Usha vs M/S Sanwish Pharma Llp - Trademark Dispute

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• Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc -... Upgrade to Premium [Cites 21, Cited by 0 ] ### Karnataka High Court

Usha vs M/S Sanwish Pharma Llp on 24 February, 2026

NC: 2026:KHC:11278
WP No. 5501 of 2026

HC-KAR

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 24TH DAY OF FEBRUARY, 2026

                   BEFORE

THE HON'BLE MS. JUSTICE TARA VITASTA GANJU
WRIT PETITION NO. 5501 OF 2026 (IPR)
BETWEEN:

USHA
AGED ABOUT 36 YEARS,
PROPRIETOR OF SISKAN PHARMA,
HAVING ITS OFFICE AT DYNASTY BUSINESS PARK,
4TH FLOOR, 'A' WING,
ANDHERI KURLA ROAD,
CHAKALA ANDERI EAST,
MUMBAI - 400 059.
                                      ...PETITIONER

(BY SRI. ANANTHA J, ADVOCATE FOR
SRI. VIVEK HOLLA, ADVOCATE)

AND:

M/S. SANWISH PHARMA LLP
A LIMITED LIABILITY PARTNERSHIP
INCORPORATED UNDER THE LLP ACT, 2008,
HAVING ITS REGISTRED OFFICE AT NO.3021,
1ST FLOOR, 4TH PHASE, VHBCS LAYOUT,
BANASHANKARI 3RD STAGE,
BENGALURU - 560 085,
REPRESENTED BY ITS DESIGNATED PARTNER
AND AUTHORISED SIGNATORY
MR. YARRAPUREDDY SREENIVASULU REDDY
...RESPONDENT
(BY MS. DIANA LAURENCE PAUL, ADVOCATE FOR
SRI. SANJAY NAIR, ADVOCATE)

                      1
                                              NC: 2026:KHC:11278
                                            WP No. 5501 of 2026

HC-KAR

  THIS W.P. IS FILED UNDER [ARTICLE 227](https://indiankanoon.org/doc/1331149/) OF THE

CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS OF THE CASE IN COM.A.A.NO.498/2025, ON THE
FILE OF HONBLE LXXXVIII ADDL. CITY CIVIL AND SESSIONS
JUDGE (CCH-89), BENGALURU AND BE PLEASED TO SET ASIDE
THE AD-INTERIM EX-PARTE ORDER OF TEMPORARY
INJUNCTION DATED 15.12.2025 (ANNEXURE-A) PASSED ON
THE I.A.NO.2 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC (ANNEXURE-G) AND ETC.,

  THIS PETITION, COMING ON FOR ORDERS, THIS DAY,

ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU

                       ORAL ORDER 1.    The present petition seeks to challenge an order

dated 15.12.2025, passed by the LXXXVIII Addl. City Civil

And Sessions Judge (CCH-89), Bengaluru, in

Com.A.A.No.498/2025 (hereinafter referred to as

'Impugned Order'). By the Impugned Order, the learned

Commercial Court allowed an application under Order 39

Rule 1 and 2 filed by the respondent/plaintiff and the

petitioner/respondent has been restrained from using 2 NC: 2026:KHC:11278 WP No. 5501 of 2026 HC-KAR

products 'DyraANC' or any other similar trademark to

'DyraANC'.

1. Learned counsel for the petitioner/respondent

submits that this Court has the power under Article 227 of

the Constitution of India to maintain a challenge on these

proceedings against the Impugned Order. In this behalf,

he seeks to rely upon the judgment of the Supreme Court

in the case of [Jindal Steel And Power Limited And

Another vs. Bansal Infra Projects Private Limited

And Others1](https://indiankanoon.org/doc/29353821/).

1. Learned counsel for the petitioner/respondent

submits that the Supreme Court has held that the High

Court can exercise its supervisory jurisdiction under [Article

227](https://indiankanoon.org/doc/1331149/) of the Constitution of India, in a petition under Section 9 of the Arbitration and Conciliation Act, 1996

(hereinafter referred to as 'A & C Act') including where an 1 2025 SCC Online SC 1041 3 NC: 2026:KHC:11278 WP No. 5501 of 2026 HC-KAR

interim protection has been granted. Thus, he submits

that this Court should exercise jurisdiction in this case.

