Delhi District Court
Sh. Anwar Parvez vs Zafaryab Hussain on 5 December, 2009
IN THE COURT OF Dr. KAMINI LAU: ADDL.
DISTRICT JUDGE13: CENTRAL DISTIRCT: DELHI
Suit No. 114/2009
Sh. Anwar Parvez
S/o Late Sh. Mohd. Naseem
R/o 138 Gali Masjid Tehwar Khan,
Naya Bans,
Delhi110006
.............Plaintiff
Versus
1. Zafaryab Hussain
S/o Sh. Asghar Hussain,
1738, Lal Kuan,
Delhi110006
Also At:
Lal Kuan
1790 Katra Sheikh Chand
Delhi110006
2. The Registrar of Trade Marks,
Trade Marks Registry,
Mumbai400020
And also at:
Asstt. Registrar of Trade Marks,
Office of Trade Marks Registry,
Sector 14, Dwarka,
New Delhi.
..............Defendant No.2
Date of Institution: 10.8.2005
Arguments heard on: 27.1.2009
Last date for filing written synopsis: 19.11.2009
Date of Decision: 5.12.2009
: 1 :
: J U D G M E N T :
This suit for declaration and permanent
injunction has been filed by the plaintiff Anwar Parvez
against the defendants. Briefly the facts relevant to the
disposal of the same are as under:
BRIEF FACTS:
Plaintiffs Case:
The case of the plaintiff is that he has been running his business of processing and sale of spices condiments & other allied goods since long and earlier running his said business of processing and sale of spies & condiments as a sole proprietor in the name of Capital Kirana, 104, Gali Masjid Tehwar, Naya Bans, Delhi 110006. According to the plaintiff the aforesaid concern is a partnership concern consisting of four partners including the plaintiff and Mohd. Faheem; Mohd. Shamim and Adnan Parvez as its partners since 26.06.2003. It is pleaded that the defendant No.1 was also dealing in processing and sale : 2 : of spices & condiments and was a regd. proprietor of the trade mark 'Q UTAB MINAR' at No. 456869 and 462712 in class 30 in respect of 'f ood spices for human consumption'.
The case of the plaintiff is that by by virtue of a Deed of Assignment dated 24.03.2000, the defendant No.1 sold and assigned the aforesaid two Regd. Trade Marks bearing No. 456869 and 462712 in respect of the trade mark 'Q UTUB MINAR' in class 30 in favour of the plaintiff, for consideration alongwith the goodwill and reputation of the aforesaid trade marks and as per the terms of the assignment, the defendant No.1 was left with no right, title or interest of any nature whatsoever in the aforesaid two regd. trade marks after 24.03.2000 and the plaintiff along acquired sole and exclusive rights to use the trade mark 'Q UTAB MINAR' and become proprietor of the aforesaid two regd. trade marks which were earlier standing duly regd. in the name of defendant No.1. On 11.08.2000, the defendant No.2 further reaffirmed the aforesaid assignment and sale of the two registered trade marks in favour of the plaintiff pursuant to which necessary affidavit to be : 3 : submitted before the office of the Trade Marks Registry so as to facilitate transfer of the aforesaid two regd. trade marks, in the name of the plaintiff, were also executed and delivered by the defendant No.1 to the plaintiff. It is pleaded that the need, for execution of the documents i.e. AffidavitCumDeed of Assignment/ Declaration and the Affidavit on 11.08.2000 by the defendant, arose because after the execution of the Assignment Deed at Rs.17,000/ only instead of Rs.40,000/ and the cash payment of Rs.23,000/ could not be reflected therein. It is stated that the above mistake could not come to the notice of the plaintiff on 24.03.2000 because the plaintiff can read, write and under stand English. On noticing the above said mistake the plaintiff immediately contacted the defendant and informed him about the inadvertent mistake in the Assignment Deed who agreed to rectify the said mistake in the Assignment Deed dated 24.03.2000 by executing the supplementary deed/declaration and subsequently he voluntarily executed the aforesaid documents on 11.08.2000 in order to make correction, in the Assignment : 4 : Deed dated 24.03.2000, in favour of the plaintiff in respect of the registered trade marks 'Q UTAB MINAR' under Nos.456869 and 462712 in consideration of payment of total amount of Rs.40,000/ to the defendant by the plaintiff.
It is also stated that on the basis of the aforesaid Deed of Assignment dated 24.03.2000, the subsequent AffidavitCumDeed of Declaration dated 11.08.2000 and the Affidavit, duly attested, the plaintiff moved necessary application for recording the change in the ownership of the aforesaid two regd. trade marks in his favour by filling an application in the form of TM23 as prescribed under the Trade Marks Rules, with the office of Trade Marks Registry, Mumbai. According to the plaintiff, after the assignment of the aforesaid two regd. trade marks in his favour and subsequent to the formation of a partnership firm by the plaintiff alongwith the aforesaid three partners, the plaintiff started exclusively using the two trade marks under the aforesaid numbers in respect of processing and sale of spices & condiments. The plaintiff due to its high quality of spices, extensive advertisement and continuous : 5 : use, acquired an established goodwill and recognition amongst the purchasing public and the trade mark ' QUTAB MINAR' has come to be associated with the name of the plaintiff and its partnership concern. It is further pleaded that since even after the expiry of more than two years when the plaintiff did not receive and communication from the defendants No.2 accepting the request of the plaintiff form making suitable changes in his name, the plaintiff enquired from defendant No.2 and in last week of July, 2005 when he came to know that the defendant No.1 has written some letter in the form of an objection with the defendant No.2 whereby the defendant No.1 still claims to be the proprietor of the aforesaid two trade marks which had already been assigned by the defendant No.1 in favour of the plaintiff. The defendant No.2 acting on the basis of the aforesaid letter/objection written by defendant No.1 withheld the proceedings for recognizing the aforesaid Deed of Assignment in favour of the plaintiff and has not till date entered the name of the plaintiff as subsequent proprietor of the aforesaid two regd. trade marks.
: 6 : According to the plaintiff, the omission on the part of the defendant No.2 is contrary to the provisions of the Trade Marks Act and the rules framed there under and the omission on the part of the defendant No.2 is highly objectionable, illegal and against the provisions of the said Act and also against the principles of natural justice. It is stated that the plaintiff had fulfilled all the formalities and submitted the requisite fees and documents with the defendant No.2 for entering his name as subsequent proprietor on the basis of the validly executed documents by the earlier regd. proprietors i.e. defendant No.1, and the defendant No.2 had no right to withhold the proceedings in an illegal manner. It is alleged that defendant No.1 acted absolutely unauthorizedly and contrary to the terms & conditions of the Deed of Assignment by writing the letter/submitting the objections to the transfer of the name of the plaintiff in records of the Trade Marks Registry in respect of the aforesaid two regd. trade marks.
