Bombay High Court
Cipla Ltd vs Cipla Industries Pvt. Ltd. And Vishal ... on 26 April, 2016
Author: G. S. Patel
Bench: G.S. Patel
CIPLA Ltd v Cipla Industries Pvt Ltd
909-NMS2463-12-CIPLA.DOC
ATUL
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 2463 OF 2012
IN
SUIT NO. 1906 OF 2012
CIPLA Limited ...Plaintiff
Versus
CIPLA Industries Private Limited & Anr.
ig ...Defendants
Dr. Veerendra Tulzapurkar, Senior Advocate, with Mr. Rashmin
Khandekar, Mr. Rahul Dhote, & Ms. Janhvi Chada, i/b M/s.
Krishna & Saurastri Associates, for the Plaintiff.
Mr. Ashish Kamat, with Mr. Vaibhav Bhure, Ms. Madhu Gadodia &
Mr. Himanshu Choudhary, i/b M/s. Naik Naik & Co., for the
Defendants.
CORAM: G.S. PATEL, J
DATED: 26th April 2016
ORAL ORDER:-
1. The Suit is an action in trade mark infringement combined with the cause of action in passing off. I have heard Dr. Tulzapurkar for the Plaintiff and Mr. Kamat for the Defendants briefly. The dispute is about the mark 'CIPLA' registered to the Plaintiff in Class 05 of the Fourth Schedule to the Trade Mark Rules, 2002.
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2. In this order, I do not propose to decide this Notice of Motion. The reason is that a decision of a Division Bench of this Court has been cited before me on the central issue; although that decision is undoubtedly binding on me, I have, for the reasons that follow, expressed my reservations about its correctness. For these reasons, I have directed that the questions I have then formulated be placed before the Hon'ble the Chief Justice for his decision as to whether these should be referred to a larger Bench or not. Both sides have also addressed me on the correct procedure to be followed in such matters. I will refer to these decisions and the relevant Rules on the Original Side of this Court in that regard as well. There is no disagreement on the procedural aspect.
3. To put the dispute between the parties in a nutshell: The Plaintiff, a well-known manufacturer of pharmaceutical products, has been using the mark CIPLA for a long time. It is also part of its corporate name. CIPLA is in fact an abbreviation of its earlier corporate name. There is no doubt, however, that within Class 05, the Plaintiff has only ever used the mark for pharmaceutical and medicinal preparations. This is not the Defendants' use of the mark.
The Defendants have the mark as part of their corporate name, and they use it in a slightly different form in respect of household articles, such as soap dishes, photo frames, ladders and so on. The Defendants claim to have a registration of a very similar mark 'CIPLA PLAST' in their favour in Class 21 of the Fourth Schedule to the Trade Mark Rules, 2002.
4. To briefly understand the rival disputes, it is necessary to set out the contents of these two Classes:
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"5. Pharmaceutical, veterinary and sanitary preparations, dietetic substances adapted for medical use, food for babies; plasters, materials for dressings, materials and stopping teeth, dental wax; disinfectants; preparation for destroying vermin; fungicides, herbicides.
21. Household and kitchen utensils and containers (not of precious metal or coated therewith); combs and sponges; brushes (except paints brushes); brush making materials; articles for cleaning purposes; steelwool, unworked or semi-
worked glass (except glass used in building);
glassware, porcelain and earthenware not included in other classes."
5. Dr. Tulzapurkar submits that CIPLA is a 'well-known mark' within the meaning of Section 2(1)(zg) read with Section 29(4) of the Trade Marks Act, 1999. The Plaintiffs' corporate name is CIPLA Limited. The Defendants registered mark is 'CIPLA PLAST' used in a single line. According to him, the Defendants are not using the mark as it is registered. They are using it with the word 'PLAST' on a separate line.
6. The first decision that Dr. Tulzapurkar relies on a Division Bench decision of this Court in Raymond Limited v Raymond Pharmaceuticals Private Limited.1 This was decided under Sections 29(4) and 29(5) of the Trade Marks Act, 1999. It related to the use of the corporate name Raymond by the defendants in that action. In that case too, the defendants were not using the mark on goods in 1 2010 (44) PTC 25 (Bom) (DB) Page 3 of 19 26th April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 30/04/2016 23:59:51 ::: CIPLA Ltd v Cipla Industries Pvt Ltd 909-NMS2463-12-CIPLA.DOC the same Class as the plaintiff. The Division Bench held that the Plaintiff was not entitled to an injunction. The case on passing off seems to have been given up and the case was pressed only on infringement.
