Delhi High Court
Hamdard Laboratories India (Medicine … vs Unani Drugs Manufacturers Association … on 2 April, 2025
Author: Dharmesh Sharma
Bench: Dharmesh Sharma
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 04 March 2025
Judgment pronounced on: 02 April 2025
+ FAO 328/2024 & CM APPL. 59993/2024
HAMDARD LABORATORIES INDIA
(MEDICINE DIVISION) .....Appellant
Through: Mr. Sanjeev Sindhwani, Sr.
Adv. with Ms. Shalini Kapoor,
Ms. Divyanshi Saxena & Mr.
Udit Bhatiani, Advs.
versus
UNANI DRUGS MANUFACTURER ASSOCIATION
(UDMA) .....Respondent
Through: Mr. N.K. Jha, Adv.
+ FAO 347/2024
HAMDARD LABORATORIES INDIA
(MEDICINE DIVISION) .....Appellant
Through: Mr. Sanjeev Sindhwani, Sr.
Adv. with Ms. Shalini Kapoor,
Ms. Divyanshi Saxena & Mr.
Udit Bhatiani, Advs.
versus
UNANI DRUGS MANUFACTURER ASSOCIATION
(UDMA) .....Respondent
Through: Mr. N.K. Jha, Adv.
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
JUDGMENT
DHARMESH SHARMA, J.
1. This common judgment shall decide the two above-captioned
First Appeals preferred under Order XLIII Rule 1 of the Code of Civil
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KUMAR VATS
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Procedure, 1908, [‘CPC‘] by the appellant/plaintiff, assailing the
common impugned order dated 29.08.2024 passed by the learned
Additional District Judge, Shahdara District, Karkardooma Courts,
Delhi [‘trial Court’] in CS No. 449/2022 titled “Hamdard
Laboratories India (Medicine Division) versus Unani Drugs
Manufacturer Association (UDMA)”, whereby the applications filed by
the appellant/plaintiff under Order XXXIX Rule 1&2 of CPC and Order
XXXIX Rule 2A of CPC respectively were dismissed by the learned
trial Court.
FACTUAL MATRIX:
2. Briefly stated, the appellant herein has descended from
HAMDARD Group established in the year 1906, and is using the
trademark HAMDARD in relation to its wide range of products inter
alia Unani and Ayurvedic medicines, under an exclusive license from
its sister concern, Hamdard National Foundation, through a Deed of
Agreement dated 11.08.1975.
3. It is a matter of record that various disputes arose among the
successors of Hakeem Hafiz Abdul Majeed, the founder of the
HAMDARD Group, which were amicably resolved upon the
intervention of the Supreme Court, vide Family Settlement Deed dated
22.10.2019. By way of the said Family Settlement, the business of the
HAMDARD Group was divided into two separate divisions i.e., the
Food Division and the Medicine Division, and both divisions were
barred from entering into each other’s domain. The Medicine Division
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of the HAMDARD Group called ”Hamdard Laboratories (Trust)”
[‘HAMDARD (Medicine Division)’] i.e., the appellant herein, was
agreed to be headed and run by Mr. Abdul Majeed and Mr. Asad
Mueed, Sons of Late Janab Abdul Mueed Sahib, whereas the Food
Division of the HAMDARD Group called “Hamdard Foods India”
[‘HAMDARD (Food Division)’] was agreed to be headed and run by
Mr. Hammad Ahmed with his sons Mr. Hamid Ahmed and Mr. Sajid
Ahmed.
4. At this stage, it would be apposite to reproduce Clause (11) of
the Family Settlement Deed which provides as under:
“Notwithstanding anything contained in this Settlement Deed, the
HLT Group (Medicine Division) will not manufacture, market or
trade in products falling in classes29,30,32,33,34 of the Trade Marks
Act, 1999 and the HFI Group (Food Division) will not manufacture,
market or trade in products falling in classes 3, 5 and 10 of the Trade
Marks Act, 1999, except to the extent mutually agreed by the
Parties”
5. It is claimed that cause of action in favor of the appellant/plaintiff
arose against the respondent/defendant i.e., UDMA, an organization of
Unani Drugs Manufacturers formed only recently on 11.10.2017 under
the Societies Registration Act, 1860, when the appellant found out that
the respondent/defendant on its website “www.udmaindia/com”, under
the heading “ABOUT UDMA”, is claiming that “…Currently, over 70
Unani manufacturers from across the length and breadth of our country
are members of this esteemed body. The members comprise of more
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than 95% of the overall Unani industry India, both in terms of volume
and value of business.”
