Madras High Court
M/S.Nico Quality Products vs M/S.N.C.Arya Snuff & Cigar Co on 24 January, 2025
Author: P.Velmurugan
Bench: P.Velmurugan
C.S.(Comm.Div).Nos.605 and 882 of 2013
and 587 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRDAS
Dated: 24.01.2025
Coram:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015
---
M/s.Nico Quality Products,
Rep. by its Partner Mr.K.C.Vijay
1st Floor, No.4/1, Kandaswamy Street,
Chandrabagh Avenue,
Mylapore, Chennai-600 004.
.. Plaintiff in C.S.(Comm.Div).No.605 of 2013
M/s.N.C.Arya Snuff & Cigar Co.,
Rep. by its Parters,
S.Chandrasekaran,
S.Thara,
19, Davidson Street,
Chennai-600 001,
Rep. by Power Agent of
Mr.Ragurramun Krishnadhas,
S/o S.Krishnadhas,
Residing at No.32, 7th Cross Street,
West Extension,
Thilainagar, Trichy-620 018.
.. Plaintiff in C.S.(Comm.Div).No.882 of 2013
1. N.C.Arya Snuff & Cigar Co.,
A partnership firm, represented by
its partner Kr.Ragurramun,
S/o Su.Krishnadhas,
having office at
Page No.1/97
https://www.mhc.tn.gov.in/judis
C.S.(Comm.Div).Nos.605 and 882 of 2013
and 587 of 2015
D-32, 7th cross,
West Extension,
Thillai Nagar, Trichy-18.
2. M/s.Sakthi Snuff & Co.,
Proprietorship concern,
represented by
S.Karthikeyan, Proprietor,
193/2A, Thuraiyur Road, Nochiam,
Manachanallur Taluk,
Trichy-621 216.
3. M/s.Adhinayagam Agencies,
Partnership firm, represented by
its partner Su.Krishnadhas,
20/A, Thennur Main Road,
Thennur, Trichy-17.
.. Plaintiffs in C.S.(Comm.Div).No.587 of 2015
Vs.
1. M/s.N.C.Arya Snuff & Cigar Co.,
Rep. by its Partners,
S.Chandrasekaran, S.Thara, V.Anuradha,
19, Davidson Street,
Chennai-600 001.
2. M/s.Sakthi Snuff Co.,
Manufacturer for M/s.N.C.Arya Snuff & Cigar Co.,
Thuraiyur Road, Nochiyam,
Trichy-621 126.
3. M/s.Adinayagan Agencies,
20-A, Tennur High Road,
Tennur, Trichy-17.
4. V.Shankar Amarnath,
M/s.Vijayanth Trading Co.,
Marketing Agent for N.C.Arya Snuff & Cigar Co.,
Page No.2/97
https://www.mhc.tn.gov.in/judis
C.S.(Comm.Div).Nos.605 and 882 of 2013
and 587 of 2015
P.51/1, CIT Road,
Kolkata-700 014.
5. V.Sreenivasan,
M/s.India Model Production,
Marketing Agent for M/s.N.C.Arya Snuff & Cigar Co.,
P.51/1, CIT Road,
Koltaka-700 014.
.. Defendants in C.S.(Comm.Div).No.605 of 2013
1. M/s.Nico Quality Products,
Rep. by its Partner Mr.K.C.Vijay,
1st Floor, No.4/1, Kandaswamy Street,
Chandrabagh Avenue,
Mylapore, Chennai-600 004.
2. K.C.Vijay,
S/o Chandramohan,
1st Floor, No.4/1, Kandasamy Street,
Chandrabagh Avenue, Mylapore,
Chennai-600 004.
3. Zanakanabady
4. Anuradha .. Defendants in C.S.(Comm.Div).No.882 of 2013
Nico Quality Products,
A partnership firm, represented by its Partner,
K.C.Vijay,
1st Floor, No.4/1, Kandaswamy Street,
Chandrabagh Avenue,
Mylapore, Chennai-600 004.
.. Defendant in C.S.No.587 of 2015
Plaint filed and numbered as C.S.(Comm.Div).No.605 of 2013, under
Sections 134 and 135 of the Trade Marks Act, 1999, read with Order IV Rule 1 of
Page No.3/97
https://www.mhc.tn.gov.in/judis
C.S.(Comm.Div).Nos.605 and 882 of 2013
and 587 of 2015
the Original Side Rules of this Court and Order VII Rule 1 of the Code of Civil
Procedure (i.e. CPC), praying for judgment and decree as follows:
(i) Grant a permanent injunction restraining the defendant, its men,
agents, servants or persons acting on its behalf from infringing the plaintiff's
registered trade mark bearing numbers 454103, 454106, 454109, 59273,
180448, 180449, 59308, 178484, 179074 and 194656 in Class 34, in any manner
either by using the plaintiff's word mark and/or logo or otherwise in relation with
the products manufactured and marketed by the defendants;
(ii) Grant a permanent injunction restraining the defendant, its men,
agents, servants or persons acting on its behalf from passing-off the products
manufactured and marketed by them using the plaintiff's trade mark or any other
mark deceptively similar or closely resembling the plaintiff's mark, in any manner
either by using the plaintiff's word mark and/or logo described in the Schedule
hereunder or otherwise in relation with the products manufactured and marketed
by the defendants; and
(iii) for costs of the suit.
Plaint filed and numbered as C.S.(Comm.Div).No.882 of 2013 under
Section 134 and 135 of the Trade Marks Act, 1999, read with Order IV Rule 1 of
the Original Side Rules of this Court and Order VII Rule 1 of the C.P.C., praying
for judgment and decree as follows:
(i) for a declaration declaring that the Deed of Assignment dated
15.12.2011 as illegal, null and void and non-est in the eye of law;
(ii) grant a permanent injunction restraining the defendant, its men,
agents, servants or persons acting on its behalf from infringing the plaintiff's
registered trade mark bearing Nos.454103, 4554106, 592763, 180448, 180449,
Page No.4/97
https://www.mhc.tn.gov.in/judis
C.S.(Comm.Div).Nos.605 and 882 of 2013
and 587 of 2015
559308, 178484, 179074 and 194656 in Class 34, in any manner or otherwise in
relation with the products manufactured and marketed by the defendants;
(iii) grant a permanent injunction restraining the defendants, its men,
agents, servants or persons acting on behalf from passing-off the products
manufactured and marketed by them using the plaintiff's trade mark, and
(iv) to pay the costs of the suit.
Plaint filed and numbered as C.S.(Comm.Div).No.587 of 2015 under
Sections 134 and 135 of the Trade Mark Act, 1999, read with Order 4 Rule 1 of
the Original Side Rules of this Court and Order 7 Rule 1 of the CPC, praying for
judgment and decree as follows:
(i) grant a permanent injunction restraining the defendant from passing-
off the product manufactured and marketed by them using the scheduled
mentioned trade marks or other marks deceptively similar or closely resembling
the plaintiff's mark in any manner, either by using the plaintiff's word mark or
logo morefully described in the schedule here under or otherwise in relation with
the products manufactured and marketed by the defendants, and
(ii) for costs of the suit.
For plaintiff in C.S.No.605 of 2013 and for defendants in C.S.Nos.882 of 2013
and 587 of 2015 : Mr.P.S.Raman, Senior Counsel,
assisted by Mr.Gautam S.Raman
For defendants in C.S.No.605 of 2013 and for plaintiffs in C.S.Nos.882 of 2013
and 587 of 2015 : Mr.R.Rajarajan
Page No.5/97
https://www.mhc.tn.gov.in/judis
C.S.(Comm.Div).Nos.605 and 882 of 2013
and 587 of 2015
COMMON JUDGMENT
C.S.(Comm.Div).No.605 of 2013 is filed praying for judgment and decree to grant permanent injunctions; C.S.(Comm.Div).No.882 of 2013 is filed praying for declaration and permanent injunctions.. C.S.(Comm.Div).No.587 of 2015 is filed praying for grant permanent injunction.
2. The averments of the plaintiff in C.S.(Comm.Div).No.605 of 2013 are as follows:
(a) The plaintiff is a partnership firm, which is in the business of marketing and supply of Snuff and Cigar products in India and abroad. The first defendant is also a partnership firm, constituted under the Partnership Act, having three partners, having partners, namely (i) S.Chandrasekaran, (ii) S.Thara and
(iii)V.Anuradha. The first defendant was originally the owner and Proprietor of Trade Mark numbers in 454103, 454106,454109, 592763, 180048, 180449, 559308, 178484, 179074 and 1946556 in Class 34 in the name of M/s.N.C.Arya Sniff and Cigar Company and the same was registered with the Registrar of Trade Marks at Chennai. The first defendant is represented by its then Managing Partner, who vide authorisation letter, dated 27.10.2011, was authorized to act on behalf of the first defendant to enter into a deed of assignment, transferred Page No.6/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 and assigned to the plaintiff all the rights and benefits, including rights in relation to manufacturing and marketing of all products in India and abroad, of the aforementioned trade marks owned by the first defendant for consideration of Rs.75 lakhs, the receipt of which was acknowledged by the first defendant, vide assignment deed, dated 15.12.2011.
(b) It was mutually agreed to by and between the plaintiff and the first defendant that the first defendant be allowed to market and supply the snuff and cigar stock already produced within 12 to 18 months of execution of the deed of assignment and thereafter, all the rights will remain with the plaintiff, who would then be the exclusive manufacturer and seller of snuff and cigar products under the said trade marks.
(c) Subsequent to the assignment of the aforementioned trade marks in favour of the plaintiff, the plaintiff conducted a market survey and also contacted dealers/distributors for commencing manufacture and sale. The plaintiff commenced their business of manufacturing and marketing the snuff and cigar products under the trade marks assigned to them from August 2013. In compliance with the trade marks law, the plaintiff, on 19.08.2013, submitted to the Registrar of Trade Marks, Guindy, Chennai, form TM.24, requesting the Registrar to register the plaintiff as the subsequent proprietor of the aforementioned trade marks which were assigned to the plaintiff. The first batch Page No.7/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 of consignment was dispatched on 21.08.2013 to a consignee by name, Mr.T.Balaji, residing in Andhra Pradesh. At this stage, when the plaintiff had begun to manufacture and sell the products that they were shocked to learn that the first defendant was continuing to manufacture and sell the products under the trade marks that were already assigned to the plaintiff even after expiry of the grace period given to them to clear the stocks manufactured prior to the assignment of the trade marks.
(d) As per the terms of the deed of assignment entered into between the plaintiff and the first defendant, the first defendant had transferred and assigned the exclusive use and all benefits of the aforementioned trade marks in relation to the manufacture and marketing of all products under Class 34 in India and abroad. This clearly proves that the first defendant has infringed the rights of the plaintiff by using the said trade mark to sell its snuff and cigar products. The second defendant has been manufacturing the products and the third and fourth defendants have been marketing the same on behalf of the first defendant even after the rights were assigned in favour of the plaintiff. The label and packaging of the first defendant's products are deceptively similar to that of the plaintiff, in respect of the same class of goods, causing confusion among the purchasing public. This act of the first defendant is bound to affect the business of the plaintiff, who holds exclusive rights to use the said trade marks in relation to its Page No.8/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 business. The plaintiff is left with no other alternative means but to approach the Court for the relief restraining the defendants from infringing the rights of the plaintiff in the said trade marks. The plaintiff has entered the market in August 2013 and cannot at this stage estimate the damages caused to it due to the defendants' acts of infringement. Hence, the plaintiff has filed the suit in C.S.No.605 of 2013 for the reliefs stated supra.
3. The first defendant has filed written statement in C.S.No.605 of 2013, stating as follows:
(a) At the time of filing the suit, there were only two partners, viz.,
(i)S.Chandrasekar and (ii) S.Thara as per the partnership deed, dated 01.07.2012, and subsequent to the filing of the suit, the firm has been reconstituted and now the firm comprised of four partners, viz.,
(i)S.Chandrasekar, (ii) S.Thara and (iii)K.Ragurammun and Shankar Amarnath by virtue of the re-constitution and now the firm comprised of four partners, S.Chandrasekar, S.Thara,K.Ragurammun and Shankar Amarnath by virtue of the re-constitution deed. The partnership deed dated 01.07.2012 and the re-
constitution deed and the registration copy are all filed along with the written statement. The first defendant M/s.N.C.Arya and Snuff and cigar Company is the registered owner of the trade mark Nos.454103, 454106, 454109, 592763, Page No.9/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 180449, 180440, 559308, 178484, 179704 alone is true. The first defendant is represented by the Managing Partner V.Anuradha by virtue of the authorisation letter dated 27.10.2011 to assign the right of registered trade mark manufacturing and marketing of all products in India and abroad for a consideration of Rs.75 lakhs. The authorisation letter itself is a forged and fabricated document. The authorisation letter is of doubtful origin. The alleged signatures of the partners, namely S.Chandrasekhar and S.Thara are found on the bottom of the page, whereas the contents of the document are of four lines which is on the top of the page. There is almost an half a foot gap between the contents of the letter and the signatures of the other two partners authorising Anuradha. Apart from the said fact, the authorisation letter said to have been notarised by one R.Jayachandran, Advocate and Notary bearing Registration No.81 of 2011. In the photocopy of documents annexed along with the plaint, the date of notarisation is not clear. The date of notarisation appears to be made on 14th August and the particulars of the year are totally illegible. The authorisation letter is dated 27.10.2011, if so, the notarisation could not have been given on 14.08.2011. Even otherwise, there is no chance for giving notarisation since both the partners Chandrasekaran and Thara were not present and admit the alleged signature before the said notary at any point of time. The aforesaid circumstances narrated clearly proves and establishes that the Page No.10/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 authorisation letter is a rank forgery and the same is concocted for the purpose of filing the suit.
(b) The first defendant also denies the execution of the deed of assignment on behalf of the first respondent partnership firm alleged to have been executed on 15.12.2011. The recitals in the deed of assignment spelt that Rs.75 lakhs is said to have been paid by the plaintiff to the said Anuradha and the receipt of which is stated to have been acknowledged by the sai Anuradha. First of all, such a huge sum cannot be transferred by cash and such transfer is prohibited under the Income Tax Act, 1961. The alleged amount of Rs.75 lakhs has never been entered in the Account ledger of the first defendant-firm. The cash consideration of Rs.75 lakhs is invented for the purpose filing the present suit. One of the two partners of the plaintiff firm is one Gnanakanabady who is none other than the husband of the said Anuradha, In the preamble portion of the deed of assignment, the said Anuradha is referred as daughter of Vishwanathan, instead, as wife of Gnanakanabady. The factum of cash consideration coupled with the fact that one of the assignees happened to be the husband of the said Anuradha, which clearly shows that the deed of assignment is prepared belatedly on the ante dated stamp paper. In none of the clauses of the deed of assignment, has provided for any stop-gap arrangement to permit the first defendant to use the trade mark and market and supply of the snuff and Page No.11/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 cigar stock already produced within 12-18 months from the execution of the deed of assignment. The said theory of mutual agreement between the plaintiff and the defendant, permitting the defendant to market and supply the snuff and cigar already produced within 12-18 months, is invented for the first time for the purpose of filing the suit. The statement is made that the plaintiff has applied for registration as subsequent proprietor in the name of M/s.Nico Quality products with the Registrar of Trade Mark, Guindy, Chennai on 19.08.2013. The plaintiff has not come forward with any explanation for the inordinate delay of presenting the application for registration immediately after the date of assignment. There is no necessity for the plaintiff to wait for a long time to do the formality of registration for 18 months. Just before filing the present suit, the application has been thought of by the plaintiff to get over the provisions of the Trade Marks Act, 1999.
