Madras High Court
Mr.P.Rajagopal vs M/S.Sara Sangeeth Veg Restaurant on 16 July, 2024
Author: P.Velmurugan
Bench: P.Velmurugan
C.S.(Comm.Div.) No. 123 of 2024
and
O.A.No.471 of 20243
and
A.No.3512 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 16.07.2024
CORAM
THE HONOURABLE Mr. JUSTICE P.VELMURUGAN
C.S.(Comm.Div.) No. 123 of 2024
and
O.A.No.471 of 2024
and
A.No.3512 of 2024
M/s.SANGEETHA CATERERS AND CONSULTANTS LLP
Represented by its Designated partners:
1.Mr.P.Rajagopal
2.Mr.P.Suresh
Having their Registered Office at :
No.7, Gandhi Nagar, 1st Main Road,
4th Floor, Adyar, Chennai – 600 020. ... Plaintiff
Vs.
M/s.SARA SANGEETH VEG RESTAURANT
Represented by its Proprietor : HAFEES AHMED
No.81/8, Kambar Street, Rajakulipet
Pulipakkam Taluk, Chengalpattu – 603 002. ... Defendant
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https://www.mhc.tn.gov.in/judis
C.S.(Comm.Div.) No. 123 of 2024
and
O.A.No.471 of 20243
and
A.No.3512 of 2024
Plaint has been filed under Order IV Rule 1 of High Court Original
Side Rules, 1956 and Order VII Rule 1 of CPC read with Sections 27,
134 and 135 of the Trademarks Act, 1999 and Proviso 1 of Section 7 of
the Commercial Courts Act, 2015, and plaint numbered as
C.S.(Comm.Div.) No.123 of 2024, praying for judgment and decree as
follows :
(a) a permanent injunction restraining the defendant, their legal
representatives, their successors in business, assigns, franchisees,
servants or agents from operating the restaurant business by infringing
the plaintiff's registered trademarks Sangeetha with Veena Mark, SVR
Sangeetha, Sangeetha Veg. Restaurant SVR, Sangeetha Veg. Restaurant
(with a VEENA MARK), ''SVR Sangeetha Express'' and ''Sangeetha Veg
Express'' or by use of confusingly similar or any other mark deceptively
and identically similar to the plaintiff's registered trademark or in any
other manner whatsoever;
(b) a permanent injunction restraining the defendants, their legal
representatives, their successors in business, assigns, franchisees,
servants or agents from operating restaurant business by the name
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C.S.(Comm.Div.) No. 123 of 2024
and
O.A.No.471 of 20243
and
A.No.3512 of 2024
''SARA SANGEETH VEG RESTAURANT'' or any other similar marks
to that of the plaintiff's registered trademark from committing the act of
passing off and enabling others in passing off the restaurant business in
the deceptively similar mark which is identical to the plaintiff's registered
trademark in any manner whatsoever;
(c) the defendant be ordered to surrender to the plaintiff for
destruction of all their packing containers, card board boxes, packing
materials, covers and carry bags, screen prints, bills, sign boards, billing
software, menu cards, and any other material in their possession bearing
the mark ''SARA SANGEETH VEG RESTAURANT'' or any other
similar marks to that of the plaintiff's registered trademark which is
identical to the plaintiff's registered trademark;
(d) directing the defendant to render the rendition of their account
from the date of commencement of their restaurant till the date of filing
of the plaint ;
(e) the defendant be ordered to pay to the plaintiff's a sum of
Rs.10,00,000/- (Rupees Ten Lakhs only) as damages for their wrongful
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C.S.(Comm.Div.) No. 123 of 2024
and
O.A.No.471 of 20243
and
A.No.3512 of 2024
and illegal act by use of the registered trademark; and
(f) for costs of the suit.