According to the plaintiff, he is required to be declared the proprietor of the trade mark 'QU TAB MINAR' : 7 : under No. 456869 and under No. 462712 in class 30 in respect of food spices for human consumption on the basis of validly executed Deed of Assignment in his favour and also that the withholding of proceedings for transfer of the aforesaid two regd. trade marks in the name of the plaintiff, on the part of defendant No.2, is absolutely illegal and against the provisions of the Trade Marks Act and the Rules framed thereunder and therefore he has approached this court seeking a decree for declaration to the effect that he has become the owner and proprietor of the two regd. trade marks No. 456869 and 462712 in class 30 and that the defendant No.1 has no right, title, claim or interest in the aforesaid two regd. trade marks after 24.03.2000. He has also sought a decree for declaration that the objection filed by the defendant No.1 with the defendant No.2 claiming himself to be the sole owner and proprietor of the aforesaid two regd. trade marks is illegal and without any basis/authority. Further, he is seeking a decree for declaration to the effect that withholding of the proceedings on the part of defendant No.2 on the basis of the illegally : 8 : written objection by defendant No.1 is without jurisdiction and against the rules of the Trade Marks Act, 1999 and a decree for mandatory injunction directing the defendant No.2 to proceed with the requisite trade mark application for effecting necessary changes and recording therein the name of the plaintiff as the subsequent proprietor in respect of the aforesaid two regd. trade marks.
Defendant's Case:
In his written statement the defendant no.1 has raised a preliminary objection that the suit for declaration and permanent injunction filed by the plaintiff is not maintainable under the provisions of Trade Mark Act, 1999 and also under the provisions of the earlier Act, Trade and Merchandise Act, 1958. It is stated that the present suit has been filed before the adjudication of the matter in dispute pending before the defendant no.2, who is legally empowered to adjudicate the same and the present suit is therefore not maintainable under the law. It is also pleaded that the plaintiff is not entitled to the relief claimed in the : 9 : suit in view of the relevant provisions of the Specific Relief Act. The defendant no.1 has denied that the courts of Delhi have the jurisdiction to try the present suit and has stated that as per plaintiff' s own averment in para 12 of the plaint, the cause of action for filing the suit has arisen at Mumbai and as such the present suit could have been filed at Mumbai and not at Delhi. It is also stated that the notice as required under Section 80 C.P.C. has not served by the plaintiff for instituting the present suit and more particularly against the defendant no.2 and therefore, the suit of the plaintiff is liable to be dismissed on this short ground alone.
The defendant no.1 has also stated that the suit of the plaintiff is false, frivolous and vexatious to his own knowledge and that the plaintiff has not come with clean hands before this Hon'bl e Court and in fact has suppressed the true facts from this Hon'bl e Court. He has stated that the facts of the case is that in or around March, 2000, the defendant was in dire need of money at which time the daughter of the plaintiff and the daughter of the defendant, were studying in the same school and were also very close : 10 : friends, due to which reason the plaintiff agreed to advance a sum of Rs.17,000/ to the defendant but asked for some security. The defendant offered to mortgage/ pledge his two trade marks in dispute i.e. Trade Mark "Q utab Minar"
registered at Nos. 456869 and 462712 in Class 30 in respect of food spices for human consumption by depositing the original certificates of registration of trade marks in question with the plaintiff, against the security of which the plaintiff advance a sum of Rs.17,000/ by cheque to the defendant as a loan in March, 2000. It was further mutually agreed that on repayment of the loan amount, the plaintiff will return the said original certificates of registration of trade marks to the defendant and therefore, an equitable mortgage was created by deposit of title deeds i.e. by deposit of original certificates of registration of Trade Marks in dispute which certificates were the valuable property of the defendant and the same was accepted by him. According to the defendant the said mortgage was created in the beginning for one month but this period was extended twice at the request of the defendant and the : 11 : defendant after about five months of taking the aforesaid loan came to know that the plaintiff is misusing his trade marks due to which reason he immediately repaid the loan amount to the plaintiff and on receipt of the loan amount and on the intervention of police reluctantly returned the aforesaid two original certificates of Registration of Trade Marks in dispute to the defendant No.1. It is stated that the said original certificates are still with the defendant and he never agreed to sell or assign his aforesaid trade marks in dispute to the plaintiff and in fact, had he done so in that event the original certificates of registration of trade marks at present would have been in possession and custody of the plaintiff. It is also stated that at the relevant time the plaintiff was doing the business of sale/purchase of betel leaves (Pans) and assignment of trade marks qua the 'Spic es for human consumption' was of no use to him. It is stated that at the relevant time, the market value of the trade marks in question was about Rupees Three Lacs and as such no person will sell/ assign these trade marks for a petty sum of Rs.17,000/. According to the defendant, he has studied : 12 : only upto second class and can neither read nor write English and only knows only Urdu a little bit for purposes of signing and the plaintiff being a creditor had taken undue benefit of the illiteracy of the defendant and at various occasions i.e. at the time of taking loan, at the time of request for extending the period of return of loan and at the time of return of the original certificates in question obtained the signatures and thumb marks of the defendant on various documents/ papers at dotted places without disclosing or explaining the contents thereof. The defendant being a debtor and needy person signed and put his thumb impression on various documents/ papers at the instance of the plaintiff believing and being under the impression that these documents for security and satisfaction of the plaintiff are required to be signed by him. It is stated that at the time of advancing the aforesaid loan of Rs.17,000/ the plaintiff had also on 24.03.2000 executed an agreement of mortgage of original certificates of registration of trade marks with him and handed over the same to the defendant no.1 for his satisfaction but the : 13 : plaintiff being a creditor having an upper hand and defendant No.1 being a needy person/debtor mentioned the loaned amount in the said agreement as Rs.40,000/ instead of Rs.17,000/ which he had actually advanced. It is pleaded that the documents which are alleged by plaintiff in the plaint are forged and fabricated and do not represent the actual nature of transaction which took place between the parties. The defendant in November 2004 came to know that the plaintiff is trying to get Trade Marks in question transferred to his name and as such he immediately vide his application dated 24.11.2004 addressed to the Registrar of Trade Marks, Delhi objected to the same. It has been alleged that the plaintiff has no right whatsoever to use the trade marks in question of the defendant and take any benefit therefrom and the plaintiff is rather liable to pay damages for wrongful use of trade marks of the defendant for taking wrongful benefits.
