Madras High Court
Orders Reserved On vs Sri Narasu'S Coffee Company Limited on 17 July, 2017
Author: V.M.Velumani
Bench: V.M.Velumani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.07.2017 CORAM THE HONOURABLE MS. JUSTICE V.M.VELUMANI CRP(PD)No.3268 of 2015 and M.P.Nos.1 and 2 of 2015 Orders reserved on 21.06.2017 Orders pronounced on 17.07.2017 Narasu's Saarathy Enterprises Private Limited Rep. by its Managing Director Mr.M.V.Balasubramaniam No.16-A, Court road Johnsonpet, Salem-636 007. .. Petitioner ..Vs.. 1.Sri Narasu's Coffee Company Limited Rep. by its Managing Director P.Sivanantham No.16, Court road, Johnsonpet, Salem-636 007. 2.M/S.Srimathi Mahalakshiammal Educational Trust Rep. by its Managing Trustee Poosaripatty, Omalur Taluk Salem District. 3.M/S.Narasu's Sarathy Institute of Technology Rep. by its Chairman Poosaripatty, Omalur Taluk, Salem District. 4. Sri.R.P.Sarathy 5.M.S.Narayanan 6.L.Venkataraman 7.N.Santhanakrishnan 8.R.Badri Prasad 9.B.Jayshree 10.M.V.Balasubramaniam 11.B.Latha ..Respondents PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, to strike off the original suit No.86 of 2015 on the file of the Principal District Court, Salem. For Petitioner : Mr.K.Rajasekaran For R1 : Mr.AR.L.Sundaresan Senior Counsel for Mr.I.Arokiasamy O R D E R
Civil Revision Petition is filed to strike off the original plaint in O.S.No.86 of 2015 on the file of the Principal District Court, Salem.
2. The petitioner is the 11th defendant, first respondent is the plaintiff and respondents 2 to 11 are the defendants 1 to 10 in O.S.No.86 of 2015 on the file of the Principal District Court, Salem. The petitioner has filed present civil revision petition to strike off the plaint in O.S.No.86 of 2015.
3(i) According to the petitioner, first respondent earlier filed C.S.Nos.291 of 2007 and 698 of 2011 in this Court for the very same relief as claimed in the present suit. In C.S.No.291 of 2007, first respondent claimed permanent injunction restraining the petitioner and defendants 3, 9 and 10 therein from using the Trade mark Narasus {word per se} along with or independent of the device of lady holding a cup within a circle for infringement of Trade mark, passing off, infringement of copy right and consequential reliefs.
(ii) First respondent also filed O.A.Nos.424 to 427 of 2007 for interim order. The said applications were disposed of by this Court on 07.11.2007. Against the same, first respondent filed O.S.A.Nos.234 to 239 of 2008. Even in the said appeals, first respondent did not get any favourable order. First respondent again filed C.S.No.698 of 2011 against the petitioner before this Court for the very same cause of action and identical reliefs, except the word English in the relief portion and did not get any order. In the circumstances, first respondent has filed present suit in O.S.No.86 of 2015 for the very same relief suppressing earlier suit.
(iii) According to the petitioner, the present suit is clear abuse of process of Court and is liable to be struck off. First respondent has suppressed the earlier suit and he is not entitled to file three suits against the petitioner for the very same cause of action for the very same relief in different forum, which is barred by resjudicata and the same has to be struck off. All the three suits are filed against the petitioner for permanent injunction restraining him from using the Trade mark Narasus {word per se} along with or independent of the device of lady holding a cup within a circle for infringement of Trade mark, passing off, infringement of copy right and consequential reliefs.
(iv) The present suit is frivolous and vexatious suit. The Court has power under Order VII Rule 11 of C.P.C. to reject the plaint at threshold itself, but when there is a flagrant violation of principles of law or abuse of process of Court, where there is dereliction of duty of grave nature by lower Court, the parties are entitled to invoke jurisdiction under Article 227 of the Constitution of India. The present suit is relitigation of earlier suit filed only to harass the petitioner.
4. The learned counsel for the petitioner in support of his contention, relied on the following judgments:
(i) C.R.P.(PD).No.2098 of 2009, dated 17.09.2009, in para-41, it is held as follows:
41. There is no dispute with respect to the legal position that before approaching the High Court in exercise of jurisdiction under Article 227 of the Constitution of India, the parties should avail the alternative remedy. However, in a given case, if the attempt of a party to the litigation was to take undue advantage and the suit was a clear abuse of process of law and that too in a case in which the very suit itself was filed only to circumvent the order passed by the Supreme Court, this Court was not expected to be a mute spectator without taking steps to correct the jurisdictional error.
(ii) 1998 (3) SCC 573 [K.K.Modi Vs. K.N.Modi and others], wherein at paragraph 44, it has been held as follows:-
44. One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of the courts discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding.
