Anand Bansal vs Shiva Tobacco Company And Anr.

Z.S. Negi, J

The applicant had filed C.O. Nos. 25-29 of 1997 before the Hon'ble High Court of Delhi under Sections 46, 47 and 107 of the Trade and

Merchandise Marks Act, 1958 for rectification of registered trade marks in the name of respondent No. 1. pursuance of Section 100 of the Trade

Marks Act, 1999, Act, 1999, which repealed the Trade and Merchandise Marks Act, 1958, (for brevity the repealing Act), the C.O. Nos. 25-29 of

1997 were transferred to the Intellectual Property Appellate Board (IPAB) and numbered as TRA/150-154/2004/TM/DEL.

The applicant has filed applications being M.P. Nos. 22-26/2006 under Order VI Rule 17 of the C.P.C. for amendments of the rectification

application Nos. TRA/150-154/TM/DEL and also M.P. No. 27/2006 under Section 98 of the repealing Act for calling for records from the Registrar

of Trade Marks in relation to transmission and assignment of trade mark. The applications for amendment and application for calling for records are

on the following grounds:

That the applicant was the proprietor of M/s. Ansul Industries at the time of filing of the above application. During the pendency of the applications

the proprietorship was converted into a partnership firm and as such this fact has to be incorporated in the applications and also to change the cause

titles. That during the course of proceedings in Suit No. 330/2001 and much after filing the TRA/150-154/2004/TM/DEL (C O. Nos. 25-29/1997) and

particularly from the list of dates presented by the respondent No. 1 during the arguments in FAO No. 228 of 2005 pending before the Hon'ble High

Court of Delhi, the applicant came to know that the partners of the firm (respondent No. 1) namely, Shri Mahinder Kumar Bansal and Lala Shiv

Prasad Agarwal died in 1980 and 1982 respectively, and as such, the partnership firm stood compulsorily dissolved at least in the year 1980 by virtue

of Section 42 of the Partnership Act, 1932. That it is a settled law that an erstwhile partner of a dissolved firm is not entitled to any particular property

or asset of that firm but he is entitled only to the value of his share in that firm. That despite the said settled provision of the law, the Registrar of

Trade Marks vide alleged order dated 29.7.1988 (which alleged order came to the knowledge of the applicant during the proceedings in the above said

suit and after filing of the present applications for rectification) allowed request in Form TM-24 dated 20.11.1986 and recorded that the subject matter

registered trade mark to stand in the name of 'Rattan Lal Aggarwal and Rajinder Mohan Aggarwal trading as Shiva Tobacco Company'. That the

order dated 29.7.1988 has been passed without any reason and without support of the necessary documents and the said order is against law and the

Trade Marks Act. That the respondent No. 1 is not the same entity in whose favour the subject matter trade mark is registered. That the amendments

proposed in the instant applications are necessary for the determination of real controversy between the parties and also to curb unnecessary future

litigation. That the proposed amendments are necessary for the interest of justice and no prejudice shall be caused to the respondent No. 1 if the

proposed amendments are allowed.

Respondent No. 1 filed his counter refuting the averments of the applicant. The matter came up for hearing on 3rd May, 2006.

The learned Counsel for the applicant submitted that after the knowledge of death of partners of the M/s. Shiva Tobacco Company and

transmission and assignment of trade mark, the applicant moved these applications and hence, the applications are within time. He also submitted that

the order of transmission and assignment of trade mark passed by the Registrar of Trade Marks is without reason and support of necessary

documents. The certified copies of Form TM-24 dated 20.11.1986, order dated 29.7.1988 and other documents applied by him have not been furnished

by the Trade Mark Registry. The original records relating to transmission and assignment may be called from the Trade Mark Registry for verification

of factual position. He further submitted that it is necessary to incorporate in the application that during the pendency of the applications, the

proprietorship business of the applicant has been transformed into a partnership business and hence cause titles of rectification applications also

require amendment.

The learned Counsel for the respondent No. 1 submitted that the applications have been made after the commencement of the amended provisions

of Rule 17 of Order VI of the C.P.C. and the same are hit by the proviso to Rule 17. He also submitted that the applicant has no locus standi to file

the present applications for amending the rectification applications. He contended that the applicant is in the know of the death of partners of the

respondent No. 1 from August, 2002 when a copy of Legal Proceeding Certificate dated 14.2.1994 of trade mark registered under No. 297415 was

filed by the respondent No. 1 on 6.8.2002 before the ADJ, Delhi in Suit No. 330 of 2001 and a copy was duly supplied to the counsel for the defendant

in the suit (Shri S.K. Bansal) and despite that these applications are filed in 2006. He further contended that the applicant has no locus standi to file

application to call for the original records from the Registrar of Trade Marks as he was not a party to the transmission and assignment of trade mark.

