Karnataka High Court
Anantara Hospitality Pvt Ltd vs M & H Management Limited on 16 October, 2012
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16th DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
R.F.A. NO.364/2009
BETWEEN:
ANANTARA HOSPITALITY PRIVATE LIMITED,
540, 16TH MAIN, 3RD BLOCK,
KORAMANGALA,
BANGALORE 560 034
REPRESENTED BY
AJAY NAIR.
... APPELLANT
(BY SRI. RAJESH VELLAKKAT, RAHUL VARMA AND
JAMSHEED HAFIZ, ADVOCATES)
AND
1. M & H MANAGEMENT LIMITED,
C/O. DTOS LIMITED,
4TH FLOOR, IBL HOUSE,
CAUDAN, PORT, OOUIS,
REPUBLIC OF MAURITIUS,
NO.1 R/B Mr. STEPHEN ANDREW
CHOJNACKI.
2. MINOR INTERNATIONAL PUBLIC
COMPANY LIMITED,
18TH FLOOR, BERLI JUCKER HOUSE,
99 SOI RUBIA,
SUKHYMVIT 42 ROAD
BANGKOK - 10110
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R/B MR. STEPHEN
ANDREW CHOJNACKI.
... RESPONDENTS
(BY SRI. K.G. RAGHAVAN, FOR M/S. LUTHRA &
LUTHRA LAW ASSOCIATES, ADVOCATE.)
This RFA is filed under Section 96 of CPC against
the Judgment and Decree dated 13.02.2009 passed in
O.S. No.3221/2008 on the file of the XVIII Addl. City
Civil Judge, Bangalore City, dismissing the suit for
dismissing the suit for not maintainable.
This RFA coming on for 'Dictating Judgment' this
day, the court delivered the following:
JUDGMENT
The plaintiff has filed this appeal against the judgement and decree passed in O.S. No.3221/2008 dated 13.02.2009, on the file of XVIII City Civil Judge, Bangalore City.
2. It is the case of the plaintiff that the respondents had made a groundless threats of legal proceedings by issuing legal notice dated 06.02.2008 and considering that legal notice as the cause of action plaintiff filed the suit under Section 142 of the Trade Mark Act 1989 and also under Order 7 Rule 1 of CPC. 3
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The prayer made by the plaintiff is for declaration that the plaintiff has all the rights to use and continue to use the name 'Anantara Hospitality Private Limited' as part of its corporate name and further sought declaration declaring that the defendants threats against the plaintiff are unjustified and for permanent prohibitory injunction.
3. After service of notice to the respondents, they filed a suit in O.S. No.5080/2008 with a prayer for permanent injunction is made against the defendant i.e. the appellant herein and mandatory injunction and damages.
4. In the suit filed by the appellant herein in O.S. No.3221/2008 the Hon'ble Court framed issues of which the Issue No.2 pertains to the maintainability of suit. After the defendant filed a suit in O.S. No.5080/2008, by its Order dated 13.02.2009, the Court below while answering issue No.2, answered in favour of the plaintiff in O.S. No.5080/2008. 4
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Accordingly, the suit filed by the plaintiff in O.S. No.3221/2008 has been dismissed. Hence this appeal.
5. For the convenience sake, the parties are referred as the Plaintiff and the defendants as in O.S. No.5080/2008.
6. Anantara Hospiltality Private Limited, Bangalore was incorporated under the provisions of the Companies' Act 1956 with the Registrar of Companies on 06.09.2005. Since then, it is catering the service as such it is also registered on domain name on 12.07.2005 to establish the facts of it being run since then. It is stated by the Anantara Hospitality Private Limited that it has obtained loan from Karnataka State Finance Corporation on 07.08.2007.
7. In view of the fact that it has got registered its name under the provisions of the Companies' Act lawfully and legally duly enquired with all possible quarters about registration of similar names and finally 5
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found that no such names are registered. Notwithstanding the same, on 06.02.2008, it had received a legal notice on behalf of M and H Management wherein, it has been stated that the defendant Company situated at Republic of Mauritius have adopted and have continuously used the trade mark 'Anantara' in relation to its resorts and passed since the year 2000. Anantara Resorts at Mauritius in its legal notice further stated that since the year of registration i.e., 2000, the Resorts and hotels were functioning in the Asia Phasific region having largest establishment through out the world. The plaintiff Anantara Hospitality Private Limited were directed to stop use the name 'Anantara' and surrender all its further products therein. The said legal notice was replied by the reply dated 25.02.2008 and it has been clarified in the reply that Anantara Hospitality Private Limited was incorporated under the provisions of law in India and it has got legal force to carry on the business. 6
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8. By considering the legal notice, the suit was filed in O.S. No.3221/2008. In the suit M/s. M and H Management Limited, Mauritius were made as 1st and 2nd defendant and the suit was filed under Section 42 of Trade Mark Act, 1989 and under Section 26 Order 7 Rule 1 of CPC and the prayer of injunction and declaration has also been sought.
9. After service of notice, the respondents herein i.e., M & H Management Limited filed a suit in O.S. No.5080/2008 for the relief of injunction against the appellant.
10. The Trial Court in O.S. No.3221/2008 filed by Anantara Hospitality Private Limited, while answering issue No.2 with regard to maintainability, the same was answered against the plaintiff i.e., consequently the suit itself came to be dismissed.
11. It has been stated by the Trial Court that when there was a groundless threat of legal proceedings 7
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and as long as the said threat was in force, the plaintiff was entitled for the relief under the such provisions and moment when the legal action has been initiated by the defendants, the suit instituted by Anantara Hospitality Private Limited had become infructuous. Accordingly, the said suit was not maintainable. The reasons assigned in respect of Issue No.2 has been examined and I find that there is no error committed in the Order passed by the Trial Court.
12. Accordingly, I confirm the Order dated 13.02.2009 judgment and decree passed in O.S. No.3221/2008 by the Trial Court.
Accordingly, the appeal stands dismissed.
Sd/-
JUDGE snc