6. The grievance of the appellant/plaintiff is that such statement
displayed by the respondent/defendant is misleading to the general
public and government authorities since the products originating from
the HAMDARD (Medicine Division) i.e., the appellant/plaintiff, are
also being counted by the respondent/defendant as their own, otherwise
they would not have claimed such huge market presence on their
website. It is stated that the appellant/plaintiff alone comprises more
than 60% of the Unani medicine market and it is not a member of the
respondent/defendant. Accordingly, it is claimed that since the
appellant/plaintiff refused to become a member of the
respondent/defendant organization, the statement made by the
respondent/defendant on its website is defamatory in nature.
7. It is further claimed that the respondent/defendant claims
membership with the family of Janab Hammad Ahmed, head of
HAMDARD (Food Division), by showing various products that are
manufactured and sold by HAMDARD (Food Division), for instance
the ROOH AFZA, JAM-E-SHIRIN, HAMDARD HONEY, as
“medicinal products” on the UDMA website, which is misleading to the
public at large since the fact remains that the HAMDARD (Food
Division) is bound by Family Settlement Deed dated 22.10.2019 which
prohibits the HAMDARD (Food Division) from manufacturing Unani
Drugs/Medicines. It is stated that now, very conspicuously, the
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respondent/defendant’s website has been stopped or has not been
renewed by the respondent/defendant, however, the products
originating from HAMDARD (Food Division) are still being depicted
as “medicinal products” on the website of Just Dial by the
respondent/defendant.
8. It is further claimed that due to the misrepresentations of the
respondent/defendant, the appellant/plaintiff was constrained to publish
a Public Notice dated 10.10.2021 besides issuing an email to the
Department of AYUSH attaching the said Notice, in various prominent
newspapers, so as to inform the general public and trade at large about
the true state of affairs. However, on the same day i.e., 10.10.2021, the
respondent/defendant through its General Secretary Mr. Mohsin
Dehlvi, addressed a letter to the Directorate of AYUSH, Government
of Delhi, condemning the Public Notice issued by the appellant/plaintiff
and represented themselves to have been duly authorized to use the
House mark ‘HAMDARD’ by the HAMDARD (Food Division).
9. In the aforesaid backdrop, the appellant/plaintiff had come to file
a suit for compensation bearing CS No. 449/2022 against the
respondent/defendant for damaging the reputation of the
appellant/plaintiff by wrong representation and misleading the Govt.
Authorities besides misrepresentation before the general public at large.
10. It is pertinent to note that in the said suit proceedings, the
appellant/plaintiff filed an application under Order XXXIX Rule 1&2
of the CPC for ad interim injunction, which was granted in favour of
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the appellant/plaintiff by the learned trial Court vide order dated
01.08.2022, thereby restraining the respondent/defendant from
publishing HAMDARD (Food Division) products as Unani Medicinal
Products.
11. It has been brought to the fore that in the course of operation of
the aforesaid order dated 01.08.2022, the respondent/defendant
celebrated the 5th UDMA Day at Jamia Milia Islamia, Okhla 110025
from 14.10.2022 to 16.10.2022, wherein it displayed HAMDARD
(Food Division) products as “Unani Medicinal Products” in blatant
violation of the order passed by the learned trial Court on 01.08.2022.
Aggrieved thereof, the appellant/plaintiff filed an application under
Order XXXIX Rule 2A of CPC before the learned trial Court against
the respondent/defendant for wilful violation of the interim order dated
01.08.2022.
12. However, on 29.08.2024, the learned trial Court dismissed the
application filed by the appellant/plaintiff under Order XXXIX Rule
1&2 of CPC against the respondent/defendant, as also the application
filed under Order XXXIX Rule 2A of CPC, and the stay granted to the
appellant/plaintiff stood vacated by the learned trial Court vide
impugned order dated 29.08.2024. Aggrieved thereof, the
appellant/plaintiff filed the present set of appeals.