7. It is necessary to set briefly the background of that case. The Appeal came up from an order dated 15th February 2007 that finally disposed of the Notice of Motion filed by the Plaintiff. In the Suit, the plaintiff claimed a permanent injunction restraining the defendants from infringing its trade mark. The plaintiff claimed that it had conceived and adopted the use of the word 'Raymond' in a stylized manner for marketing its products. It obtained registration in Class 25 for apparel: textiles, shirting, suiting, sarees and so on. It also obtained copyright registration for the adoption of the word Raymond in a stylized fashion. Thus, for garments and apparel, the plaintiff claimed both registered copyright and a registered trade mark in the word Raymond. The plaintiff claimed that the defendant's use of the word Raymond amounted to infringement sufficient to warrant an injunction. The single judge having refused the injunction, the plaintiff appealed.
8. The defence taken before the Appeal Court was, first, that the use of the word Raymond in the corporate name of the defendant would not result in infringement. The defendant, in any case, dealt in a separate class of goods. It claimed that the word Raymond was a common word or name. The word itself mean "mighty protection"
in English and it, therefore, adopted that name in relation to its business of pharmaceutical products.Page 4 of 19
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9. Before the Appeal Court it was submitted on behalf of the plaintiffs that the provisions of Section 29(4) of the Trade Marks Act, 1999 were attracted. It was submitted that the plaintiff had a reputation in India and that the defendant was using the mark without due cause resulting in a dilution of the plaintiff's mark. The defendant disputed that its use of the word Raymond in its corporate name, trade name or trading style could ever amount to an infringement or result in a dilution of the plaintiff's registered trade mark. The defendant submitted that the two were totally dissimilar and that the trade mark was only a part of the defendant's corporate or trading name and this, therefore, excluded the operation of Section 29(4) of the Trade Marks Act, 1999. It was submitted that it was Section 29(5) that would apply in such a case; the goods being dissimilar, the plaintiff could get no injunction.
10. After considering the law at some length, while dismissing the plaintiff's appeal, the Division Bench held in paragraphs 12, 13 and 14:
"12. Reading the provisions of Trade-mark Act and the Companies Act together shows that a new provision has been incorporated in sub-section 5 of Section 29 for a definite purpose. It is clear that section 29 deals with different situations when an act on the part of the Defendant would amount to infringement of the registered trade-mark. A registered trade-mark can be adopted by a Defendant as its trade-name in two situations, (i) when the Defendant is dealing in the goods in respect of which the trademark is registered and (ii) when the Defendant is not dealing in the goods in respect of which the trade-mark is registered. The Page 5 of 19 26th April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 30/04/2016 23:59:51 ::: CIPLA Ltd v Cipla Industries Pvt Ltd 909-NMS2463-12-CIPLA.DOC Legislature obviously was aware of this situation, still the Legislature provided that only when the Defendant adopts the registered trade-mark as a part of its trade-name, and deals in goods in respect of which the trade-mark is registered, then only it will amount to infringement. In other words, by necessary implication it is laid down that if the Defendant adopts the Plaintiff s trade mark as his trade-name, but is not dealing in the goods in respect of which the Plaintiff s trade-mark is registered, then it does not amounts to infringement. It was urged on behalf of the Plaintiff that the use of the trade mark of the Plaintiff as a part of the name of the Defendant Company is covered by sub-
section (4) of section 29 of the Act relying on the definition of the term Mark found in sub-section (2)(1)(m) of the Act. It reads as under:-
'2(1)(m) mark includes a device, brand, heading,label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof;'
13. It was submitted that because a name is included in the definition of the term mark if the Defendant uses a name which is identical or similar to the registered trade mark, then it will amount to infringement within the meaning of infringement of the registered mark, within the meaning of sub-
