PREVENTIVE RELIEF

INJUNCTIONS
CHAPTER VII and VIII
 Injunctions Generally
Section 36: Preventive relief how granted—Preventive relief is granted at the
discretion of the court by injunction, temporary or perpetual.

Section 37: Temporary and perpetual injunctions—

(1) Temporary injunctions are such as are to continue until a specific time, or
until the further order of the court, and they maybe granted at any stage of a
suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908).
(2) A perpetual injunction can only be granted by the decree made at the
hearing and upon the merits of the suit; the defendant is thereby perpetually
enjoined from the assertion of a right, or from the commission of an act, which
would be contrary to the rights of the plaintiff.
 Perpetual Injunctions
38. Perpetual injunction when granted.—(1) Subject to the other provisions contained in or
referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent
the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and
provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment
of, property, the court may grant a perpetual injunction in the following cases, namely:—
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be
caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
 Requisites of Section 38
Injunctions:
Section. 38. Perpetual injunction when granted.-
1) Subject to the other provisions contained in or referred to by this Chapter,
2) to prevent the breach of an obligation existing in his favour of plaintiff, whether expressly or
by implication.
3) If such obligation arises from contract, follow the provisions contained in Chapter II.
4)If defendant invades or threatens to invade the plaintiff' s right to, or enjoyment of, property,

