Gujarat High Court
A K Tea Processors - Through Proprietor & vs K K Tea Depot - Through Proprietor & ... on 23 July, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
C/CRA/307/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 307 of 2015
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A K TEA PROCESSORS - THROUGH PROPRIETOR & 1....Applicant(s)
Versus
K K TEA DEPOT - THROUGH PROPRIETOR & 1....Opponent(s)
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Appearance:
MR GC RAY, ADVOCATE for the Applicant(s) No. 1 - 2
MR JATIN Y TRIVEDI, CAVEATOR for the Opponent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 23/07/2015
ORAL ORDER
1. This revision petition is filed by the original defendants to challenge an order dated 06.07.2015 passed by the learned Judge, City Civil Court, Ahmedabad, below application Exhibit 29 in Civil Suit No. 1337 of 2015.
2. Brief facts are as under:
The plaintiffs have filed the said suit complaining of infringement of trademark and passing off of the registered trademark 'KK' by the defendants. The plaintiffs have, therefore, prayed for injunction as well as for damages. Plaintiff No.1 is a proprietor concerned. Plaintiff No.2 is an unregistered partnership firm. In such suit, the Page 1 of 4 C/CRA/307/2015 ORDER defendants have appeared before the Trial Court, moved an application Exhibit 29 and urged the Court to reject the plaint in exercise of powers under Order 7 Rule 11 of CPC. In the application, the plaintiffs raised three grounds. Firstly, that in the plaint it is not stated under which provision the plaintiffs have filed the suit. Secondly, that there is no cause of action disclosed in the plaint and lastly, that the suit by unregistered partnership firm would be barred by Section 69 of the partnership Act.
3. The Trial Court rejected application by the impugned order. It was recorded that the suit does not fall within the exclusion contained in sub-section (1) of Section 69 of the partnership Act.
4. Learned counsel Mr. Ray for the petitioner vehemently contended that the Trial Court committed a serious error in rejecting application of the defendant. Plaintiff No. 2 is unregistered partnership firm. Suit by the said firm was, therefore, not maintainable. He submitted that the defendant was previously a partner of plaintiff No.2 partnership firm. The partnership firm agreement never envisaged any restriction on any outgoing partner to be involved in the same business. He further submitted that the defendant is not using any mark similar to the Page 2 of 4 C/CRA/307/2015 ORDER registered trademark of the plaintiffs.
5. I have also heard learned counsel for the opponents appearing on caveat.
6. The sole ground which merits some discussion is of non- registration of plaintiff No.2 firm. I have said so because rest of the grounds argued before me by the counsel would relate to the merits of the case itself. In any application under Order 7 Rule 11, it would not be open for me to examine whether the plaintiff is eventually likely to succeed or not, whether the mark used by the defendant is identical or similar or deceptive, are not the issues which can be gone into at this stage.
7. Sole surviving question pertains to non-registration of plaintiff No.2 firm. Section 69 (1) of the Partnership Act bars any suit to enforce a right arising from a contract or conferred under the Partnership Act instituted by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner of the firm.
8. Apparently same is not the case here. In the present case, the suit is for alleged infringement of copyright and other related issues. Merely because the defendant was the Page 3 of 4 C/CRA/307/2015 ORDER erstwhile partner of the firm, the suit would not fall within the mischief of sub-section (1) of Section 69. The previous relationship of the defendant as the partner of the defendant No.2 firm has nothing to do with the cause of action in the present suit. Similarly, whether the partnership agreement barred any partner from carrying on same business after leaving the firm is also not an issue in the present case. Plain and simply, plaint of the plaintiffs before the Trial Court is of infringement of copy right and other related allegation.
9. In the result, civil revision application is dismissed.
(AKIL KURESHI, J.) Jyoti Page 4 of 4