section (4) of section 29 of the Act. If this submission on behalf of the Plaintiff is accepted, then it can be seen that use of registered trade mark of the Plaintiff as part of the trade name when the goods marketed by the Defendant are similar to the goods marketed by the Plaintiff would be covered by sub-section (1) of section 29 and may also be covered by sub-section Page 6 of 19 26th April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 30/04/2016 23:59:51 ::: CIPLA Ltd v Cipla Industries Pvt Ltd 909-NMS2463-12-CIPLA.DOC (2) of section 29. In other words, if this submission of the Plaintiff is accepted, then in case where the Defendant uses as a part of his trade name registered trade mark of the Plaintiff, if the goods are similar, identical or the same as that of the Plaintiff, the case will be covered by sub-sections (1) and (2) of section 29 of the Act and if the goods of the Defendant are dissimilar, it will be covered by sub-section (4) of section 29 and sub-section (5) of section 29 will become otiose. The provisions of various sub-sections of section 29 are in a scheme and none of the provisions are either surplus or otiose. As a matter of legislative policy, it appears, the Legislature decided to treat cases where the Defendant uses registered trade mark of the Plaintiff as a part of his trade name as a distinct subject for the purpose of laying down law in relation to infringement of registered trade mark and legislated that if the Defendant uses registered trade mark of the Plaintiff as a part of his trade name, then if the goods in relation to which the Defendant is using the trade mark are the same as the goods in respect of which the Plaintiff s trade mark is registered, then only it will amount to infringement and not in case where the goods of the Defendant are dissimilar. Holding that where the Defendant is using registered trade mark of the Plaintiff as a part of the trade name of the Defendant, where the goods are the same, sub-section (5) of section 29 will apply but if the goods of the Defendant are dissimilar, sub-section (4) of section 29 will apply, will be contrary to the legislative scheme of section 29.
14. There is another way in which the situation can be looked into. Use of a registered trade-mark as a part of tradename was a known phenomena. Passing of action was initiated in such cases. A special Page 7 of 19 26th April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 30/04/2016 23:59:51 ::: CIPLA Ltd v Cipla Industries Pvt Ltd 909-NMS2463-12-CIPLA.DOC provision has now been made to deal with that situation by incorporating sub-section 5 of Section 29 and therefore, so far as subject of using of registered trade mark as a trade-name is concerned, provision is contained in sub-section 5 of Section 29 and therefore on that subject no other provision would apply. Generalia Specialibus non derogant is a cardinal principle of interpretation. It means that the general provision will always yield to a special provision. Construed in accordance with the fundamental principle, a special provision governing cases of a Defendant using a registered mark as a part of his trade-name is incorporated in Section 29(5) and therefore, that subject will be governed only by that provision and therefore reliance on any other provision including Section 29(4) is ruled out. Thus, we have no doubt in our mind that the Plaintiffs could not have relied on the provisions of Section 29(4) of the Trade-mark Act. In the present case, there is no dispute that the Defendants do not deal in the goods in respect of which the trade-mark of the Plaintiffs is registered. What is to be noted here is that the phrase used by sub-section 5 is dealing in goods or services in respect of which the trade-mark is registered. The Legislature has not used the phrase goods similar or goods identical to the goods in respect of which the trade mark is registered. Thus, in order to claim that use of a registered trade-mark as part of trade-name by the Defendants amounts to infringement, the Plaintiffs have to establish that the Defendants are dealing in the goods in respect of which the mark is registered. In other words, if the Defendants are not dealing in goods in respect of which the trade-mark is registered, then the use of the registered trade-mark as a part of trade-name by the Defendant would not Page 8 of 19 26th April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 30/04/2016 23:59:51 ::: CIPLA Ltd v Cipla Industries Pvt Ltd 909-NMS2463-12-CIPLA.DOC amount to infringement. In the present case admittedly the Defendants are not dealing in the goods in respect of which the trade-mark of the Plaintiffs is registered and therefore, there is no question of the Plaintiffs being entitled to any temporary injunction."
(Emphasis added)
11. Since much of the discussion turned on portions of Section 29, I think it is best to set out the whole of that section:
"29. Infringement of registered trade marks.--(1)
A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.
(2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of--
(a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or
(b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or Page 9 of 19 26th April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 30/04/2016 23:59:52 ::: CIPLA Ltd v Cipla Industries Pvt Ltd 909-NMS2463-12-CIPLA.DOC
(c) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark.
(3) In any case falling under clause (c) of sub-
section (2), the Court shall presume that it is likely to cause confusion on the part of the public.