On merits, the defendant has denied the grounds raised in the suit. The defendant has denied having sold/ assigned the two trade marks to the plaintiff. According to : 14 : him, on 11.04.2006 he kept the above said Registration certificates in original, original Mortgage Deed and photocopies thereof (3 in number) in three different envelopes safely in his shop no. 1738, Lal Kuan, Main Bazar, Hauz Qazi, Delhi110006 and on 20.03.2006, when he was checking his documents in the shop he found that the envelop containing original certificates and another envelope containing original Mortgage Deed dated 24.03.2000 lying empty while the other envelop containing photocopies of the said documents was lying intact. According to the Defendant no.1 his son Sh. Jarar Ali, is a drug addict and vagabond and had been involved in a no. of cases details of which are as under:
FIR No. Offence Under P.S. a) 30/32 NDPS Act Kamla Market b) 15/03 do Hauz Qazi c) 354/04 do Seelampur d) 47/03 Arms Act Bara Hindu Rao e) 270/04 do Hauz Qazi f) 112/05 do do g) 300/05 do do h) 238/05 do Sadar Bazar i) DD No. 5408 U/S.110 Cr.P.C. P.S. Jama Masjid j) DD No. 46R do do : 15 :
On the night of 17.04.2006 Jarar Ali had slept in the said shop of the defendant no.1 in his absence and had removed the aforesaid two original certificates and one original deed of mortgage dated 24.03.2000 stealthily at the instigation of the plaintiff and has further handed over the same to the plaintiff for sake of money, which he requires for taking drugs. The defendant no.1 had immediately thereafter lodged a complaint of theft of said documents against his son Sh. Jarar Ali with the police but till date the police has not been able to recover aforesaid original certificates/ documents and a complaint in this regard has also been filed with the concerned Metropolitan Magistrate which and the same is still pending adjudication. It is pleaded that the defendant no.1 never signed any document on 11.08.2000 and the plaintiff mislead the defendant into signing the alleged documents on 24.03.2000 itself and he never intended and/or committed to sign the said document or made any application before the defendant no.2 whereas on the contrary the defendant wrote to the defendant no.2 not to transfer the trademarks in the name of the plaintiff. It : 16 : has been alleged that the plaintiff was aware of the said fact and has suppressed the same from this court and despite the same he filed form TM23 before the defendant no.2.
The defendant no. 1 has also filed a Counter Claim wherein he has stated that he is dealing in processing and sale of spices and condiments as a proprietor under the name and style of M/s. Fine Kirana Store at 1738, Lal Kuan, Delhi and is the registered proprietor of the trademark "Qutub Minar" at No. 456869 and 462712 in class 30 in respect of "Fo od Spices for human consumption". It is stated that he had never assigned or sold his aforesaid two registered trade marks bearing nos. 456869 and 462712 in respect of trade mark "Qutu b Minar"
in class 30 in favour of the plaintiff either for or without consideration and the plaintiff surreptitiously commenced using the trade marks even though he had no right to use them which fact came to the knowledge of the defendant no.1 in November 2004 and he immediately thereafter vide application dated 24.11.2004 moved before defendant no.2 raising objections in this regard. It is stated that the : 17 : defendant no.1 is the actual owner of the aforesaid trademarks and the plaintiff has no right, title or interest to use them and in fact is wrongfully using them and is liable to be restrained thereof.
It is also alleged that the plaintiff has made huge profits on sale of spices for human consumption by selling the same under the aforesaid trade marks of the defendant no.1 and the sales of the plaintiff qua the spices has also increased many folds. On the other hand, the sales of the spices by the defendant no.1 has been comparatively reduced and therefore, he is entitled to recover the profits illegally made by the plaintiff on account of sale of spices under the trade marks of defendant no.1 and the plaintiff is also liable to compensate the defendant no.1 for his aforesaid reduction in sale, both of which are assessed to the tune of Rs.2,500/ per month. According to the defendant no.1 the plaintiff is though liable to pay this assessed amount to Rs.2,500/ p.m. for the last more than three years but the defendant no.1 is claiming the same for a period of one year only immediately preceding the date of : 18 : filing the counter claim and relinquishes his claim in this regard for the period earlier to it. Therefore, the defendant no.1 claims only a sum of Rs.30,000/ in the aforesaid regard for the said period of one year from the plaintiff in the present suit.
According to the defendant no.1 the cause of action for filing the counterclaim first arose in the month of November, 2004 when he came to know that the plaintiff has surreptitiously commenced using the aforesaid trade marks of the defendant no.1 without any legal right whatsoever. The defendant no.1 has sought a decree for recovery of Rs. 30,000/ for illegal use of the trade marks in question of the defendant no.1 by the plaintiff and a decree for permanent injunction for restraining the plaintiff, his agents, successors and nominees for using the trademarks "Q utub Minar" at No. 456869 and 462712 in Class 30 in respect of food spices for human consumption registered in the name of the defendant no.1 in the office of defendant no.2 in any manner whatsoever. The defendant no.1 also sought a decree for mandatory injunction directing the : 19 : plaintiff to return the original certificates of registration of trade mark bearing no. 456869 and 462712 registered in class 30 in respect of food spices for human consumption in the office of defendant no.2 to the defendant no.1.
The record reveals that vide order dated 8.10.2009 the defendant no.2 i.e. Registrar Trade Mark has been deleted from the array of the defendants. ISSUES FRAMED:
Initially 11 issues have been framed by the Ld. Predecessor of this court vide order dated 2.1.2009. However, an application under Order 14 Rule 5 CPC was filed by the defendant pursuant to which this court has amended the issues on 8.10.2009 as under:
1. Whether the defendant no.1 sold and assigned the two trade marks nos. 456868 and 462712 in class 30 in respect of food spices for human consumption under the trade mark " QUTAB MINAR" in favour of the plaintiff for consideration of Rs.40,000/ alongwith the : 20 : goodwill and reputation of the said trade marks by virtue of assignment deed dated 24.3.2000?
If so, its effect? (OPP)
2. Whether there arose the need of execution of affidavitcumdeed of assignment/ declaration and the affidavit on 11.8.2000 by the defendant no.1 for the reason stated in para 5A of the plaint? If so, its effect? (OPP)
3. Whether the plaintiff agreed to advance a sum of Rs.17,000/ to the defendant no.1 in or around March, 2000 for the reason that the defendant no.1 was in dire need of money and the defendant no.1 offered to mortgage/ pledge his aforesaid two trade marks with the plaintiff and deposited the original certificates of registration of the said trade marks with him as pleaded in the WS? If so, its effect? (OPD)
4. Whether the plaintiff played a fraud upon the defendant no.1 as the defendant no.1 was always made to understand that his signature : 21 : and thumb marks were being taken on documents/ papers pertaining to creation of mortgage by deposit of certificates of registration trade marks? (OPD)
5. Whether the suit for declaration and permanent injunction filed by the plaintiff is not maintainable under the provisions of Trade Marks Act, 1999 and the Trade and Merchandise Marks Act, 1958 for the reasons stated in the written statement cum counter claim? (OPD)
6. Whether this court has no jurisdiction to try the present suit as pleaded in the written statement cumcounter claim? (OPD
7. Whether the suit is bad for want of notice under Section 80 CPC against defendant no.2? If so, its effect. (OPD)
8. Whether the plaintiff is entitled to the relief prayed for in the suit? (OPP) : 22 :
9. Whether the defendant no.1 is entitled to recover damages from the plaintiff for illegal use of trade marks in question? If so, to what amount? (OPD)
10. Whether the defendant no.1 is entitled to a decree of permanent injunction as prayed for in the counter claim? (OPD)
11. Whether the defendant is entitled to the relief as per the counter claim? (OPD)
12. Relief.
EVIDENCE:
In order to prove his case the plaintiff Anwar Parvez has examined himself as PW1 and in his examination in chief by way of affidavit he has corroborated what has been earlier stated in the main plaint. He has placed on record the original deed of assignment dated 24.3.2000 which is Ex.PW1/1; original certificates of registration pertaining to the Trade Mark no. 456869 and 462712 which are Ex.PW1/2 & Ex.PW1/3; AffidavitCum : 23 : Deed of Assignment/ Declaration dated 11.8.2000 and the affidavit dated 11.8.2000 which are Ex.PW1/4 & Ex.PW1/5; the original receipt of payment of Rs.23,000/ which is Ex.PW1/6; the original registration certificates issued by the Registrar of Trade Marks which are Ex.PW1/7, Ex.PW1/8 and Ex.PW1/9; the copyright Registration Certificate which is Ex.PW1/10 and the renewal intimation received from the Registrar of Trade Marks which are Ex.PW1/11 & Ex.PW1/12.