1. Learned counsel for the respondent/plaintiff on the

other hand contends, that the respondent/plaintiff had

filed a petition under Section 9 of A & C Act. During the

pendency of this petition, an application under Order 39

Rule 1 and 2 CPC has filed which has been allowed and a

temporary injunction has been granted. Learned counsel

further contends that the petitioner/respondent had

executed an assignment deed with the respondent/plaintiff

and wherein the adoption and use of a trademark

"DyraOne" and "DyraANC", the terms of which have been

violated. She further submits that the assignment deed

contains an arbitration clause and thus this petition was

filed.

1. Learned counsel for the petitioner/respondent in

addition states that in terms of the requirements of

Section 9 of the A & C Act, the arbitral notice commencing

proceedings under the A & C Act, has been sent to the 4 NC: 2026:KHC:11278 WP No. 5501 of 2026 HC-KAR

petitioner/respondent on 17.12.2025. She further

contends that no response has been received to the notice

as yet.

1. No doubt this Court can exercise its jurisdiction under Article 227 of the Constitution of India, in circumstances

which may include arbitral petitions. However, such

jurisdiction to be exercised only in exceptional cases. The

judgment relied upon by the petitioner/respondent- Jindal Steel 's case was the case where a petition Section

9 of A & C Act, proceeding was filed restraining the

invocation of a bank guarantee or interfering with the

invocation of a bank guarantee. The facts in the said case

reflected established fraud, as well as irretrievable injury

and it is in these exceptional circumstances, that the

Supreme Court in the Jindal Steel 's case, chose to

exercise its jurisdiction.

1. It is settled law that judicial interference in

arbitration proceedings is drawn to the judgment of in the 5 NC: 2026:KHC:11278 WP No. 5501 of 2026 HC-KAR

case of [Deep Industries vs. Oil And Natural Gas

Corporation2](https://indiankanoon.org/doc/21412870/), wherein the Supreme Court after

discussing the non-obstante clause contained in Section 5

of the A & C Act, has held that the policy of the A & C Act

is for speedy disposal of the arbitration cases and it is a

self-contained code dealing with arbitration and that the

High Court must be extremely circumspect in interference.

It was further held that the legislative policy in respect of

revisional jurisdiction must be kept in mind, while

exercising jurisdiction under this provision. The Supreme

Court in the Deep Industries case relied upon its

judgment in the case of SBP And Co. vs. Patel Engg.

Ltd.3 to hold that Courts should refrain from exercising

jurisdiction in proceedings under the A & C Act. The

relevant extract of the judgment is set out below:

1. Most significant of all is the non obstante clause contained in Section 5 which states that notwithstanding anything contained in any other law, in matters that arise under Part I of the Arbitration Act, no judicial authority shall intervene except where so provided 2 (2020) 15 SCC 706 3 (2005) 8 SCC 618 6 NC: 2026:KHC:11278 WP No. 5501 of 2026 HC-KAR

in this Part. Section 37 grants a constricted right of first
appeal against certain judgments and orders and no
others. Further, the statutory mandate also provides for
one bite at the cherry, and interdicts a second appeal
being filed [see Section 37(2) of the Act].

1. This being the case, there is no doubt whatsoever that if petitions were to be filed under Articles 226/227 of the Constitution against orders passed in appeals under Section 37, the entire arbitral process would be derailed and would not come to fruition for many years. At the same time, we cannot forget that Article 227 is a constitutional provision which remains untouched by the non obstante clause of Section 5 of the Act. In these circumstances, what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, taking into account the statutory policy as adumbrated by us hereinabove so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction.

xxx xxx xxx xxx

1. In SBP & Co. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] , this Court while considering interference with an order passed by an Arbitral Tribunal under Articles 226/227 of the Constitution laid down as follows: (SCC p. 663, paras 45-46) :

"45. It is seen that some High Courts have
proceeded on the basis that any order passed by an
Arbitral Tribunal during arbitration, would be
capable of being challenged under Article 226 or
227 of the Constitution. We see no warrant for such
an approach. Section 37 makes certain orders of
the Arbitral Tribunal appealable. Under Section 34, 7 NC: 2026:KHC:11278 WP No. 5501 of 2026 HC-KAR

the aggrieved party has an avenue for ventilating
its grievances against the award including any in-
between orders that might have been passed by
the Arbitral Tribunal acting under Section 16 of the
Act. The party aggrieved by any order of the
Arbitral Tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is
passed by the Tribunal. This appears to be the
scheme of the Act. The Arbitral Tribunal is,
after all, a creature of a contract between the
parties, the arbitration agreement, even
though, if the occasion arises, the Chief
Justice may constitute it based on the
contract between the parties. But that would
not alter the status of the Arbitral Tribunal. It
will still be a forum chosen by the parties by
agreement. We, therefore, disapprove of the
stand adopted by some of the High Courts that
any order passed by the Arbitral Tribunal is
capable of being corrected by the High Court
under Article 226 or 227 of the Constitution.
Such an intervention by the High Courts is not
permissible.