(4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which--
(a) is identical with or similar to the registered trade mark; and
(b) is used in relation to goods or services which are not similar to those for which the trade mark is registered; and
(c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or its detrimental to, the distinctive character or repute of the registered trade mark.
(5) A registered trade mark is infringed by a person if he uses such registered trade mark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trade mark is registered.
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(a) affixes it to goods or the packaging
thereof;
(b) offers or exposes goods for sale, puts
them on the market, or stockes them for
those purposes under the registered trade mark, or offers or supplies services under the registered trade mark;
(c) imports or exports goods under the mark;
or
(d) uses the registered trade mark on
business papers or in advertising.
(7) A registered trade mark is infringed by a person who applies such registered trade mark to a material intended to be used for labelling or packaging goods, as a business paper, or for advertising goods or services, provided such person, when he applied the mark, knew or had reason to believe that the application of the mark was not duly authorised by the proprietor or a licensee.
(8) A registered trade mark is infringed by any advertising of that trade mark if such advertising--
(a) takes unfair advantage of and is contrary
to honest practices in industrial or
commercial matters; or
(b) is detrimental to its distinctive character;
or
(c) is against the reputation of the trade mark.
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909-NMS2463-12-CIPLA.DOC
(9) Where the distinctive elements of a registered
trade mark consist of or include words, the trade mark may be infringed by the spoken use of those words as well as by their visual representation and reference in this section to the use of a mark shall be construed accordingly."
12. The question considered was not only in relation to whether a mark is used as a mark (in the 'trade marky' sense) or as a trade name but also about the similarity or dissimilarity of goods. In paragraph 12, the Division Bench came to the conclusion that Sections 29(4) and 29(5) operate in mutually exclusive fields.
Consequently, a defendant could legitimately use a plaintiff's mark as the defendant's trade name without running a risk of infringement, provided the defendant dealt in dissimilar goods.
13. It is true that Section 29(4)(b) requires that the infringement be in respect of dissimilar goods whereas Section 29(5) speaks of the mark being used as a trade mark while "dealing in goods or services in respect of which the mark is registered". I do not, however, think that the similarity or dissimilarity of the goods is or can be a primary point of distinction to be made in such a case. The reason, to my mind, is that it often happens and this is certainly not unknown, that a registered trade mark is often used both as a trade mark and also as part of the claimant's trade name, corporate name or trading style.
14. The Division Bench judgment refers to the definition of a mark under Section 2(1)(m). This Section reads as follows:
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15. Clearly, this definition makes no distinction between use of a mark as a trade mark and as a name. In fact, the definition clearly suggests that the expression 'mark' includes a name. Yet it seems to me that the distinction the Division Bench drew in paragraph 13 was that in Sections 29(1), (2) and (4), the phrase 'use of a mark' means and only means 'use of a mark as a mark' or 'use of a mark in its trade marky sense'; it does not include the use of a mark as a trade name. It is on this basis that it concluded that Section 29(5) would be rendered otiose. I believe Section 29(5) operates in another dimension altogether. Where the goods are the same, that sub- section has no requirement of establishing deceptive similarity, identity or likelihood of confusion as required by Sections 29(1) and 29(2), both of which also relate to dealing in similar goods as those for which the mark is registered. Section 29(5) simply states that if party A has a mark XYZ in relation to certain goods or class of goods, party B cannot call itself XYZ Ltd or XYZ & Sons, for example, while dealing in those very goods; nothing further needs to be shown. The adoption of the mark as a name for the same goods is sufficient without further ado to warrant an injunction. Section 29(4), where the goods are different, has many additional requirements, set out in sub-clause (c): identity or similarity, use of the mark in relation to dissimilar goods, proof of a domestic reputation, absence of due cause, taking unfair advantage of, or being detrimental to, the distinctive character or repute of the Page 13 of 19 26th April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 30/04/2016 23:59:52 ::: CIPLA Ltd v Cipla Industries Pvt Ltd 909-NMS2463-12-CIPLA.DOC registered trade mark and so on. None of this is required in Section 29(5), where the goods are similar and the use by the defendant is as a corporate or trading name.
16. It seems to me that read with the definition of mark, it is probably not correct to hold that Sections 29(4) and 29(5) are disjunctive or mutually exclusive. As I noted, in a given case such as this one, the Plaintiff has the same expression as both its mark and its corporate name. The observations of the Division Bench in paragraph 14 that Section 29(4) is a general principle that must yield to Section 29(5) is again postulated on these two provisions being mutually exclusive. That, I think, is incorrect: the two operate in different fields and in different ways.
