Case BriefsSupreme Court

Supreme Court: In a trade mark infringement case where interlocutory injunction was sought during the pendency of the suit, the bench of L. Nageswara Rao and BR Gavai*, JJ, was faced with a strange situation where at first, an adjournment order of the single judge of Calcutta High Court was treated as a ‘judgment’ and appealed against and later on, in appeal, the division bench took in upon itself to dispose of the interlocutory application instead of relegating it to the court below for its disposal because it did not want to prolong the litigation.

Single Judge Bench’s order

The order was postponement of the question as to whether the respondent-plaintiff was entitled to grant of an ad-interim injunction or not, and that too, by merely three weeks.  The order was only giving an opportunity to the appellants-defendants to file their affidavit-in-opposition within a period of two weeks. The order clarified that no prayer for extension of time shall be entertained.

Was it a ‘judgment’?

There was no adjudication with regard to the rights of the respondent-plaintiff to get an ad-interim injunction during the pendency of the suit.  Though by postponement of the issue with regard to grant of ad-interim injunction, the order might have caused some inconvenience and may be, to some extent, prejudice to the respondent-plaintiff; the same could not be treated as a ‘judgment’ inasmuch as there was no conclusive finding as to whether the respondent-plaintiff was entitled for grant of ad-interim injunction or not.

“As such, the order passed by the learned Single Judge did not contain the traits and trappings of finality. If it is held otherwise, this will open a floodgate of appeals for parties who may even challenge the order of adjournment or grant of time to the other side to file affidavit-in-reply.”

Hence, the said order cannot be construed to be a ‘judgment’ within the meaning of Clause 15 of Letters Patent and as such, the appeal to the Division Bench of the High Court was not tenable.

Division Bench’s order

The Single Judge passed an order on 2nd  April 2019 and the appeal to the Division Bench was filed immediately thereafter in the month of April, though the exact date of filing of appeal is not known. The judgment and order impugned herein was passed after a gap of about 8-9 months from the date of the order passed by the Single Judge.

The perusal of the judgment and order impugned herein would clearly reveal that the counsel for the appellants-defendants had specifically submitted that the appeal was against an ad-interim order and therefore, the appellate court should not interfere by substituting its views but should instead direct a speedy hearing of the interim application of the respondent-plaintiff. The Division Bench of the High Court after recording the said submission, observed thus:

“Before entering into a discussion with regard to the merits of this case I say that all the facts and papers which were necessary for deciding the prima facie case of the parties were before us.  On these facts and evidence we were in a position to assess their respective   prima   facie   case   and   the   balance   of convenience. In those circumstances we propose to dispose of the interlocutory   application   ourselves   instead of entering a prima facie finding and relegating it to the court below for its disposal. That would be unnecessary prolongation of the litigation and utter wastage of time.”

What was wrong with the order?

The Supreme Court could not understand the anxiety on the part of the Division to itself dispose of   the interlocutory application instead of relegating it to the court below for its disposal when it itself took 8-9 months to decide the appeal.

“If the learned Judges of the Division Bench were so much concerned with the prolongation of litigation, they could have very well requested the learned Single Judge to decide the injunction application within a stipulated period. Instead of waiting for a period of 8-9 months, this could have been done by them at the very first instance when the appeal was listed. The hierarchy of the trial court and  the appellate  court  exists  so  that the  trial court exercises its discretion upon the settled principles of law.  An appellate court, after the findings of the trial court are recorded, has an advantage of appreciating the view taken by the trial judge and examining the correctness or otherwise thereof within the limited area available. If the appellate court itself decides the matters required to be decided by the trial court, there would be no necessity to have the hierarchy of courts”

Hence, having waited for 8¬9 months after the Single Judge had passed the order, all that ought to have been done by the Division Bench was to request the Single Judge to decide the application for ad-interim injunction, which in fact, the Single Judge had scheduled to do after three weeks from 2nd April 2019.  It was not even necessary for the Division Bench to have waited till 24th December 2019 and taken the pains of deciding the application at first instance.  It could have very well, in the month of April, 2019 itself, done the exercise of requesting the Single Judge to decide the application as scheduled.

In any event, though the Division Bench of the High Court observes that for deciding the question with regard to grant of interim injunction, it has to put itself in a position as if it was moved to pass an interim order in the suit, it even fails to take into consideration the principles which a court is required to take into consideration while deciding such an application.

