to James Minutello of plaintiff No. 1 which encloses a list of the clients of plaintiff No. 1 with whom no business was being conducted. She submits that the plaintiff No. 1 was throughout aware of the existence of AG Freight Carriers Pvt. Ltd. The copies of the e-mail dated 23rd May 2006 and e- mail dated 31st October 2007 have also been placed on record. Counsel for the Defendants states that these documents show that the only client which the plaintiffs have referred to viz., "M/s Kohler" was in fact a client introduced by Defendant No. 3 to plaintiff No. 1. ....