(c) All the original copies of registration of trade marks are still lying with the first defendant-firm. The case of the plaintiff is based on the deed of assignment dated 15.10.2011, cannot be accepted as true only for the fact that the original registration copies are still lying with the first defendant. No prudent purchaser would have permitted the assignor to retain all the original document after the execution of the deed of assignment and that too after transferring such a huge amount of Rs.75 lakhs. The said factor makes it amply clear that the Page No.12/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 deed of assignment are all nothing but create and fabricated for the purpose of filing the suit.
(d) The first defendant/partnership firm is registered under the Indian Partnership Act of 1932 and the partnership firm is constituted by the two partners, namely (i) S.Chandrasekaran and (ii) S.Thara. The first defendant has been involved in the business of manufacturing and selling and dealing in the Snuff and Cigar for several decades. The business includes the manufacturing, branding and selling the wholesale stock of cigars, snuffs, agar-bathis, scented sticks and perfumes, etc. The family of the first defendant comprises of Mr.S.Chandrasekaran and his brother S.Viswanathan and the business was roaring one and N.C.Arya Snuff and Cigar Company had business all over India. By careful stewardship of Mr.Chandrasekaran who is the elder member of the family, the business touched new horizon and the name of N.C.Arya Snuff and Cigar Company, had become a reputed one and established trade mark for the products like agar-bathis, scented sticks and perfumes, etc., There is a specific reputation and value attached to the brand name of M/s.N.C.Arya Snuff and Cigar Company in the trading market.
(e) The members of the family felt it appropriate to constitute a partnership firm, in order to carry out the aforesaid business under the name and style of N.C.Arya Snuff and Cigar Company with the said purpose and a Page No.13/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 partnership deed was executed between S.Chandrasekaran and S.Thara who is the wife of his brother Viswanathan. Since the business has started to expand and diversify, it was thought and necessary to induct one more partner in the business. Hence, Anuradha who is the daughter of Viswanathan and S.Thara was inducted as a partner in the business by virtue of a partnership agreement, dated 01.04.1995 and 18.06.1998. As per the said partnership agreement, the profits and losses of the business has agreed to be divided and apportioned among the three partners as follows, Mr.S.Chandrasekaran would get 40% and Thara would get 35% and Anuradha would get 25%.
(f) After induction of Anuradha, the other two partners, namely the plaintiffs were marginalised and Anuradha being young blood wanted to lead the business. Mr.S.Chandrasekhar and S.Thara who were all along by their business shrewdness, patience, acumen and experience to build up the business, were marginalised by the said Anuradha. Mr.S.Chandrasekhar and S.Thara also considering the relationship and also considering the fact a fresh approach, would jet-pack the business to new horizons, have agreed for the said Anuradha to conduct and lead the business. However, the business comes a cropper under the management of the said Anuradha. The reputed partnership name M/s.N.C.Arya Snuff and Cigar Company had to undergo heavy financial crisis because of the rash decisions, total mis-management on the part of the said Page No.14/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 Anuradha. After couple of years, the roaring business and the Company which is an un-disputed leader in India in the field of snuff and cigar have lost the name. It is due to the reckless mis-management and the unwanted ventures of the said Anuradha.
(g) The Company faced heavy financial crisis and at one point of time, it was thought that it is almost possible to retrieve and rescue the business. There were several people who had given huge amount of loan and also supplied raw materials on credit basis. Upon noticing that the traditional family brand of M/s.N.C.Arya Snuff and Cigar Company would collapse under the management of the said Anuradha, the first defendant, namely Mr.Chandrasekhar and S.Thara, who have voluntarily kept quiet and have given the space for the said Anuradha to lead, have intervened in the business in order to rescue the same.
(h) The said Anuradha by then had realised that the business has crashed down only because of the fault on her part and the said Anuradha being a married lady and also having the family, felt it difficult to face the creditors. After accepting all the mistakes, she wanted to wash her hands of the partnership business. The said Anuradha apprehends her husband and son would also be put into trouble by the creditors, if she is decided to continue in the firm. The said Anuradha who is the sole reason and cause for the collapse of the business, wanted to leave the business in hurry. Hence, the said Anuradha and her Page No.15/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 husband executed the separate affidavits and making amply clear that she is no longer associated with the partnership firm, namely N.C.Arya Snuff and Cigar Company. The said Anuradha and her husband, a partner in the plaintiff-firm herein, had executed an affidavit to that effect on 10.08.2012 in the presence of Notary Public at Pondicherry, stating that she has retired from the partnership namely, M/s.N.C.Arya Snuff and Cigar Company with effect from 30.08.2012 and on the assurance given by S.Chandrasekaran and S.Thara that they will undertake the liability and absorb the same. Similarly, she has also relinquished all her rights over the trade-marks and business from 01.07.2012. The husband of the said Anuradha, namely the partner of the plaintiff herein, has also executed similar affidavit to that effect on 10.08.2012 and that apart, a fresh partnership agreement was executed on 01.07.2012. The husband of the said Anuradha, namely the partner of the plaintiff herein, has also executed similar affidavit to that effect on 10.08.2012. That apart, a fresh partnership agreement was executed on 01.07.2012 on which also, the said Anuradha has signed as retiring partner. Thus it is crystal clear that the partnership-firm, namely M/s.N.C.Arya Snuff and Cigar Company shall comprise two partners, namely S.Chandrasekaran and S.Thara for the above reasons.
(i) After the retirement of the said Anuradha, the first defendant, namely S.Chandrasekar and S.Thara took all the strenuous efforts to settle the creditors, Page No.16/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 in order to run the business smoothly and their attempt to settle the creditors, reputation and brand name had been resolved by the hard work of creditors, reputation and brand name have been resolved by the hard work of S.Chandrasekar and S.Thara. After several rounds of negotiations and hectic efforts, the creditors were settled at the instance of S.Chandrasekar and S.Thara and now, the businesses of the first respondent-firm have started to gain momentum and brand name of N.C.Aya Snuff and Cigar Company have been re- activated. The re-emergence of N.C.Arya Snuff and Cigar Company is only due to the hard-work of S.Chandrasekar and S.Thara. It is to be noted that the said Anuradha has left the firm in lurch and in the hour of need. After witnessing N.C.Aya Snuff and Cigar Company has been roaring in the market, the said Anuradha wanted to take a share in the credit and profits. Further, the brand- name of M/s.N.C.Arya Snuff and Cigar Company had become the asset of the first defendant-firm. The said Anuradha and her husband have relinquished the rights in sharing the credits and participating in the Company by virtue of the above-said affidavit and deed. The said Anuradha is estopped from claiming the brand name of N.C.Arya Snuff and Cigar Company. The said Anuradha gave assurance that she will not interfere in the management of the Company.
(j) The first defendant-partnership firm had been re-asserted in the fields of snuff and cigar. That being so, the said Anuradha attempted to pass-off the Page No.17/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 trade mark of M/s.N.C.Arya Snuff and Cigar Company with the help of her brother-in-law and husband in the name of Nico allied products, Pondicherry, by using the brand of the first defendant. This came to the knowledge of the first defendant. Immediately, the first defendant has lodged a Police complaint and search has also been conducted by the concerned Police Station and they seized the incriminating materials, which were used by the said Anuradha's proprietary concern. She has given notice dated 24.07.2013 through the Advocate and called upon the first defendant/firm to hand over the management to her. In the said notice, after admitting her signature in the re-constitution of the first respondent- Firm and her retirement from the firm, attempted to repudiate the retirement on vague and untenable grounds. Since the other two partners have refused to budge to her threats, she has, at present, in collusion with her husband, who is the partner in the firm to black-mail the first respondent, has filed the present suit.
(k) The plaintiff-firm represented by K.C.Vijay, Gnanakanabady and Anuradha, are in active collusion with each other in bringing the present suit to have unjust enrichment. The first defendant is no longer represented by Anuradha, in view of re-constitution of the firm and retirement of Anuradha from the first defendant-firm. The said Gnanakanabady had also executed an affidavit in favour of the first defendant-Partnership firm that he would no longer claim Page No.18/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 any right over the registered trade marks of the first defendant-firm. The execution of the affidavit and also the registration and also the re-constitution of the firm, have all been admitted by the said Anuradha in the legal notice given to the first defendant. The said Anuradha and her husband, seeing that the first defendant is flourishing and started to revive, wanted to have a share in the profit. Upon seeing their attempts, did not yield any fruitful results, have caused the present suit in active collusion with the other partner K.C.Vijay.
(l) Under Section 42 of the Trade Marks Act, any assignment of the registered trade-mark, without the goodwill of the business, will not take effect, unless the deed of assignment is presented for registration before the Registrar of Trade Marks, within the period of six months from the date of the execution and in any case not exceeding the period of nine months. In the present case, the deed of assignment was executed on 15.12.2011 and the same had been presented for registration, even according to the statement in the plaint, is only on 19.08.2013. Therefore, the alleged deed of assignment is having no effect on the date of the suit and there is no cause of action for the plaintiff to file the present suit. The alleged deed of assignment is null and void in the eye of law and as such, the suit itself is barred. The claim of the plaintiff that it is the registered owner of the trade-mark, cannot be countenanced in the teeth of the statutory bar under the Trade Marks Act.
Page No.19/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015
(m) Any action for infringement of registered trade mark, would lie, by or on behalf of the assignee only after the assignee registered himself as the Proprietor of the trade mark in respect of goods or services in respect of which the assignment or transmission had effect. In the present case, the defendant came to know only after receiving the notice in the suit that the plaintiff has made an application for transfer of registration of trade mark in their name. Immediately, the defendant objected to the Registrar of Trade Marks, Guindy, Chennai on 18.09.2013 and the said objection is still pending. The right claimed by the applicant as the registered user in the suit, is not maintainable, unless the deed of assignment is registered by the Registrar of Trade Marks under Section 45 of the Trade Marks Act. When the plaintiff failed to prove and establish that they have become the registered owners or assignees, as the case may be, under Section 45 of the Trade Marks Act, no action for infringement lie, in view of the express bar provided under Section 27 of the Trade Marks Act. The action for passing-off, would lie only at the instance of the owner of the trade mark and in the present case, the plaintiff could not claim to be the owner of the registered trade mark, de-hors, the provisions of the Trade Marks Act. The defendant, on coming to know of the fraudulent assignment deed, has also lodged a criminal complaint against the partners of the plaintiff-firm and also the said Anuradha and the same is pending investigation.
Page No.20/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015
(n) All the defendants are doing the business for the past four years, even after the alleged assignment deed and they have to supply the products to hundreds of customers all over India and abroad. The first defendant has started to revive now only and the order of injunction is like bolt-out of the blue and put the business of the respondent in total dis-array.
(o) There is no cause of action for filing the suit, which is barred by the law of limitation. The suit is frivolous and vexatious and the same may be dismissed.
4. The plaint averments in C.S.No.882 of 2013, are as under:
(i) The plaintiff is a registered partnership firm, registered under the Partnership Act and represented by its Partners, (i) S.Chandrasekar and
(ii)S.Thara, who are presenting the plaint through their Special Power of Attorney Raghuraman.
(ii) The family of plaintiffs had been involved in the business of manufacturing and selling and dealing in the Snuff and Cigar for several decades.
The business includes manufacturing, branding and selling the whole-sale stock of cigars, snuffs, agarbathis, scented sticks and perfumes, etc. The family of the plaintiff comprises of Mr.S.Chandrasekaran and his brother S.Viswanathan and the business was roaring one and N.C.Arya Snuff and Cigar Company, has Page No.21/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 business all over India. By careful stewardship of Mr.Chandrasekaran, who is the elder member of the family, the business touched new horizon and the name of N.C.Arya Snuff and Cigar Company, which had become a reputed one and established trade mark for the products like agarbathis, scented sticks and perfumes, etc. There is a specific reputation and value attached to the brand name of M/s.N.C.Arya Snuff and Cigar Company in the trading market.
(iii) The members of the family felt it appropriate to constitute a partnership firm, in order to carry out the aforesaid business under the name and style of N.C.Arya Snuff and Cigar Company with the said purpose and a partnership deed was executed between S.Chandrasekaran and S.Thara, who is the wife of his brother Viswanathan. Since the business started to expand diversify, it was thought and necessary to induct one more partner in the business. Therefore, the fourth defendant, who is the daughter of Viswanathan and Thara, was inducted as a partner in the business by virtue of a partnership agreement deed, dated 01.04.1995 and 18.06.1998. As per the said partnership agreement, the profits and losses of the business had agreed to be divided and apportioned among the three partners, i.e. Mr.S.Chandrasekaran - 40%, Thara - 35% and the fourth defendant - 25%.
(iv) After induction of the fourth defendant, the other two partners of the plaintiff, namely S.Chandrasekaran and S.Thara, were marginalised and the Page No.22/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 fourth defendant, being young blood, wanted to lead the business. The said two partners of the plaintiff, namely S.Chandrasekaran and S.Thara, who were all along by their business shrewdness, patience, acumen and experience to build up the business, were marginalised by the fourth defendant. The said two partners of the plaintiff, i.e. S.Chandrasekaran and S.Thara, have also, considering the relationship and also considering the fact, a fresh approach would jet-pack the business to the new horizon, agreed for the fourth defendant to conduct and lead the business. However, the business comes a cropper under the management of the third defendant. The reputed partnership name M/s.N.C.Arya Snuff and Cigar Company had to undergo heavy financial crisis, because of the rash decisions, total mis-management on the part of the fourth defendant herein. After couple of years, the roaring business and the Company, which is un-disputed leader in India in the field of snuff and cigar, had lost the name due to the reckless mis-management and the unwanted ventures of the fourth defendant.
(v) The company faced heavy financial crisis and at one point of time, it was thought that it is almost impossible to retrieve and rescue the business. There were several people who had given huge amount of loan and also supplied raw-materials on credit basis. On seeing that the traditional family brand of M/s.N.C.Arya Snuff and Cigar Co., would collapse under the management of the Page No.23/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 third defendant, the other two partners of the plaintiff, i.e. S.Chandrasekaran and S.Thara, who have voluntarily kept quiet and have given the space for the fourth defendant to lead, have intervened in the business in order to rescue the same.