IMPUGNED ORDER
13. While dismissing the application under Order XXXIX Rule 1&2
of CPC filed by the appellant/plaintiff, the learned trial Court vide
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impugned order dated 29.08.2024 inter alia observed that since no
complaint had been filed on behalf of the HAMDARD (Food Division)
against the respondent/defendant nor the present suit had been filed on
behalf of the HAMDARD (Food Division), the appellant/plaintiff i.e.,
the HAMDARD (Medicine Division) has no locus standi to seek any
relief so as to restrain the respondent/defendant from publishing
HAMDARD (Food Division) products as “Unani Medicinal Products”
as no cause of action seems to have arisen in favor of the
appellant/plaintiff in that regard. Furthermore, in view of the admitted
position that the HAMDARD (Food Division) can use the word
‘HAMDARD’ and that the appellant/plaintiff had not filed any
document to show that it is having more than 60% market presence in
Unani Medicinal Products as alleged in its application, the the learned
trial Court reached at the conclusion that the appellant/plaintiff has
failed to show any cause against the respondent/defendant so as to
restrain the respondent/defendant from using the word ‘HAMDARD’
with respect to HAMDARD (Food Division) Products as Unani
Medicinal Products, or for recalling the letter dated 10.10.2021
addressed to Directorate of AYUSH by the respondent/defendant in that
regard. Accordingly, the learned trial Court dismissed the application
under Order XXXIX Rule 1& 2 CPC filed on behalf. of the
appellant/plaintiff for not being maintainable in the eyes of law.
14. Secondly, the learned trial Court dismissed the application under
Order XXXIX Rule 2A of CPC filed by the appellant/plaintiff on the
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ground that pursuant to order dated 01.08.2022, though the
appellant/plaintiff filed an affidavit in compliance of Order XXXIX
Rule 3 of CPC on 15.09.2022, the respondent/defendant remained
unserved and entered appearance for the first time only on 28.10.2022
immediately after which the respondent/defendant filed an application
under Order XXXIX Rule 4 of CPC. It was further recorded that it was
only vide order dated 25.02.2023 that the defendant was served with the
amended plaint which does not imply service under Order XXXIX Rule
3 of CPC. Accordingly, on the basis of the aforesaid submissions on
behalf of the respondent/defendant, the learned trial Court held that it
cannot be said that the respondent/defendant has “wilfully” violated the
interim order dated 01.08.2022, thereby dismissing the application
under Order XXXIX Rule 2A of CPC filed on behalf of the
appellant/plaintiff.
LEGAL SUBMISSIONS ADVANCED BY THE LEARNED
COUNSELS FOR THE PARTIES:
15. Drawing the attention of this Court to the photographs placed on
record from the 5th UDMA Day celebrations organized by the
respondent/defendant at Jamia Milia Islamia, Okhla, wherein the
HAMDARD (Food Division) products were being displayed as Unani
Medicinal Products by the respondent/defendant, learned senior
counsel for the appellant/plaintiff urged that the learned trial Court
erred in assuming that the only person aggrieved by the actions of the
respondent/defendant is the HAMDARD (Food Division) and not theFAO 328 & 347/2024 Page 8 of 23
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appellant herein, since it failed to appreciate that the HAMDARD
(Food) Division) is actually a beneficiary of the act complained of,
besides the fact that vide the Family Settlement Deed, the HAMDARD
(Food Division) has no right over the use of the mark HAMDARD for
Unani/medicine products, therefore there is no question of the
HAMDARD (Food) Division) filing complaint proceedings against the
respondent/defendant for the same. Further, it was urged that the
learned trial Court failed to appreciate that the right of HAMDARD
(Food Division) in the mark ‘HAMDARD’ is of no consequence and
that the respondent/defendant is an association of Unani Drugs and
Medicines which cannot employ the said mark under the guise of Food
Products.
16. Lastly, it was contended that the impugned order is unsustainable
in law since the learned trial Court has not alluded to the three cardinal
principles of (1) existence of a prima facie case, (2) balance of
convenience, and (3) irreparable loss and injury, while deciding the
interim injunction application. Accordingly, it was submitted that the
learned trial Court has erred inasmuch as it has failed to examine the
case of the appellant/plaintiff in light of the ‘triple test’ doctrine and has
dismissed the application of the appellant/plaintiff merely on the
reasoning that the same is “not maintainable”.
17. As regards the dismissal of the application under Order XXXIX
Rule 2A of CPC filed on behalf of the appellant/plaintiff, it was
contended that the learned trial Court has erroneously held that theFAO 328 & 347/2024 Page 9 of 23
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respondent/defendant was not aware of the order dated 01.08.2022
during celebration of the 5th UDMA Day from 14th to 16th October 2022.