For Plaintiff : Mr.L.Rajasekar
JUDGMENT
The suit has been filed seeking for:
(i) permanent injunction restraining the defendant, their legal representatives, their successors in business, assigns, franchisees, servants or agents from operating the restaurant business by infringing the plaintiff's registered trademarks Sangeetha with Veena Mark, SVR Sangeetha, Sangeetha Veg. Restaurant SVR, Sangeetha Veg. Restaurant (with a VEENA MARK), ''SVR Sangeetha Express'' and ''Sangeetha Veg Express'' or by use of confusingly similar or any other mark deceptively and identically similar to the plaintiff's registered trademark or in any other manner whatsoever ;Page No.4/14
https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No. 123 of 2024 and O.A.No.471 of 20243 and A.No.3512 of 2024
(ii) permanent injunction restraining the defendants, their legal representatives, their successors in business, assigns, franchisees, servants or agents from operating restaurant business by the name ''SARA SANGEETH VEG RESTAURANT'' or any other similar marks to that of the plaintiff's registered trademark from committing the act of passing-off and enabling others in passing-off of the restaurant business in the deceptively similar mark which is identical to the plaintiff's registered trademark in any manner whatsoever ;
(iii) the defendant be ordered to surrender to the plaintiff for destruction of all their packing containers, card board boxes, packing materials, covers and carry bags, screen prints, bills, sign-boards, billing software, menu cards, and any other material in their possession bearing the mark ''SARA SANGEETH VEG RESTAURANT'' or any other similar marks to that of the plaintiff's registered trademark which is identical to the plaintiff's registered trademark ;
(iv) directing the defendant to render the rendition of their account from the date of commencement of their restaurant till the date of filing Page No.5/14 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No. 123 of 2024 and O.A.No.471 of 20243 and A.No.3512 of 2024 of the plaint ;
(v) the defendant be ordered to pay to the plaintiff a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) as damages for their wrongful and illegal act by use of the registered trademark; and
(vi) for costs of the suit.
2. It is the case of the plaintiff that M/s.SANGEETHA CATERERS AND CONSULTANTS LLP is a Limited Liability Partnership firm, represented by its designated partners Mr.P.Rajagopal and Mr.P.Suresh and the same was registered with the Registrar of Companies, dated 01.04.2015. Subsequently, the plaintiff/Company was re-constituted on 01.04.2017, 01.04.2021 and 01.04.2022, vide various deeds. Originally, M/s. SANGEETHA CATERERS AND CONSULTANTS, is partnership firm, which was formed in the year 2001, subsequently, the same was converted into a Limited Liability in the year 2015.
Page No.6/14 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No. 123 of 2024 and O.A.No.471 of 20243 and A.No.3512 of 2024
3. It is the further case of the plaintiff that, originally, Mr.P.Suresh, who is one of the designated partners of the plaintiff/Firm had established Hotel Sangeetha Veg. Restaurant in the year 1985 and they are running the Restaurants and Hotels in India and abroad. In the course of the said business, the plaintiff had honestly conceived and adopted several trademarks including the trademark, viz., ''Sangeetha with Veena Mark, SVR Sangeetha, Sangeetha Veg. Restaurant SVR, Sangeetha Veg. Restaurant (with a VEENA MARK), ''SVR Sangeetha Express'' and ''Sangeetha Veg Express''. Thus, the plaintiff has acquired reputation and goodwill among the public. While that being so, on 11.04.2024, it came to knowledge of the plaintiff that the defendant is running a restaurant in the name and style of ''SARA SANGEETH VEG RESTAURANT''. The defendant's restaurant name board both in English and Tamil is prima-facie, visually, phonetically, structurally and absolutely identical to the plaintiff's registered trademark ''SVR SANGEETHA VEG. RESTAURANT''. The use of the said identical Page No.7/14 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No. 123 of 2024 and O.A.No.471 of 20243 and A.No.3512 of 2024 trademark by the defendant amounts to infringement of the plaintiff's trademark.
4. The defendant adopted the word ''SARA'' in front of the words ''SANGEETH VEG RESTAURANT'' in a very small font, thereby, causing confusion in the minds of the public. It is the claim of the plaintiff that the defendant not only infringed upon the plaintiff's registered trademark, but had also violated the copyright and also have been passing-off the goods as that of the plaintiff. It is further stated that the defendant had registered their business with the GST Portal having GSTIN bearing No : 33ASOPH3407L2ZN and also obtained FSSAI licence bearing No : 12421008001334. Further, the name of the restaurant in both GST portal as well as FSSAI license, was mentioned as ''SANGEETH VEG RESTAURANT''. Therefore, the plaintiff sent a legal notice dated 15.04.2012 to the defendant and the same was duly acknowledged by the defendant. Despite receipt of Cease and Desist Page No.8/14 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No. 123 of 2024 and O.A.No.471 of 20243 and A.No.3512 of 2024 notice, the defendant neither sent any reply, nor had they changed the name of the Restaurant, and hence the plaintiff has filed the present suit.