(vi) The fourth defendant, by then, have realised that the business has crashed down only because of the fault on her part and further, the fourth defendant, being a married lady and also having the family, felt it difficult to face the creditors. After accepting all the mistakes, she wanted to wash her hands of the partnership business. The fourth defendant further apprehends that her husband, namely the third defendant and son would also be put into trouble by the creditors, if she decided to continue in the firm. The fourth defendant, who is the sole reason and cause for collapse of the business, wanted to leave the business in hurry. Therefore, the fourth defendant and her husband, namely the third defendant, executed separate affidavits and making it amply clear that she is no longer associated with the partnership firm, namely N.C.Arya Snuff and Cigar Company. The fourth defendant herein had executed an affidavit to that effect on 10.08.2012 in the presence of notary public at Pondicherry stating that she has retired from the partnership, namely M/s.N.C.Arya Snuff and Cigar Company with effect from 30.06.2012 and on the assurance given by the other two partners of the plaintiff S.Chandrasekaran and S.Thara that they will Page No.24/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 undertake the liability and absorb the same. Similarly, she has also relinquished all her rights over the trade marks and business from 01.07.2012. The husband of the fourth defendant, namely the third defendant herein, had also executed similar affidavit to that effect on 10.08.2012. That apart, a fresh partnership agreement was executed on 01.07.2012, on which also, the fourth defendant signed as a retiring partner. Thus, it is clear that the partnership firm, namely M/s.N.C.Arya Snuff and Cigar Company shall comprise two partners, namely S.Chandrasekaran and S.Thara.
(vii) After retirement of the fourth defendant, they took all efforts to settle the creditors, in order to run the business smoothly and their attempt to settle the creditors, reputation and brand name, had been resolved by the hard work of S.Chandrasekaran and S.Thara, partners of the plaintiff. After several rounds of negotiations and hectic efforts, the creditors were settled at the instance of the said partners of plaintiffs. The businesses of the plaintiff had now started to gain momentum and brand name of N.C.Arya Snuff and Cigar Company, had been reactivated. The re-emergence of N.C.Arya Snuff and Cigar Company is only due to the hard work of the two partners of the plaintiffs, namely S.Chandrasekaran and S.Thara. The fourth defendant left the firm in lurch and in the hour of need. After witnessing N.C.Arya Snuff and Cigar Company had been roaring in the market, the fourth defendant wanted to take a share in the credit and profits. Page No.25/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 The brand name of M/s.N.C.Arya Snuff and Cigar Company had become the asset of the plaintiff-firm. The fourth defendant and her husband, namely the third defendant, had relinquished the rights in sharing the credits and participating in the company by virtue of the above said affidavit and deed. The fourth defendant is estopped from claiming the brand name of N.C.Arya Snuff and Cigar Company. The fourth defendant has given assurance that she will not interfere in the management of the company.
(viii) The fourth defendant, in collusion with the third defendant, attempted to pass-off the trade-marks of the plaintiff-Company with the help of their brother-in-law in the name of one Nico Allied Products, Pondicherry. When the said factum came to the knowledge of the plaintiff, they immediately lodged a Police complaint, and a search has also been conducted by the concerned Police and they seized incriminatory material used by the defendants 3 and 4, especially the proprietor concern of the fourth defendant. Apprehending that the fourth defendant and her husband would be prosecuted for infringement of the trade mark, a notice has been given on behalf of the fourth defendant through her advocate calling upon the plaintiff-firm to hand-over the management to the fourth defendant. In the said notice, dated 24.07.2013, the signature in the reconstitution of the firm and the fact of the retirement of the firm, have all been admitted by the fourth defendant. However, she made an attempt to repudiate Page No.26/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 the retirement from the firm on vague and untenable grounds. Immediately, the plaintiffs have instructed their advocate to file the suit for injunction against the fourth defendant.
(ix) That being the situation, like a bolt out of the blue, the defendants 3 and 4 have conspired and colluded together and brought out several forged and fabricated documents to claim ownership in respect of the trade marks registered in the name of the plaintiff-firm and also obtained ex-parte order of interim injunction in C.S.No.605 of 2013 on the file of this Court. The said fact of forged and fabricated documents came to the knowledge of the plaintiff only when the first defendant filed the aforesaid suit seeking the relief of permanent injunction restraining the plaintiff from infringing and passing-off the trade mark. In the said suit, two applications, namely Application Nos.667 and 668 of 2013, was filed and ad-interim injunction was also granted in favour of the first defendant/firm. When the notice is served in the injunction application, the plaintiffs have filed their counter and the injunction application was argued at length by both the plaintiff and the defendant and ex-parte order given by this Court, was vacated on 03.12.2013.
(x) The suit in C.S.No.605 of 2013 was filed by the first defendant, represented by the second defendant. The third defendant, who is the husband of the fourth defendant, is also the partner of the firm and he did not appear or Page No.27/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 file any affidavit in the suit. The fourth defendant kept quiet and failed to appear to corroborate or repudiate the case of the first defendant. Only when they approached in the suit, they came to know about the documents forged and fabricated in hand-in-glove by the defendants. The defendants fabricated an unauthorised letter, alleged to have been issued by the partners of the plaintiff, namely S.Chandrasekaran and Thara, which is dated 27.10.2011, authorising the fourth defendant to assign the trade-marks. The said authorisation letter is rank- forgery. The signature in the letter dated 27.10.2011 are found at the bottom of the page, whereas the contents in the documents are only of four lines, which is typed on the top of the page. There is almost a half-foot gap between the contents of the letter and the signatures of the other two partners, alleged to have authorised Anuradha. In fact, the fourth defendant happened to be the daughter of S.Thara and also the niece of the other partner Chandrasekar. The fourth defendant also has been the partner of the firm for more than a decade. The fact that the plaintiff-firm has undergone several vicissitudes of fortune during the last couple of years before it started its revival recently. During those period of turmoil, the partners used to give blank signed papers to the creditors and customers. All the partners used to give such signed papers to meet out the demands of the clients, customers and the creditors. There are possibilities for the said Anuradha to misuse those signed blank papers by the other two Page No.28/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 partners, namely Thara and Chandrasekar and mis-used for fabricating the present authorisation letter. The plaintiffs have an opportunity of witnessing the photocopy of the said letter and they are of the firm view and opinion that those signatures are not their own signatures and it is a clear fabrication and rank- forgery.
(xi) Based upon the forged authorisation letter, the fourth defendant alleged to have executed a deed of assignment, representing the plaintiff-firm to and in favour of the first defendant-firm, represented by its two partners, namely the defendants 2 and 3 herein. The third defendant, who is the partner of the first defendant and also the beneficiary of the deed of assignment, is none other than the husband of the fourth defendant. The deed of assignment is reciting that a huge sum of Rs.75,00,000/- is alleged to have been paid by the first defendant-firm to and in favour of the fourth defendant in cash and the receipt of which is stated to have been acknowledged by the fourth defendant. The cash transfer exceeding Rs.20,000/- should be made only through cheque/Demand Drats or bills. The recital of cash transfer is only a name-sake one and actually, no such cash transfer had been made as alleged in the deed of assignment. The first defendant has deliberately failed to file the Income Tax Return for the relevant period and the defendants 3 and 4 never made any appearance or filed document in the suit. The fact that the Income Tax Returns were not filed itself, Page No.29/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 would, go miles to prove that the deed of assignment had been cooked up as an after-thought. The alleged authorisation letter, the deed of assignment, dated 15.12.2011, were all manufactured subsequent to the raid at Pondicherry. Subsequent to the alleged assignment, two congratulatory letters, alleged to have been given by the partners, were filed and the said two letters are also the manipulation of the defendants and rank-forgery. The said two letters were fabricated for giving the colour of genuineness to the fraudulent transaction. The original deed of assignment is with the defendants and hence, the photocopy filed in C.S.No.605 of 2013, is filed presently and the certified copy is applied.
(xii) The deed of assignment is an un-stamped one and it must be duly stamped under the Indian Stamp Act. The stamp duty exigible on the deed of assignment is 6% of the value of the assignment. In the present case, the value spelt out in the deed of assignment, is Rs.75,00,000/- and the same must carry stamp duty at the rate of 6% is Rs.4,50,000/-. That apart, the deed of assignment, dated 15.12.2011 is not coupled with goodwill. Under Section 42 of the Trade Marks Act, any assignment without the goodwill of the business, should be presented for advertisement and registration within a period of six months from the date of assignment, failing-which, the assignment shall not have any effect. In the present case, even according to the defendant, the deed of assignment is presented for registration only on 19.08.2013, i.e. nearly 18 Page No.30/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 months subsequent to the date of assignment. The defendants came forward with the explanation that there is an oral arrangement between the parties permitting the plaintiff to carry on the business and clear the stock for a period of 18 months. However, no such clause has been stipulated in the deed of assignment, dated 15.12.201. The factum of oral arrangement is nothing but a figment of imagination conjured up in the minds of the defendants to serve the purpose of the suit. All the original copies of the certified trade-marks are lying only with the plaintiff-firm.
(xiii) In the course of argument and enquiry in Application Nos.667 and 668 of 2013 in C.S.No.605 of 2013, several documents were also pressed into service in order to corroborate the bogus claim of the first defendant. Those documents are not submitted along with the plaint and all those documents were filed subsequent to the suit and filing of the counter affidavit. One of those documents in the alleged letter dated 09.12.2011, stated to have been issued by S.Chandrasekar vehemently denies his signature in the said letter. The letter itself is a rank-forgery and it is originated by employing fraud, forgery and manipulation on the part of the defendants 1 to 4. The second defendant negotiated for commission with the creditors for settlement. Taking advantage of the acquaintance, he joined the hands with the defendants 3 and 4 to have unjust enrichment and in collusion, they have manufactured all the documents to Page No.31/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 create right.
(xiv) On the ground that the deed of assignment may be set aside as illegal and non-est in the eye of law, the plaintiff alleges as follows:
(a) The alleged authorisation letter, dated 27.10.2011 is a rank-forgery.
(b) The deed of assignment is executed by the fourth defendant in favour of the first defendant, in which the third defendant, namely the husband of the fourth defendant, is also the partner.
(c) The alleged cash consideration of Rs.75,00,000/- is invented only for the purpose of the deed of assignment. There is no truth about the transmission of the consideration of Rs.75,00,000/- and no proof is available with the defendants.
(d) The deed of assignment itself is brought to light after 18 months and presented for registration only after 18 months from the date of execution.
Immediately, after presenting the deed of assignment for registration, the first defendant rushed up to the Court and filed a suit and sought an interim injunction on the basis of the deed of assignment, dated 15.12.2011 and also by citing the same is presented for registration on 19.08.2013.
(e) The third defendant failed to intimate anything about the alleged assignment in her legal notice, which is three months preceding the notice and claimed absolute right in the business.
Page No.32/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015
(f) The deed of assignment is without good-will of the business and hence, the same shall be presented for registration within a period of six months from the date of execution under Section 42 of the Trade Marks Act, whereas the assignment deed is presented for registration, nearly after 18 months and hence, it becomes invalid and non-est in the eye of law.
(g) The deed of assignment is unstamped and therefore, the same would not confer any right before the Court of law.
(h) Apart from the above facts, the background an circumstances, namely the retirement of the fourth defendant from the plaintiff-firm and the execution of the affidavit by the third and fourth defendants, disowning any relationship with the trade mark of the plaintiff/firm, would only establish the fact that the deed of assignment had been fabricated in order to have unjust enrichment by defrauding the plaintiff.
(i) A criminal complaint is filed in Crime No.1864 of 2013 on the file of E.4, Abhiramapuram Police Station against the defendants 2 to 4 for cheating, fraud and forgery.
(j) The relief of injunction granted was vacated by the Court, by order dated 03.12.2013 in A.Nos.667 and 668 of 2013.
(xv) The plaintiff is the lawful and registered owner of the trade marks Page No.33/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 and the defendants claimed unlawful right over the trade marks and filed the suit in C.S.No.605 of 2013 and the first defendant, even after dismissal of the injunction application, is having the temerity to make a publication in Anand Bazaar Patrika issue, dated 04.12.2013, claiming right through the assignment deed, dated 15.12.2013 and make clear its intention to use the trade mark to the prejudice and disadvantage of the plaintiff and hence, the present suit filed for declaration and injunction.
(xvi) The present suit is filed within a period of limitation as mandated under the Limitation Act.
5. The defendants 1 and 2 in C.S.No.882 of 2013 have filed written statement stating as under:
(a) The second and third defendants were partners in the first defendant-
firm and later, the third defendant had resigned from the partnership of the first defendant-firm by dissolving it on 06.11.2014 and hence, the first defendant-firm became a sole proprietorship concern, managed by the second defendant as sole proprietor of the first defendant-firm.
(b) The plaintiff-firm was the registered owners and Proprietors of the trade mark No.179074 in Class 34 of the Trade Marks Act and was engaged in the manufacture and sale of tobacco products mainly confined to snuff using Page No.34/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 these marks.
(c) The fourth defendant is the daughter of S.Thara and the niece of S.Chandrasekaran, who are the partners of the plaintiff. The partners of the plaintiff, namely Mr.Chandrasekaran and Mrs.Thara on 18.06.1995 had re- constituted their partnership firm by including the fourth defendant was a Managing Partner in the plaintiff-firm. The plaintiff-firm was once acquired reputed name in the tobacco business, they have fallen into hard times and had various debts with numerous creditors, apart from heavy losses due to the mis- management of the plaintiff's employee, viz., Venkatesan who had mis-managed the affairs, siphoned-off the firm's funds and misappropriated the same.
(d) The partners of the plaintiff, i.e. S.Chandrasekaran, S.Thara and V.Anuradha approached the second defendant to help them to clear the various debts of the plaintiff/firm. The second defendant agreed to help owing to the close association of the plaintiff's family. The defendant submits that since the plaintiff had authorised the second defendant to deal with the banks to clear their loans, the second defendant has approached various Banks on behalf of the plaintiff as their representative to clear the debts of the plaintiff. The second defendant is having the e-mail communications from various Banks acknowledging the second defendant as the acting representative of the plaintiff for clearing their dues.
Page No.35/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015
(e) Inspite of best efforts to help the plaintiff-firm, the large scale losses and debts were made by saving the plaintiff's business impossible. Various factories of the plaintiff had closed down and their sales tax registration was cancelled as well. It was during this time that the partners of the plaintiff offered the second defendant in respect of the plaintiff's trade marks so that some of the plaintiff's debts would be extinguished and the second defendant could start a new business venture. Since he had no experience in the Tobacco industry, the plaintiff recommended him to start a business venture with the fourth defendant, who is the third defendant's husband, since the fourth defendant had years of experience in the Tobacco industry. The second and third defendants together started the first defendant-firm and agreed to purchase 10 trade marks of the plaintiff.