The plaintiff has also filed his supplementary affidavit of evidence wherein he has placed on record the original newspaper cutting which are Ex.PW1/13, Ex.PW1/14 & Ex.PW1/15. He has also placed his reliance on the request of the defendant no.1 dated 24.3.2000 which is Ex.PW3/D1.
The plaintiff has examined his real nephew Mohd. Waseem as PW2 who in his examination in chief by way of affidavit corroborated the testimony of PW1 in toto.
: 24 : Sh. Rajesh Kumar Oberoi Assistant Examiner Trade Mark Registry has been examined as PW3. The said witness has brought the summoned record pertaining to the registered Trade Mark Nos. 456869 and 462712 both in Class 30 as maintained in the Trade Mark Registry including the request form RM23 dated 5.5.2000 which was annexed alongwith the copy of Deed of Assignment dated 24.3.2000; affidavit of Zafaryab Hussain dated 24.3.2000. The said record is collectively Ex.PW3/1 (collectively running into 63 pages), the certificate of the Examiner Trade Mark which is Ex.PW3/2; the record pertaining to TM24 which is Ex.PW3/3 and certificate running into 2 pages which is Ex.PW3/4. The said witness has duly clarified that the original application dated 5.5.2000 in respect of TM23 which is Ex.PW3/D1 is also present on the record of the Registrar.
In rebuttal the defendant no.1 Zafaryab Hussain has examined as many as 7 witnesses. DW1 HC Rajmal from PS Hauz Qazi has proved the complaint dated : 25 : 21.4.2006 vide DD No. 27B copy of which is Ex.DW1/2.
DW2 ASI Umesh Kumar from the office of DCP Dariya Ganj has also proved the complaint dated 21.4.2006 which is Ex.DW2/1.
DW3 HC Mukesh Kumar from PS Kamla Market has proved the FIR No. 30.02 dated 24.1.2002 under Section 27 NDPS Act copy of which is Ex.DW3/1.
HC Neija from PS Seelampur has been examined as DW4 who has proved the FIR No.354/04 dated 22.6.2004 under Section 27/61/85 NDPS Act copy of which is Ex.DW4/1.
DW5 Ct. Vikas PS Bara Hindu Rao has proved the FIR No. 47 dated 6.3.2003 under Section 25 of the Arms Act copy of which is Ex.DW5/1.
HC Bhupendra Singh from PS Sadar Bazar who has been examined as DW6 proved the FIR No. 238/05 dated 13.7.2005 under Section 25 of the Arms Act copy of which is Ex.DW6/1.
: 26 : The defendant no.1 has examined the Handwriting and Finger Print Expert Deepak Jain as DW7 who in his examination in chief by way of affidavit has proved having given his report dated 13.8.2009 in respect of the questioned documents which report is Ex.DW7/A. He has placed on record the enlarged photographs which are Ex.DW7/B (collectively); their negatives which are Ex.DW7/C and the documents which were provided to him for examined which are Ex.DW7/D1 to Ex.DW75.
The defendant no.1 has examined his daughter Sagufta Zaffar as DW8 who in her examination in chief by way of affidavit deposed that his father took a loan of Rs.17,000/ from the plaintiff and she in token thereof witnessed the alleged Assignment Deed already Ex.PW1/1.
The defendant no.1 has examined himself as DW9 and in his examination in chief by way of affidavit he has corroborated what has been earlier stated in the written statement. He has placed his reliance on the agreement dated 24.3.2000 which is Ex.DW9/1 (already exhibited as : 27 : Ex.DW7/D1).
FINDINGS:
I have heard the arguments advanced before me by the counsels for both the parties. I have also considered the written synopsis placed on record by both the parties and have gone through the records of the case. My findings on the various issues are as under:
Issue no.1 Whether the defendant no.1 sold and assigned the two trade marks nos.
456868 and 462712 in class 30 in respect of food spices for human consumption under the trade mark "QU TAB MINAR"
in favour of the plaintiff for consideration of Rs.40,000/ alongwith the goodwill and reputation of the said trade marks by virtue of assignment deed dated 24.3.2000? If so, its effect?
Issue no.2 Whether there arose the need of execution of affidavitcumdeed of assignment/ declaration and the affidavit on 11.8.2000 by the defendant no.1 for the reason stated in para 5A of the plaint? If so, its effect?
Both the issues are clubbed together for the sake of convenience involving common discussion. Onus of : 28 : proving both the issues was upon the plaintiff. In order to discharge the onus upon him the plaintiff has examined himself as PW1 and in his examination in chief by way of affidavit and supplementary affidavit, he has corroborated what has been earlier stated in his pleadings in the plaint. He has also examined his nephew Wasim Ahmed as PW2 who is a witness to the Deed of Assignment as PW2, Rajesh Kumar Oberoi Assistant Examiner Trade Mark Registry as PW3 who has produced the entire record pertaining to the Trade Marks bearing no. 456869 and 462712 both in Class 30 as maintained in the Trade Mark Registry and form T23 dated 5.5.2000 annexed alongwith the copy of the Deed of Assignment dated 24.3.2000, the affidavit of defendant no.1 dated 24.3.2000 and also the certificate of the Examiner Trade Mark and other documents as maintained in their office. The entire record is Ex.PW3/1 to Ex.PW3/3. The said witness in his crossexamination has clarified that no letter had been received by them from the defendant no. 1 dated 24.11.2004.