17. Second, in the case of a 'well known mark', a concept now contemplated by the 1999 Act, it is entirely possible that there may be an infringement by use of the mark as a trade name but for dissimilar goods. The decision of the Division Bench does not contemplate such a situation at all. Indeed, its ration logically occludes all possibility of any such situation. The definition of 'well-
known trade mark' is material:
2(1)(zg) "well-known trade mark", in relation to any goods or services, means a mark which has become so to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the Page 14 of 19 26th April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 30/04/2016 23:59:52 ::: CIPLA Ltd v Cipla Industries Pvt Ltd 909-NMS2463-12-CIPLA.DOC course of trade or rendering of services between those goods or services and a person using the mark in relation to the first-mentioned goods or services.
18. This makes is clear that, subject to the other conditions, a 'well-known trade mark' could also include a name, since the definition in Section 2(1)(zg) begins by saying that a well-known trade mark "... means a mark...". On an application of the Division Bench's ratio, a 'well-known trade mark' when used by a defendant as a corporate or trading name for dissimilar goods would receive no protection at all. I cannot see how this could possibly be correct. For instance, where a mark is used not only as a mark but also as a trade name, and especially where the mark satisfies the tests of being a 'well known mark', the similarity or dissimilarity of the goods should actually make no difference at all. I have dealt with this again a little later in this order, but it seems to me to completely ignore a scenario where, for instance, a defendant adopts 'Xerox' or 'IBM' as its corporate or trading name (though not as a mark) and manufactures pins or pianos. In the Division Bench's reckoning of Section 29, neither of those proprietors would be ever entitled to an injunction. This does not seem to me to be the likely statutory intent.
19. I believe my view is fortified by the definition of the word 'mark' and, too, also by the provisions of Section 29(8) which do not seem to have been referred to by the Division Bench at all. This section speaks of the use of a trade mark being considered infringement in any advertising, if that advertising is unfair and dishonest, is detrimental to the distinctive character or is against the Page 15 of 19 26th April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 30/04/2016 23:59:52 ::: CIPLA Ltd v Cipla Industries Pvt Ltd 909-NMS2463-12-CIPLA.DOC reputation of the trade mark. Section 29(8) is unrelated to similarity or dissimilarity of goods. It speaks only of that mark (lexically, also a 'name') being advertised. Where that advertising takes unfair advantage, is a dishonest commercial or industrial practice, detrimental to the distinctive character of the mark or against its reputation, infringement is established. Now if a particular defendant used the mark as its name, and the advertising was of that name, and the other requirements of Section 29(8) were met, it would make no difference at all whether the goods are similar or dissimilar. That clear-cut distinction between the use of a mark as a mark and the use of a mark as a name that the Division Bench found is all but obliterated in Section 29(8). In fact, it seems to me to follow as a necessary consequence, that the Division Bench's decision renders Section 29(8) not only otiose but wipes it off the statute book entirely. In every single case under Section 29, one would first have to look to the similarity or dissimilarity of goods;
and depending on the outcome of that enquiry, the case would fall under Sections 29(1), 29(2), 29(4) or 29(5), but never under 29(8).
20. The implication of the Division Bench judgment seems to be that a proprietor may use his mark either as a mark or as a corporate name; but he can only succeed in infringement against a defendant who either (a) uses the mark as a mark for goods whether similar or dissimilar (under Sections 29(1), 29(2) or 29(4) as the case may be);
or (b) uses the mark as a corporate name or trading style but for similar goods. The plaintiff cannot get an injunction where the defendant uses the mark (i) as a corporate name or trading style and
(ii) for dissimilar goods; but the same plaintiff may get an injunction only if the defendant advertises his or its name in an unfair and Page 16 of 19 26th April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 30/04/2016 23:59:52 ::: CIPLA Ltd v Cipla Industries Pvt Ltd 909-NMS2463-12-CIPLA.DOC dishonest manner, detrimental to the distinctive character of the mark and destructive of its reputation, irrespective of the nature of the goods. Logically, this would mean that, for instance, 'Mercedes Benz', 'Volvo' or 'Whirlpool' could be used as the name of a partnership firm, a company or a propietorship for, say, ice cream or hosiery or chartered accountancy services; and the proprietors of those marks would have no remedy, unless they were able to zero in on some dishonest advertising of that name. The finding in paragraph 12 that it is a necessary implication that if the defendant adopts the plaintiff's trade mark as a trade name but deals in dissimilar goods, this does not amount to infringement is probably not a correct interpretation of Section 29(4) read with Sections 29(5) and 29(8) of the Trade Marks Act, 1999.