(f) The first defendant represented by their partners, namely the second and third defendant through a deed of assignment, dated 15.12.2011 with the plaintiff-firm became the authorised owners of the trade marks -- 454103, 454106, 454109, 592763, 180448, 180449, 559308, 179074 and 194656. The deed of assignment mentioned that the first defendant acquired "All benefits" of the marks in question, which clearly indicated that the first defendant had acquired all benefits of the marks including the good-will associated with the mark.
Page No.36/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015
(g) The Bank accounts of the plaintiff-firm in Axis Bank, Barclays Banks and various other Bank accounts had all been frozen. It was thus requested by the plaintiff's partners that the second defendant pay the consideration for the above authorised trade marks in cash and accordingly the payment was made. After the defendant made arrangements to pay the consideration in cash, the above authorisation deed was entered and the first defendant became the owner of the marks in question.
(h) The plaintiff-firm had various stock in the trade and had requested the second defendant time for 12 to 18 months to clear the same, after which the first defendant could register the authorisation deed. The trade marks were assigned with the good-will associated with the marks and so, the defendant filed Form TM-24 under Section 45 of the Trade Marks Act for change of registered owner in favour of the first defendant. The second defendant, in the meanwhile, began contacting dealers and distributors across India and the manufacture of the assigned marks commenced from August 2013 and the first consignment was dispatched on 21.08.2013 from the defendant's factory at Puducherry to one T.Balaji, a distributor in Andhra Pradesh. The period requested by the plaintiff- firm had expired and so, the defendant had begun their manufacture and sale of the products.
(i) The defendants 1 and 2 were shocked to find out that even after the Page No.37/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 expiry of the period requested by the plaintiff to clear their excess stock the plaintiff's were continuing to manufacture the products assigned to the first defendant. The defendants 1 and 2, left with no other choice, filed C.S.No.605 of 2013 praying for permanent injunction restraining the plaintiff's men and agents from infringing and passing-off the defendant's marks before this Court and the same is pending. Pending the defendant's suit, it was found that the plaintiff had applied for fresh trade marks changing the name "N.C.Snuff" to "N.C.Stuff" and "N.C.SNUFF" etc., in October 2012 and 25.02.2013 respectively under Class 34 for snuff, cigar articles, matches and tobacco products. The defendant(s) also state that it was found out that the fourth defendant was removed as a partner of the plaintiff.
(j) This Court granted ad-interim injunction in favour of the first defendant with regard to their applications O.A.Nos.667 and 668 of 2013 praying for temporary injunction restraining the plaintiff's men and agents from infringing and passing-off the first defendant's marks. However, after contest, the first defendant's application for temporary injunction was dismissed and the present suit was filed by the plaintiff praying for a relief of declaration that the deed of assignment in favour of the first defendant is void and also for permanent injunction restraining the first defendant's men and agents from infringing and passing-off the alleged trade marks of the plaintiff. Page No.38/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015
(k) The business of the plaintiff was already in doldrums before the fourth defendant took over as partner.
(l) The allegation of the plaintiff that the fourth defendant is responsible for the financial ruin of the plaintiff-firm, is false. One Venkatesan, who was an employee of the firm, had mis-managed and misappropriated the plaintiff's funds for a number of years, cased the plaintiff's financial problems. The partners of the plaintiff, viz., S.Chandrasekaran and S.Thara never intervened to save the business, all the partners had requested the second defendant to save the business, all the partners had requested the second defendant, offered monetary support to the plaintiff-firm and it was in pursuance of the same, the partners of the plaintiff assigned 10 trade marks to the first defendant. The plaintiff-firm comprises entirely of the family member of S.Chandrasekara and S.Thara, the partners of the plaintiff herein. The fourth defendant is the daughter of S.Thara and niece of S.Chandrasekaran and in fact, the Power Agent of the plaintiff's partners who have filed the present suit, is himself the nephew of the plaintiff's partner S.Thara and is the first cousin of the fourth defendant. The family of the plaintiff was not happy that their trade marks were assigned to the first defendant and that their business was closing down as their sales tax registration was cancelled and most of their factories had been shut down and were therefore unable to do any business and so they have conspired to infringe and Page No.39/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 pass-off the defendants assigned marks by illegally manufacturing and distributing the first defendant's assigned marks. The only hindrance in the plaintiff's clandestine plan, was the fourth defendant, since she is the wife of the third defendant, who was a partner in the first defendant, would not allow them to illegally manufacture the infringe the defendant's authorised marks. The family members of the plaintiff, including the plaintiff's partners and their authorised Power of Attorney, were able to pressurise and force the fourth defendant to resign from her partnership in the plaintiff-firm. The allegation of the plaintiff in paragraph 6 of the plaint, is a blatant lie, which was fabricated for the purpose of the suit, suppressing the real illegal actions of the plaintiff. Assuming without admitting that the fourth defendant is estopped from the management of the firm, the deed of assignment was prior to her resignation at the relevant point of time when the assignment of trade marks took place and the fourth defendant had the power to do so, as she was the Managing Director of the plaintiff-firm at that point in time and had the power to assign the marks in favour of the first defendant.
(m) The allegations with regard to collusion between the defendants 1 and 2 and defendants 3 and 4 and the allegations of forgery and fabrications of documents, are denied by the defendants 1 and 2. The plaintiff, after assigning the trade marks in favour of the defendants 1 and 2, now wanted to go back on Page No.40/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 their valid deed of assignment and are alleging forgery to defeat the defendants 1 and 2's valid rights over the marks. Further, the plaintiff-firm had been black- balled in the industry due to years of mis-management and fraud indulged by the plaintiff's partners, their sales tax registration cancelled and most of the plaintiff's factories have been shut down. This is a case where an assignor of the mark subsequent to assigning the marks in favour of an assignee, upon receiving consideration, continues to illegally sell the marks behind the assignee's back, then alleges forgery of the assignment deed and then tries to get an injunction against the assignee. The second defendant helped the plaintiff's partners with their financial problems and had paid Rs.75 lakhs to acquire the above said trade marks and in return, the plaintiff had been continuing to sell the defendant's marks and then accuse the defendants 1 and 2 of forgery. With regard to the defendants' application Nos.667 and 668 of 2013, they were dismissed by this Court holding that to test the genuineness of the assignment deed, was a subject-matter for trial and the applications were dismissed accordingly.
(n) The allegation that the defendants 1 and 2 committed the crime of forging the letter of authorisation in favour of the fourth defendant, is denied by the defendants 1 and 2. They are in no way connected with the authorisation letter, as it was entered into between the plaintiff's partners and the fourth defendant who was the managing partner at that point of time and the plaintiff, Page No.41/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 by saying that the said authorisation letter entered into between the said S.Chandrasekaran, S.Thara and V.Anuradha, is forged by all the defendants, is only ruse to hoodwink the Court into believing that the defendants 1 and 2 have colluded together to defeat the plaintiff, but the reality is the inverse. The plaintiff's allegation of forgery is a convenient lie to create doubt as to the authenticity of the deed of assignment. The defendants 1 and 2 state that plaintiff's just by saying the contents of the letter dated 27.10.2011, is only 4 lines, but the signature is found at the bottom of the page, cannot prove forgery. The averment that the plaintiff used to have blank papers with their signature, is not known to the defendants 1 and 2, as he was not involved in the functioning of the firm, but only provided monetary support to them during their times of distress, and so, the defendants 1 and 2 cannot comment on the same.
(o) The plaintiff is trying to allege forgery of all documents without an iota of proof under the impression that an of-spoken lie will take on the colour of truth. The allegations with regard to filing of Income Tax Returns and appearance of defendants 3 and 4, are all tactics to distract the Court from the deceit and fraud which the plaintiff had committed. The raid in Pondicherry is not connected with the defendants 1 and 2.
(p) The defendants 1 and 2 further stated that there is no improper stamping of the deed of assignment and the case of the defendants 1 and 2 is Page No.42/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 not mitigated, as the correct stamp duty has now been paid and corrected by the defendants 1 and 2 as per Section 35 of the Indian Stamp Act. As per the assignment deed, the first defendant acquired "all benefits" of the mark, thereby clearly indicating that good-will is assigned to the first defendant. Since the assignment was with good-wil as per the Act, no time limit exists for registering the same. Hence, the plaintiff's contention that the assignment was without good-will and the defendants 1 and 2 had six months to register the same, is denied. It is for the Court to decide about the weather assignment was with or without goodwill.
(q) The allegation that the second defendant had negotiated for commission with the plaintiff's creditors for settlement, is an incomplete sentence the plaintiff has not mentioned as to what the commission is, who are the creditors, nor has the plaintiff mentioned as to what the settlement is.
(r) The facts as stated by the plaintiff that the deed of assignment should be declared as void, are all based on hear-say and the facts have all been cooked up to create doubt as to the validity of the assignment deed.
(s) The plaintiff is not the registered owners of the mark and are illegally manufacturing the products till date. At the risk of repetition, the defendants 1 and 2 state that the plaintiff's have black-balled in the tobacco industry and their sales tax registration, has also been cancelled, all the products sold by the Page No.43/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 plaintiff, are illegal. The plaintiff, after receiving the money from the defendants 1 and 2 for the trade-marks are trying to cheat the defendants 1 and 2 and illegally take back the marks by playing fraud before Court. The defendants 1 and 2's interim applications were dismissed, because, this Court was of the view that the issues of the defendants 1 and 2's case can only be decided by trial. This Court has not passed any order restraining the defendants 1 and 2 from carrying on the sale of their product, and so, the defendants 1 and 2 had every right to make their publication in Anand Bazaar Patrika issue dated 04.12.2013. It is not the intention of the defendants 1 and 2 to use the mark at the prejudice and disadvantage of the plaintiff. The plaintiff is the person who has been infringing the defendants 1 and 2's mark.
(t) The plaintiff has no cause of action to file the present suit and all the allegations made in the plaint, are false, fabricated and based on hear-say. The plaintiff has not come before the Court with clean hands and the defendants 1 and 2 pray that the present suit may be dismissed, as the plaintiff suppressed facts.
6. The plaint averments, in brief, in C.S.No.587 of 2015, are as follows:
(i) The first plaintiff is a partnership firm, registered under the Indian Partnership Act and the partners are: S.Chandrasekar, S.Thara, Kr.Ragurramun Page No.44/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 Krishnadhas, V.Shankar Amarnath. The second plaintiff is a proprietorship business and the third plaintiff is partnership business. The second plaintiff is manufacturing and packing the snuff products on the order of the first plaintiff and the third plaintiff is marketing the products of the first plaintiff and both of them are authorised agents of the first plaintiff.
(ii) The first plaintiff/firm was constituted out of the family members. The family of the partners in the plaintiff/firm have been involved in the business of manufacturing, selling and dealing in Snuff, Cigar for several decades. The business includes manufacturing, selling and dealing in Snuff, Cigar for several decades. The business includes manufacturing and branding and selling the wholesale stocks of cigars, snuffs, agarbathis, scented sticks and perfumes etc. The proprietors of the plaintiffs 2 and 3 are also the relatives of the partners of the first plaintiff/firm.
(iii) The plaintiff/firm has also obtained several registered trademarks in its name for marketing the snuff and cigar products. The first plaintiff/firm is also branding and marketing the products under the name an style of N.C.Snuff with distinctively identifiable mark and logo. The two trademarks and logo as scheduled in the plaint, also belong to the plaintiff/firm, along with the registered trademarks. The schedule mentioned trademarks were not registered and however, the first plaintiff had been branding and marketing their products by Page No.45/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 exclusively using the schedule mentioned trademarks for more than 15 years.
Thus, the plaintiff/firm is the sole and absolute owner of the said trademarks and only the plaintiff and their authorised assignees and licensees are entitled and permitted to use the said trademarks. The plaintiff has also recently applied for registration of the trademarks with the Registrar of Trade Marks.
(iv) The trademarks and logos in this case in the form of laminated pouches, have been ordered and used for branding and marketing snuff and cigar products manufactured and marketed by the first plaintiff/firm through the second and third plaintiffs for more than a decade. The Bills for purchasing the laminated pouches containing the impugned trademarks dated from 18.06.2011 to 11.08.2014, are shown by the plaintiff in the plaint. The photo-copies of the invoices from the y ear 2011, are also filed along with the plaint. The plaintiff is the sole and absolute owner of the impugned trademarks used in the form of pouch and except the plaintiff or its lawful assignees, no one is entitled and permitted to use the impugned trademarks for branding the snuff and cigar products.
(v) The defendant is a partnership firm, recently started in the year 2011. The partner of the defendant-firm, viz., K.C.Vijay, was an acquaintance of the partners of the first plaintiff/firm. When the first plaintiff/firm was in dire straits due to the mis-management of the erstwhile partner Anuradha, the partner of Page No.46/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 the defendant-firm, viz., K.C.Vijay approached the plaintiff-firm and shown himself as a trust-worthy friend. However, his real intention was to grab the entire market of the plaintiff-firm and to have unjust enrichment. The said K.C.Vijay and the erstwhile partner Anuradha and her husband Gnana Kanabady, have colluded together and created a fraudulent assignment deed with respect to the registered trademarks standing in the name of the first plaintiff/firm. The said assignment deed, dated 15.12.2011 is a fabricated and rank forgery and the same is non-est in the eye of law. The said deed of assignment dated 15.12.2011 is challenged by the first plaintiff / firm in C.S.No.882 of 2008 on the file of this Court and the same is still pending.
(vi) The defendant herein filed a suit for injunction against infringement and passing-off the registered trademarks on the basis of the alleged deed of assignment dated 15.12.2011 as against the plaintiffs and their lawful assignees in C.S.No.605 of 2013 on the file of this Court. The defendant also filed an application for interim injunction in O.A.Nos.667 and 668 of 2013 in C.S.No.605 of 2013 on the file of this Court. The plaintiff has filed a counter affidavit and on contest, the interim injunction applications were dismissed by doubting the deed of assignment dated 15.12.2011. The defendant herein preferred O.S.A.Nos.24 and 25 of 2013 and the same was also dismissed and direction was given for expeditious disposal of the suit in C.S.No.605 of 2013 and another suit filed by Page No.47/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 the plaintiff in C.S.No.882 of 2013.
(vii) The recitals in the deed of assignment only speak about the assignment of the registered trademarks and the deed of assignment itself is being challenged by the plaintiff in C.S.No.882 of 2013 and the genuineness of the deed of assignment has not been believed by this Court in O.A.Nos.667 and 668 of 2013 in C.S.No.605 of 2013. Even otherwise, the deed of assignment is only with respect to the registered trademarks and the same does not include either the business or the goodwill of the plaintiff/firm in relation to the snuff and cigar products. Therefore, the deed of assignment dated 15.10.2011 would not, by any stretch of imagination, permit or authorise the defendant to use the trademarks in question, for which the first plaintiff is the sole and exclusive owner and no assignment was also effected to the defendant herein at any point of time.
