M/s. Ganga Engineering Works vs M/s. Ganga Foundry

Srinivasan, J.—This revision is directed against an order in I. A. No. 94 of 1994 in O.S. No. 93 of 1991. That application is for stay of all

further proceedings in the suit, O.S. No. 93 1991 field under S. 111 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as

''the Act''). It was the contention of the petitioner that an application for rectification had been filed in the High Court u/s 56 of the Act and it was

posted to 30-6-1994. The trial court has dismissed the application taking the view that the provisions of Section 111(2) of the Act have not been

complied with by the petitioner herein and he is not entitled to claim the benefit of stay as provided in Cl. (1) of S. 111.

Learned counsel for the petitioner contends that even before the present application u/s 111 of the Act a prior application was presented in the

District Court on 3-4-1992. But it was kept unnumbered by the District Judge and ultimately it was returned to the petitioner in open court. The

petitioner had not pursued to the matter and taken any steps to get the petition numbered. However, he proceeded to file an application for

rectification of the register in this Court on 24-12-1993. Thereafter he field this I.A. No. 24 of 1994 before the trial Court for stay of further

proceedings in the suit.

Section 111(1) of the Act provides that if the defendant in a suit pleads that the registration of the plaintiff''s trade mark is invalid and

proceedings for rectification of the register are pending before this Court or the Registrar of Trade Marks, the trial of the suit shall be stayed

pending final disposal of such rectification proceedings. The subsection also provides that if no proceedings were actually pending at the time when

issues are framed, the Court is to frame an issue regarding the invalidity of the registration of the mark and adjourn the case for a period of three

months from the date of framing of the issues in order to enable the party concerned to apply to the High Court for the rectification of the Register.

Cl. (2) provides that if the party concerned proves to the court that he has made any such application for rectification within the time specified by

the court or within such extended time as the Court may for sufficient cause allow, then also the trial of the suit shall stand stayed. Cl. (3) provides

that if no such application is made within the time so specified or within such extended time as the court may allow, the issue as to the validity of the

registration of the trade mark concerned shall be deemed to have been abandoned and the court shall proceed with the suit in regard to the other

issues in the case.

In the present case, counsel for the petitioner is not in a position to give the exact date on which the issues are framed in the suit. However, the

order of the lower court shows that the suit was included in the list for trial on 10-6-1993 initially. That means the issues were framed long before

that and the suit was ready for trial. Thereafter the petitioner herein was getting adjournments and once an ex parte decree was also passed and

that ex parte decree was set aside by order dated 31-3-1994 and the suit was restored to file. It was transferred from the court of Principal

District Judge to the court of the I Additional District Judge. Then it was posted to 29-6-1994 for trial as last chance. On that dare, the petitioner

filed the present application; I.A. No. 94 of 1994 for stay of further proceedings in the suit, O.S. No. 93 of 1991 under S. 111 of the Act. The

court below has rightly understood the provisions of Section 111(2), (3) and (4) of the Act and held that it is not open to the petitioner to seek stay

of the proceedings at this stage. Consequently, there is no error whatever in the order of the lower court. The revision is without merits.

Accordingly, it is dismissed.

In view of the disposal of the revision petition, C.M.P. No. 10795 of 1994 is dismissed.

Order accordingly.