1. The object of minimising judicial intervention while the matter is in the process of being arbitrated upon, will certainly be defeated if the High Court could be approached under Article 227 or under Article 226 of the Constitution against every order made by the Arbitral Tribunal. Therefore, it is necessary to indicate that once the arbitration has commenced in the Arbitral Tribunal, parties have to wait until the award is pronounced unless, of course, a right of appeal is available to them under Section 37 of the Act even at an earlier stage." xxx xxx xxx 8 NC: 2026:KHC:11278 WP No. 5501 of 2026 HC-KAR
2. We reiterate that the policy of the Act is speedy disposal of arbitration cases. The Arbitration Act is a special Act and a self-contained code dealing with arbitration. This Court in [Fuerst Day Lawson Ltd. Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] , has specifically held as follows: (SCC p. 371, para

89)

"89. It is, thus, to be seen that Arbitration Act, 1940,
from its inception and right through to 2004 (in [P.S.
Sathappan P.S. Sathappan v. Andhra Bank Ltd.,
(2004) 11 SCC 672] ) was held to be a self-
contained code. Now, if the Arbitration Act, 1940 was held to be a self-contained code, on matters
pertaining to arbitration, the Arbitration and
Conciliation Act, 1996, which consolidates, amends
and designs the law relating to arbitration to bring it,
as much as possible, in harmony with
the Uncitral Model must be held only to be more so.
Once it is held that the Arbitration Act is a self-
contained code and exhaustive, then it must
also be held, using the lucid expression [S.N.
Srikantia & Co. v. Union of India, 1965 SCC
OnLine Bom 133 : AIR 1967 Bom 347] of
Tulzapurkar, J., that it carries with it."

[Emphasis Supplied]

1. However, in the present case, the challenge before

this Court is to an order under Order 39 Rule 1 and 2 CPC and not a final decision in an Arbitration Petition filed

under Section 9 of the A & C Act.

9

NC: 2026:KHC:11278 WP No. 5501 of 2026 HC-KAR

1. The issue as to whether such an order is amenable to

challenge under Article 227 of the Constitution of India or

appealable is no longer res integra. The Supreme Court in

the case of [A.Venkatasubbaih Naidu Vs. S. Chellappan

and Others4](https://indiankanoon.org/doc/442524/) has held that the power to grant an ex-parte

injunction is derived from Order XXXIX Rule 1 of the CPC,

since Order XLIII Rule 1(r) of the CPC makes an order

under this rule appealable, the choice of remedy which lies

with the parties is that they can either move the Trial

Court to vacate the order under Order XXXIX Rule 4 or file

an appeal under Order XLIII Rule 1(r) of the CPC. The Court further held that the statute does not distinguish

between ex-parte and final orders in exercise of the

provisions under Order XXXIX Rules 1 and 2 of the CPC and thus the disposing of an application under [Order

XXXIX of the CPC](https://indiankanoon.org/doc/161831507/) would be amenable to such challenge.

The relevant extract of this judgment is set out below:

"6. The first respondent, on behalf of himself and
Respondents 2 to 5, filed a revision petition invoking 4 (2000) 7 SCC 695 10 NC: 2026:KHC:11278 WP No. 5501 of 2026 HC-KAR Article 227 of the Constitution before the High
Court of Madras alleging that they purchased the
property from the owners thereof as per different
sale documents executed on 15-3-1996, and they
were in possession and enjoyment of the property.
They further alleged that one Ranganathan, MLA and one
Hithayatullah together expressed a wish to purchase the
property from the respondents, but it was not agreed to
and then those two persons exerted threat and pressure
on them to capitulate to their demand. As they did not
yield to such threats a suit was filed in 1998 by some
parties who are now supporting the present plaintiff. The
respondents further alleged that the said suit was filed at
the instance and instigation of those two named persons.
When they failed to get any relief there from another suit
was caused to be filed through one M. Devasinghamani
on the strength of some concocted documents. As no
relief was obtained in that suit also the present suit,
which is the third one in the series, has been filed at the
behest of the above-named persons, according to the
respondents.