(viii) The defendant is using the impugned trademarks for the packaging of their snuff products and marketing of the same without obtaining either permission or assignment from the plaintiff/firm.
(ix) The defendant is using the impugned trademarks exclusively belonging to the plaintiff to sell snuff and cigar product, the plaintiffs are left with no other relief or alternative means, except to approach this Court seeking for the relief of permanent injunction restraining the defendant from passing-off its Page No.48/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 snuff and cigar products in the name of the plaintiff's trademark. Hence, the plaintiff has filed the present suit. The plaintiffs have also suffered damages and loss in the business due to the illegal action of the defendant and for which, the plaintiffs are entitled to compensation.
7. The defendant has filed written statement stating as follows:
(i) The defendant is a proprietorship concern and K.C.Vijay is the sole proprietor of the defendant. The defendant is young entrepreneur, engaged in various business activities including manufacturing, marketing and selling snuff and allied products falling. The defendant runs state-of-the art manufacturing unit in Pondicherry for manufacturing quality snuff products by procuring best quality raw material and delivers high quality products in the market. The defendant uses series of trademarks in the business for selling snuff and other allied products. The defendant markets and conduct business in all major cities in India, covering nook and corner including sub-urbans and villages. The defendant had also got good market in Andhra Pradesh, Kerala, Karnataka, Kolkata, apart from Tamil Nadu and Pondicherry. The defendant spent considerable time, painstaking efforts, money to promote the brand in question, in the market by virtue of which the mark NC Snuff is solely associated with the defendants and none else.
Page No.49/97
https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015
(ii) Earlier, the defendant was a partnership firm, consisting of two partners, namely K.C.Vijay and of Mr.Vijay and Gnanakanabady, who purchased the trademarks along with the good-will of the business by way of an assignment deed, dated 15.12.2011 from S.Chandrasekaran, S.Thara and V.Anuradha trading as M/s.N.C.Arya Snuff and Cigar Co.
(iii) The defendant, after acquiring the trademarks, filed appropriate request before the trademark office in Form TM-24, dated 19.08.2013 under Sections 45 and Rule 68 of the Trademarks Act, 1999 and the Trademark Rule, 2002.
(iv) The defendant's partnership firm, upon gaining knowledge that after assigning the trademarks with goodwill, S.Chandrasekaran, S.Thara and V.Anuradha trading as M/s.N.C.Arya Snuff and Cigar Co., along with other persons, started manufacturing and selling products under the same name "NC Snuff" in the market and in order to protect the rights of the defendant's partnership firm and to stop the infringers, a suit was filed seeking for:
(a) grant of permanent injunction restraining the defendant, its men, agents, servants or persons acting on their behalf from infringing the plaintiff's registered Trade Mark bearing Nos.454103, 454106, 454109, 592763, 180448, 180449, 559308, 178484, 179074 and 194656 in Class 34, in any manner, either by using the plaintiff's word mark and/or logo or otherwise in relation to the Page No.50/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 products manufactured and marketed by the defendants.
(b) to grant a permanent injunction restraining the defendant, their men agents, servants or persons acting on their behalf from passing-off the products manufactured and marketed by them using the plaintiff's trademark or any other mark deceptively similar or closely resembling the plaintiff's mark, in any manner either by using the plaintiff's word mark and/or logo or otherwise in relation to the products manufactured and marketed by the defendants.
(v) O.A.Nos.667 and 668 of 2013 in the above suit C.S.No.605 of 2013 was filed seeking for interim injunction restraining the respondents from infringing and passing-off of the applicant's registered trademark Nos.454103, 454106, 454109, 592763, 180448, 180449, 559308, 178484, 179074 in Class 34 of the Trade Marks Act, in any manner, pending disposal of the suit. Though this Court granted interim injunction, the said applications later was dismissed on 03.12.2014. During such time, the defendants in C.S.No.605 of 2013, approached this Court by filing a counter suit in C.S.No.882 of 2013, seeking injunction against the defendant's partnership firm, but no order had been passed till date.
(vi) The defendant's partnership-firm during the pendency of the suit, paid the deficit stamp duty of Rs.6 lakhs to the assignment deed on 09.01.2014 and Page No.51/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 had produced it before the Division Bench of this Court, while moving O.S.A.Nos.28 and 29 of 2014.
(vii) The said O.S.As. were preferred against the dismissal of O.A.Nos.667 and 668 of 2013 and the same stood disposed of by consent mainly on the following counts apart from procedural aspects:
"(i) The appellant does not press the appeals, but it is made clear that any opinion expressed in the impugned order is only prima facie in character and will not prejudice the appellant at the stage of trial.
(ii) The respondents do not press the interim application in their suit."
(viii) The defendant's partnership during the pendency, was dissolved and a new sole proprietorship concern was created with K.C.Vijay as the sole proprietor and now, the present defendant has become the absolute owner of all the N.C.Snuff trademarks by virtue of assignment deed, dated 06.11.2014 entered into between K.C.Vijay and Z.Gnanakanabady. The defendant, in order to record the change, had filed appropriate request before the trademark office in Form-24, dated 20.03.2015.
(ix) The defendant's partnership during the pendency, was dissolved and a new sole proprietorship concern was created with K.C.Vijay as the sole Page No.52/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 proprietor. Now, the present defendant had become the absolute owner of all the N.C.Snuff trademarks by virtue of an assignment deed,dated 06.11.2014 entered into between K.C.Vijay and Z.Gnanakanabady. The defendant, in order to record the change, had filed appropriate request before the trademark office in Form-24, dated 20.03.2015.
(x) Mrs.V.Anuradha, one of the partners of the present plaintiff, had given an affidavit of declaration to the defendant, confirming that Rs.75 lakhs was received on behalf of N.C.Arya Snuff and Cigar in cash, by her, with the knowledge and consent of the other partners as lawful consideration for the assignment of the subject trademarks and since the matrix of the interlinked with various facts and events, it is necessary to state the events as below:
(a) The first plaintiff was originally represented by S.Chandrasekarar and S.Thara as partners. Anuradha is the daughter of S.Thara and the niece of S.Chandrasekaran.
(b) On 18.06.1995, the said two partners had re-constituted the partnership/firm by including the said Anuradha as a managing partner.
(c) The first plaintiff could not run their business due to severe financial problems and debts.
(d) K.C.Vijay (representing for the defendant) was introduced to the first plaintiff partners by the close friend Mr.Srinivasan, who is the son of S.Thara. Page No.53/97
https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015
(e) Mr.Vijay is normally very helpful character, he was approached by S.Chandrasekaran, S.Thara and V.Anuradha, to help them to clear their various dates.
(f) Mr.Vijay was authorised by the plaintiff No.1 to deal with the Banks in December 2011 to clear their loans, Mr.Vijay had approached various Banks on behalf of the first plaintiff as their representative to clear their debts.
(g) Mr.Vijay has got e-mail communications from various Banks acknowledging/recognising him as the representative of the first plaintiff for clearing their debts. The proof of such communications are available with the plaintiff.
(h) Inspite of Mr.Vijay's best efforts to help the first plaintiff, the large scale losses and debts made saving the first plaintiff's business, impossible. Various factories of the first plaintiff had been closed down and their sales tax registration was cancelled.
(i) It was during this time that the 10 trademarks was assigned to the defendant for clearing the first plaintiff's debts and also suggested that the plaintiff could start a new business venture using their 10 trademarks.
(j) Since the defendant had no experience in the Snuff industry, the first plaintiff has recommended one Mr.Z.Gnanakanabady to the defendant to take him as partner to start a new business venture. The said Z.Gnanakanabady, who Page No.54/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 is the husband of Anuradha, has experience in running a Snuff business, as he already has a firm which manufactures and sells tobacco and Snuff products called 'Nico allied Products' at Puducherry
(k) The first plaintiff executed an assignment deed on 15.12.2011 transferring the above mentioned ten trademarks. As per the said deed of assignment, it is clear, inter-alia, that the mark was assigned with "ALL BENEFITS" of the said ten trademarks including the goodwill associated with the marks.
(l) At that point of time, the first plaintiff's Bank Accounts maintained at M/s. Axis Bank, Barclays Ban and other accounts had all been frozen. Hence, the first plaintiff's partners stated that if cheques are issued, the amount would be appropriated by their Banks for long over-due loan accounts and requested to pay a sum of Rs.75 lakhs in cash as consideration for the assignment deed, dated 15.12.2011.
(m) The said deed of assignment was signed by V.Anuradha as partner- cum-authorised representative of the first plaintiff/firm and authorisation letter, dated 27.10.2011 was presented, wherein all the partners of the first plaintiff/firm and had given an authority in favour of the said V.Anuradha to execute the assignment deed. After being satisfied with the letter of authorisation, the consideration was paid in cash to partner of the first plaintiff- Page No.55/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 V.Anuradaha. Mr.Vijay was personally aware that the amount handed over in person to the said V.Anuradha, was received with the knowledge and consent of the other partners of the first plaintiff/firm and the said amount went towards settling several creditors of the first plaintiff, who were paid in cash. The plaintiff is having sufficient proof for payment of consideration to the first defendant.
(n) The first plaintiff, by letter dated 21.06.2012, represented by their partner Mr.Chandrasekaran explained their difficulty in furnishing the original trademark certificates, as the first plaintiff's creditors had locked the factory, their partners were unable to enter into the premises and retrieve the original trademark certificates.
(o) Originally, the defendant's entity was a partnership firm which consists of Mr.Vijay and Gnanakanabady as partners. The said firm was subsequently registered on 17.10.2013 under the Society's Registration Act.
(p) On 06.11.2014, one of the partners Mr.Z.Gnanakanabady has resigned from the defendant's partnership/firm by deed of dissolution and thereby the said Z.Gnanakanabady has relinquished all his rights in the trademark marks, including the copyrights in the artistic works in favour of K.C.Vijay upon receipt of his settlement amount.
(q) Thus, K.C.Vijay has become the sole proprietor of the trademarks and is managed by him exclusive.
Page No.56/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015
(xi) The first plaintiff, before filing the the suit in C.S.No.882 of 2013, clandestinely filed trademark application on 10.10.2012 claiming false proprietorship for registration of the mark claiming association wit the earlier registered mark NC SNUFF under Registration No.559308, which was one of the subject mark of the assignment deed dated 15.12.2011. The first plaintiff, on 20.05.2014, filed another trademark application in Class 34, claiming false proprietorship. The first plaintiff, in their letter dated 04.12.2015 claimed ownership for all the 10 assigned marks by completely concealing the fact of assignment deed and the pending litigation between the parties. The conduct of filing new applications by the plaintiff No.1 after assigning the mark shows their fraudulent way of claiming proprietorship and also demonstrates their unclean approach towards this Court and before the trademark office to obtain registration by fraud. Therefore, it is clear that the first plaintiff, without any locus-standi, fraudulently approached this Court for orders which is not permissible and liable to be dismissed.
(xii) The first plaintiff, who assigned the NC SNUFF marks to the defendant, openly agreed (in page 3 of the Assignment deed dated 15/12/2011) that the Plaintiff No.1 covenants with the Defendants that they will not infringe nor use a mark identical with trademark hereby assigned nor use another Page No.57/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 trademark nearby resembling it as to be likely to deceive or cause confusion in the course of trade mark, in relation to the goods in respect of which it is registered and in the manner as to render the use of the mark likely to be taken either as being a use of the said trademark or to import a reference to the defendant. Therefore, the present plaintiff can never file or claim any right over the trademarks.
(xiii) According to the defendant, the present plaint is liable to be rejected as against the defendant for the reasons stated below:
(a) The instant suit has been filed by the plaintiff based on its alleged pending trademark applications for the NC SNUFF, claiming false proprietorship.
The alleged trademarks were filed after assigning the mark to the defendants, which shows their bad intention to claim the false proprietorship and there exists no ownership rights and legally enforceable right to the plaintiff.
(b) The plaintiff has come to this Court with unclean hands by suppressing the fact before the trademark office and not fully disclosing material facts before this Court and relying on the pending trademark applications for claiming rights. The present conduct of the plaintiff is a clear case of fraud committed on this Court by suppressing the information and tried to obtain an ex-parte interim injunction order.
Page No.58/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015
(c) The first plaintiff, at the time of assigning the marks to defendant, specifically agreed not to use any identical or similar marks to NC SNUFF, and therefore, there is no question of the plaintiff now claiming any rights to use the mark NC SNUFF or right to stop third parties including the present defendant.
(d) The plaintiff's mark is different from that of the mark described in the schedule to the plaint. The mark allegedly infringed is no longer in existence due to the statutory warning that has to be placed on all tobacco products and the suit schedule marks are also not being used by the plaintiff in the market and hence, the suit cannot be maintained on the basis of the reliefs prayed for.
(xiv) It is important to note that Nico quality product partnership firm stands dissolved on 06.11.2014 and K.C.Vijay had become the sole proprietor. The defendant in the present case, is arrayed wrongly.
(xv) The defendant does not have any knowledge about the alleged partnership with new partners and say that the same is illegal and not maintainable. The defendant has no proper knowledge about the plaintiffs 2 and 3 and the plaintiffs 2 and 3 are not the authorised agents of the first plaintiff.
(xvi) It is denied that the 1st Plaintiff has got several registered trademark in their name for marketing the snuff and cigar products. The plaintiff No.1, vide assignment deed, dated 15.12.2011 assigned all their trademark in favour of Page No.59/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 K.C.Vijay and Z.Gnanakanabady trading as Nico Quality products and also agreed not to use any identical or similar trademarks. The alleged two marks mentioned by the plaintiffs, are identical with the registered mark of the defendant. Thus, neither the plaintiff, nor any other party, can claim any rights for NC SNUFF or NC trademarks. The plaintiffs are not using the alleged mark for the last 15 years. The plaintiff is not the sole and absolute owner of the plaint scheduled trademarks. The filing of application per-se does not confer any rights on the plaintiff (xvii) It is denied that the plaint schedule mentioned trademarks and logos in the form of laminated pouches are ordered and used for branding and marketing snuff and cigar products for more than 10 years through plaintiff 2 &
3. The defendant denies the bills filed by the plaintiff as true and the same not constitute any legal use. Even otherwise, the alleged use after the assignment by the plaintiff is irrelevant.
(xviii) It is true that K.C.Vijay, the present defendant, with Gnanakanabady purchased the trademark from the plaintiff by way of an assignment deed dated 15.12.2011. Mrs.Anuradha, partner of the plaintiff-firm signed the assignment deed and received the considering with the knowledge of the other partners. Now, the present plaintiff suit, knowingly assigning the marlos cannot now plead ignorance in any case the plaintiff and the defendants Page No.60/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 are contesting the case before this Court in CS 605 of 2013 and 852 of 2013 in which the validity of the assignment deed will be decided, till auch time the present plaintiff cannot claim any right over the mark and cannot assert invalidity of the assignment deed. That apart there exists no case for the plaintiff to file the present case with no cause of action when the some issuers are pending adjudication in the earlier suits. Thus the present suit is liable to be dismissed.