grant a perpetual injunction in the following cases, namely:-

1. where the defendant is trustee
2. if there exists no standard for ascertaining the actual damage caused, or likely to be caused, by
the invasion;
3. if invasion - that compensation in money would not afford adequate relief;
4. to prevent a multiplicity of judicial proceedings.
 Illustrations: Section 38
• In the course of A’s employment as a vakil, certain papers belonging
to his client, B come into his possession. A threatens to make this
papers public, or to communicate there contents to a stranger. B may
sue for an injunction to restrain A from so doing.
• A, is B’s medical advisor. He demands money for which B declines to
pay. A then threatens to make known effect of B’s communications to
him as a patient. This is contrary to A’s duty and B may sue for an
injunction to restrain him from so doing.
 Illustrations: Section 38
• A, the owner of certain houses in Dhaka becomes insolvent. B buys them from
the official assigned and enters into possession. A persists in trespassing on
and damaging the houses and B is thereby compelled, at considerable
expenses to employ men to protect the possession. B may sue for an
injunction to restrain further acts of trespass.
• A pollutes the air with smoke so as to interfere materially with the physically
comfort of B and C, who carry on business in a neighboring house. B and C may
sue for an injunction to restrain the pollution.
• A Municipal Committee issues a notice to Mr. Gyan a house owner for
removing certain encroachments from the Municipal land. Mr. Gyan files a suit
for injunction to restrain municipality from doing so. Can injunction be issued?
Intellectual and Industrial Property
• Injunctions can be granted in case of infringement of copyright,
trademarks, patents, designs and geographical indications. Injunctions
may also be granted in a proper case to restrain the breach of
confidential terms and passing off.
• For the purpose of the section a trade mark is property.
Relevant case of this section-
M/S. Hossain Ahmed vs M/S HD Hossain & Brothers, 32 DLR
Coca-Cola Company v Glacier Water
Industries 
(CSHigh
Delhi (COMM) 1290/2016)
Court grants Permanent Injunction against use of KINLEY
In The Coca-Cola Company v Glacier Water Industries (CS (COMM)
1290/2016), the High Court of Delhi has granted plaintiff The Coca-Cola
Company a permanent injunction against Glacier Water Industries (first
defendant) for infringement and passing off of the plaintiff's registered
trademark KINLEY. In doing so, the court reaffirmed the protection
afforded to well-known trademarks in India.
Coca-Cola Company v Glacier Water
Industries 
(CS (COMM)
• Coca-Cola 1290/2016)
sought permanent injunction for infringement and passing
off of KINLEY mark
• Court found that defendants used mark dishonestly without Coca-
Cola’s authorisation
• Court issued permanent injunction prohibiting defendants from using
KINLEY and passing off goods as Coca-Cola’s
Coca-Cola Company v Glacier Water
Industries 
(CS (COMM) 1290/2016)
• The plaintiff is one of the largest soft drinks companies in the world, with operations in more than 200 countries. The
plaintiff is engaged in the manufacture and sale of non-alcoholic beverages to the public in glass and PET bottles, cans and
other containers.
• The KINLEY mark was adopted and launched by the plaintiff in India in 2001 in relation to its brand of high- quality bottled
water. The plaintiff’s authorised bottler in India applied for and obtained registration of the mark in Class 32 in the country.
The plaintiff has also been using the mark in 35 other countries worldwide.
• The plaintiff came across the use of the mark KINLEY by the first defendant in relation to water purification systems using
reverse osmosis. The first defendant falsely claimed to have launched its water system in collaboration with Coca Cola India
Pvt Ltd, a subsidiary of the plaintiff's authorised bottler.
• Upon conducting an investigation into the first defendant, it was further identified that the latter openly advertised its
products and prominently displayed the KINLEY mark on its advertising and promotional material when supplying its
products to customers in India through its franchisees. Detailed evidence in this regard was filed by the plaintiff with the
Delhi High Court.
• In addition, the plaintiff observed that the first defendant had also applied for registration of the KINLEY mark (Application
No 2329491) in Class 11 in relation to "water purifiers, water supply and sanitary purposes", claiming use since April 1 2011.
• The Delhi High Court, on a preliminary evaluation of the aforementioned facts, granted an ex parte ad interim injunction in
favour of the plaintiff on April 29 2013. The first defendant:
Coca-Cola Company v Glacier Water
Industries 
(CS (COMM)
• was restrained 1290/2016)
from manufacturing, selling, advertising or in any other manner whatsoever using
the KINLEY mark, and/or any other mark deceptively similar to the plaintiff’s mark, in a way
which infringed the plaintiff’s mark or passed off its goods as those of the plaintiff; and
• was ordered to transfer the domain names 'kinley.in' and ‘kinleyro.com', and/or any other
domain name similar to the plaintiff’s mark, to the plaintiff.
• The plaintiff then filed an application to implead two of the partners of M/s Balaji Enterprises, a
franchisee of the first defendant - namely, Mr Mukesh and Mr Manoj. The Delhi High Court, in an
order dated September 15 2016, allowed the application partially and impleaded M/S Balaji
Enterprises as second defendant. The preliminary injunction was also extended to the second
defendant.
• The Delhi High Court, in its order dated September 15 2016, decreed that the current suit should
proceed ex parte against the first defendant. In addition, since the second defendant did not file
a written statement within the stipulated period of time, the Delhi High Court, in an order dated
July 11 2017, decreed that the suit should also proceed ex parte against the second defendant.
Coca-Cola Company v Glacier Water
Industries 
(CS (COMM) 1290/2016)
• JUDGMENT
• The Delhi High Court, while relying on the evidence submitted by the plaintiff, observed that, due to its extensive use over a
substantial period of time, the plaintiff's mark had acquired reputation and goodwill in India, as well as globally.
• Additionally, the Delhi High Court held that the first and second defendants had dishonestly used the KINLEY mark, which is identical
to the plaintiff’s mark, without any explicit authorisation by the plaintiff. This was based on the evidence submitted by the plaintiff,
which it accepted as true and correct, and was not rebutted by either the first or the second defendant.
• Consequently, the Delhi High Court held that the use of the mark by the first and second defendants amounted to infringement and
passing off of the plaintiff's mark. The court thus issued a permanent injunction ordering that the first and second defendants should:
• refrain from using the KINLEY mark, or any mark deceptively similar to the plaintiff’s mark in any manner whatsoever, including but
not limited to domain names;
• refrain from passing off their goods as those of the plaintiff;
• transfer the domain names 'kinley.in' and 'kinleyro.com', and/or any other domain name similar to the plaintiff’s mark, to the plaintiff;
and
• withdraw Application No 2329491.

[VICTORY FOR COCA-COLA: DELHI HIGH COURT GRANTS PERMANENT INJUNCTION AGAINST USE OF KINLEY, NISHITH DESAI
ASSOCIATES, APRIL 2018]
 Mandatory Injunctions
• Section 39: Mandatory injunctions—When, to prevent the breach of
an obligation, it is necessary to compel the performance of certain
acts which the court is capable of enforcing, the court may in its
discretion grant an injunction to prevent the breach complained of,
and also to compel performance of the requisite acts.
 Injunction when refused
41. Injunction when refused.—An injunction cannot be granted—
(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the
injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a court not sub-ordinate to that from
which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which would not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of
breach of trust; 1[(ha) if it would impede or delay the progress or completion of any infrastructure project or interfere
with the continued provision of relevant facility related thereto or services being the subject matter of such project.]
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to be the assistance of the court;
(j) when the plaintiff has no personal interest in the matter.