It was urged that the respondent/defendant, at the relevant point in time,
had knowledge of the operation of the interim order since the counsel
for the respondent/defendant had filed an inspection application and
carried out an inspection dated 22.09.2022 of the judicial file upon
authorisation from the General Secretary of the respondent/defendant
Mr. Mohsin Dehlvi. Furthermore, it was pointed out that the application
under Order XXXIX Rule 4 of CPC was signed and attested on behalf
of the respondent/defendant on 22.10.2022 as is evident from the date
of notarisation of the affidavit filed alongwith. Accordingly, it was
urged that the learned trial Court failed to appreciate that the
respondent/defendant was duly served on 19.09.2022 as is evident from
the tracking reports placed on record by the appellant/plaintiff. It was
further urged that the learned trial Court has confused the service of the
amended plaint with the knowledge of the interim order dated
01.08.2022. In support of the aforesaid submissions, reliance has been
placed on the decisions of the Supreme Court in Samee Khan v. Bindu
Khan1 and Lavanya C v. Vittal Gurudas Pai 2.
18. Per contra, learned counsel for the respondent/defendant urged
that the respondent/defendant is not a signatory to the family settlement
deed dated 22.10.2019 entered into between the Medicine Group and
1 (1998) 7 SCC 59
2 2025 SCC OnLine SC 499
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the Food Group as well as their allied institutions. It was further
contended that in view of an arbitration clause, the learned trial Court
does not have the jurisdiction to entertain, try and decide any disputes
in respect of violation of terms of the Family Settlement Deed dated
22.10.2019, nor does it have the jurisdiction to entertain any case of
infringement of the trademark ‘HAMDARD’ since the said dispute falls
under sub clause (xvii) of Section 2(1)(c) of the Commercial Courts
Act, 2015 which is exclusively triable by the Commercial Court. It was
further contended that since the appellant/plaintiff has no right, title or
interest in respect of HAMDARD (Food Division), the learned trial
Court has rightly held that no cause of action has arisen in favour of the
appellant/plaintiff as claimed in the suit against the
respondent/defendant. As regards the dismissal of the application under
Order XXXIX Rule 2A of CPC, it was urged that the decision of the
learned trial Court requires no interference since it is apparent on the
face of the record that the appellant/plaintiff failed to comply with the
mandatory provisions of Order XXXIX Rule 3 CPC due to which the
ex parte interim order dated 01.08.2022 and 13.09.2022 stand liable to
be vacated for having no value in the eyes of law.
19. In rebuttal, it was submitted on behalf of the appellant/plaintiff
that the cause of action being alleged is essentially the misuse of the
appellant/plaintiff’s name by the respondent/defendant and not any
violation of the Family Settlement Deed by the respondent/defendant.
It was reiterated that the appellant/plaintiff has referred to the Family
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Settlement Deed in the suit proceedings only to show its own right and
exclusivity over the manufacturing and trade of Hamdard medicines,
and not for asserting any right over the respondent/defendant based on
the said Deed. Furthermore, it was urged that the present dispute does
not fall under the category of a “commercial dispute” inter alia for the
reason that there is no contract existing between the appellant/plaintiff
and respondent/defendant nor is the plaint predicated upon any
commercial transaction between the parties, besides the fact that the
respondent/defendant is not even a commercial body, rather it is a
registered Society engaged in research, development and promotion of
Unani drugs. In conjunction, it was contended that the present matter
does not involve any dispute pertaining to the intellectual property
rights of the appellant/plaintiff either, for the reason that there is neither
a rival mark nor any warring trading bodies, and it is not even the case
of the appellant/plaintiff that the respondent/defendant is claiming any
right over the mark ‘HAMDARD’ or proposing to use the said mark as
its own. In view thereof, it was contended that the present dispute
between the parties is well within the jurisdiction of the learned trial
Court to hear and decide.
ANALYSIS & DECISION:
20. I have given my thoughtful consideration to the submissions
advanced by the learned counsels for the parties. I have also perused the
appeal paperbook besides the Trial Court Record, as also the relevant
case law placed on the record.
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Digitally Signed By:PRAMOD
KUMAR VATS
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21. Before proceeding to decide the fate of the present appeals, it
would be apposite to reproduce the impugned order dated 29.08.2024
which has been passed by the learned trial Court, that goes as under:
“Replication filed on behalf of the plaintiff on 28.08.2024.
Copy supplied.
An application was also earlier filed on behalf of plaintiff u/s
151 CPC for seeking directions to supply legible copies alongwith
the WS, without mentioning the details of the documents stated to
be illegible. However, since the replication has already been filed.by
the plaintiff, the instant application has become infructuous. The
same is accordingly disposed of.