(xix) The assignment deed entered by the plaintiff with the defendant is true and valid in the eyes of law. The covenants mentioned in page 3 of the assignment deed itself destroys the plaintiff case which talks about the restriction on the plaintiff not to use any mark identical or similar to the assigned marks irrespective of whether the marks are registered or not. Therefore it make no sense to plead that they are eligible to use an unregistered mark and have right to stops third parties including the present defendant. It is denied that the assignment deed is restricted to registered marks and without goodwill. Even otherwise at the time of entering into the assignment deed, the alleged trademark applications were not even filed. If the theory of the plaintiff is to be accepted means, any person can assign a mark and then file fresh application in their own name to claim rights again which is not acceptable and the same amounts to unfair trade practice. It is submitted that the marks are assigned with ALL BENEFITS as mentioned in the assignment deed and the benefits of the Page No.61/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 mark is nothing but the reputation and the goodwill.
(xx) It is denied that the defendant herein is using the impugned trademarks for packaging of its snuff products and marketing of the same without obtaining either permission or assignment from the plaintiff. It is submitted that the defendant had already the registered proprietor of trademarke mentioned in the assignment deed. After the assignment deed the plaintiff got no right to file trademark application or any new right to use the mark. Since there is already a bar on the plaintiff to use the mark by virtue of the covenants in the assignment deed, the false claims of the plaintiff are untenable Therefore there is no restrictions or any impediment on the defendant to use any form of NC SNUFF trademarks Apart from this the present impugned trademark is already covered under the assignment bearing registration No.559308 in Class
34. Hence, use of the mark "NC SNUFF" in any design by the defendant is legal and the present plaintiff got no right to stop the defendant from using it. Thus, there is no cause of action for filing the suit and the same is liable to be dismissed.
(xxi) It is denied that the schedule mentioned mark exclusively belongs to the plaintiff and say that there exists no enforceable rights in favour of the plaintiff against the defendant. It is denied that plaintiff suffered any damages and loss in the business whereas restraining the defendants from legally using Page No.62/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 the mark will put the defendants to irreparable damages and the same will be against natural justice.
(xxii) There is no cause of action to file the present suit and the suit is completely misconceived. The Plaintiff conveniently suppressed various material facts before this Court to take undue advantage. Defendants reserve their rights to take appropriate action against pending trademark applications before the trademark office.
(xxiii) There is no cause of action for the plaintiff to file the present suit. The present suit is nothing but a tactics to extort money from the defendant based on no right. The claims of the plaintiffs are duly covered in the earlier suit in C.S.No.882 of 2013 and thus the present suit is barred.
(xxiv) The Plaintiff is not entitled to any of the reliefs sought for and the entire suit is liable to be dismissed, for the reasons set out in the written statement. The present proceedings are fit to be dismissed and does not merit any kind of orders in circumstances and facts explained hereinabove.
(xxv) The plaintiff is not entitled to any relief as claimed in their suit. There is no balance of convenience or prima facie case for the plaintiff to file the present suit. There is no violation of the rights conferred on the plaintiff. Hence, the defendant prayed to dismiss the present suit.
Page No.63/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015
8. Considering the pleadings and documents annexed with therein:
(a) This Court, on 04.09.2019, framed the following issues for consideration in C.S.Nos.605 and 882 of 2013:
(i) Whether the letter of Authorisation dated 09.12.2011 executed in favour of Anuradha is genuine or forged ?
(ii) Whether the deed of Assignment dated 15.12.2011 is genuine, forged or concocted ?
(iii) Whether the first defendant in C.S.No.882 of 2013 use of the assigned trademarks, amounts to infringement and passing off ?
(iv) Whether the Trademarks mentioned in the assignment deed are with or without goodwill associated with the mark ?
(v) Whether the plaintiff is entitled for the relief claimed in the suits ? and
(vi) To what relief ?
(b) This Court, on 03.08.2021 in C.S.No.587 of 2015, framed the following issues for consideration:
(A) Whether the plaintiffs are entitled to maintain a joint suit for passing off ?
(B) Whether the defendant attempted to pass off its products as that of the plaintiffs' by adopting the deceptively similar trademark ? Page No.64/97
https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 (C) Whether the pendency of the suits in C.S.Nos.605 of 2013 and 882 of 2013 in which the assignment said to have been executed by the plaintiffs in favour of the defendant is being questioned, would operate as a bar for the plaintiffs prosecuting this suit ?
(D) Whether the plaintiffs are entitled to the injunction as prayed for ? and (E) To what other relief are the parties entitled to ?
9. Based on the pleadings and issues, joint trial was ordered and evidence was recorded in C.S.No.605 of 2013.
10. On the side of plaintiff, P.W.1 Mr.K.C. Vijay, P.W.2 Mrs.V.Anuradha and P.W.3 Mr.Z.Gnanakanabady were examined and Exs.P-1 to P-31 were marked. On the side of defendants, D.W.1 Mr.K.R.Ragurram Krishnadoss and D.W.2 - Mrs.S.Thara, were examined and Exs.D-1 to D-13 were marked.
11. Learned Senior Counsel appearing for the plaintiff in C.S.No.605 of 2013 and also for defendants in C.S.Nos.882 of 2013 and 587 of 2015, contended as follows:
(i) The suit schedule trade marks were assigned to the plaintiff, S.Chandrasekaran, S.Thara and V.Anuradha, who were the partners of the first Page No.65/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 defendant-firm. During the pendency of the suits, Mr.S.Chandrasekaran passed away and Mr.Raghuram Krishnadoss is later included as a partner. C.S.No.882 of 2013 and C.S.No.587 of 2015 are filed through Mr.Raghuram as the first defendant's Power of Attorney. The plaint in these suits had not been signed either by Mrs.Thara or Mr.Chandrasekaran. The first defendant's Bank Accounts were frozen and that they had pleaded with the plaintiff to pay the consideration of Rs.75 lakhs for assignment of the suit schedule marks in cash. It is not in dispute that the first defendant was having financial problems and that Mr.K.C.Vijay was helping them to settle their loans. D.W.2 Mrs.Thara had also admitted the same during cross-examination in question Nos.28 and 29. It is also admitted that the first defendant's sales tax registration was cancelled, as stated in question No.32 by D.W.2. The sum of Rs.45 lakhs was generated by Mr.K.C.Vijay and Rs.30,00,000/- by Mr.Z.Gnanakanabady. The sum was also disclosed in the plaintiff's Books of Accounts and both Mr.K.C.Vijay and Z.Gnanakanabady can individually show the source of these funds. S.Thara and S.Chandrasekaran, vide letter dated 20.12.2011 had personally congratulated the plaintiff for acquiring the suit schedule marks and further acknowledged the receipt of the sum of Rs.75 lakhs as consideration. The letter is marked as Ex.P.4. The partner of the first defendant, Mrs.S.Thara, upon seeing the original copy of Ex.P.4 has also admitted to her signatures in the said document. Further, Page No.66/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 Mrs.Anuradha had also filed an affidavit before this Court (Ex.P-16) stating that she was authorised by the partners of the first defendant, namely S.Thara and Chandrasekaran to deal with the suit schedule marks and the plaintiff had paid the consideration for the suit schedule trade marks. The remaining partners, with an intention to defeat the rights of the plaintiff, have forced Mrs.Anuradha, who is Mrs.Thara's daughter and Mr.Chandrasekaran's niece to resign from the firm and had her executed an affidavit, dated 10.08.2012, wherein her intention to resign from the first defendant-firm is recorded (Ex.D-8). The intention of the first defendant's partners is manifest in Ex.D-8 for the reason that: (i) Mrs.Anuradha relinquishes her right only over the suit schedule trade marks with effect from 30.06.2012, (ii) Mrs.Thara in her proof affidavit in paragraph 6 and in cross examination in question Nos.5, 6 and 7 admitted that Mrs.V.Anuradha had control over the entire business and (iii) later, Mrs.Thara changes her version and mentioned that V.Anuradha was in-charge of only the Snuff business, which is evident from Question No.4. The contrary stand taken by D.W.2 clearly establishes that their contention that they did not receive any consideration for the assignment of the trade marks and that V.Anuradha was not authorised to enter into the deed of assignment in favour of Mr.K.C.Vijay is only an after-
thought. Hence, the plaintiff has clearly established that the consideration of Rs.75 lakhs was paid by the plaintiff and received and acknowledged by the first Page No.67/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 defendant.
(ii) The assignment deed is a valid contract binding on the defendants. The plaintiff had established that the consideration for the assignment of the trade marks for a sum of Rs.75 lakhs was duly received and acknowledged by the defendant's partners. At the relevant point of time, Mrs.V.Anuradha was the partner in-charge of the day-to-day affairs of the first defendant-firm. Mrs.V.Anuradha was authorised by Mr.S.Chandrasekaran and Mrs.S.Thara, vide authorisation dated 27.10.2011 to enter into assignment deed with the prospective persons on behalf of the first defendant-firm. Thus, the deed of assignment was entered into by Mrs.V.Anuradha representing the first defendant and the plaintiff. The contention of the first defendant is that both the authorisation letter dated 27.10.2011 and the assignment deed, dated 20.12.2011 are all fabricated and forged documents. This contention is only an after-thought created for the purpose of defeating the rights of the plaintiff. No evidence is let in support of the above contention and in cross-examination, D.W.2, namely Mrs.S.Thara had also admitted her signature. Hence, the contention of the defendants in the above context, stood vitiated.
(iii) The assignment deed clearly states that the plaintiff had acquired "all benefits" of the suit schedule trade marks which certainly includes the goodwill associated with the said marks. The first defendant's partner had requested the Page No.68/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 plaintiff to give them some time to clear their existing stock in trade before applying to the Registrar of Trade Marks with regard to the change of ownership. The first defendant's factories which contained the original trade mark certificates were sealed and they could not access the same. Since as per the Trade Marks Act, if a mark is assigned with goodwill, no time limit is specified for changing the name of the owner in the records of the Trade Mark Registry and given the difficulties faced by the first defendant, the plaintiff agreed to wait before applying for change of ownership in the records of the trade mark Registry over the said marks. The plaintiff applied in Form TM-24 under Section 45 of the Trade Marks Act and Rule 68 of the Trade Marks Rules, dated 19.08.2013 for change in the name as the subsequent Proprietor of the impugned trade mark.
(iv) The deficit stamp duty was also paid at the time of execution of the assignment, which has also been rectified by paying Rs.6 lakhs as penalty on 09.01.2014. It is therefore clearly established that the assignment in favour of the plaintiff is valid contract and the binding on the defendants.
(v) The defendant has failed to establish their case that the deed of assignment is vitiated on account of forged and fabricated documents. The reasons stated above establish that the plaintiff has proved that considerationi was paid for the assigned trade marks and the deed of assignment is a valid Page No.69/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 contract binding on the defendants.
(vi) The plaintiff has not disputed that they are dealing with the suit schedule marks, rather it is their case that they are the owners of the suit schedule marks. The only defence taken by the defendants against the plaintiff's case of infringement and passing-off is that the authorisation letter, dated 27.10.2011 (Ex.P-2) and letters acknowledging assignment in favour of the plaintiff (Ex.P-4) are forged documents. Therefore, the onus is only on the defendant to prove their allegation of forgery.
(vii) The only witness with personal knowledge who deposed on behalf of the first defendant is S.Thara, who had admitted her signature in Ex.P.4. There is no documentary evidence in support of the defendant's contention that Exs.P- 2 and P.4 are forged and fabricated which had been let in. The defendant had therefore failed to prove their case that the authorisation allowing Mrs.V.Anuradha to assign the suit schedule marks and their letters acknowledging the consideration paid by the plaintiff, are forged documents.
(viii) The plaintiff has proved that the first defendant is infringing and passing-off the plaintiff's suit schedule marks. The plaintiff had acquired the trade marks after paying lawful consideration to the first defendant.
(ix) It is not disputed by the first defendant that the suit schedule marks are being sold by them. The first defendant has instead chosen to dispute the Page No.70/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 validity itself of the assignment deed and the defendant's contention had not been proved. The deed of assignment prohibits the defendant from dealing with the suit schedule marks and in doing so, the defendants have breached the terms of the assignment deed and ergo are infringing and passing-off of the plaintiff's valid trade mark.
(x) Subsequent to the filing of the present suit by the plaintiff, the plaintiff had also obtained registration from the Trade Mark Registry in respect of the marks in question under Registration Nos.2864217, 2864219, 2864227 in Class 34 for Snuff, Tobacco, Smoker's articles, matches included the same without any objection or any opposition from the defendants. The same had also been marked as Exs.P-18, P-19 and P-22. The said Trade Mark Registration in respect of similar snuff products bearing similar logo NC had not been challenged by the defendant. The same are therefore valid trade marks owned by the plaintiff. The same lends further support to the plaintiff's case that they are the lawful owners of the suit schedule marks. By virtue of tremendous efforts, time and money spent by the plaintiff for the last several years, the subject mark is exclusively associated with the plaintiff only and the general public associate the same only with the plaintiff and no one else.
(xi) The plaintiff has clearly established that the defendant had infringed the plaintiff's trade marks as per Section 29 of the Trade Marks Act, as there is a Page No.71/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 statutory presumption that identical goods with identical mark creates confusion and the plaintiff's suit may be decreed.
11. Learned counsel for the defendants in C.S.No.605 of 2013 and the plaintiffs in C.S.No.882 of 2013 and 587 of 2015, contended as follows:
(a) The validity and legality of the authorisation letter, dated 27.10.2011 and the validity and legality of the deed of assignment, dated 15.12.2011, is the fulcrum to decide the fate of all these three suits. If the authorisation letter and assignment deed were held to be fabricated, illegal and invalid, then the suit filed by M/s.Nico Quality Products in C.S.No.605 of 2013 may be dismissed and the suits filed by M/s.N.C.Arya and Cigar Company in C.S.Nos.882 of 2013 and 587 of 2015, may be decreed as prayed for.
(b) The contention put forth by the plaintiff is that the said Anuradha, who was examined as P.W.2, representing as the Managing Partner of M/s.N.C.Arya and Cigar Company, vide authorisation letter dated 27.10.2011, marked as Ex.P-2 executed a deed of assignment to and in favour of M/s.Nico Quality Products on 15.12.2011 for cash consideration of Rs.75 lakhs. The further contention of the plaintiff is that though the agreement was executed on 15.12.2011, it was mutually agreed between the parties that M/s.N.C.Arya and Cigar Company shall be allowed to market and supply the snuff and cigar stuffs, Page No.72/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 which were already manufactured within 12 to 18 months from the date of execution of the assignment. The plaintiff assigns the same as the reason for not presenting the assignment deed for registration until 19.08.2013, i.e. few days before filing of the suits and also the reason for the delay in filing the suit. The alleged authorisation letter and the assignment deed marked as Exs.P-2 and P-3 are denied and disputed by the first defendant in C.S.No.605 of 2013 and the burden of proving the assignment is on the plaintiff in C.S.No.605 of 2013.
