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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ O.M.P.(I) (COMM.) 116/2024
TIPPING MR PINK PRIVATE LIMITED ..... Petitioner
Through: Mr. Jayant Kumar, Advocate.

versus

M/S SAVERA EATS ..... Respondent

Through: None.

CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 22.04.2024
I.A. 8559/2024 (seeking exemption from filing certified/ fair typed copies of
annexures)

1. Exemption is granted, subject to all just exceptions.

2. The Applicant shall file legible and clearer copies of exempted
documents, compliant with practice rules, before the next date of hearing.
3. Accordingly, the application stands disposed of.

O.M.P. (I) (COMM.) 116/2024

4. Although the Respondent has been served with the advance notice on
their email ID, as specified in the Franchise Agreement dated 7th January,
2022, there has been no appearance on their behalf1.
5. The Petitioner, Tipping Mr Pink Private Limited, has filed the instant

1
It is noted that at a later point in time, an appearance slip was submitted on behalf of the Respondent
bearing the names of Mr. Anshul Gupta and Mr. Shubham Kaushik, Advocates. However, in view of the
fact that there was no appearance when the matter was taken up and no arguments were addressed on
behalf of the Respondent, the said appearance slip has not been accepted.

O.M.P.(I) (COMM.) 116/2024 Page 1 of 8

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 petition seeking injunction against the Respondent, M/s Savera Eats,
restraining them from using the Petitioner’s registered “BURGER SINGH”
trademarks. The disputes between the parties have arisen in connection to
the Franchise Agreement dated 7th January, 20222 executed between them,
which contains an arbitration clause at Article 28.3. Accordingly, prior to
initiating arbitral proceedings in terms of the Agreement, the Petitioner has
invoked the jurisdiction of this Court under Section 9 of the Arbitration and
Conciliation Act, 19963 seeking interim protection.
6. Mr. Jayant Kumar, counsel for Petitioner, has presented the following
facts and contentions:
6.1. The Petitioner is engaged in the business of operating fast casual
dining restaurants/ outlets under the brand name “BURGER SINGH”. In this
regard, Petitioner has adopted the trademark “BURGER SINGH” and logo

“ ”, and on account of their long and continuous use, the

Petitioner has garnered significant goodwill and reputation in their
trademarks/ trade names. The registration details of the Petitioner’s
“BURGER SINGH” trademarks under the Trade Marks Act, 19994 are
extracted hereunder:

2
(“the Agreement”)
3
(“Arbitration Act”)
4
(“TM Act”)

O.M.P.(I) (COMM.) 116/2024 Page 2 of 8

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 6.2. On 30th October, 2021, the Petitioner issued a Letter of Intent to Ms.
Megha Suraj Gupta, proprietor of the Respondent, for setting up a franchise
outlet of “BURGER SINGH” at Saharsa, Bihar. Pursuant thereto, the parties
executed the Franchise Agreement dated 7th January, 2022, whereby the
Respondent was granted permission to operate a franchise outlet, utilising
the Petitioner’s registered trademark “BURGER SINGH”, for a term of ten
years from the date of execution.

O.M.P.(I) (COMM.) 116/2024 Page 3 of 8

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 6.3. The license granted to the Respondent for using the Petitioner’s
trademarks was made subject to certain terms and conditions specified in the
Agreement, such as Articles 4 and 10, which set out certain obligations of
the Respondent, including payment of an administrative fee computed at the
rates specified in the aforenoted Letter of Intent. Article 13 of the
Agreement sets out the grounds and process for termination of the
Agreement by either party. Pertinently, Article 13.3(i) empowers the
Franchisor to terminate the Agreement, without cause, by providing a prior
written notice of 10 days. Further, Article 14 stipulates the effects of such
termination––specifically, Article 14.1 sets out certain obligations that
would arise upon receipt of a termination notice under Article 13. The
relevant portions thereof are reproduced below:
“14.1. Upon termination of this Agreement for any of the reasons mentioned
in Article 13 above, the Franchisee shall immediately and in any event within
2 (two) Business Days from the date of receipt of the Termination Notice:

(a) cease to operate and conduct the Restaurant Business from the Outlet;
Provided however, that the Franchisee shall not be relieved of any accrued
obligations under this Agreement including any obligation to pay any
monetary dues to the Franchisor, as per the terms of this Agreement;

…xxx… …xxx… …xxx…

(d) cease to use the Licensed Marks and desist from using any mark
confusingly or deceptively similar to the Licensed Marks.”

6.4. In October, 2023, upon noticing that the Respondent was acting in
breach of their obligations under the Agreement, the Petitioner issued a
show cause notice dated 7th November, 2023, seeking an explanation
regarding such breaches and calling upon the Respondent to rectify the
same. The Respondent replied to the aforesaid notice on 15th November,
2023, refuting the allegations made by the Petitioner. Per contra, they

O.M.P.(I) (COMM.) 116/2024 Page 4 of 8

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 contended that the Agreement was liable to be terminated at the option of
the Respondent. Further, it was contended as follows:
“There are certain issues that should answered by the first part-

1. The first part has preferred the legal way for the issues between both the
parts without any prior written information and e-mails. Therefore wef
date of Show Cause Notice, Franchisee Obligations and related clauses
in the said agreement will be kept on hold till disposal of these issues.”