1. Learned Single Judge of the High Court of Madras who disposed of the revision made the observation that the trial court ought not have granted an order of injunction at the first stage itself which could operate beyond thirty days as the court had then no occasion to know of what the affected party has to say about it. Such a course is impermissible under Order 39 Rule 3-A of the Code, according to the learned Single Judge. He, therefore, set aside the injunction order "for the clear transgression of the provisions of law" and noted that this is the third suit filed in reference to the suit property and hence deprecated the grant of ex parte injunction without notice. Though learned Single Judge further declined to go into the other allegations, he has chosen to make the following observations also:

"However, prima facie, I am satisfied that these
materials are relevant for consideration before
granting ad interim injunction. As per the plaint
and affidavit averments I admit that the first
respondent is occupying a vacant portion of 11 NC: 2026:KHC:11278 WP No. 5501 of 2026 HC-KAR

1670 sq ft and running paper business and
charcoal. But there is no document to show that
the first respondent is actually in possession
and running such a business except the lease
deed. Hence the ex parte order is
unsustainable. For all these reasons, I am of the
view that the order passed by the learned Judge
is liable to be set aside and it is accordingly set
aside."
8. After holding thus, learned Single Judge directed
the trial court to take up the interlocutory
application for injunction and pass orders on merits
and in accordance with law expeditiously."

[Emphasis Supplied]

9.1. A contention was raised in the Venkatasubbaiah's

case that the party aggrieved could have either filed an

application for modification before the Trial Court or file an

appeal before the Appellate Court. It was however held by

the Supreme Court that a petition under Article 227 of the

Constitution of India could not be entertained. The

Supreme Court examined the provisions of Section 104

and Order 43 as well as Order 39 of the CPC and has held

it cannot be contended that ex-parte orders are not

amenable under Order 39 of the CPC. It was held that ex-

parte orders like the remaining orders under [Order 39 of

the CPC](https://indiankanoon.org/doc/161831507/), are also amenable to appeals under Order XLIII 12 NC: 2026:KHC:11278 WP No. 5501 of 2026 HC-KAR

Rule 1(r) of the CPC. It was further held that the party

aggrieved must file an application before the Appellate

Court or the same Court as follows:

1. Shri Sivasubramaniam, learned Senior Counsel
   contended that the High Court should not have
   entertained a petition under Article 227 of the
   Constitution when the respondent had two remedies
   statutorily available to him. First is that the
   respondent could have approached the trial court
   for vacating, if not for any modification, of the
   interim ex parte order passed. Second is that an
   appeal could have been preferred by him against
   the said order. It is open to the respondent to opt
   either of the two remedies, contended the Senior
   Counsel.

2. Section 104 of the Code says that:

"104. (1) An appeal shall lie from the following
orders, and save as otherwise expressly provided in
the body of this Code or by any law for the time
being in force, from no other orders:

---

(i) any order made under rules from which an appeal
is expressly allowed by rules:"
11. Order 43 Rule 1 says that:

"1. An appeal shall lie from the following orders
under the provisions of Section 104, namely--

---

(r) an order under Rule 1, Rule 2, Rule 2-A,
Rule 4 or Rule 10 of Order XXXIX;"
12. Order 39 Rule 1 says thus:

"1. Where in any suit it is proved by affidavit or
otherwise--
13
NC: 2026:KHC:11278 WP No. 5501 of 2026 HC-KAR

(a) that any property in dispute in a suit is in danger
of being wasted, damaged or alienated by any party
to the suit, or wrongfully sold in execution of a
decree, or

(b) that the defendant threatens, or intends to
remove or dispose of his property with a view to
defrauding his creditors,

(c) that the defendant threatens to dispossess the
plaintiff or otherwise cause injury to the plaintiff in
relation to any property in dispute in the suit, the
court may by order grant a temporary injunction to
restrain such act, or make such other order for the
purpose of staying and preventing the wasting,
damaging, alienation, sale, removal or disposition of
the property or disposition of the plaintiff, or
otherwise causing injury to the plaintiff in relation to
any property in dispute in the suit as the court thinks
fit, until the disposal of the suit or until further
orders."
13. It cannot be contended that the power to
pass interim ex parte orders of injunction does
not emanate from the said Rule. In fact, the
said Rule is the repository of the power to grant
orders of temporary injunction with or without
notice, interim or temporary, or till further
orders or till the disposal of the suit. Hence,
any order passed in exercise of the aforesaid
powers in Rule 1 would be appealable as
indicated in Order 43 Rule 1 of the Code. The
choice is for the party affected by the order
either to move the appellate court or to
approach the same court which passed the ex
parte order for any relief."