Cost Imposed

The Court observed that it is high time that this Court should take note of frivolous appeals being filed against unappealable orders wasting precious judicial time. As it is, the courts in India are already over-burdened with huge pendency. Such unwarranted proceedings at the behest of the parties who can afford to bear the expenses of such litigations, must be discouraged.

Hence, the Court order the respondent-plaintiff to pay a token cost of Rs.5 lakhs to the Supreme Court Middle Income Group Legal Aid Society.

[Shyam Sel and Power Ltd. v. Shyan Steel Industries Ltd., 2022 SCC OnLine SC 313, decided on 14.03.2022]

*Judgment by: Justice BR Gavai

For Appellants: Senior Advocate Mukul Rohatgi

For Respondents: Senior Advocate Neeraj Kishan Kaul

Case BriefsHigh Courts

Bombay High Court: G.S. Patel, J., while addressing a matter with regard to domain names registrations held that,

Domain name Registrar can’t black list or block list a domain that is registered.

Endurance Domains Technology LLP, an Indian Domain Name Registrar is authorised to function by the National Internet Exchange of India.

Endurance Domains provides inter alia registrations of India-specific domains apart from other more commonly used and known top-level domains such as .com, .net, etc.

Plaintiff, HUL has a registration of a number of valuable trademarks covering a range of products. Plaintiff has the domain name Its global parent is

Fake and fraudulent domain names

Defendant 5 and various person and persons unknown have been using variants of HUL’s domain name to register fake and fraudulent domain names and to set up websites. The purpose is to entice and lure the unsuspecting public into parting with significant amounts of money on a completely false promise of being made authorised dealers of HUL products.

Number of fraudulent domain names have been pointed out in the present Interim Application and the said domains name registration have been effected through — Endurance Domains, GoDaddy or Porkbun.

Court stated that it has no doubt that the registration of the said domains is entirely malafide, not in good faith, constitutes an infringement of Plaintiff’s valuable statutory rights.

What form the injunction should take?

Bench stated that, domain names are, typically, never ‘owned’. They are always registered for a fee and for a specified time, typically a one-year minimum. 

There is no human element involved in overseeing or assessing the legitimacy of any chosen domain name. Once the domain name is registered, it must point somewhere to be effective.

A domain name may have its registration suspended, but the domain name registrar cannot ‘block access’ to that domain name.

Dr Saraf stated that Endurance Domains has already substantially complied with the request by HUL in respect of domain name listed, if not, it will do so at the earliest.

Blocking Access

An ‘access blocking’ instructions only serves to block access to a remote website or server (possibly overseas) from an IP address of domestic origin, i.e. from the country ordering the block. Any such ‘block’ is easily circumvented by masking the originating country IP of the user.

Bench stated that, other than lulling an applicant into a completely hollow and faux sense of safety (and conceivably giving some ill-informed government functionary an entirely unwarranted sense of power or authority), blocking access achieves next to nothing.

To ask for the ‘continued suspension’ of domain name registration is also technically incorrect: High Court

Any domain name Registrar can always suspend a domain that is registered, but they can’t put it on a black list or block list.

Hence, a ‘continued suspension’ is therefore not possible or practicable at least in the current technology.

Further, Mr Tulzapurkar on behalf of the plaintiff says that the Plaintiff cannot be expected to constantly make applications every time a new domain name is discovered.

Court for the above stated that, 

I do not see why not. The Plaintiff is not short of resources and skills, even in the legal department; and the Plaintiff is a well-known and well-established litigant.

Another important observation

I do not think it is for any court to come up with mechanisms to protect the Plaintiff’s interest at low or no cost, or by turning a plaintiff into judge, jury and executioner, let alone sub-contracting out what I believe to be a serious judicial function of assessing and balancing rival merits. What should or should not be suspended (or blocked) is for a government to decide, not some litigant. There are no shortcuts. All this: prima facie; two mantra words that seem to have become some sort of balm in the frenzied jurisprudence of interim and ad interim litigation.

Court’s Time

Court permitted HUL as an exceptional case, if it is unable to get the negotiated relief directly from one of the domain name registrars who are already parties to suit, to file an Affidavit listing the domain names in questions and to approach the Court after serving a copy of that affidavit on the domain name registrar in question.

I am doing away only with the requirement of a formal IA, not the requirement of coming to Court; and this is only done to ease the burden on the Court. This part of the order is, obviously, liable to be reviewed, modified or recalled at any time.

[Hindustan Unilever Limited v. Endurance Domains Technology LLP, 2020 SCC OnLine Bom 809 , decided on 12-06-2020]