21. I am, of course, bound by the decision in the Raymond. However, in my respectful submission, and for the reasons I have outlined above, the decision in Raymond requires reconsideration;
specifically on the following questions:
(1) Where a party is found to be using a registered trade mark as a 'name', viz., as a corporate or trading name or style, though in respect of goods dissimilar to the ones for which the trade mark is registered, is the proprietor of the registered trade mark entitled to an injunction on a cause of action in infringement under Section 29(5) of the Trade Marks Act, 1999?
(2) Whether the use of a registered trade mark as corporate name or trading name or style is excluded from the purview of Sections 29(1), Page 17 of 19 26th April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 30/04/2016 23:59:52 ::: CIPLA Ltd v Cipla Industries Pvt Ltd 909-NMS2463-12-CIPLA.DOC 29(2) and 29(4) of the Trade Marks Act, 1999, and whether those Sections are restricted to the use of a trade mark 'as a trade mark', i.e., in the 'trade marky' sense?
(3) Whether Sections 29(4) and 29(5) operate in separate and mutually exclusive spheres, i.e., whether, if the defendant uses the registered trade mark only as a corporate name or trading name or style in respect of dissimilar goods, a plaintiff can have no remedy and is not entitled to an injunction?
(4) Whether the view taken by the Division Bench in Raymond Ltd v Raymond Pharmaceuticals Pvt Ltd (2010 (44) PTC 25 (Bom) (DB)) is a correct view?
22. I come now to the question of the procedure to be followed. Rule 28 of the Bombay High Court (Original Side) Rules reads thus:
"R. 28. Reference to two or more Judges.--If it shall appear to any Judge, either on the application of a party or otherwise, that a suit or matter can be more advantageously heard by a bench of two or more Judges, he may report to that effect to the Chief Justice, who shall make such order thereon as he shall think fit."
23. In this regard, my attention is drawn to the judgments of the Full Bench decision of this Court in Karim Abdul Rehman Shaikh v Shehnaz Karim Shaikh & others,2 and of the Supreme Court in Lala 2 2000(3) Mh.LJ 555 Page 18 of 19 26th April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 30/04/2016 23:59:52 ::: CIPLA Ltd v Cipla Industries Pvt Ltd 909-NMS2463-12-CIPLA.DOC Shri Bhagwan & Another v Shri Ram Chand & Another,3 Tribhuvandas Purshottamdas Thakur v Ratilal Motilal Patel,4 and Central Board of Dawoodi Bohra Community & Another v State of Maharashtra & Another.5 From these, it is clear that the correct procedure to follow is to direct that the matter be placed before the Hon'ble the Chief Justice for his decision on the administrative side as to whether the matter does indeed require to be placed for consideration of a larger Bench. This is set out in paragraph 2 of the Bombay High Court decision in Karim Abdul Rehman Shaikh, although in the context of Rule 7 of the Bombay High Court (Appellate Side) Rules. This Rule is in pari materia with the corresponding Rule 28 of the Bombay High Court (Original Side) Rules. This is also substantially the view taken by the Supreme Court in paragraph 18 of Lala Shri Bhagwan, paragraphs 10 and 11 of Tribhuvandas Purshottamdas Thakur, and in paragraph 12 of Central Board of Dawoodi Bohra Community.
24. Accordingly, without expressing any opinion on the merits of the present matter, the Registry is directed to place this matter before the Hon'ble the Chief Justice for suitable directions and his decision as to whether the questions framed above should be referred to a larger Bench for determination.
(G. S. PATEL, J.) 3 (1965) 3 SCR 218: AIR 1965 SC 1767 4 (1986) 1 SCR 455: AIR 1968 SC 372 5 (2005) 2 SCC 673 Page 19 of 19 26th April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 30/04/2016 23:59:52 :::