Delhi District Court
Varsha Tubes Pvt. Ltd vs Bureau Of Indian Standards on 18 July, 2007
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IN THE COURT OF SH. RAJ KUMAR CHAUHAN :
ADDITIONAL DISTRICT JUDGE : DELHI
In the matter of: -
Suit No. 29/2007.
Varsha Tubes Pvt. Ltd. ... Plaintiff.
Vs.
Bureau of Indian Standards. ... Defendant.
- : ORDER : -
1.By this order, I propose to dispose of an application u/o 12 r 6 CPC of the plaintiff wherein it is stated that the defendant has admitted that if the matter relates to trade mark, Bureau of Indian Standards (BIS) is not involved; that the defendant has admitted that the Contd... ... ...
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licence issued does not give any information related to trade mark/brand name and the ISI mark is in no way connected with issuance of trade mark licence; that the defendant has also admitted that the licence of the defendant does not endorse any trade mark or trade mark related information; therefore, it is proved that the BIS licence of the defendant has been misused by the said company i.e. M/s Mahadev Asbestos Pvt. Ltd. as mentioned in the suit and the defendant is empowered and bound under the law to take the legal and strict actions against the said misuse under the purview of BIS Act 1986 read with BIS Certification Regulations 1988 and its rules. It is further stated that the present suit is not with regard to any misuse of the trade mark but the misuse of the licence granted by the defendant; that the defendant has admitted that it has no role in permitting/approving any brand name/trade mark, therefore, the suit of the plaintiff be decreed on Contd... ... ...
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the basis of admission made by the defendant.
2.The defendant has not filed any reply to the present application. The learned counsel for defendant stated that the contents in the written statement are sufficient that may be considered with regard to the present application. The learned counsel for defendant pointed out that the present suit is not maintainable as there is no cause of action to institute the same against the defendant; that M/s Mahadev Asbestos Pvt. Ltd. is necessary party with whom the plaintiff is having various litigations in Culcutta and as such the suit is bad for non-joinder of necessary parties. In para no. 19, on merit, in the written statement it is stated that the "BIS Certification Marks Licence No. CM/L-524038 was granted in favour of M/s Mahadev Asbestos Pvt. Ltd. to use BIS Standard Mark (ISI Mark) in accordance with BIS Act 1986 read with BIS Certification Contd... ... ...
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Regulations 1988. The licence issued do not give any information related to Trade Mark/Brand Name." It is further stated in para no. 20, on merit, in the written statement that the misusing of the BIS licence in the given circumstances does not arise because the use of brand name/trade mark is proposed by the prospective licensee through a declaration in a proforma which clearly indicate that use of such declared brand name/trade name is entirely the responsibility of the prospective licensee and BIS will have no role to play in case of any dispute with any other organisation. In para no. 26, on merit, in the written statement it is stated that "BIS is not empowered to take action on any trade mark violation in terms of BIS Act 1986." Therefore, all averments in the plaint are controverted and denied and it is stated that the present suit of the plaintiff is liable to be dismissed. The learned counsel for defendant, therefore, vehemently argued that not Contd... ... ...
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only the present application u/o 12 r 6 CPC but the case of the plaintiff itself is not maintainable because the plaintiff has an equally efficacious remedy available under the Trade Mark Act.
3.The learned counsel for plaintiff on the other hand argued that as per the rules and regulations of BIS Act, the defendant is empowered to cancel the licence given to M/s Mahadev Asbestos Pvt. Ltd. and as such the present suit of the plaintiff is liable to be decreed.
4.I have considered the rival submissions made at bar and gone through the pleadings of the parties. In the prayer clause "a", the plaintiff has prayed for a decree of declaration declaring that the defendant has no right under the law to issue any Trade Mark licence and the said licence bearing no. CM/L-5240348 granted to the said company i.e. M/s Mahadev Asbestos Pvt. Ltd. is Contd... ... ...
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not a trade mark licence and does not confer any right relating to trade mark "Mahadev" to the said company. In prayer clause "b", a decree of mandatory injunction is prayed directing the defendant to take strict legal actions both civil as well as criminal at the earliest against the said company i.e. M/s Mahadev Asbestos Pvt. Ltd. as per law which includes the cancellation of the said licence. In prayer clause "c", a decree of permanent injunction is prayed restraining the defendant permanently to renew the licence of the said company i.e. M/s Mahadev Asbestos Pvt. Ltd. and to ensure that the said company will not use the trade mark "Mahadev" of the plaintiff company on their products under the garb of the said licence granted by the defendant. In the written statement, the defendant has questioned the legality of the present suit instituted by the plaintiff, meaning thereby, the defendant has raised a serious dispute as to whether Contd... ... ...
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the relief claimed in the plaint can be granted to the plaintiff or not. It shows that the defendant has raised an issue which goes to the root of the case. Whenever, a party has raised an issue in the written statement which goes to the root of the case, the decree cannot be granted u/o 12 r 6 CPC. In this context, I would like to refer the latest pronouncement of our own Hon'ble High Court in case cited as 2006 V AD (Delhi) 667 titled as Charanjit Singh Vs. Kehar Singh wherein the Hon'ble D.B. Headed by Hon'ble Mr. Justice Swatanter Kumar was pleased to hold in para no. 8 as under: -
"8. It is also a settled principle of civil jurisprudence that judgment on admission is not a matter of right and rather is a matter of discretion of a Court. Where the defendant has raised objection which will go to the very root of the case, it would not be appropriate to exercise this discretion. The use of the words 'May' and 'make such orders' or 'give such judgment' spells out that power under these rules are discretionary and use of discretion would have to be controlled in accordance with the known judicial cannons."
Contd... ... ...
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5.The Hon'bleHigh Court of Delhi in IA No. 5912/2004 in CS (OS) 1578 of 2002 titled as Express Towers Vs. Mohan Singh decided on 22.8.2006 (MANU/DE/8926/2006), it was held as under: -
"It is no more res integra that before a court can act under order 12 rule 6, admission must be clear and unambiguous. When the admission is not clear and unequivocal and the pleadings of the parties raise serious preliminary pleas which are likely to non-suit a party, a court in its discretion can refuse to pass a decree."
6.The Hon'bleHigh Court of Delhi in RFA No. 724/2005 titled as Charanjit Singh Vs. Kehar Singh decided on 11.5.2006 (MANU/DE/8646/2006), it was pleased to hold as under: -
"The admission on the basis of which the Court wishes to pass a decree has to be unambiguous, clear and unconditional."
Contd... ... ...
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7.On the basis of law referred (supra) and the facts and circumstances discussed above, I am of the considered opinion that there is no such unambiguous and unequivocal admission made in the written statement which may lead to the passing of the decree by this Court u/o 12 r 6 CPC. For the reasons discussed above, the application u/o 12 r 6 CPC of the plaintiff is not maintainable and the same is, accordingly, dismissed.
Announced in the open Court on 18.7.2007.
(RAJ KUMAR CHAUHAN) ADDITIONAL DISTRICT JUDGE, DELHI Contd... ... ...