5. The learned Senior Counsel appearing for the first respondent filed vacate stay petition along with counter affidavit submitted that all the three suits are not filed for the same cause of action and not against the same person. First respondent has filed the suits whenever there is infringement of his right. C.S.Nos.291 of 2007 and 698 of 2011 are filed in respect of infringement of mark Narasu's in connection with Sooji, Atta, Maida and other food products, whereas infringement on the basis of which the present suit in O.S.No.86 of 2015 is filed with regard to use of first respondent's mark in connection with educational institution and other business. The petitioner without approaching the trial Court, by invoking Order VII Rule 11 of C.P.C. has approached this Court under Article 227 of the Constitution of India, which is not maintainable. The petitioner has filed written statement in O.S.No.86 of 2015 and is contesting the suit. The present civil revision petition is filed only to drag on the proceedings and to harass the first respondent. Earlier two suits filed by the first respondent are pending and they are not finally disposed. Only if they are finally disposed, principles of resjudicata will apply. Section 10 of the C.P.C. says that if an issue between the same parties was finally decided, the subsequent suit awaiting judgment, is hit by Resjudicata. The suit in C.S.No.291 of 2007 has not been finally decided and it is not between the same parties and claimed under the same cause of action. In support of his contention, he has relied on the following judgments:
(i) CDJ 2015 SC 161 (Radhey Shyam v. Chhabi Nath);
(ii) (2014) 6 SCC 508 (Jacky v. Tiny Alias Antony and others);
(iii) CDJ 2013 MHC 2525 (R.Perumal Naicker v. R.Sakrapani);
(iv) CDJ 2013 MHC 2732 (G.Subramani v. V.Rajasekaran);
(v) (2010) 8 SCC 329 (Shalini Shyam Shetty v. Rajendra Shankar Patil);
(vi) (2010) 9 SCC 385 (Jai singh v. Municipal Corporation of Delhi);
(vii) CDJ 2007 MHC 555 (Ganapathy Subramanian v. S.Ramalingam);
(viii) 2003 (4) CTC 176 (Surya Dev Rai v. Ram Chander Rai);
(ix) CDJ 1975 SC 447 (Bathutmal Raichand Oswal v. Laxmibai R.Tarta);
6. Learned Senior Counsel further contended that the present civil revision petition is not maintainable and power under Article 227 of the Constitution of India is a discretionary power and it can be used only when the Court or Tribunal assumed jurisdiction which it does not have or failed to exercise a jurisdiction, which caused violation of justice and over stepping the limits of jurisdiction. None of the above condition is made out by the petitioner and the civil revision petition is liable to be dismissed. Further, the learned Senior Counsel submitted that the present suit is not relitigation of earlier suit, for which, he relied on the judgment in C.R.P.(PD).No.2098 of 2009, dated 17.09.2009, in para-34, it is held as follows:
34.The statutory provision as contained in Section 11 CPC bars the jurisdiction of a Court to try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title and has been heard and finally decided by such Court. As per Explanation IV to Section 11 CPC, any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Therefore, the second suit is barred not only on the ground that the issue raised in the said suit was directly in issue in the former suit between the parties or their predecessor-in-interest but also on the ground of a deeming fiction. The explanation IV to Section 11 of CPC was inserted with a specific purpose, to put an end to the litigation once for all. In the absence of such a provision, the parties would file suits after suits with new grounds. There should be finality to litigation. The principles of constructive res judicata would be applicable in such cases. In case parties are permitted to initiate re-litigation, it would have the effect of unsettling matters which were settled earlier.
7. Heard the learned counsel for the petitioner and Senior counsel for the first respondent and perused the materials on record.
8. The contention of the learned counsel for the petitioner is that the first respondent has filed three suits against the same person on the same cause of action and for the very same relief. Copies of the plaint in all the three suits are filed in the typed set of papers.
9. C.S.No.291 of 2007 is filed by the first respondent, while it was a partnership firm, against Narasu's Roller Flour Mill and its partners for permanent injunction with regard to infringement of Narasu's (word per se) and 'Narasus Coffee' along with or independent of the device of the lady drinking coffee from a cup within a circle in respect of the defendant's products, either by manufacturing or selling or offering for sale or in any manner advertising the same, restraining the defendants claiming through them from passing off their product bearing the trade marks Narasu's along with or independent of the device of the lady drinking coffee from a cup within a circular border together with any identical and deceptively similar mark, get up and write up as and for the celebrated product of the first respondent bearing the trade mark Narasu's, restraining the defendants claiming through them from infringement of the first respondent's copyright in the artistic work, restraining the defendants claiming through them from passing off the trading style of the first defendant firm or such other name with the word Narasus and for a direction to the defendants to surrender to the first respondent the entire stock of unused wrappers having the mark Narasus and to render a true and faithful account of the profits earned by it through the sale of the offending bathing coffee bearing the offending trade mark and artistic work Narasu's carton.