Arguments heard on the application u/s 151 CPC earlier filed
on behalf of defendant for seeking of modification of order dated
17.02.2024.
Perusal of order dated 17.02.2024 shows that it is
inadvertently mentioned that ‘Ld. Counsel for the Defendant
undertakes to supply the deficient and its legible copy within one
week from today, whereas it should have been Ld. Counsel for the
Plaintiff.
Today, Ld. Counsel for defendant submits that he has already
received the legible copies pursuant to the order dated 17.02.2024.
In view of the same, application U/S 151 CPC filed on behalf
of defendant is hereby disposed of as allowed.
Application under Order 39 Rille 1&2 CPC :-
Arguments also heard on the application under Order
39 Rule 1 & 2 CPC filed by plaintiff from both the sides.
In the application, the plaintiff is seeking an order
restraining the defendant from publishing Hamdard Food Delivery
Products as Unani Medicinal Products; for re-calling the letter dated
10.10.2021 issued to Department of AYUSH by the defendant, and
for restraining the defendant from claiming market presence of 90%
in Unani Medicinal Products as the plaintiff alone has market
presence of more than 60%.
Ld. Counsel for the Plaintiff fairly concedes that it is
mentioned in para-12 of the plaint that pursuant to a Family
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Settlement Deed, the business of the Hamdard Group was divided
between Hamdard Food Division and Hamdard Medicine Division.
Ld. Counsel for the Plaintiff further admits that
the plaintiff is representing the Hamdard Medicine Division and
not the Hamdard Food Division.
Admittedly, no complaint has been filed on behalf
of Hamdard Food Division against the defendant nor the present
suit has been filed on behalf of Hamdard Food Division.
Hence, plaintiff herein cannot seek any relief
restraining the defendants from publishing Hamdard Food
Division products as Unani Medicinal Products, as no cause of
action arise in favour of the plaintiff in this regard.
Perusal of the letter dated 10.10.2021 shows that the
defendant has written to the Director/Department of AYUSH,
GNCT Delhi that Hamdard Laboratories India – Food Division is
legally authorized to use Hamdard and has also given the
defendant/UDMA consent to use the name of Hamdard on the
website and other platforms of UDMA and that the Hamdard Food
Division headed by Sh. Hamid Ahmed is the President of the
defendant society i.e. UDMA.
It is contended on behalf of the plaintiff that
defendant has not filed on record any such letter issued by Sh. Hamid
Ahmed authorizing UDMA to use Hamdard Logo on their Unani
Products and that Hamdard National Foundation, which owns the
Hamdard Logo has not assigned right to use Hamdard Logo in
favour of the defendant.
Ld. Counsel for the plaintiff however, clarified that
Hamdard Food Division can use the word ‘Hamdard’.
Further, the plaintiff has sought the prayer for
restraining the defendant from claiming its market presence of 90%
in Unani Medicinal Products on the ground that it is the plaintiff
which alone has market presence of more than 60%.
On court query, Ld. Counsel for the Plaintiff fairly
concedes that plaintiff has not filed any document to show that
plaintiff is having any such market presence in Unani Medicinal
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Products of more than 60%, as alleged in the instant application.
In view of the above, the plaintiff has failed to show
any cause against the defendant so as to restrain the defendant from
using the word ‘Hamdard’ w.r.t. Hamdard Food Delivery Products
as Unani Medicinal Products, or for recalling the letter
dated 10.10.2021 in this regard.
Accordingly, the application under Order 39 Rule 1
& 2 CPC filed on behalf of plaintiff is dismissed, being not
maintainable.
For the reasons stated above, the application under
Order 39 Rule 4 CPC filed on behalf of the defendant is also
disposed of as having become infructuous.
Application under Order 39 Rule 2A CPC :-
Arguments also heard on application under Order 39
Rule 2A CPC filed on behalf of plaintiff from both the sides.
By way of the said application, the plaintiff has
alleged that pursuant to the interim order dated 01.08.2022, the
defendant continued to publish Hamdard Food Division products as
Unani Medicinal Products and the same was displayed physically
from 14.10.2022-16.10.2022, as the defendant celebrated 5th
UDMA Day at lamia Milia Islamia, Okhla, Delhi.
Ld. Counsel for the Defendant submits that the
defendant has not committed any violation of interim order passed
by Ld. Predecessor Court. It is further submitted that vide
order dated 01.08.2022, the plaintiff was to make compliance as per
Order 39 Rule 3 CPC within 02 days, whereas admittedly, the
plaintiff filed the affidavit of compliance of 04.08.2022.