: 29 : The defendant in rebuttal has examined witness HC Rajmal from PS Hauz Qazi as DW1; ASI Umesh Kumar from the office of DCP Dariya Ganj as DW2 who have placed before this court the records of the complaint dated 21.4.2006. The said witness has informed the court that after making necessary inquiry it was found that no action was found to be made and the matter was closed. DW3 HC Mukesh Kumar from PS Kamla Market has produced the FIR No. 30/02 dated 24.1.2002 which is Ex.DW3/1 which FIR was registered against the son of the defendant namely Jarar. Similarly HC Neija who has been examined as DW4 has produced the record pertaining to FIR No. 354/04 dated 22.6.2004 under Section 27/61/65 of NDPC Act which is Ex.DW4/1 which according to the defendant no.1 was registered against his son who was a drug addict. DW5 Ct. Vikas from PS Bara Hindu Rao has placed on record the FIR No. 47 dated 6.3.2003 under Section 25 of the Arms Act copy of which is Ex.DW5/1 : 30 : which has been registered against the son of the defendant no.1. Similarly DW6 HC Bhupendra Singh from PS Sadar Bazar has placed on record the FIR No. 238/05 dated 13.7.2005 under Section 25 of the Arms Act copy of which is Ex.DW6/1 which was registered against Jarar the son of the defendant no.1. Sh. Deepak Jain Handwriting and Finger Print Expert has been examined as DW7 who in his examination in chief by way of affidavit proved his report pertaining to the documents provided to him for examination which document is the photocopy of the agreement which is Ex.DW7/D1 dated 24.3.2000 allegedly executed between the parties i.e. the plaintiff and the defendant to the extent that the first party i.e. the defendant has taken a sum of Rs.40,000/ from the second party on 24.3.2000 for a period of one month i.e. till 30.4.2000 and has placed his above said Marka Qutab Minar with the Second Party i.e. the plaintiff for that period and executed the necessary documents in favour of second party on 24.3.2000. Further, in the said agreement it was agreed that : 31 : till 30.4.2000 the first party would return the above said amount of Rs.40,000/ to the second party and second party would return back the said marka Qutab Minar to the first party and also return back the documents executed by the first party. It may be brought on record that the aforesaid copy of the agreement has been placed on record by the defendant no.1 and has been duly relied upon by him to show that the trade mark Qutab Minar had been given to the plaintiff for one month in lieu of the loan amount taken by him. In support of his case the defendant no.1 has also examined his daughter Shagufta Zaffar as DW8 and himself as DW9.
I have considered the oral testimonies of the parties and also the documents placed on record, Firstly it is evident from the record that the plaintiff has duly placed on record the Deed of Assignment which is Ex.PW1/1 on which the plaintiff has proved his own signatures and thumb impression. The defendant no.1 has also admitted signatures on the same but not the contents. The said : 32 : document has been attested by the daughter of the defendant no.1 namely Shagufta Zaffar who has been examined as DW8 and Mohd. Wasim the nephew of the plaintiff who has been examined as PW2. Legally the Deed of Assignment which is Ex.PW1/1 is not required to be attested under the law yet being so attested, the plaintiff has duly proved the same by calling the witnesses who had attested the said document. All the parties before this court have admitted their signatures and handwriting and therefore, in view of the provisions of Section 67 of the Indian Evidence Act the aforesaid document has been proved in accordance with law.
Secondly the plaintiff has further placed on record the cash receipt of Rs.23,000/ which is Ex.PW1/6 bearing the signatures and thumb impression of the defendant no.1 who has been examined as DW9 which signatures he has admitted. The case of the plaintiff is that a sum of Rs.40,000/ was paid to the defendant no.1 by the plaintiff with a break up of Rs.17,000/ by cheque and : 33 : Rs.23,000/ by cash. The copy of the cheque for a sum of Rs.17,000/ has also been placed on record by the plaintiff which was initially mark A but since the defendant no.1 has admitted the receipt of the cheque in his crossexamination and the photocopy of mark A also bear the signatures of the defendant no.1 as a token of receipt, the same can be read into evidence.
Further, it is also evident from the agreement dated 24.3.2000, duly relied upon by the defendant which is Ex.DW7/D1 (also Ex.DW9/1) that the first party i.e. Zafaryab Hussain the defendant no.2 before this court had taken a sum of Rs.40,000/ from the second party on 24.3.2000 for a period of one month and would return the amount of Rs.40,000/ to the second party till 30.4.2000 after which the second party would return the said Marka Qutab Minar to the first party. Ld. Counsel appearing on behalf of the plaintiff has raised an objection with regard to the admissibility of the document mortgage deed Ex.PW9/1 (also Ex.DW7/D1) on the ground firstly that it is only a : 34 : photocopy and secondly on the ground that as per the provisions of Section 35 of the Indian Stamp Act such a Mortgage Deed is an instrument chargeable with the stamp duty and therefore, being unstamped, is inadmissible in evidence. I have considered the objection raised before this court. Admittedly the photocopy of the mortgage Deed on which the defendant no.1 has lead secondary evidence is inadmissible in evidence being an instrument required stamping under Section 35 of the Indian Evidence Act yet the said document can be looked into for collateral purposes. The defendant no.1 has admitted having received the cheque for a sum of Rs.17,000/ in his cross examination and the cash receipt of Rs.23,000/. The Mortgage Deed Ex.PW9/1 (also Ex.PW7/D1) shows that the plaintiff had made a total payment of Rs.40,000/ to the defendant as a consideration while executing the Deed of Assignment which is Ex.PW1/1.
Thirdly the plaintiff has also placed before this court supplementary documents i.e. rectification deed.
: 35 : According to him, the total sum of Rs.40,000/ was not reflected in the earlier Assignment Deed where only a sum of Rs.17,000/was reflected which mistake was noticed by the plaintiff on the same date and therefore, rectified the same by correcting the consideration amount of Rs.40,000/ with a breakup by Rs.17,000/ as cheque and Rs.23,000/ as cash. Keeping in view the agreement dated 24.3.2000 which is Ex.DW7/D1 (also Ex.DW9/1) relied upon by the defendant showing that a sum of Rs.40,000/ has been taken by the defendant no.1, I hereby hold that the plaintiff has been able to prove the documents Ex.PW1/4 and Ex.PW1/5 bearing the signatures and thumb impression of the defendant no.1 as admitted by him, correcting the consideration of Rs.40,000/ with a breakup of Rs.17,000/ as cheque and Rs.23,000/ as cash, did not alter the terms and conditions of the Assignment Deed dated 24.3.2000 but were in the form of corrigendum to the earlier Deed of Assignment dated 24.3.2000 which is Ex.PW1/1.
: 36 : Lastly the only evidence in rebuttal to the aforesaid is the oral testimony of DW8 the daughter of the defendant no.1 and testimony of defendant no. 1 who has examined himself as DW9 wherein they have denied the contents of the aforesaid documents i.e. Ex.PW1/1, Ex.PW1/4 & Ex.PW1/5. The defendant no. 1 and his daughter have duly admitted their signatures on the aforesaid documents and it is evident that Ex.PW1/4 & Ex.PW1/5 are the affidavits of defendant no.1 which are on proper stamp papers purchased in his name duly notarized under the Notaries Act, 1952 and therefore, are admissible in evidence there being a valid presumption in favour of its correctness which has not been duly controverted or negated in any manner.
