1 APP 964 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.964 OF 2010 IN NOTICE OF MOTION NO.685 OF 2010 IN SUIT NO.604 OF 2010 WITH NOTICE OF MOTION NO.2513 OF 2010 IN APPEAL NO.964 OF 2010 IN NOTICE OF MOTION NO.685 OF 2010 IN SUIT NO.604 OF 2010 M/s.S.Narendra Kumar & Co. ..... Appellant V/s. Apricot Foods Pvt. Ltd. ..... Respondent Mr.Birendra Saraf a/w Smt.Gayatri Sharma i/by M/s.S.K.Srivastav & Co., for the appellant. Mr.Manish Saurastri a/w Ms.Mamta Chandan i/by M/s.Krishna Saurastri, for the respondent. CORAM :P.B.MAJMUDAR & ANOOP V. MOHTA, JJ. DATE : 29TH SEPTEMBER, 2010 P.C. 1. This appeal is directed against the ad-interim order passed by the learned Single Judge in Notice of Motion No.685 of 2010. The appellant is the original plaintiff of the aforesaid suit. The said suit is filed on the ground of passing off infringement of trademark of the 2 APP 964 of 2010 plaintiff as well as on the ground of passing off action. It is the case of the plaintiff that the plaintiff has established their goodwill in the market in the food items. It is the case of the plaintiff that they are in market since 1967 and have got a goodwill and people are purchasing the items on the basis of trade name ‘Everest’. It is the case of the plaintiff that the defendants have started their business in the food products in the name of ‘Everest’ and are taking advantage of the goodwill established by the plaintiff and thereby trying to passing off their material/goods by taking advantage of the plaintiff’s goodwill in the market. 2. The plaintiff preferred a notice of motion for interim injunction in the pending suit. The learned Single Judge by the impugned order, issued notice which is made returnable on 25-06-2010, but declined to pass ad-interim order. The learned Single Judge was of the opinion that since the defendants are in market since five years, it would not be just and proper to grant ad-interim injunction without deciding the notice of motion. As stated earlier, the returnable date mentioned in the notice of motion has gone and the Court is informed that the said notice of motion is likely to be heard in due course. 3. The learned counsel for the appellant submitted that the plaintiff has got prima facie evidence to show that the defendants are trying to pass off their goods everyday and it is a recurring loss and wrong. 3 APP 964 of 2010 He further submitted that in such a case, delay should not come in the way of the plaintiff in the matter of obtaining interim orders. 4. The learned counsel for the respondent, on the other hand, submitted that he has no objection if appropriate directions are given asking the learned Single Judge to dispose of the notice of motion at the earliest. 5. We have heard the learned counsel for the appellant and respondent, at length. It is true that in an action in connection with passing off action, delay itself may not come in the way of plaintiff, for not getting appropriate interim orders from the Court, as passing off action can be said to be a recurring wrong. However, since the notice of motion is already pending for hearing and even the returnable date is over, in our view, instead of entertaining this appeal at such an interlocutory stage, we request the learned Single Judge to dispose of pending notice of motion by 27-10-2010. Both the Advocates have assured the Court that they will not ask for any adjournment and will cooperate with the hearing of the notice of motion and will be precise in the argument before the learned Single Judge. In view of the said assurance, it is not necessary to pass any further order in the appeal and to refer a judgment on which reliance is sought to be placed by the learned counsel for the appellant on the point of delay, as it will be open to both the sides to rely on judgments, if any, at 4 APP 964 of 2010 the time of hearing of the notice of motion. 6. In view of what is stated above, the appeal is disposed of, with no order as to costs. 7. In view of the disposal of the appeal, the notice of motion No.2513 of 2010 does not survive and it is accordingly disposed of. ( ANOOP V. MOHTA, J. ) ( P.B.MAJMUDAR, J. )