Delhi High Court
Chinar Trust And Ors. vs Usha International Ltd. on 30 May, 1986
Equivalent citations: 30(1986)DLT373
JUDGMENT Sunanda Bhandare, J.
(1) This is an application (I A. 2347/86) under Order 39 Rule 4 read with Section 151 Civil Procedure Code filed by the defendant wherein the defendant has prayed that the ex-parte injunction granted by this Court on 1st April 1986 be vacated and the suit as well as the application filed by the plaintiffs be dismissed.
(2) The facts of the case lie in a very narrow compass. Plaintiff no. 1 is a registered proprietor of the trade mark Usha for various goods namely Mixing machines for kitchen use, room heaters, stoves, hot plates for cooking and electric irons etc. for which various registration numbers are assigned to them. Plaintiff no. 2 is a Trust and is engaged in trading in goods including Mixes bearing the trade mark Usha under the license of plaintiff no. 1. Plaintiff no. 3 is a marketing organisation which markets the Usha mixer grinders of plaintiffs 1 and 2. The plaintiffs claim to be owning the trade mark Usha for more than seven years. On 1st February 1968 the plaintiffs' attention was invited to a Caution Notice dated 4th January 1986 issued by the defendant who claimed to be the proprietor of the trade mark Usha in relation to mixers and grinders etc. Pursuant to this Caution Notice the plaintiffs sent general notice to the defendants calling upon them to desist from using the trade mark Usha in relation to mixers, grinders or any other consumer durables and refrain from manufacturing, selling, offering for sale, advertising or dealing in Mixes, grinders and household goods under the trade mark USHA. The defendant filed a suit before the District Judge, Ambala on 12th March 1986 Along with an application for injunction under Sections 105, 106 and 120 of the Trade & Merchandise Marks Act, 1958 (hereinafter referred to as the Act) against Shriram Group of Companies from extending the illegal and unjustifiable threats. Along with this suit an application under Order 39 Rules I and 2 read with Section 151 of the Cpc was also filed for grant of ad interim injunction restraining the defendant in that suit from using the trade mark Usha in respect of mixers, juicers and grinders.
(3) By an order dated 12th March 1986 the District Judge, Ambala ordered notice on the application and granted ad interim ex-parte stay against Shariram Group of Companies restraining them from using the trade mark Usha in respect of mixers, Juicers and grinders till further orders. Thereafter, the plaintiffs filed the present suit Along with an application under Order 39 Rules I and 2 against the defendant and the order dated 1st April 1986 came to be passed.
(4) Firstly, it was contended by the learned counsel for the defendant that though the suit was filed in the Ambala Court against Shriram Group of Companies, the plaintiffs herein, in their general notice itself had stated that Shriram Group of Companies were using the trade mark Usha and the suit at Ambala having been instituted prior to the present suit. the proper thing for the plaintiffs herein to do would be to move the Ambala Court for vacation of the order or for any other appropriate relief. It was contended that the present suit being later in time should be stayed. Secondly, it was contended that though the plaintiffs in the present suit are claiming that they are the owners of registered trade mark Usha they have not put on record anything to show that they have been using this trade mark prior to the time the defendant started using the trade mark USHA. It was submitted that the person who is in prior use of the trade mark is entitled to use the trade mark and not the person who has a trade mark registered in his name. Learned counsel in support of his contention relied on Consolidate Foods Corpn. v. Brandon & Co. Pvt. Ltd.. and M/s L. D. Malhotra v. M/s Roopi Industries, 2nd 1976(2) 278. It was lastly contended that the plaintiffs have not paid proper court fees and thus the plaint being defective no relief ought to be granted. Learned counsel relied on the two judgments of this Court in S. No. 734/76 and S. No. 1224/82 decided on 7th August 1981 and 30th August 198 5 respectively in support of this contention and referred to various paragraphs of the plaint with a view to show that the plaintiffs have arbitrarily valued the suit for purposes of court fees.
(5) On the other hand, learned counsel for the plaintiffs contended that the suit filed in the Ambala Court is filed against a non-existent party because Shriram Group of Companies is not a legal entity and it is the plaintiffs herein who are the proprietors of the trade mark USHA. It was, therefore, submitted that the institution of the suit at Ambala would have no effect on the present suit. On the question of prior user, it was contended that the plaintiffs had purchased the trade mark Usha from Appliances Emporium who were the predecessor in interest. It was submitted that the plaintiffs being the owners of registered trade mark Usha bad a better right than the defendant and the defendant was guilty of infringement of that trade mark. It was further submitted that the general notice sent by Acme Co. to the defendant clearly indicated the name of plaintiff no. 3 but plaintiff no. 3 is not made a party to the suit. On the question of insufficiency of court fee, it was contended that subsequent to the two judgments referred to by the defendants a Division Bench of this Court in M/s Commercial Aviation & Travel Co. & Another v. Mrs. Vimla Pannalal (F.A.0. 65/86) decided on 14th March 1986 has held that paragraph 4 of sub-section (1) of the Court Fees Act gives a right to the plaintiffs to place any value that he likes on the relief he seeks and the court has no power to interfere with the plaintiffs value.
(6) On going through the documents and considering the contentions of the parties. I find no substance in the contention of the defendant that the suit at Ambala being a prior suit no orders can be passed in the present suit. The defendant in the suit filed in Ambala is a non-existent party. It is the plaintiffs in the present suit who are the owners of registered trade mark USHA' The certificates of registration are annexed Along with the plaint which prima-facie indicate that the registration is current and valid. None of these plaintiffs are parties to the Ambala suit. That being the position, Section 10 of the Civil Procedure Code . will not be attracted.
(7) As regards the contention regarding under-valuation and inadequacy of court fees I find that this point is covered by the judgment of a Division Bench of this Court in Commercial Aviation & Travel Co. and Another (supra). The judgment of the Supreme Court in A.KA.CT. v. Ct Meenakshi Sunderam Chettiar, and the full Bench judgment of this Court in Smt. Sheela Devi and Others v. Krishan Lal Kalra and Others 2nd 1974 (20 Delhi) 491 referred to by the learned Single Judge in S. No. 1224/82 decided on 30th August 1985 have been considered by the Division Bench and it has been held that the judgment of the Supreme Court would not be applicable to Delhi because it was based on provisions as prevalent in Andhra Pradesh. Thus, so far as this Court is concerned, in view of Rules 3 and 4 Punjab High Court Rules as applicable to Delhi, jurisdictional value for suit for accounts, the plaintiff can put his estimated valuations for the purposes of jurisdiction. I am bound by the judgment of the Division Bench of this Court and in this view of the matter the suit is not under-valued.
(8) Now coming to the question of prior user. It is not disputed that the plaintiffs own registered trade mark, however it is contended that it was obtained by fraud and the defendant who is prior user can challenge the use of this trade mark under the Act. However, to my mind, the validity of the registered trade mark of the plaintiffs cannot be challenged by the defendant in this suit and under Section 31 of the Act registration is the prima-facie evidence of its validity. The documents referred by the plaintiffs also prima- facie indicate that the trade mark Usha was being used by the plaintiffs and its predecessor in interest right from 1971 onwards. The defendant has not been able to show anything from the record that they were prior users of this trade mark. Coupled with this fact the plaintiffs have also produced a registered trade mark in their name. Thus, prima-facie it appears to me that the plaintiffs have made out a case for grant of an interim injunction.
(9) In the result the application is dismissed. No costs. I.A. 2128/86 (10) In view of the order in Ia 2347/86 the interim order dt. 1st April 1986 is confirmed. I.A. stands disposed of.