Further, Section 98 of the repealing Act is neither applicable (as the present proceedings are governed by the provisions of the Trade and

Merchandise Act, 1958 (for brevity the repealed Act) nor it gives right to the applicant to move such an application. The learned Counsel also

contended that the conversion of proprietorship to partnership business was effected from 1.4.2003 but application is filed in the year 2006 much

beyond the expiration of limitation.

We have heard both the learned Counsels and carefully considered the applications.

Rule 17 of Order VI of the C.P.C. reads as under:

Amendment of pleadings.-- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and

in such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in

controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commended, unless the Court comes to the conclusion that in spite of

due diligence, the party could not have raised the matter before the commencement of trial.

The object of rule is to allow all amendments, at any stage of the proceedings, which may be necessary for the purpose of determining the real

question of controversy between the parties subject to that it does not cause injustice or prejudice to the other side. It is a settled principle of law that

subsequent events to the institution of the suit, so far they are in consonance with the original cause of action, should be permitted to be brought on

record by way of amendment and where it was found that by permitting the proposed amendments neither the nature of the suit nor the cause of

action would change, held, amendment could be allowed. No amendment of plaint can be allowed if because of lapse of time some right has vested in

the other party and the effect of amendment would tantamount to the taking away that right.

The controversy between the parties to be determined in each application is whether rectification of register is required or not. It is not necessary to

be determined as to in whose name the trade mark is. If it is determined that rectification is required in the register, the rectification will be given

effect to irrespective of in whomsoever name the trade mark exist. Similarly, the controversy raised by the applicant that the transmission or

assignment of trade mark permitted by the Registrar of Trade Marks as wrong and illegal do not require determination on the ground that if it is

determined that the register is required to be rectified by removing or expunging the trade mark it is immaterial whether the same is in the name of A

or B. Besides, the applicant has no locus standi to raise this controversy because he was not a party to the proceedings before the Registrar of Trade

Marks. Once transmission is permitted by the Registrar of Trade Marks the general presumption is that he might have permitted the same in

accordance with the relevant provisions of the law unless a prima facie evidence is produced to prove the contrary. There is no such evidence before

us. The learned ADJ, Delhi had an occasion to deal with the similar controversy raised by the defendant (M/s. Ansul Industries) in Suit No. 330 of

2001 by filing application under Rules 12, 14 and 15 of Order XI of the C.P.C. and the court concluded that the application of the defendants did not

merit any consideration at that stage and disposed of accordingly. The Registrar of Trade Marks had passed order of transmission on 29.7.1988. The

learned Counsel Shri Gurvinder Singh has contended that a copy of legal proceeding under 297415 was given on 6.8.2002 to the counsel for the

applicant, which was not objected to by the learned Counsel for the applicant. The proposed amendments are also not in consonance with the original

cause of action. The proprietorship business of the applicant was converted into a partnership business in April, 2003 but application for incorporation

of those changes is made in the year 2006. The record received from the Hon'ble High Court of Delhi shows that the trial had commenced in the High

Court and the counsel for both the parties had sought many adjournments on the ground either that the matter has been settled and application

therefore will be moved or some more time was required to ensure that by the next date of hearing the parties might be able to settle the matter

finally. Even the applications on hand could have been made after the C. Os. were transferred in 2004 to the IPAB but before the trial commenced

there in de novo as envisaged in Section 100 of the repealing Act. In view of the proviso to Rule 17 of Order VI, no amendment application can be

allowed after the trial has commenced and we are unable to come to conclusion that in spite of due diligence, the applicant could not have raised the

matter before the commencement of trial.

Apart from these, the repealing Act does not provide for application of provisions of the C.P.C. as was provided under Sub-section (8) of Section

109 of the repealed Act. That sub-section of the repealed Act provided that the provisions of the Code of Civil Procedure, 1908 shall apply to appeals

before a High Court under that Act. Sub-section (1) of Section 92 of the repealing Act provides that the IPAB shall not be bound by procedure laid

down in the Code of Civil Procedure, 1908. Sub-section (2) of that section provides, in respect of certain matters, the IPAB shall have, for the

purposes of discharging its functions under repealing Act, the same powers as are vested in a Civil Court under the C.P.C, while trying a suit. Rule 17

of Order VI of the C.P.C. do not form part of the powers of a Civil Court specified for the purpose of the IPAB under the said sub-section.

In view of the above, we dismiss M.P. Nos. 22-26/2006. We have concluded that the legality or otherwise is not required to be determined, M.P.

No. 27/2006 becomes infructuous and hence dismissed. No order as to costs.