(c) On a bare reading of Ex.P-2, it clearly shows that the authorisation letter was manufactured by the plaintiff with the help of Anuradha and her husband Gnanaganapathy, who was the partner of the plaintiff-firm and this is suppressed at the time of filing of the suit. It is admitted by the plaintiff, Anuradha and Gnanaganapathy who were examined as P.Ws.2 and 3, that the said Anuradha and Gnanaganapathy had executed separate affidavits, i.e. Ex.D- 8 and Ex.D-12, dated 10.08.2012. The said Anuradha, who was the partner in the first defendant-firm, retired from the firm and relinquished all her rights over the trade-marks by virtue of the said affidavit. Though the said Gnanaganapathy is not a partner, the husband of the said Anuradha had also executed an affidavit by virtue of Ex.D-12, relinquishing all his rights with respect to the first defendant-firm and the trade-marks. Therefore, even before the date of institution of the filing of the suit, the said Anuradha had executed an affidavit Page No.73/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 and relinquished all her rights, share and interest over the affairs of the firm and the suit trade-marks and other trade-marks belonging to the first defendant-firm. P.W.2 Anuradha and P.W.3 Gnanaganapathy had admitted the execution of Exs.D-8 and D-12. Both of them had failed to give any genuine and acceptable reason or justification for not including the alleged authorisation letter or assignment deed, mentioned in C.S.No.605 of 2013 in their affidavit(s). The admission and execution of Exs.D-8 and D-12 clearly prove and establishes that the authorisation letter as well as the assignment deed, were an after-thought and concocted by collusive minds of the plaintiff firm's Proprietor K.C.Vijay, along with his partner Gnanaganapathy and his wife Anuradha, who were respectively examined as P.Ws.1 to 3. A bare reading of the authorisation letter clearly shows that the signatures are not found any way near the contents of the authorisation letter, dated 27.10.2011. There is nearly a half-foot gap between the contents of the letter and the alleged signatures of the other two partners of the first defendant-firm, namely Thara and Chandrasekaran. There is no explanation given by the plaintiff or even Anuradha or even Gnanaganapathy during the course of chief examination or cross-examination, for which, wide gap exists between the contents of the letter and the signatures which were obtained in the bottom.
(d) The plaintiff's averment in the plaint with regard to the alleged deed of Page No.74/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 assignment that Rs.75 lakhs had been paid to the first defendant-firm, no reason was given for payment of such huge amount in cash and that too, without any independent witness. The plaintiff relied upon the affidavit marked as Ex.P-16 executed by Anuradha, wherein she had admitted the receipt of Rs.75,00,000/- being the consideration paid by the plaintiff to the first defendant-firm. The affidavit was executed after filing of the written statement and the suit in C.S.No.882 of 2013, disputing the payment and validity of the assignment deed. Thus, the relationship of the plaintiff with Anuradha and Gananganapathy itself is the ground for suspecting the alleged payment. The fact that Anuradha and Gnanaganapathy aligned with the plaintiff and were also examined as P.W.2 and P.W.3 clearly rises doubt with respect to the alleged payment of Rs.75 lakhs in cash as consideration for the alleged assignment deed, dated 15.12.2011.
(e) Further, during the course of chief examination, P.W.1 (plaintiff), in his cross-examination for Question No.42 answered that he had source of funds for Rs.45 lakhs which he had given for his share as a part of the total consideration of Rs.75 lakhs. However, the alleged source of account was never produced by the plaintiff and as such, adverse inference had to be drawn against the plaintiff under Section 114 of the Indian Evidence Act. The alleged payment of Rs.75 lakhs was not also shown in the Income Tax Returns of the plaintiff-firm in C.S.No.605 of 2013. The plaintiff failed to produce the Income Tax Returns for Page No.75/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 the alleged payment of Rs.75 lakhs. The alleged payment was also not reflected in the Income Tax Returns of either partners, namely K.C.Vijay or Gnanaganapathy, examined as P.W.3 and both of them also failed to file the Income Tax Returns reflecting the alleged payment of Rs.30 lakhs and Rs.45 lakhs in cash.
(f) The plaintiff/firm attempted to improve their case during cross- examination for the first time stated that one Chandrasekaran along with Anuradha, and had given the authorisation letter to P.W.1 - K.C.Vijay in Question No.56. As regards Question No.64, P.W.1 answered that Chandrasekaran did not sign the deed, since he had executed the authorisation letter in favour of Anuradha. But the presence of Chandrasekaran was not mentioned in the plaint during the alleged execution of either the authorisation letter or the alleged deed of assignment and at the time of tendering evidence, P.Ws.1 to 3, the said Chandrasekaran died and it was hence convenient for P.W.1 to drag the name of the deceased person to give semblance of authenticity and legality to the documents, which had been otherwise fabricated and created by the fraudulent collusive mind of P.Ws.1 to 3. It could not be believed that when one of the parter Chandrasekaran, who is alleged to have handed over the authorisation letter to P.W.1 and was also available on the alleged date of execution of deed of assignment and did not sign the same.
Page No.76/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015
(g) Contradicting the statement of P.W.1 for execution of assignment deed by Anuradha, instead of Chandrasekaran, P.W.2 Anuradha stated that the said Chandrasekaran had not signed the assignment in fear of money-lenders and he could not step out of the house in Question No.50. Contradicting the very statement, P.W.2 herself stated that her paternal uncle Chandrasekaran only drafted the assignment and brought it to her for Question No.49. As per the version of P.W.1, the assignment deed marked as Ex.P-14 had been drafted by Advocate(s), and the said Advocate's name was also not properly remembered by P.W.1.
(h) Apparently, any assignment deed is liable to be registered within a period of six months from the date of its execution, except the assignment of trade-mark along with good-will under Section 45 of the Indian Trade-marks Act, of 1999. Admittedly, in the present case, the assignment was not presented for registration within the period of six months. On a bare reading of the assignment deed also, it reflects that the goodwill is not transferred along with the assignment of the alleged trade-marks. In order to obviate the above legal entitlement, the plaintiff invented unilateral stipulation to the effect that the assignment deed had to be kept in moribund condition for the period of 12 to 18 months in order to give time for the first defendant-firm to clear all the manufactured products. According to the plaintiff, the defendant-firm is in deep Page No.77/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 debts towards the Banks, financiers and also with the clients and customers. It could not be believed that such a firm in deep financial trouble, had such huge stock to sell the manufactured items for nearly about 12 to 18 months, as mentioned in the plaint.
(i) The plaintiff is blowing hot and cold, because, at one point, the plaintiff alleged that the defendant(s) is in deep financial trouble and on the other hand, it is claimed that the plaintiff allowed a grace period of 12 to 18 months for the manufactured products of the defendants, even after paying the alleged consideration of Rs.75 lakhs in cash. The grace period of 12 to 18 months was invented by the plaintiff to suppress the fact that the alleged authorisation letter marked as Ex.P-2 and the alleged assignment deed, marked as Ex.P-14 itself, were ante-dated and they are subsequent to the execution of the affidavits marked as Exs.D-8 and D-12 and admitted by P.W.2 and P.W.3 in their cross- examination.
(j) Further, admittedly, Exs.P-2 and P-14 were created subsequent to Exs.D-8 and D-12 and if Exs.P-2 and 14 and Exs.D-8 and 12, are read in conjunction with the averments made in the pleadings and deposition of P.Ws.1 to 3, it is clear that there is fraudulent nexus between all the three of them to ante-date the authorisation letter and the alleged assignment deed and fabricating the same in collusion among themselves. At the time of execution of Page No.78/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 Exs.D-8 and D-12, the said Anuradha being the person who is alleged to have been authorised to execute the assignment deed, had not stated anything about the execution of the alleged authorisation letter or the assignment deed. The said Gnanaganapathy, who is the partner of the plaintiff-firm and beneficiary under the assignment deed, also did not speak about the alleged execution of the authorisation letter and the alleged assignment.
(k) The plaintiff had also not mentioned anything in the pleadings about the execution of the affidavit marked as Exs.D-8 and D-12 respectively by D.W.2 and D.W.2, relinquishing the rights and claim with respect to the affairs of the first defendant-firm, including the trade-mark. It is for the first time when confronted in the cross-examination of P.W.1, he answered Question No.51 that he came to know about the retirement of Anuradha and Gnanaganapathy before filing of the suit in C.S.No.605 of 2013. Though he had the knowledge that the said Anuradha had resigned from the firm on the date of institution of the suit(s), he did not come forward to explain the alleged affidavit, in the capacity of execution of the authorisation letter and deed of assignment. Further, originally, the assignment deed was not even sufficiently stamped. The plaintiff in C.S.No.605 of 2013, had obtained ex-parte interim order and the same was sought to be vacated and Ms.NC.Arya had also filed the suit in C.S.No.882 of 2013, challenging the assignment deed and sought for interim injunction, and Page No.79/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 the interim injunction granted in favour of the plaintiff, was vacated and the said interim injunction was vacated and the interim injunction was granted in favour of NC Arya. Only thereafter, the plaintiff paid the stamp duty. The delayed payment of stamp duty is also one of the valid reason to disbelieve the case of the plaintiff and to hold that the assignment deed is ante-dated and created by the plaintiff for the purpose of the suit.
(l) The defendants stated that the conduct of the parties creates serious doubt. When P.W.1 was confronted as to whether he knows the address of Anuradha and Gnanaganapathy, he said "no". When he was asked as to how did he cite Anuradha and Gnanaganapathy as the witnesses, he replied that he does not know the address and his Advocate informed the address of P.Ws.2 and 3. P.W.2 Anuradha informed the Court that P.W.1 K.C.Vijay had not consulted her husband Gnanaganapathy, who was the partner of the plaintiff-firm at the time of institution of the suit. P.W.2 further stated that the factum about her retirement was never informed by her to P.W.1 contravening the version of P.W.1.
(m) All the aforesaid egregious contradictions and discrepancies, clearly shows that the plaintiff and his witnesses had gone to the extent of lying and contradicting each other for the purpose of the case.
(n) For Question No.41, P.W.2 answered that she did not know as to who Page No.80/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 dictated the contents of Ex.P-2. Quite strangely, she is the one who claimed authorisation under Ex.P-2 and it is totally unbelievable that she did not know the person dictating the content(s) of Ex.P-2. P.Ws.1 to 3's evidence is not clear with respect to the person who had drafted the alleged authorisation letter and the assignment deed that they were all not sure about the date of execution also. Crowning all these facts, the plaintiff had not been able to produce any satisfactory evidence before the Court in proof of the payment of the alleged amount of Rs.75 lakhs, except the self-serving affidavit executed by Anuradha, who in fact, along with her husband, sided with K.C.Vijay.
(o) Thus, the fraudulent scheme to hijack the trade-mark belonging to the first defendant-firm, was manipulated and formulated by the plaintiff-K.C.Vijay in collusion with P.W.2 Anuradha and P.W.3 Gnanaganapathy. It is admitted by the plaintiff in his cross-examination that, earlier, a concern was run under the name "Nico" by Gnanaganapathy. Later, the said Gnanaganapathy, by virtue of Exs.D-8 and D-12, both the said Anuradha and Gnanaganapathy retired from the firm. After being thrown out of the firm and business, both the husband and wife, Anuradha and Gnanaganapathy achieved conspiracy and floated a partnership firm by using the very same name "Nico", being used by Gnanaganapathy and creating the authorisation letter and assignment deed and instituted the suit in C.S.No.605 of 2013, containing false averments. Admittedly, the plaintiff had no Page No.81/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 answer with respect to the proof regarding the payment of the huge consideration of Rs.75 lakhs in cash. The testimony of P.W.2 supporting the case of P.W.1, could not improve the case of the plaintiff, since the said Anuradha is not at all a partner of the first defendant-firm at the time of execution of the alleged receipt. Hence, for the reasons stated above, according to the defendants, the aforesaid authorisation letter and the assignment deed, dated 15.12.2011, may be declared as illegal and non-est in the eye of law.
12. Since a joint trial was conducted, the plaintiff in C.S.No.605 of 2013, for ease of reference, will hereinafter be referred to as the "plaintiff" and the plaintiffs in C.S.No.882 of 2013 and 587 of 2015 will be referred to as the "defendants".
13. The specific case of the plaintiff(s) in C.S.No.605 of 2013, is that the suit schedule trade-marks originally belonged to the first defendant-partnership firm. The first defendant assigned the trade-marks to the plaintiff for valuable consideration of Rs.75 lakhs. Letter of acknowledgement was sent by the defendants to the plaintiff and also the deed of assignment was also executed by one of the partners of the partnership-firm to the plaintiff. Thereafter, the trade- mark was registered in the name of the plaintiff(s) and the plaintiff also obtained registration from the trade-marks Registry in respect of the disputed trade- marks. Subsequently, even after assignment of the trade-marks, the defendants Page No.82/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 used the trade-marks and infringed and also passing-off. Therefore, the plaintiff had filed the present suit in C.S.No.605 of 2013.
14. The case of the defendant(s) is that one of the partners Anuradha, was not authorised to execute the assignment deed in favour of the plaintiff. The plaintiff never paid consideration and the defendants have not received consideration. The authorisation letter and assignment deed and the acknowledgement letters were forged. The defendants continued to use the said trademarks and the plaintiff is not entitled to claim the relief as sought for in the plaint. Since the plaintiff forged and fabricated the documents Exs.P.2 and P.4, based on the forged documents, the plaintiff obtained registration from the trade-mark Registry in respect of the trademarks in question and the Registration Number is 2864217, 2826219 and 2864227. They have obtained only for Snuff alone and the signatures found in the authorisation letter, dated 27.10.2011 was not that of the said Chandrasekaran and which was created only for the purpose of the suit in order to cheat the defendant(s). The alleged payment was also not reflected in the Income Tax Returns of the either of the partners. Therefore, the plaintiff(s) is/are not entitled to use the disputed trade-marks, and therefore, the defendant(s) soon after coming to know about the using of the trade-mark by the plaintiff(s) and had filed the present suit for declaration that Exs.P-2 and P-4 are null and void and not binding on the defendant(s) and also for Page No.83/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 infringement and passing-off and permanent injunction.
15. Issue No.(i) in C.S.Nos.605 and 882 of 2013: Whether the letter of autahorisation, dated 09.12.2011 executed in favour of Anuradha is genuine or forged ?
