Neutral Citation No. - 2025:AHC:75357 Court No. - 10 Case :- MATTERS UNDER ARTICLE 227 No. - 1075 of 2025 Petitioner :- Surendra Kumar Mishra Respondent :- Ravindra Kumar Mishra Counsel for Petitioner :- Amarnath Tiwari,Ramendra Nath Tiwari,Shambhavi Tiwari Counsel for Respondent :- Saroj Kumar Pandey Hon'ble Piyush Agrawal,J. Heard Shri Ramendra Nath Tiwari, learned counsel for the petitioner and Shri Saroj Kumar Pandey, learned counsel for the respondent. The petitioner before this Court is seeking setting aside the impugned order dated 19.12.2024 passed by the Commercial Court, Varanasi in Original Suit No. 5 of 2024 rejecting the application of the petitioner filed under Order VII, Rule XI and section 151 of CPC. Learned counsel for the petitioner submits that the defendant - petitioner is engaged in the business of manufacture and sale of edible oil under the brand name of "Daroga", to which the same has been registered under the Trade Mark Act, 1999 and search certificate was issued to the petitioner on 11.10.2023 (Annexure No. 6 to the writ petition). He further submits that the plaintiff - respondent instituted Original Suit No. 5 of 2024 under section 135/29 of Trade Mark Act, 1999 before the Commercial Court, Varanasi. He further submits that the plaintiff - respondent started its business in the name & style of M/s Mishra Oil Mill and got registered the trademark "Chetak Brand". In the year 2001, the plaintiff - respondent started business with another name "Daroga Ji". On 30.03.2007, the partnership firm stood dissolved and thereafter, the plaintiff - respondent applied for trademark "Daroga Ji", which has been granted by the Registrar of Trademarks on 21.07.2023. He further submits that the claim in the suit filed by the plaintiff - respondent was less than Rs. 3 lacs as contemplated under section 12, read with section 2(i) of the Commercial Courts Act, 2015 and therefore, the suit was not maintainable. He further submits that the mandatory requirement of section 12-A of the Commercial Courts Act has neither been complied with by the plaintiff - respondent before instituting the suit, i.e., pre-institution, mediation and settlement, nor the application for exemption was moved. He further submits that on the date of institution of the suit, the trademark of the respondent was not registered and therefore, the petitioner moved an application under Order VII, Rule XI, read with section 151 of CPC, which has been rejected vide the impugned order dated 19.12.2024 illegally. Per contra, learned counsel for the respondent submits that since the business of the plaintiff - respondent was adversely effected on account of use of its brand name "Daroga" by the petitioner, therefore, he has rightly instituted the suit before the Commercial Court, Varanasi. He further submits that the brand name of the respondent is "Daroga Ji"; where the defendant - petitioner has clearly violated section 29 of the Trade Mark Act, 1999 as well as the Copyright Act, 1957 and therefore, has rightly instituted the suit and as on date, no injunction has been granted and only the application of the petitioner has been rejected. Therefore, no case is made out. After hearing the learned counsel for the parties, the Court has perused the record. The rival contention of the parties is with regard to infringement of trademark by the parties. The Court has perused the two logos, copy of the logo of the petitioner is at Annexure No. 6 (page - 58) of the writ petition; whereas, the copy of the logo of the plaintiff - respondent is at Annexure No. SA - 5 (page 38) of the supplementary affidavit. Bare perusal of the two logos and registration clearly shows that the same are different in words style/design and logos. The logo of the plaintiff - respondent represents the word " Daroga Ji"; whereas, the petitioner's logo is "Daroga" and there are much differences in the said two logos in style/design. The petitioner - defendant has filed an application for dismissing the suit as not maintainable on account of non-compliance of mandatory requirement as per section 12-A of the Commercial Courts Act as well as the law laid down by the Apex Court in M/s Patil Automation Private Limited & Others Vs. Rakheja Engineers Private Limited [2022 (7) Supreme 607]. In view of the above, it would be in the fitness of the case that the matter is remanded back to the court concerned for reconsideration of the petitioner's application. For the said purpose, the impugned order dated 19.12.2024 passed by the Commercial Court, Varanasi in Original Suit No. 5 of 2024 is hereby set aside. The Commercial Court, Varanasi is directed to decide the petitioner's application filed under VII, Rule XI, read with section 151 CPC afresh in accordance with law. The petition stands allowed. Any observation made herein above shall not come in the way of the court concerned while deciding the application or suit as this Court has not dealt with the issue on merits. Order Date :- 9.5.2025 Amit Mishra Digitally signed by :- AMIT KUMAR MISHRA High Court of Judicature at Allahabad Digitally signed by :- AMIT KUMAR MISHRA High Court of Judicature at Allahabad Digitally signed by :- AMIT KUMAR MISHRA High Court of Judicature at Allahabad Digitally signed by :- AMIT KUMAR MISHRA High Court of Judicature at Allahabad