[Emphasis Supplied]

6.5. The above stand reflects that the Respondent has no intention to fulfil
their obligations under the Agreement. Therefore, being left with no choice,
the Petitioner terminated the Agreement vide notice of termination dated 18th
December, 2023. In terms of Article 13.3(i) of the Agreement, the
termination notice applied with effect from 28th December, 2023, after the
expiry of the 10-day notice period. The said termination notice has not been
challenged by the Respondent.
6.6. Despite such termination, as per the Petitioner’s knowledge, the
Respondent is continuing to operate the franchise outlet under the
Petitioner’s registered trademark “BURGER SINGH”. This amounts to
infringement of the Petitioner’s statutory rights as well as violation of the
Respondent’s obligations, as delineated in Article 14.1 of the Agreement.
Moreover, the Petitioner has also received complaints from customers
regarding food items supplied by the Respondent. In absence of any
contractual relationship between the parties, the Petitioner is no longer able
to exercise quality control mechanism on the Respondent’s operations and
as such, the Respondent’s activities are causing them loss of reputation and
goodwill.
6.7. In such circumstances, the Petitioner has applied under Section 9 of

O.M.P.(I) (COMM.) 116/2024 Page 5 of 8

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 the Arbitration Act for grant of interim protections. Since the arbitration
agreement between the parties specifies New Delhi to be the seat of
arbitration, this Court has the requisite territorial jurisdiction to entertain the
present petition.
7. The Court has considered the aforenoted factual backdrop. On the
basis of the contentions noted above and the documents produced on record,
the Petitioner has established their statutory rights over the trademark
“BURGER SINGH”, as well as variations thereof. The Agreement executed
between the parties formed the foundation for the grant of permission to the
Respondent to use the Petitioner’s registered trademarks. Consequently, the
termination notice issued by the Petitioner – in accordance with Article
13.3(i) of the Agreement – would have the effect of revoking the
authorization conferred upon the Respondent to operate their franchise outlet
under the Petitioner’s mark, as well as obligating the Respondent to cease
use of the Petitioner’s trademarks and operation of the franchise outlet, in
terms of Article 14.1(d) of the Agreement. Accordingly, in the prima facie
opinion of the Court, the Respondent no longer has any right to continue to
use the Petitioner’s registered trademark. Additionally, the stand taken by
the Respondent qua termination of the Franchise Agreement, as expressed in
the aforenoted communication dated 15th November, 2023, reveals a
disinclination on their part to act in compliance with the obligations
delineated in the said Agreement.
8. In view of the above, the Court finds that the Petitioner has made out
a prima facie case in their favour and in case no ex-parte ad-interim
injunction is granted, Petitioner will suffer an irreparable loss. Further,
balance of convenience also lies in favour of the Petitioner and against the

O.M.P.(I) (COMM.) 116/2024 Page 6 of 8

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 Respondent.
9. Accordingly, till the next date of hearing, the Respondent, and/or
anybody acting on their behalf, is restrained from using the Petitioner’s
registered trademark “BURGER SINGH”, or any other mark which is
identical or deceptively similar to the Petitioner’s mark.
10. Additionally, the Petitioner apprehends that the Respondent is likely
to remove all evidence and deny their involvement in the infringing
activities. Thus, in order to preserve evidence of infringement, the present
petition seeks appointment of a Local Commissioner to visit the premises of
the Respondent.
11. Accordingly, the following directions are issued:
11.1. Mr. Nikhil Beniwal, Advocate [Contact No. +91 9990095979]
is appointed as the Local Commissioner to visit the premises of the
Respondent located at:
Savera Eats, Hotel Grand Savera, Chanakya Puri,
Ward No. 19, Saharsa, Bihar – 852201.

11.2. The Local Commissioner, along with a representative of the

Petitioner and their counsel, shall be permitted to enter upon the premises of
the Respondent mentioned above and/or any other location/ premises that
may be identified during the course of commission, in order to conduct the
search, seizure and inventory.
11.3. The Local Commissioner shall conduct a search at the said
premises and seize any infringing material, including hoardings, signs,
display boards, operational manuals, catalogues, packaging material,
marketing/ promotional material, letterheads, business cards and any other
printed material bearing the Petitioner’s “BURGER SINGH” trademarks (as
represented above), and/or any other mark which is identical or deceptively

O.M.P.(I) (COMM.) 116/2024 Page 7 of 8

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 similar to the Petitioner’s registered marks.
11.4. After seizing the infringing material in terms of the above
directions, the same shall be inventoried, sealed and signed by the Local
Commissioner in the presence of the parties, and released on superdari to
the Respondent on their undertaking to produce the same as and when
further directions are issued in this regard.
11.5. Further, the Local Commissioner shall be permitted to
undertake/arrange for photography/ videography of the execution of the
commission. Both the parties shall render full assistance to the Local
Commissioners for carrying out the aforenoted directions.
11.6. In case any of the premises are found locked, the Local
Commissioners shall be permitted to break open the lock(s). To ensure an
unhindered and effective execution of this Order, the Station House Officer
(SHO) of the local police station is directed to render all assistance and
protection to the Local Commissioner, if and when sought.
11.7. The fee of the Local Commissioner, to be borne by the
Petitioner, is fixed at INR 1,50,000/-. The Petitioner shall also bear expenses
for travel and lodging of the Local Commissioner and other miscellaneous
out-of-pocket expenses for the execution of the commission. Fee of the
Local Commissioner shall be paid in advance by the Petitioner.
11.8. The Local Commissioner shall file their report within a period
of four weeks from the date on which the commission is executed.
12. List on 6th August, 2024.

SANJEEV NARULA, J
APRIL 22, 2024/nk

O.M.P.(I) (COMM.) 116/2024 Page 8 of 8

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