Therefore, in view of the fact that the Deed of Assignment which is Ex.PW1/1 and the Rectification documents Ex.PW1/4 & Ex.PW1/5 the contents of which finds a support from the cash receipt Ex.PW1/6 and the defendant no.1 having executed the affidavit dated : 37 : 24.3.2000 Ex.DW9/PX2 bearing his thumb impression whereby he has reiterated the factum of assignment of both the Trade Marks in favour of the plaintiff and having received the consideration in request of the same, I hereby hold that the plaintiff has been able to prove the assignment of both the Trade Marks bearing no.456868 and 462712 by the defendant no. 1 in his favour. I further hold that the plaintiff has been able to prove that the need of execution of affidavitcumdeed of rectification and the affidavit on 11.8.2000 in view of the fact the total consideration amount did not find a mention in the Assignment Deed which is Ex.PW1/1 which only mention a sum of Rs.17,000/ whereas the total consideration was Rs.40,000/ as evident from the cash receipt Ex.PW1/6 and the cheque mark A which has not been disputed by the defendant and the agreement dated 24.3.2000 as Ex.DW7/D1 relied upon by the defendant no.1 himself showing that the total consideration of the loan amount was Rs.40,000/. Both the issues are decided in favour of the plaintiff and against the : 38 : defendant.
Issue no.3 Whether the plaintiff agreed to advance a sum of Rs.17,000/ to the defendant no.1 in or around March, 2000 for the reason that the defendant no.1 was in dire need of money and the defendant no.1 offered to mortgage/ pledge his aforesaid two trade marks with the plaintiff and deposited the original certificates of registration of the said trade marks with him as pleaded in the written statement? If so, its effect?
Issue no.4 Whether the plaintiff played a fraud upon the defendant no.1 as the defendant no.1 was always made to understand that his signature and thumb marks were being taken on documents/ papers pertaining to creation of mortgage by deposit of certificates of registration trade marks?
Issues no. 3 and 4 are clubbed together for the sake of convenience involving common discussion. Onus of proving both the issues was upon the defendant no.1. The case of the defendant no.1 is that he was in dire need of money in March 2000 and it is for this reason that he had taken a loan from the plaintiff and mortgaged/ pledged his : 39 : two trade marks and deposited the original certificate of registration with him by the plaintiff had played a fraud upon him and used the documents bearing his signatures and thumb impression for his benefit. It is further the case of the defendant no.1 that he was made to understand that his signatures and thumb impressions are being taken on documents/ papers pertaining to the creation of mortgage by deposit of certificate of registration of Trade Marks and not for any other purposes. It is also the case of the defendant no.1 that he had been given back his Trade Mark Certificates by the plaintiff and it is for this reason that the plaintiff had not placed the same on record initially but later on his son Jarar who is a drug addict and involved in various criminal cases, committed theft of these Trade Mark Certificates and handover the same to the plaintiff unauthorizedly.
The case of the plaintiff on the other hand is that both the plaintiff and the defendant are having the same business and the defendant no. 1 was not doing very well and has virtually shut down and it was for this reason that : 40 : he had sold his Trade Marks for a total consideration of Rs.40,000/ of which Rs.17,000/ were paid by cheque and Rs.23,000/ were paid by cash, receipt of which is Ex.PW1/6 which cheque has not been disputed by the defendant. The plaintiff has denied the various allegations with regard to the theft of the Trade Marks and the story put up by the defendant no.1 with regard to the theft of the Trade Marks.
I have considered the submissions made before me by both the parties and also the material on record. Firstly I have already held that the plaintiff has duly proved the sale/ transaction and the Assignment Deed and the cash/ cheque regarding the amount in accordance with law. Secondly it is an admitted case of the defendant who has placed his reliance on the agreement Ex.DW7/D1 that he had taken a loan from the plaintiff for a sum of Rs.40,000/ which he is required to pay within one month till 30.4.2000. The defendant has failed to place any documentary record before this court to show that he had returned the said : 41 : amount of Rs.40,000/ to the plaintiff which he had taken as loan from the plaintiff. Therefore, even if the story of the defendant to the extent that he had mortgaged/ pledged the Trade Marks and not sold them to the plaintiff as alleged by him is taken, it does not appear plausible since it is evident from the documents relied upon by the defendant which is Ex.PW9/1 (also Ex.DW7/D1) that this mortgage was only for a period of one month and it was necessary for the defendant no.1 to have returned the amount during the agreed period. The defendant no.1 in the said agreement has also admitted having executed certain documents in favour of the plaintiff. That being so the agreement Ex.DW7/D1 was conditional, as it contemplated the return of the loan amount within a period of one month. The defendant no.1 has failed to place on record any evidence to prove the return of his loan amount. The only defence raised by the defendant no. 1 is that the loan amount was returned in the presence of the police but he has not produced any police official in whose presence the : 42 : aforesaid arrangement took place on record. In his cross examination he has admitted that there was no written receipt regarding the loan amount. A specific suggestion has been put to him that he has concocted this story of return of the loan amount and calling of the police official and return of the amount which he has denied but having failed to prove the same, I hereby hold that even by virtue of Ex.PW9/1 (also Ex.DW7/D1) since the defendant no.1 has failed to prove the fulfillment of the conditions of return of the amount and therefore, the Assignment Deed Ex.PW1/1 would become operative and final under these circumstances.
Thirdly the case of the defendant no.1 is that his son has criminal antecedents and is a drug addict, but except for his own statement and the complaint made by him in the year 2006 to the extent that the Trade Marks certificates had been stolen by his son, there is no other independent material proving the theft of the said Trade Marks certificates from the possession of the defendant : 43 : no.1. The evidence on record rather points to the contrary. It is admitted that it is the defendant no.1 had voluntarily handed over the said certificates to the plaintiff on 24.3.2000 when he had taken a consideration of Rs.40,000/ from the plaintiff. The defendant no.1 having failed to prove the return of the said amount when then is the question of the plaintiff having returned the said Trade Mark Certificates. I hereby hold that the story put up by the defendant no.1 with regard to the theft is an after thought and cannot be believed.
Fourthly the case of the defendant no.1 is that he was in dire need of money in March 2000 since his employee namely Irshad Ali @ Kake was to get married. This is contrary to the stand taken by the defendant no.1 before the Delhi High Court in FAO No. 1/2008 wherein he had stated that he need the money for marriage of his daughter and the present plaintiff being his friend agreed to advance a loan, as evident from para 14 of the High Court order dated 21.5.2008 which order is Ex.DW9/PX1. When : 44 : the defendant no.1 was confronted with the order of the Hon'bl e Mr. Justice Pradeep Nandrajog, the only explanation forthcoming from the defendant no.1 was that either the lawyer must have committed a default or the Judge might have made a mistake. If that be so, it was open to the defendant no.1 to have got the same corrected which he did not do and now it appears that he wants to wriggle out of the earlier statement made by him before the High Court of Delhi which is impermissible.
Fifthly it is also evident from the testimony of defendant no.1 that in his crossexamination he has specifically admitted having opened an account in the name of the firm in the year 1986 but according to him, it was closed in the year 198788 and admittedly at present no account is being maintained. He has admitted that he has not placed on record any details of the sale tax nor any account book and has only placed on record the copies of the income tax return filed by him from which it is evident that he has shown his profits of Rs.52,000/ for the year 20032004; for the year 20042005 as Rs.82,508/ for : 45 : which he had paid a nominal tax of Rs.200/; for the year 20052006 as Rs.1,01,000/ for which he had paid Rs.1,040/ as income tax and for the period 20062007 he had shown his income as Rs.1,11,983/ and had paid Rs.1,224/ as income tax. This only goes to disprove the claim of the defendant no.1 that he is earning huge profits.