Vide order dated 13.09.2022 passed by Ld.
Predecessor Court, the plaintiff sought extension for complying the
provisions of Order 39 Rule 3 CPC.
Perusal of record shows that plaintiff has filed
affidavit in compliance of Order 39 Rule 3 CPC on 15.09.2022.
However, as per the report dated 27.10.2022, the defendantFAO 328 & 347/2024 Page 15 of 23
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remained unserved and the defendant entered appearance on
28.10.2022.
It is submitted by Ld. Counsel for the Plaintiff that
defendant was served on 19.09.2022 and has also filed tracking
reports in this regard. However, the defendant denies to have
received any such notice and further submits that admittedly vide
order dated 25.02.2023, the defendant was served with the amended
plaint which was never on record, and therefore, the same does not
imply any service under Order 39 Rule 3 CPC.
In Para no.3 of the instant application filed by the
plaintiff U/o 39 Rule 2A CPC, the plaintiff has mentioned that there
was a typographical error in the address of the defendant no. 1 and
has sought amendment in the plaint in this regard which was allowed
by Ld. Predecessor Court vide order dated 13.09.2022 and plaintiff
was given extension of time for complying the provisions of order
39 Rule 3 CPC pursuant to the interim order dated 01.08.2022.
It is trite law that as per order 39 Rule 2A CPC, the
‘Disobedience’ of any injunction order has to be ‘Willful’. It is the
case of the defendant that the plaintiff was never entitled to any
injunction order against the defendant as the plaintiff has no cause
of action to file the present suit against the defendant.
This Court has already dismissed the application of
the plaintiff U/o 39 Rule 1 and 2 CPC for the reasons stated
hereinabove. However, without prejudice to the same and in view of
the fact that the interim order dated 01.08.2022 passed by Ld.
Predecessor Court was continuing even on 14.l0.2022- 16.10.2022
i.e. on the day when the defendant had physically displayed
Hamdard Food Division products as Unani Medicinal Products, as
the defendant celebrated 5th UDMA Day at Jamia Milia Islamia,
Okhla, Delhi, it cannot be said that the defendant has willfully
violated any interim order dated 01.08.2022 passed by Ld.
Predecessor Court, as even otherwise, it has been submitted on
behalf of defendant that defendant was never served the original
plaint of the present suit nor communicated about the operation of
ex-parte order dated 01.08.2022 as the defendant has entered his
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appearance for the first time in the present proceedings on
28.10.2022 and immediately thereafter has filed an application U/o
39 Rule 4 CPC on NDOH i.e. 25.02.2023.
In view of the above, the application U/o 39 Rule 2A
CPC filed on behalf of plaintiff is also dismissed, being not
maintainable.
Now to come up for reply and arguments on the
pending applications U/o 1 Rule 10 CPC r/w Order 6 Rule 17 CPC
filed on behalf of plaintiff on 19.12.2024.”
CHALLENGE TO ORDER PASSED WITH RESPECT TO ORDER
XXXIX RULE I & 2
22. It would be relevant to re-produce the reliefs which are claimed
in the application under Order 39 Rule 1 and 2 of the CPC which came
to be dismissed by the learned Trial Court: –
“i. An order of ad interim injunction in favour of the
Applicants/Plaintiffs and against the Respondents/Defendants
restraining the Respondents/Defendants from publishing
HAMDARD FOOD Division products as Unani medicinal Products.
ii. Recall the letter 10th October, 2021 issued to the Department
of Ayush by Respondent/Defendant stating that the Publish Notice
issued on dated 10th October, 2021 by the Applicant/Plaintiff was
malafide.
iii. Refrain Respondent/Defendant from claiming of having
market presence of 90% in Unani Medicial products, which is not
possible as Applicant/Respondent alone has market presence of
more than 60%.”
FAO 328/2024 & CM APPL. 59993/2024
23. A careful perusal of the reasoning accorded by the learned trial
Court in dismissing the application under Order XXXIX Rule 1&2 of
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CPC seems to be that in terms of the Family Settlement, it was the
prerogative of the HAMDARD (Food Division) [‘HFI’] alone to
enforce their legal rights arising out of the Family Settlement Deed
dated 22.10.2019 and seek remedy against the respondent/defendant on
the ground that their food products are being passed off as Unani
Medicinal Products. Unhesitatingly, the aforesaid reason is flawed
since if the case of the appellant/plaintiff is believed, HFI would rather
be a direct or indirect beneficiary of the impugned proclamations by the
respondent/defendant.