5. The defendant is continuously infringing the registered trademark of the plaintiff, and unless the defendant is restrained, it would cause irreparable loss, damage and hardship to the reputation, sales and goodwill of the plaintiff.
6. Learned counsel for the plaintiff submitted that, soon after the plaintiff came to know about their infringement of trademark by the defendant, the plaintiff has sent a legal notice dated 15.04.2024 to the defendant. As the defendant did not respond to the said notice, the present suit has been filed. He further submitted that there is an exemption Clause in Section 12-A of the Commercial Courts Act as to when a suit is to be filed seeking urgent interim reliefs. Hence, the mandatory provisions of Section 12-A of the Commercial Courts Act need not be complied with.
Page No.9/14 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No. 123 of 2024 and O.A.No.471 of 20243 and A.No.3512 of 2024
7. As per the decision of the Honourable Supreme Court reported in 2023 SCC Online SC 1382 (Yamini Manohar Vs. T.K.D.Keerthi), particularly, in paragraph 9 of the said decision of the Apex Court, it was observed by the Supreme Court as follows:
"9. We are of the opinion that when a plaint is filed under the CC Act, with a prayer for an urgent interim relief, the commercial court should examine the nature and the subject matter of the suit, the cause of action, and the prayer for interim relief. The prayer for urgent interim relief should not be a disguise or mask to wriggle out of and get over Section 12A of the CC Act. The facts and circumstances of the case have to be considered holistically from the standpoint of the plaintiff. ...."
8. The words "contemplates any urgent relief" under Section 12-A of the Commercial Courts Act, should be proved to the satisfaction of the Court, whereas, in the case on hand, the plaintiff has not established any urgency in the relief(s) and that too, as the defendant had been using the trademark from the year 2021 onwards, which is evident Page No.10/14 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No. 123 of 2024 and O.A.No.471 of 20243 and A.No.3512 of 2024 from the typed set of papers filed by the plaintiff. However, the infringement of the trademark came to knowledge of the plaintiff only in April 2024. It is not disputed that the plaintiff sent legal notice to the defendants on 15.04.2024. If at all the plaintiff has to obtain any interim urgent relief, the plaintiff ought to have filed the suit immediately after knowing about infringement of the trademark by the defendant, but in this case, it is evident from the seal of the Registry of this Court that the suit was filed only on 04.07.2024. Thus, it is crystal clear that without complying with the mandatory provisions of Section 12-A of Commercial Courts Act, the plaintiff has filed the present suit which does not contemplate any urgent interim relief.
9. In the above context, Section 12-A(1) of the Commercial Courts Act, 2015 (Chapter III.A) relating to "Pre-Institution mediation and settlement", has to be looked into, which reads as follows:
'Section 12-A : Pre-litigation Mediation and Settlement: (1) A suit, which does not contemplate any urgent interim relief under this Page No.11/14 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No. 123 of 2024 and O.A.No.471 of 20243 and A.No.3512 of 2024 Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-litigation mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government.
......"
10. It is mandatory that prior to the filing of the suit, the plaintiff has to comply with Section 12-A(1) of the Commercial Courts Act, 2015 (extracted above). There is exemption clause in Section 12-A(1) that a suit, which does not contemplate any urgent interim relief under this Act (i.e. Commercial Courts Act, 2015), shall not be instituted, unless the plaintiff(s) exhausts the remedy of pre-litigation mediation.
11. Thus, it is clear that there is exemption clause that if the suit contemplates any urgent interim relief, the pre-litigation mediation may be dispensed with, which is clear from Section 12-A(1) quoted above. In the present case, the plaintiff has not even established the "urgent interim relief" clause. Therefore, the plaintiff is directed to comply with Page No.12/14 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No. 123 of 2024 and O.A.No.471 of 20243 and A.No.3512 of 2024 the provisions of Section 12-A of Commercial Courts Act and thereafter, file a fresh suit.
12. In view of the above, the Registry is directed to return the plaint itself, after the counsel produces photocopy of the same. Consequently, connected applications are closed. There shall be no order as to costs.
16.07.2024 Index: Yes/No Speaking Order : Yes/No Neutral Citation Case : Yes/No ms Page No.13/14 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No. 123 of 2024 and O.A.No.471 of 20243 and A.No.3512 of 2024 P.VELMURUGAN, J ms C.S.(Comm.Div.) No. 123 of 2024 and O.A.No.471 of 2024 and A.No.3512 of 2024 16.07.2024 Page No.14/14 https://www.mhc.tn.gov.in/judis