[Emphasis Supplied]

1. A similar view has been taken by the Supreme Court

in the case of Virudhunagar Hindu Nadargal Dharma 14 NC: 2026:KHC:11278 WP No. 5501 of 2026 HC-KAR

Paribalana Sabi and others Vs. Tuticorin Educational

Society and Others5 and [Mohamed Ali Vs. V.Jaya and

Others6](https://indiankanoon.org/doc/23426324/) wherein it has been held that, where a petition

under Article 227 of the Constitution of India was filed

challenging such an order held that the petition is not

maintainable. The relevant extract of Virudhunagar

Hindu Nadargal Dharma Paribalana Sabi's Case is

below:

"11. Secondly, the High Court ought to have seen that
when a remedy of appeal under Section 104(1)(i) read
with Order 43, Rule 1(r) of the Code of Civil Procedure,
1908, was directly available, Respondents 1 and 2 ought
to have taken recourse to the same. It is true that the
availability of a remedy of appeal may not always be
a bar for the exercise of supervisory jurisdiction of
the High Court. In A. Venkatasubbiah Naidu v. S.
Chellappan [A. Venkatasubbiah Naidu v. S.
Chellappan7], this Court held that "though no hurdle
can be put against the exercise of the constitutional
powers of the High Court, it is a well-recognised
principle which gained judicial recognition that the
High Court should direct the party to avail himself of
such remedies before he resorts to a constitutional
remedy".

1. But courts should always bear in mind a
   distinction between (i) cases where such alternative
   remedy is available before civil courts in terms of
   the provisions of Code of Civil Procedure, and (ii)
   cases where such alternative remedy is available 5 (2019) 9 SCC 538 6 (2022) 10 SCC 477
   7(2000) 7 SCC 695 15 NC: 2026:KHC:11278 WP No. 5501 of 2026 HC-KAR

   under special enactments and/or statutory rules
   and the fora provided therein happen to be quasi-
   judicial authorities and tribunals. In respect of
   cases falling under the first category, which may
   involve suits and other proceedings before civil
   courts, the availability of an appellate remedy in
   terms of the provisions of CPC, may have to be
   construed as a near total bar. Otherwise, there is a
   danger that someone may challenge in a revision
   under Article 227, even a decree passed in a suit, on
   the same grounds on which Respondents 1 and 2
   invoked the jurisdiction of the High Court. This is
   why, a 3-member Bench of this Court, while
   overruling the decision in [Surya Dev Rai v. Ram
   Chander Rai Surya Dev Rai v. Ram Chander Rai8,
   pointed out in [Radhey Shyam v. Chhabi Nath
   Radhey Shyam v. Chhabi Nath9, that "orders of civil
   court stand on different footing from the orders of
   authorities or tribunals or courts other than
   judicial/civil courts".

2. Therefore wherever the proceedings are under the
   Code of Civil Procedure and the forum is the civil court,
   the availability of a remedy under the CPC, will deter the
   High Court, not merely as a measure of self-imposed
   restriction, but as a matter of discipline and prudence,
   from exercising its power of superintendence under the
   Constitution. Hence, the High Court ought not to have
   entertained the revision under Article 227 especially
   in a case where a specific remedy of appeal is
   provided under the Code of Civil Procedure itself."

[Emphasis Supplied]

1. Concededly, the petitioner has instead of availing of

the remedy provided under Order XLIII Rule 1(r) of the 8 (2003) 6 SCC 675 9 (2015) 5 SCC 423 : (2015) 3 SCC (Civ) 67 16 NC: 2026:KHC:11278 WP No. 5501 of 2026 HC-KAR CPC, has chosen to file the present petition under [Article

227](https://indiankanoon.org/doc/1331149/) of the Constitution of India. In view of the settled law

in this behalf, this petition cannot be entertained.

1. Accordingly, the petition is disposed of granting

liberty to the petitioner to take appropriate steps in

accordance with law.

1. It is clarified that this Court has not examined the

matter on merits. All rights and contentions of both parties

are left open, to be agitated before the appropriate Forum. Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKA

(TARA VITASTA GANJU)
JUDGE

JJ / YN
List No.: 2 Sl No.: 7 17