24. However, that is not the end of the matter. On a careful perusal
of the averments in the plaint filed by the appellant/plaintiff, the core
issue raised by them is with regard to the use of the trade name
‘HAMDARD’ by the respondent/defendant with respect to the
Hamdard (Food Division) Products claiming them to be Unani
Medicinal Products. Although the suit is couched by the
appellant/plaintiff as a suit for compensation/damages against the
defamation of the appellant/plaintiff under Order VII Rule 1 of the
CPC, as rightly pointed out by the learned counsel for the
respondent/defendant, the cause of action essentially emanates from the
Family Settlement arrived at between the parties dated 22.10.2019,
whereby the appellant/plaintiff has been accorded an exclusive right to
deal in Medicines, Pharmaceuticals, Drugs & Cosmetics, besides
prohibiting HFI from dealing with any business falling under Classes 3,
5 and 10 of the Trade Marks Act, 1999.
FAO 328 & 347/2024 Page 18 of 23
Signature Not Verified
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:03.04.2025
17:39:27
25. In order to appreciate the real controversy, it would be apposite
to re-produce the averments with regard to the cause of action in the
plaint, which go as under:-
“29. Cause of Action first arose, when after Family Settlement
executed, and Mr. Hamid Ahmed and his Group (Hamdard Food
Division) was not entitled to use the mark/name HAMDARD in
relation to medicinal/unani products, then remaining him to be part
of Defendant even as Food Division is wrong as the Defendant is an
organization claiming it to be an organization of Unani Drugs
Manufacturers, which Hamdard Food Division is not. And since the
Plaintiff is not a member of the Defendant, the use of name/mark
HAMDARD for medicines in any manner is malafide on the part of
the Defendant that too despite being known of the actual facts, which
was brought into the notice of the Defendant, vide a letter dated 5th
February, 2021, as also the public notice dated 10th October, 2021.
The act of the Defendant in enclosing the website of unani sellers
appears to be temporary one and in a very clandestine manner
shifting the marketing/publicity to website of JUST DIAL is a
reflection of culpability of Defendant.
30. Cause of Action has been continuous one and lastly arose
when a letter was addressed to the Director, Directorate of AYUSH,
Govt. of NCT Delhi on dated 10th of October, 2021, stating that the
Public Notice dated l0th October, 2021 in various News Paper is
wrong and with malafide intention by the Plaintiff and on dated
22.07.2022, when the plaintiff found the defendant after closing the
website www.unanisellers.com has shifted to JUST DIAL, website,
wherein the earlier website of www. Unani sellers are still being
mentioned.”
26. Further, it would be relevant to reproduce the reliefs which are
claimed by the appellant/plaintiff in the main suit: –
“i. That the Defendant may be directed to not to use the
name/housemark HAMDARD in any manner, whosever being
Unani Drugs manufacturers Association.
ii. That the Defendant may be directed to put clear and
unambiguous manner a declaration that plaintiffs are not at all the
member of the defendant organization.
FAO 328 & 347/2024 Page 19 of 23
Signature Not Verified
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:03.04.2025
17:39:27
iii. That the Defendant may be directed to pay a Sum of Rs.
5,00,000/- as Damages as mentioned in the Plaint to the Plaintiff.”
27. A bare perusal of such prayers would show that firstly, what is
sought in the application seeking interim relief goes beyond what is
claimed in the main suit. Anyhow, at the cost of repetition, the core
issue is that the Hamdard Food Division directly or indirectly by
engaging with the respondent/defendant is allegedly usurping on the
domain of the appellant/plaintiff so as to deal in Medicines,
Pharmaceuticals, Drugs & Cosmetics business. I am afraid if that is the
case, not only the present suit is bad for non-joinder of the Hamdard
Food Division (HFI) as a necessary party but is also hit by Sections
2(1)(c)(ix) 3 and (xvii)4 of the Commercial Courts Act, 2015.
28. The plea advanced by the learned senior counsel for the
appellant/plaintiff that the suit is not predicated on any cause of action
against the other family branch i.e., Hamdard Food Division (HFI),
cannot be sustained for the simple reason that the suit is essentially for
the use of the trade name ‘HAMDARD’ by the respondent/defendant
passing off food products as Unani medicine being manufactured by the
other family branch i.e. HFI, and thereby claiming to the general public
that such food items have medicinal values.