10. C.S.No.698 of 2011 is filed by the first respondent against the Narasu's Roller Flour Mill, for permanent injunction restraining the defendant and their men claiming through or under them from committing acts of infringement of first respondent's registered trademark NARASU'S and NARASU'S with the device of a lady drinking coffee from a cup within an oval device by use of trademarks NARASU'S per se and the label NARASU'S in English with a device of a lady sipping from a cup or any other mark similar thereto in respect of food products including interalia maida, sooji, atta, flour products, restraining the defendants claiming through from manufacturing, distributing, marketing, selling, offering for sale, advertising or in any manner using the NARASU'S per se and the label NARASU'S in English with a device of a lady sipping from a cup, from acts of infringement of first respondent's copyright in the artistic work NARASU'S and NARASU'S and the defendant be ordered to deliver up for destruction all the wrappers and such other materials bearing the NARASU'S per se and the label NARASU'S in English and defendant be ordered to pay a sum of Rs.10,00,000/- being compensatory and punitive damages for committing acts of infringement and passing off in various manner and for a preliminary decree.
11. The present suit in O.S.No.86 of 2015 filed by the first respondent is against M/S.Srimathi Mahalakshmiammal Educational Trust and M/S.Narasu's Sarathy Institute of Technology both represented by the Managing Trustee Mr.R.P.Sarathy. The relief in the present suit is with regard to using the trade mark by the educational institutions of the respondents 2 and 3. First respondent is claiming permanent injunction in respect of trade mark Narasu's. In all the three suits, the defendants are different and business carried out by the defendants are also different. It cannot be said that the first respondent has filed all the three suits against the same person based on the same cause of action and for the same relief.
12. In the circumstances, the contention of the learned Senior Counsel for the first respondent that whenever a party infringed the trade mark, the suit has been filed, cause of action and relief sought for in the suit are different, has considerable force. The present suit is against the educational institutions and earlier suits are against one Narasu's Roller Flour Mill. Further, earlier two suits filed by the first respondent are pending and they are not finally disposed. Only when the earlier proceedings has been finally decided and parties who are unsuccessful in earlier proceedings initiated another proceedings for the same cause of action against the same person, it can be said that the party is relitigating the proceedings. The contention of the learned counsel for the petitioner that the first respondent is relitigating the issue by filing the present suit is without merits. Similarly, the contention of the learned counsel for the petitioner that the first respondent is forum shopping, is also without any basis.
13. The power conferred on the Courts under Article 227 of the Constitution of India is an extraordinary power. As per the said power, the Court has supervisory control over Subordinate Courts. The Court has power to stop the proceedings and strike out the plaint, if the said proceeding is abuse of process of Court; the plaint does not reveal cause of action; the Court has exceeded its jurisdiction or failed to exercise its jurisdiction or from the averments in the plaint, it is seen that there is no possibility of plaintiff succeeding in the suit or the suit is abuse of process of Court. Article 227 of the Constitution of India can be invoked also to prevent miscarriage of justice and grave injustice and the relief sought for is contrary to justice and public policy. The Court can exercise this power even if the party has not exhausted the alternative remedy. The vexatious, obstructive or dilatory action can be struck off at the threshold itself.
14. It is pertinent to note that the Court must exercise this power sparingly and only in extraordinary cases. The plaint can be struck off only when the Court is satisfied that it is a fit case to exercise the power under Article 227 of the Constitution of India. This power is discretionary power and the Court must exercise the power judicially. The Court can consider only the averments in the plaint to decide whether the plaint is liable to be struck off or not. The written statement or any document relied on by the defendant cannot be considered.
15. It is well settled that this Court has extraordinary power under Article 227 of the Constitution of India and it can be exercised only sparingly and in a cautious manner. The plaint can be rejected only when the plaint discloses no cause of action, abuse of process of law and barred by limitation. This Court can interfere, only if there is clear abuse of process of Court, based on the averments or pleadings of the plaint. If it is established that the suit has been filed as an abuse of process of Court, in order to prevent the abuse of process of court and to avoid miscarriage of justice, this Court has to order strike off the plaint. In the present case, as already stated that all the three suits are filed against the different persons, based on different cause of action and for different reliefs. In the circumstances, it cannot be said that the present suit is abuse of process of law and first respondent has approached this Court suppressing the material fact based on falsehood. The judgments relied on by the learned counsel for the petitioner do not advance the case of the petitioner. The Civil Revision Petition is devoid of merits.
16. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
17.07.2017 Index :Yes / No Speaking Order/Non Speaking Order To The Principal District Court Salem.
V.M.VELUMANI,J.
kj Pre-delivery order made in CRP(PD)No.3268 of 2015 and M.P.Nos.1 and 2 of 2015 17.07.2017