A Classic Case of Suppression: Bombay High Court Vacates Ex-Parte Injunction in Elder Projects v. Elder Nutraceuticals

By Vikrant Rana and Nihit Nagpal

Introduction

The Bombay High Court’s recent judgment in Elder Projects Ltd. v. Elder Nutraceuticals Pvt. Ltd. serves as a stark reminder that ex-parte injunctions being extraordinary remedies demand the highest standard of candour from plaintiffs. Justice Sandeep V. Marne, by an order dated 9 March 2026, vacated an ex-parte ad-interim injunction previously granted to Elder Projects Ltd., finding that the plaintiff had secured the order by grossly suppressing material facts across four distinct categories. Resultantly, Hon’ble Court also imposed on the Defendant, a cost of rupees one lakh.

The case underscores a fundamental principle: a litigant who approaches the court with unclean hands forfeits all entitlement to equitable relief, irrespective of the underlying merits of the claim.

The Origin of “ELDER”

The dispute traces back to Elder Pharmaceuticals Ltd. (EPL) , a company incorporated in 1983 by Late Mr. Jagdish Saxena. EPL was the first adopter, user, and registered proprietor of the trademark “ELDER” in India, building substantial goodwill in the pharmaceutical sector.

The Stakeholders

Dr. Anuj Saxena (son of Late Mr. Jagdish Saxena) is the director of the plaintiff, Elder Projects Ltd. (EPLtd) .
Ms. Shalini Kumar (daughter of Late Mr. Jagdish Saxena) is the director of the defendant, Elder Nutraceuticals Pvt. Ltd. (ENPL) .

The Business Arrangement

Between 1994 and March 2016, EPLtd acted merely as a contract manufacturer for EPL, it manufactured medicines for EPL but did not own or claim any rights in the “ELDER” mark. This position was repeatedly admitted by Dr. Anuj Saxena in multiple proceedings.

The Liquidation and Aftermath

In 2017, EPL went into liquidation. Thereafter, both siblings commenced independent businesses using variants of the “ELDER” mark:

EPLtd obtained registration for a stylised device mark in June 2024, claiming use since 1992-93.
ENPL marketed products under the mark ELDER NEUTRACITICALS, claiming use since 2015.

The Dispute

In May 2025, EPLtd claimed its distributors “discovered” ENPL’s products. A cease-and-desist notice followed, and upon receiving an unsatisfactory reply, EPLtd filed a commercial IP suit before the Bombay High Court on 26 September 2025, seeking urgent ex-parte relief.

The Ex-Parte Injunction and Its Vacation

What the Plaintiff Obtained

On 26 September 2025, without issuing notice to ENPL, the Bombay High Court granted an ex-parte ad-interim injunction restraining ENPL from using the mark “ELDER” or any deceptively similar variant. The Court also appointed a Court Receiver to seize ENPL’s goods.

The Defendant’s Response

ENPL entered appearance and filed Interim Application (L) No. 35091 of 2025 under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 (CPC) , seeking vacation of the injunction on the ground of suppression of material facts.

The Crux of the Matter: What the Plaintiff Suppressed

Justice Marne identified four categories of suppression, each material to the grant of injunction:

Suppression of EPL’s Ownership and Use of “ELDER”
The plaintiff claimed in its plaint that it had “coined the mark” and was using it since 1992-93. The Court found this to be a complete falsehood. EPL was the originator and registered proprietor of the “ELDER” mark since 1983—a fact the plaintiff conveniently omitted.
Suppression of Relationship Between the Parties
The plaintiff did not disclose that:
1. Its director (Dr. Anuj Saxena) and the defendant’s director (Ms. Shalini Kumar) were siblings.
2. Both were children of Late Mr. Jagdish Saxena, the founder of EPL.
3. Ms. Shalini Kumar had served as Director (Sales and Marketing) in EPL.
The Court observed that the suppression was aimed at presenting the dispute as one between unconnected commercial entities, whereas it was essentially a family dispute arising from EPL’s liquidation.