3 (ix) distribution and licensing agreements
4 (xvii) intellectual property rights relating to registered and unregistered trademarks,
copyright, patent, design, domain names, geographical indications and semiconductor
integrated circuits;
FAO 328 & 347/2024 Page 20 of 23
Signature Not Verified
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:03.04.2025
17:39:27
29. In fact, another aspect which is espoused on behalf of the
appellant/plaintiff is that the food division should not have no concern
with the body which is meant for Unani drugs. In this regard, attention
of the Court was invited to the aims and objects of the
respondent/defendant, as contained in the Memorandum of Association
of the respondent/defendant, which was founded in 2017, vide Clause
(1) which states as follows: “to establish and manage organizations/
institution/ Research center for development of Unani and Other allied
herbal drugs covered by AYUSH”. It was urged that if the objective of
the respondent/defendant is to promote Unani medicine, it is beyond the
scope of its Memorandum to promote food products portraying them as
Unani Medicinal Products. The issue as to whether the foods products
may or may not possess medicinal qualities is something which should
essentially be addressed by an appropriate forum.
30. The plea raised by the learned counsel for the appellant/plaintiff
that the dispute is not of commercial nature since there is no contract
between the appellant/plaintiff and the respondent/defendant, is again
flawed since what is, in essence, claimed is the use of the trade name
‘HAMDARD’ in relation to Unani Medicinal Products which the
respondent/defendant seeks to promote.
31. The bottom line is that although the learned trial Court has not
discussed the ‘trinity test’ while deciding the application under Order
XXXIX Rule 1 & 2 CPC but at the same time, while considering the
whole conspectus of the matter, this Court has no hesitation in finding
FAO 328 & 347/2024 Page 21 of 23
Signature Not Verified
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:03.04.2025
17:39:27
that the appellant/plaintiff cannot invoke the jurisdiction of the learned
trial Court seeking the reliefs which are claimed, since the present
matter clearly falls in the domain of the Commercial Court. There is no
gainsaying that the underlying object of setting up of Commercial
Courts is to ensure that all cases involved in commercial disputes are
disposed of expeditiously, fairly and at reasonable cost to the litigants.
The Commercial Courts Act, 2015, provides for a fast-track procedure
which must be adverted to when the parties are engaged in trade and
commerce as in the present case.
32. It is only when the appellant/plaintiff is able to establish a clear
legal right to the use of the word ‘HAMDARD’ for Medicinal Products
in terms of the Family Settlement, which has not been fully
implemented and in the background, the parties are already in
arbitration, that the question of reputational damage to the
appellant/plaintiff, in light of the respondent/defendant’s alleged tall
claims regarding the market share of its Medicinal Products by its
registered members, would arise. This aspect shall then be required to
be considered by the Commercial Court in accordance with the law. The
suit, in essence, pertains to the protection of not only the use of trade
name but also the intellectual property rights of the appellant/plaintiff
with regard to the medicinal, pharmaceutical and drugs.
33. Resultantly, the present appeal is dismissed. The pending
applications also stand disposed of accordingly.
FAO 328 & 347/2024 Page 22 of 23
Signature Not Verified
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:03.04.2025
17:39:27
34. Lastly, in view of the decision by this Court in the case of Namita
Gupta v. Suraj Holdings Limited5, the learned trial Court shall return
the plaint under Order VII Rule 10 of the CPC with liberty to the
appellant/plaintiff to present the plaint for redressal of its grievances
before the competent Commercial Court.
FAO 347/2024
35. In light of the reasons that have prevailed in the mind of this
Court in dismissing FAO 328/2024, at the outset, this Court finds that
the instant appeal is also bereft of any merits. The learned trial Court
has accorded sound reasons for dismissing the application under Order
XXXIX Rule 2A of CPC.
36. The fact of the matter is that it is difficult to discern that the
respondent/defendant has committed any willful or deliberate
disobedience of the directions of the learned trial Court. Furthermore,
where the Court lacks subject matter jurisdiction for the matter being a
commercial dispute, it would not be conducive to take any action for
the alleged contempt or disobedience of the directions of that Court.
37. Hence, the present appeal also stands dismissed. All pending
applications are also disposed of.
DHARMESH SHARMA, J.
APRIL 02, 2025
Sadiq/Ch
5 2024 SCC OnLine Del 143
FAO 328 & 347/2024 Page 23 of 23
Signature Not Verified
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:03.04.2025
17:39:27
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