The specific case of the plaintiff is that the first defendant is the registered partnership-firm and during the pendency of the suit, the said Chandrasekaran passed away and Raghuraman was later included as one of the partners. During the pendency of the suit in C.S.No.605 of 2013, the C.S.No.882 of 2013 and 587 of 2015 were filed through M/s.Raghuraman as Power Agent of the first defendant. Since the Bank accounts of the first defendant-firm were frozen and they had made a request with the plaintiff to pay Rs.75 lakhs for assignment of the suit schedule marks in cash and in order to overcome the financial problems, the plaintiff was helping them to settle their loan. The partners of the defendant authorised Anuradha who was the Managing Partner to execute the deed of assignment in favour of the plaintiff and also they have sent a letter of acknowledgement. The authorisation letter, i.e. 27.10.2011 was marked as Ex.P-
2. Based on the authorisation, Anuradha also executed the deed of assignment in favour of the plaintiff and the same was marked as Ex.P-4. In order to prove the case of the plaintiff, the partners of the plaintiff-firm, one K.C.Vijay was Page No.84/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 examined as P.W.1 and the said Anuradha was examined as P.W.2. Both of them have spoken about the payment of the consideration to the partners of the defendant-firm and after receiving them, they have executed the deed of assignment. Though the defendants have challenged the deed of authorisation letter, dated 09.12.2011 as forged and concocted for the purpose of filing this suit and they have never issued the consideration, however, the defendants have not filed any complaint against the plaintiff and even they have not obtained any steps to send the documents for Forensic Department to find out the signature of the partners, especially the signature of the Chandraseakaran. However, one of the partners and signatory, namely Thara was examined as D.W.2. and she had admitted the signatures of her in the said document.
16. From a reading of the oral and documentary evidence, they have denied only the signature of the said Chandrasekaran, but however, they have not established that the signature of Chandrasekaran was forged. Further reading of the evidence of P.Ws.1 to 3 and also the admission of P.W.2 shows that though D.W.1 is only the Power Agent of the first defendant-firm/concern was examined, but he was not having any personal knowledge about the execution of the documents. Further, the plaintiff also gave complaint before the Police against the defendant(s) and also sent legal notice to show that the defendant(s) did not send any reply and also regarding the forgery and the Page No.85/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 defendants have not filed any complaint before the Police and he has not taken any action. The defendants have filed the suit for declaration regarding the documents as null and void and not binding on them and only after filing of the suit by the plaintiff, the plaintiff sent legal notice, for which the defendant(s) had not sent any reply. D.W.2 had also admitted that P.W.2 was the Managing Partner during the relevant point of time and she was doing day-to-day affairs of the defendant-firm, though the defendants have stated that P.W.2 retired from the partnership firm, but on a reading and perusal of the oral and documentary evidence, it is seen that at the time of execution of Exs.P-1 to P-5, P.W.2 was the Managing Partner and D.W.2 also admitted that she was doing day-to-day affairs of the Company and she was authorised to participate in the day-to-day affairs of the Company.
17. Therefore, on a reading of the pleadings and oral and documentary evidence, this Court finds that the letter of authorisation, dated 09.12.2011 is genuine. When once the signature is admitted and execution, the plaintiff has proved the initial burden and the onus is shifted on the defendants and hence, it is for the defendants to rebut the presumption. The defendants have not rebutted the presumption and therefore, this Court finds that the document is genuine. Thus, the first issue framed in C.S.Nos.605 and 882 of 2013, is answered accordingly.
Page No.86/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015
18. Issue No.(ii) in C.S.Nos.605 and 882 of 2013: Whether the deed of assignment dated 15.12.2011 is genuine, forged or concocted ?
The first defendant was the partnership firm and P.W.2 was the Managing Partner and who was also looking after the day-to-day affairs and she was also authorised to execute the deed of assignment, and based on that, P.W.2 also executed the deed of assignment dated 15.12.2011 and subsequently, they have also paid the deficit stamp duty. The registration of the firm/concern and the document, are admitted. D.W.2 admitted that P.W.1 was also one of the partners of the first defendant-firm and before retirement, she was authorised to look after the day-to-day affairs of the partnership firm and the signature in Ex.D-1 was also admitted. Though one of the contentions taken by the defendants that there is a long gap from the contents and signature in Ex.P-2, but when once the signature is admitted, it is for the defendants to explain. The first defendant is only Power Agent and he is not competent witness to speak about the personal knowledge of the parties to the document.
19. During the pendency of the suit, the said Chandrasekaran died and only available witness is D.W.2 and D.W.2 had admitted the signature and also the entrustment of the affairs of the partnership firm to Anuradha. The evidence of D.W.2 shows that based on the authorisation, she executed the assignment deed and also received the consideration of Rs.75 lakhs. Rs.40 lakhs was paid Page No.87/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 by D.W.1 and Rs.35 lakhs was paid by the husband of D.W.3 and therefore, though the defendants have taken a stand that the Income Tax Returns had not been filed and proved and when once the execution is admitted, the initial burden is proved and the onus is shifted, then it is for the defendants to rebut the same and shift the onus further to the plaintiff.
20. Issue No.(iii) in C.S.Nos.605 and 882 of 2013: Whether the first defendant in C.S.No.882 of 2013 use of the assigned trade-marks, amounts to infringement and passing off ?
As already held in the previous issues that both the authorisation letter dated 09.12.2011 and the deed of assignment dated 15.12.2011 are genuine, based on Ex.P.4, the plaintiff is entitled to use the disputed trade-mark. Further, the plaintiff had stated that subsequent to the filing of the suit by the plaintiff, the plaintiff had also obtained registration from the trade-mark Registry in respect of the trade-marks in question in Class 34 of the Snuff was snuff, tobacco, etc., including the same, without any objection or in opposition from the defendants. The said trade-marks/cigar/snuff products were also marked as exhibits in the suit. The said trade-marks registration in respect of the similar snuff products bearing the similar trade-mark, was not challenged by the defendants. The same are therefore valid trade-marks owned by the plaintiff. The deed of assignment prohibits the defendants from dealing with the suit Page No.88/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 schedule mark(s) and in doing so, the defendants have breached the terms of the assignment deed and also infringing and passing-off of the plaintiff's valid trade-mark. Though the defendants have stated that Exs.P-2 and P.4 were forged and fabricated documents, but there is no documentary evidence in support of the contention of the defendants. Though the sufficient stamp duty was not paid at the time of execution of the deed of assignment which has also been subsequently ratified by paying penalty on 09.01.2014, which also clearly establish that the assignment in favour of the plaintiff is valid and binding on the defendants.
21. From the oral and documentary evidence and also the admission of D.W.2, using of the assigned trade-marks by the defendants, are amounting to infringement and passing-off. The issue No.(iii) is answered accordingly.
22. Issue No.(iv): Whether the Trade-marks mentioned in the assignment deed are with or without goodwill associated with the mark:
As already held in Issue No.(ii) that the deed of assignment, dated 15.12.2011 is genuine and the same was also registered and deficiency in stamp duty has also been paid pending the present suits and the plaintiff had also obtained registration of the trade-marks and using the trade-marks and the evidence of the plaintiff is also that while executing the assignment, the plaintiff has also agreed that the defendant can use the same trade-mark till the disposal Page No.89/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 of the consignment, which already was manufactured by them and till supply of that goods, they can use the trade-mark of the plaintiffs and thereafter, they should stop it owned by the plaintiff and therefore, in the above circumstances, mere non-mentioning of the goodwill in the assignment deed, will not falsify the case of the plaintiff, when once the plaintiff has proved the assignment and also subsequent to the registration of the trade-mark and using the trade-mark will not give any significance in the documents regarding the goodwill and when once the plaintiff has stated that the defendants suffered from financial problem and the accounts of the Bank was also frozen and in order to get rid of the same, they have approached the plaintiff and also received Rs.75 lakhs, which was also acknowledged by the defendants and also they had executed the assignment deed.
23. Further, D.W.2 also has not spoken anything about the good-will and D.W.1 is not the competent person and he is only Power Agent and therefore, in the above circumstances, non-mentioning of the good-will in the document, will not create any right to the defendants, when once the Court held that Ex.P-4 is a genuine document and acted upon. Issue No.(iv) is answered accordingly.
24. Issue No.(v): Whether the plaintiff is entitled for the relief claimed in the suits ?
As already held in issue Nos.(i) to (iv) in favour of the plaintiff, the plaintiff Page No.90/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 is entitled to the relief sought for in the plaint.
25. The suit in C.S.No.605 of 2013 is decreed as prayed for. However, considering the facts and circumstances of the case, there shall be no order as to costs.
26. C.S.Nos.882 of 2013 and 587 of 2015: All the issues:
Considering the facts and circumstances, as discussed above, since issue Nos.(i) to (iv) in C.S.No.605 of 2013 have elaborately been discussed and the suit in C.S.No.605 of 2013 is decreed and rejected the claim of the defendants and held that Exs.P-2 to P.4 were not forged and it will bind on the defendants. As already answered in the earlier issues, this Court clearly held that Exs.P-2 to P.4 are genuine and initial burden is proved and the onus had been shifted. The defendants have not established their case. When once the deed of assignment is held as genuine and the plaintiff had registered the trade-marks and using the trade-marks, then, after assignment and after the period mentioned in the document (manufacturing the products) and therefore, after the cut-off date, the defendants are not entitled to use the disputed trade-marks. Therefore, by using the trade-mark, the defendants had committed infringement and passing-off. Further, pending the suit, the plaintiff gave a complaint after registering the trade-mark and also ratified the assignment deed and the plaintiff has also sent legal notice to the defendant and they have also given Police complaint and Page No.91/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 despite that, the defendant continued to use the trade-marks of the plaintiff, and therefore, the defendants have infringed and passing-off in respect of the suit trade-mark. As already held in the earlier suit in C.S.No.605 of 2013, the plaintiff is entitled for decree as prayed for and the plaintiff is also entitled for decree of infringement and passing-off. Therefore, all the issues are answered accordingly in C.S.No.587 of 2015. Unless the defendant(s) is/are able to establish that Exs.P-2 to P.4 are forged, they are not entitled to use the trade-mark and they are also not entitled to file the suit for passing-off and infringement. Therefore, the defendants are not entitled to file joint suit for passing off.
27. In the result, C.S.No.605 of 2013 is decreed as prayed for. The suit in C.S.Nos.882 of 2013 and 587 of 2015 are dismissed. However, considering the facts and circumstances of the case, the parties are directed to bear their own costs in all these three suits.
24.01.2025 (1/2) cs Page No.92/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 List of witnesses on the side of plaintiff:
P.W.1 Mr.K.C. Vijay P.W.2 Mrs.V.Anuradha P.W.3 Mr.Z.Gnanakanabady List of documents filed on the side of plaintiff:
Exhibit Description
P-1 Reconstitution of the first defendant by inducting
Ms.Anuradha as a partner dated 18.06.1995
Authorisastion letter in favour of Mrs.Anuradha
P-2 to enter into deed of assignment on behalf of the
first defendant dated 27.10.2011
P-3 Deed of assignment in favour of the plaintiff,
dated 15.12.2011
P-4 Letters from the partners acknowledging the
assignment in favour of the plaintiff (two letters) dated 20.12.2011 P-5 Letter of the Registrar of Trademark for registration of the plaintiff as the subsequent proprietors of the assigned trademarks dated 19.08.2013 P-6 Invoice No.009, raised in the name of the plaintiff dated 20.08.2013 P-7 Registration of Partnership dated 21.08.2013 P-8 Invoice No.001, dated 21.08.2013 P-9 Invoice No.002, dated 23.08.2013 P-10 Invoice No.003, dated 23.08.2013 P-11 Invoice No.004, dated 26.08.2013 P-12 Logo, mark, packaging etc., of the plaintiff's Page No.93/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 Exhibit Description products P-13 Logo, mark, packaging etc., of the first defendant's products P-14 Stamped Deed of Assignment, duly stamped on 09.01.2014, dated 15.12.2011 P-15 Receipt for payment of stamp duty paid on Deed of Assignment dated 09.01.2014 P-16 Declaration affidavit of V.Anuradha P-17 Dispatch receipt of Vijayanth Trading, Kolkata dated 11.01.2014 P-18 Certificate of Registration of Trade Mark No.2864217 issued by Trademark Registry, Government of India, dated 17.12.2014 P-19 Certificate of Registration of Trade Mark No.2864219 issued by Trademark Registry, Government of India P-20 Letter from defendant to plaintiff along with cheque dated 21.06.2012 P-21 Deed of dissolution of partnership dated 06.11.2014 P-22 Certificate of Registration of Trademark No.2864227 dated 17.12.2014 P-23 Authorisation letter issued by the defendant in favour of plaintiff dated 09.12.2011 P-24 Letter from Axis Bank to the defendant dated 14.12.2011 P-25 Receipt for payment made by plaintiff into defendant account dated 15.05.2012 P-26 Form A submitted by the first respondent firm before the Registrar of Firms, dated 23.09.2013 P-27 Extract from the Website of the Commercial taxes Department, dated 28.09.2013 Page No.94/97 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div).Nos.605 and 882 of 2013 and 587 of 2015 Exhibit Description P-28 Police complaint lodged by the plaintiff dated 05.03.2014 P-29 Police Complaint lodged by plaintiff, dated 20.05.2014 P-30 Original deed of dissolution of partnership and reconstitution of the plaintiff as proprietorship concern dated 06.11.2014 P-31 Registered Trade marks in the name of plaintiff issued by Registrar of Trade Marks, Chennai dated 20.09.2021 List of witnesses on the side of defendants:
D.W.1 - Mr.K.R.Ragurram Krishnadoss D.W.2 - Mrs.S.Thara List of documents marked on the side of defendants:
Exhibit Description of documents
D-1 Original Certificate of Trade Mark No.179074,
dated 27.03.1957
D-2 Original Certificate of Trade Mark No.194656
dated 23.02.1960
D-3 Original Certificate of Trade Mark No.454103
dated 14.05.1986
D-4 Original Certificate of Trade Mark No.454106,
dated 14.05.1986
D.5 Original Certificate of Trade Mark No.454109,
dated 14.05.1986
D.6 Original Certificate of Trade Mark No.559308,
dated 27.09.1991
D.7 Original Partnership agreement along with
Form-C dated 01.07.2012
Page No.95/97
https://www.mhc.tn.gov.in/judis
C.S.(Comm.Div).Nos.605 and 882 of 2013
and 587 of 2015
Exhibit Description of documents
D.8 Original Affidavit executed by Anuradha dated
10.08.2012
D.9 Original Affidavit executed by Zanakanabady
dated 10.08.2012
D.10 Original Legal Notice, dated 24.07.2013
D-11 Original Specific Power of Attorney dated
05.12.2013
D.12 Original Partnership Agreement dated
01.07.2014
D.13 Original Partnership Agreement, dated
18.06.1995
24.01.2025
(2/2)
cs
Page No.96/97
https://www.mhc.tn.gov.in/judis
C.S.(Comm.Div).Nos.605 and 882 of 2013
and 587 of 2015
P.VELMURUGAN, J
cs
Pre-delivery Common Judgment
in C.S.(Comm.Div).Nos.605 and
882 of 2013 and 587 of 2015
Judgment delivered on 24.01.2025
Page No.97/97
https://www.mhc.tn.gov.in/judis