Lastly it is evident that the plaintiff had also given a public notice in various newspapers i.e. Amar Ujala, Dainik Jagran and Sandhya Times which are are videly circulated in the Old Delhi area where both the parties are carrying their business which public notices have been duly proved by the plaintiff to which there is no rebuttal by the defendant no.1 who transferred both the Trade Marks in the name of the plaintiff to which the defendant no.1 had at no point of time objected.
Therefore, under these circumstances, I hereby hold that though the defendant has proved that the Trade Marks in question had been handed over to the plaintiff as mortgage/ pledge yet the said Mortgage Deed Ex.DW9/1 (also Ex.DW7/D1) is not duly stamped. However, the : 46 : aforesaid Mortgage Deed can certainly be looked into for collateral purposes. The said Mortgage Deed so relied upon by the defendant no.1 certainly proves the payment of Rs.40,000/, whether the said payment was a loan or a loan consideration is immaterial, since the defendant no.1 has failed to prove the repayment of the said amount to the plaintiff and therefore, the Assignment Deed Ex.PW1/1 would be legally operative and binding between the parties. The defendant no.1 has further failed to prove the aspect of fraud as alleged. Issues are accordingly decided in favour of the plaintiff and against the defendant. Issue no.5 Whether the suit for declaration and permanent injunction filed by the plaintiff is not maintainable under the provisions of Trade Marks Act, 1999 and the Trade and Merchandise Marks Act, 1958 for the reasons stated in the written statement cum counter claim?
Onus of proving this issue was upon the defendant. The case of the defendant no. 1 is that the plaintiff has not claimed any relief of permanent injunction : 47 : in the plaint and the suit is therefore, not maintainable as per the provisions of Specific Relief Act. It is further submitted that as per the provisions of Section 43 of the Trade Marks Act, 1999 the assignment of Trade Marks can be done only with the consent of the Registrar of Trade Marks who is the final authority and if a person is aggrieved from the order of the Registrar he can file an appeal under Section 91 of the Trade Marks Act before the Appellate Board. It is further contended that under Section 45 of the Trade Marks Act the Registrar has the power to refuse to record the assignability of Trade Marks and in case if the Trade Marks are assigned then the parties will have to apply to the Registrar as provided under Section 45 of the Trade Marks Act in accordance with the rules framed there under particularly Rules 68, 69, 70 and 77 which are relevant in case of assignment of Trade Marks. It is further argued that an affidavit required to be filed is supposed to be in a particular form as provided under Rule 116. It is also submitted that TM23 which is required to be filed before : 48 : the Registrar must be accompanied by TM48 whereas in the present case TM23 which is Ex.PW3/1D is a fabricated document and TM23 is not accompanied by TM48 as provided under Rule 21 signed by the defendant no.1 and therefore, under these circumstances, the Registrar having exclusive power to record the assignability of the Trade Mark and in case of its refusal, an appeal would lie to the Appellate Board, this court would have no jurisdiction to grant any declaration in view of the fact that the Registrar, Trade Marks has till date neither refused to transfer the trade marks nor allowed the same.
Ld. Counsel appearing on behalf of the plaintiff on the other hand has argued that it is only the civil courts who would have the jurisdiction to grant the declaration since the dispute before this court is pertaining to a limited aspect as to whether the plaintiff has become the owner and proprietor of two trade marks bearing no. 456869 and 462712 in Class30 and the defendant no. 1 has no right, title or claim or interest in respect of the aforesaid and also to the effect that the objections filed by the defendant no.1 : 49 : with the defendant no.2 claiming himself to be the sole owner and proprietor of the aforesaid two registered trade marks is without any authority. Further declaration has been sought by the plaintiff as against the defendant no. 2 i.e. Registrar Trade Marks to the effect that the withholding of the proceedings on his part is illegal and without jurisdiction and against the provisions of Trade Marks Act 1999 with directions to proceed with the requisite trade mark application for effecting necessary changes and recording therein the name of the plaintiff as the subsequent proprietor in respect of the aforesaid two registered trade marks.
It may be brought on record that during the pendency of the proceedings the plaintiff has deleted the defendant no. 2 from the array of the defendants and has not pressed any of the reliefs claimed by him as against the defendant no.2. Therefore, the main relief which has been pressed before this court is pertaining to the declaration to the effect that plaintiff has become the owner and proprietor of the impugned Trade Marks in question. Even otherwise, : 50 : the Registrar Trade Marks has a limited jurisdiction to adjudicate upon the issues pertaining to the rectification or assignment of the trade marks and wherever dispute pertaining to the right or entitlement of a party arises, it is only the civil courts who would have the jurisdiction to grant declaration in respect of the same. This being so, I hold that in order to adjudicate upon the issue of challenge to the rights of the plaintiff on behalf of the defendant no.1, it is only a suit for declaration which would lie. In so far as the other reliefs are concerned, they are not being pressed by the plaintiff. In view of the aforesaid, I hereby hold that this court will have the jurisdiction to try the suit of the plaintiff in so far as Prayer (I) is concerned. In so far as the prayer no. (II), (III) and (IV) are concerned, the plaintiff has already proceeded to delete the defendant no.2 from the array of the defendants and no reliefs are being pressed as against the defendant no.2, therefore, these prayers so made by the plaintiff stand abandoned. Issue is disposed off accordingly.
: 51 : Issue no.6 Whether this court has no jurisdiction to try the present suit as pleaded in the written statementcumcounter claim? Onus of proving this issue was upon the defendant no.1. The defendant no.1 in his written submissions has raised a preliminary objection with regard to the pecuniary and territorial jurisdiction of this court to try the present suit. It is submitted that this court will have no pecuniary jurisdiction because the plaintiff had valued the suit for the purposes of jurisdiction at Rs. 3 lacs. I have gone through the written statement of the defendant no.1 and it is evident that the issue with regard to this court having no pecuniary jurisdiction has now been raised at the final stage and has not been specifically pleaded in the written statement. In his objection no.4 in the written statement stated that the defendant no.1 is only challenging the territorial jurisdiction of this court on the ground that the cause of action had arisen at Mumbai, therefore, the suit could have only been filed in Mumbai Courts. This is now for the first time at the state of final arguments that this objection with regard to pecuniary jurisdiction has been : 52 : raised after the entire trial of the case is concluded.
In so far as the aspect of territorial jurisdiction is concerned, it is evident from the record that both the parties are residing at Delhi and the entire transaction took place in Delhi. Further in view of the fact that the plaintiff has deleted the defendant no.2 from the array of the defendant and is not pressing any reliefs against the defendant no.2 , I hereby hold that it is the courts at Delhi who would have the territorial jurisdiction to try the present suit.
