1 nms-3480-09-s-1993-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO. 3480 OF 2009 WITH SUIT NO. 1993 OF 2009. Merck KGAA & Ors. ..Plaintiffs. vs. Taj Pharmaceuticals Ltd. ..Defendant. .... Ms. Alpana Ghone, a/w. Ms. Sneha Patil, i/b. Sonal Doshi & Co., for Plaintiff. None for Defendant. .... CORAM : S.J. KATHAWALLA, J. DATE : 12TH JANUARY 2011. P.C. By this Suit, the Plaintiffs are inter-alia seeking permanent injunction against the Defendant from using the impugned trade mark ‘Saizen’ or any other deceptively similar trade mark so as to infringe the Plaintiffs’ trade mark ‘Saizen’. The Plaintiffs have also sought permanent inunction against the Defendant from in any manner using in relation to any medicinal preparations or any other products the impugned trade mark ‘Saizen’ or any other deceptively similar trade mark so as to pass off or enable others to pass off the Defendant’s product as and for the products of the Plaintiffs. 2. By Notice of Motion No. 3181 of 2009 the Plaintiffs had sought appointment of the Court Receiver and injunction in terms of the permanent injunction in the Suit. In the said Notice of Motion, this Court by its order dated 8th June 2009 had passed an ad-interim 2 nms-3480-09-s-1993-09 ex-parte order in terms of prayer clauses (a) and (b). 3. Thereafter, the Defendant despite being served continued to infringe the Plaintiff’s mark ‘Saizen’ and also continued to pass off its products as that of the Plaintiffs. In view thereof, the Plaintiffs took out the present Notice of Motion being No.3480 of 2009. In the said Notice of Motion, an Application seeking ad- interim relief was made. By a detailed order dated 14th October 2009, the ad-interim relief in terms of prayer clause (a) of the Notice of Motion was granted. 4. On 7th January 2011, the learned Advocate appearing for the Defendant informed the Court that despite repeated requests the Defendant is not coming forward to give instructions to him. The learned Advocate for the Defendant therefore, sought discharge from acting and appearing for the Defendant in the above matter and was accordingly, discharged. By the said order, the Plaintiffs were directed to inform the Defendant in writing by way of notice along with a copy of the order dated 7th January 2011 to be served by hand delivery, that the above Notice of Motion is placed for hearing before this Court today and if the Defendant fails to appear before this Court, the Court shall proceed to hear the Notice of Motion in absence of the Defendant and shall pass appropriate orders. 5. Today, when the Notice of Motion is called out, the learned Advocate appearing for the Plaintiffs has filed an Affidavit dated 11th January 2011 wherein it is deposed that though a notice as well as a copy of the order dated 7th January 2011 passed by this Court was accepted by Shri Rakesh Kumar, Computer Operator working in the Office of the Defendant, the said Shri Rakesh Kumar 3 nms-3480-09-s-1993-09 refused to give the acknowledgment in writing. In view thereof, it is established beyond any doubt that the Defendant is not interested in opposing the Notice of Motion. For the reasons set out in detail in the order passed by this Court dated 14th October 2009, the Notice of Motion is allowed in terms of prayer clause (a). The Notice of Motion is accordingly, disposed of. Place the Suit for directions on 17th January 2011. [ S.J. KATHAWALLA, J. ]