Suppression of Four Adverse Orders of the Delhi High Court
This was the most disturbing aspect of the suppression. The plaintiff had filed multiple suits before the Delhi High Court claiming rights in the “ELDER” mark and had suffered adverse orders in each:

amendments within 15 days
Case	Date	Finding
Elder Projects Ltd. v. Elder Labs Ltd. (CS(COMM) 59/2019)	11 February 2019	Plaintiff’s director admitted plaintiff was “merely doing job work” for EPL and did not claim rights in “ELDER” mark. Court recorded prima facie finding of “false claims”.
Elder Projects Ltd. v. Elder Pharmacia LLP (CS(Comm) 1313/2018)	5 April 2019	Delhi High Court held that EPL was the exclusive owner of “ELDER” mark and that the plaintiff was an infringer. It applied the principle that “one pirator cannot sue another“.
Antex Pharma Pvt. Ltd. v. Elder Projects Ltd. (CS(COMM) 178/2024)	28 February 2024	Plaintiff restrained from issuing groundless threats. Court reiterated that “ELDER” mark belongs to EPL alone.
Elder Orgichem Pvt. Ltd. v. Elder Projects Ltd.	19 December 2024	Division Bench set aside ex-parte injunction obtained by plaintiff, noting concealment of vital facts.

None of these orders were disclosed to the Bombay High Court when the plaintiff sought ex-parte relief.

Suppression of Proceedings Before the Official Liquidator
In response to a notice from the Official Liquidator of EPL dated 21 February 2022, the plaintiff had stated in writing on 28 February 2022:
1. It was “nowhere concerned” with EPL’s trademarks.
2. It was merely a contract manufacturer for EPL from 1994 to March 2016.
3. It had not sought transfer of any trademarks from EPL.
This admission, completely contrary to the plaintiff’s claim in the suit, was also suppressed.

What the Court Actually Held: Key Findings

Suppression Was Deliberate and Material
The Court held that the four categories of suppression were not inadvertent but calculated and systematic. Each category had the potential to “significantly influence the decision-making process”. Had these facts been disclosed, the Court would not have granted ex-parte relief and would have issued notice to the defendant.
The Plaintiff’s Afterthought Argument Failed
During oral arguments, the plaintiff sought to salvage its position by contending that:
1. The Delhi High Court suits concerned the word mark “ELDER” (belonging to EPL), whereas the present suit concerned a stylised device mark .
2. It had no objection to the defendant using the word “ELDER” as long as the stylised font and colour were not copied.
The Court rejected this as an afterthought and contrary to pleadings. The plaint and prayers clearly sought to restrain the defendant from using the word “ELDER” in combination with other words. The plaintiff could not wriggle out of suppression by presenting a new case orally.
False Urgency Demonstrated
The plaintiff claimed urgency on the ground that its distributors “discovered” the defendant’s products in May 2025. The Court found this impossible to believe because:
1. The parties’ directors were siblings.
2. The defendant had produced documents showing use of its mark since 2015.
3. There had been prior litigation between related entities.
The urgency pleaded was blatantly false, constituting an additional ground for vacation.

The Plaintiff Approbated and Reprobated
The Court noted multiple contradictory stands taken by the plaintiff across proceedings:

amendments within 15 days
Proceeding	Stand Taken
Plaint in this suit	Using mark since 1992-93
Delhi High Court suits	Enforcing “ELDER” mark (of EPL) till December 2024
Reply to Official Liquidator (Feb 2022)	“Nowhere concerned” with EPL’s trademarks; only contract manufacturer

The Court held that such conduct of “blowing hot and cold” disentitled the plaintiff to any equitable relief.

Independent of Suppression, No Prima Facie Case
Even ignoring suppression, the Court found the plaintiff had failed to establish:
1. The goodwill in “ELDER” belonged to EPL. The plaintiff’s claim of “shared reputation” was already rejected by the Delhi High Court.
2. The plaintiff’s admission of being a contract manufacturer till 2016 falsified its claim of independent use since 1992-93.
3. The defendant had established use since 2015, and balance of convenience favoured the defendant.
The Principle: “One Pirator Cannot Sue Another”
The Delhi High Court had already held in Elder Pharmacia LLP that the plaintiff was an infringer of EPL’s mark. Applying the principle from Capital Plastic Industries v. Kappy Plastic Industries (1998) 8 PTC 182 (Del) that “one pirator cannot sue another”, the Bombay High Court held that the plaintiff, being itself an infringer, could not maintain an action against the defendant

Taun Tripathi, Former Associate at S.S. Rana & Co. has assisted in the research of this article.