In so far as the pecuniary jurisdiction of this court is concerned, it is evident that the present suit has been filed by the plaintiff in respect of the disputes arisen out of the Trade Marks and as per the provisions of the Trade Marks Act it is the court of the District Judge who is competent to try the same. Even otherwise, the objection with regard to the pecuniary jurisdiction has not been pleaded in the written statement and for the first time has been raised at the time of final arguments and therefore, in view of the authority in the case of Murari Lal Vs. Madan : 53 : Lal and Others reported in AIR 1952 Punjab 265, I hereby hold that this court having jurisdiction to try the matters upto Rs. 20 lacs, is competent to try the suit. Issue is decided in favour of the plaintiff and against the defendant.
Issue no.7 Whether the suit is bad for want of notice under Section 80 CPC against defendant no.2? If so, its effect.
Onus of proving this issue was upon the defendant. However, during the course of proceedings, the plaintiff has deleted the defendant no.2 from the array of the defendants and has not pressed any relief against the same. This issue, therefore, stands abandoned. Issue no.8 Whether the plaintiff is entitled to the relief prayed for in the suit?
Onus of proving this issue was upon the plaintiff. In view of my findings with regard to the issues no.1 to 7 which are not being repeated for the sake of brevity, I hereby hold that the plaintiff has become the owner and proprietor of the two registered Trade Mark : 54 : No.546869 and 462712 in class 30 and as on date the defendant no.1 has no right, title, claim or interest of any nature whatsoever in the aforesaid two registered trade marks.
However, in so far as the relief of declaration as against the defendant no.2 regarding the objections filed by the defendant no.1 with the defendant no.2 and withholding of the proceedings are concerned and the relief of mandatory injunction as against the defendant no.1, I hereby hold that since the plaintiff has deleted the defendant no.2 from the array of the defendants and has not pressed any relief qua the defendant no.2, no observations are required to be made on the aforesaid account and the reliefs stand abandoned. Issue is disposed off accordingly. Issue no.9 Whether the defendant no.1 is entitled to recover damages from the plaintiff for illegal use of trade marks in question? If so, to what amount?
Issue no.10 Whether the defendant no.1 is entitled to a decree of permanent injunction as prayed for in the counter claim?
: 55 : Issue no.11 Whether the defendant is entitled to the relief as per the counter claim?
All the three issues are clubbed together for the sake of convenience involving common discussion. In view of my findings with regard to the issues no. 1 to 7 which are not being repeated for the sake of brevity, I hereby hold that the defendant no.1 is not entitled to any relief of recovery or permanent and mandatory injunction as asked for in the counter claim, the defendant no.1 having failed to establish his rights over the said two Trade Marks as on date. Issues are accordingly decided against the defendant no.1. Relief:
In view of my findings with regard to the various issues, I hereby hold that the plaintiff has become the owner and proprietor of the two registered Trade Mark No.546869 and 462712 in class 30 and as on date the defendant no.1 has no right, title, claim or interest of any nature whatsoever in the aforesaid two registered trade marks.
: 56 : However, in so far as the relief of declaration as against the defendant no.2 regarding the objections filed by the defendant no.1 with the defendant no.2 and withholding of the proceedings are concerned and the relief of mandatory injunction as against the defendant no.1, I hereby hold that since the plaintiff has deleted the defendant no.2 from the array of the defendants and has not pressed any relief qua the defendant no.2, no observations are required to be made on the aforesaid account and the reliefs stand abandoned.
Further, I hold that the defendant no.1 is not entitled to any relief of recovery or permanent and mandatory injunction as asked for in his counter claim.
Suit of the plaintiff is accordingly decreed. Counter claim filed by the defendant no.1 is hereby dismissed. Parties to bear their own costs. Decree Sheet be prepared accordingly. File be consigned to Record Room. Announced in the open court (Dr. KAMINI LAU) Dated: 5.12.2009 Addl. District Judge: Delhi : 57 : Anwar Parvez Vs. Zafaryab Hussain Suit No. 114/2009 5.12.2009 Present: Plaintiff in person.
Defendant no.1 in person.
Vide my separate detailed order dictated and announced in the open court but not yet typed, the suit of the plaintiff is accordingly decreed. Counter claim filed by the defendant no.1 is hereby dismissed. Parties to bear their own costs. Decree Sheet be prepared accordingly.
It is apparent from the record that during the pendency of the suit, an application under Order 39 Rule 2A CPC was filed on behalf of the defendant Zafaryab Hussain for initiating contempt proceedings against the respondents under the Contempt of Courts Act on the ground that the Ld. Predecessor of this court vide order dated 7.11.2007 had restrained the respondent no1, its agents, successors and nominees from using the trade marks 'Qutab Minar' at No. 456869 and 462712 in Class 30 in respect of food spices for human consumption registered in his name. It is stated that against the said order the : 58 : respondent no. 1 filed an appeal bearing FAO No.1/2008 which was also dismissed by Hon'ble Mr. Justice Pradeep Nandrajog. According to the petitioner, the respondent no.1 being the son of the respondent no.1 was selling the food spices with the aforesaid trade mark from Shop No. 170, Gali Masjid Tehwar Khan, Naya Bans, Delhi and the respondent no.3 being also the son of the respondent no.1 selling the food spices from shop no. 95, Naya Bans, Delhi and the respondent no. 4 and 5 being the nephews of the respondent no.1 are also selling the same in the said trade name despite being aware of the said restrain order. According to the petitioner, there being a willful disobedience of the said restrain order, the respondents are liable for same as the wrongful acts of the respondents caused great financial loss to him and further detrimental to his interests.
In the reply to the aforesaid application, all the allegations have been denied by the respondents. It has been specifically denied that they are selling the food spices for human consumption under the trade marks 'Q utab : 59 : Minar' from the shops in question as alleged by the applicant in his petition.
I have considered the submissions made on the application. Firstly it is evident from the application that the allegations made by the petitioner Zafaryab Hussain who is the defendant no.1 in the main suit are vague and non specific. Secondly no dates have been mentioned on which the alleged violation took place. Thirdly the petitioner has not placed on record any material to substantiate the allegations with regard to the sale of the food spices for human consumption under the Trade Mark Qutab Minar in violation of the orders passed by the Ld. Predecessor of this court.
It is argued by the Ld. Counsel for the petitioner/ defendant no.1 in the main suit that the present contempt application may be separated from the main file and the petitioner would be granted an opportunity to lead evidence to prove the aforesaid default. I have considered his submissions. It may be brought on record that the main : 60 : suit suit filed by the respondent no.1 has been partly decreed and the plea taken up by the present petitioner who is the defendant no.1 has not found favour with this court. Further, the defendant no.1 who is the present petitioner under the garb of the present application cannot be permitted to prolong the litigation under any circumstances more so when the allegations in the petition itself are vague. It was necessary for the petitioner to have placed on record adequate material in support of his contentions which he has not done, nor any affidavit of any other person has been placed on record.
Therefore, under these circumstances, I find no ground to prolong the litigation more so since the plea taken by the petitioner who is the defendant no.1 in the main suit has already been disallowed and his counter claim has been dismissed. The application under Section 39 Rule 2 A CPC filed by the petitioner is hereby dismissed.
File be consigned to Record Room.
(Dr. Kamini Lau) ADJ: DELHI/ 5.12.2009 : 61 :