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Judgment
Prabha Sridevan, J
1 . This is a petition for grant of stay of the order dated 12.04.2012 passed by the Registrar of Trade Marks, New Delhi allowing TM-23. The parties
are brothers, Babu Bhai and Rashid Bhai. Their partnership firm is called M/s. Babubhai Rashidbhai. They owned the trade mark BABU registered
under No. 251680 in Class 34 in respect of Bidis. According to the appellant, the partnership firm was dissolved in 1993 ""however in pursuance to the
Dissolution Deed, the appellant did not receive from Respondent No. 2 any share in the goodwill on the registered trade mark No. 251680 in Class
34"". According to the appellant, the respondent has admitted this. According to the appellant, since the appellant did not share his goodwill, the
Dissolution Deed did not come into effect. It appears that a letter was sent on 1st March 2004 to the appellant informing him that the aforesaid mark
was transferred in the name of Babu Bhai and if the appellant had any objection, they may raise the same. In that letter Respondent No. 2 did not
mention factum of filing TM-23 at the instance of Respondent No. 1. It is alleged that the request of TM-23 was filed by Respondent No. 2 by forging
the documents and manipulating the signature of the appellant in the TM-23. According to them, not having paid the full consideration, Babu Bhai
cannot claim any exclusive right. The appellant wrote a letter on 14.11.2011 requesting the Registrar of Trade Marks not to consider the TM-23. But
from the website, the appellant came across the TM-23 and was shocked to see his forged signature. He filed a complaint before police at Karauli,
Rajasthan on 4.1.2012. The Registrar of Trade Marks kept the matter pending but on 12.4.2012, the website showed that the assignment has been
allowed in favour of Respondent No. 2 without any hearing being granted to the appellant. The Learned Counsel for the appellant submitted that
principles of natural justice were violated and the TM-23 was ordered behind his back. According to them, no authority letter was given to any of the
counsel. He referred to several documents to support his claim. The mark Babu Bhai was advertised in the Trade Mark Journal showing user from
13th September 1968. It reads ""251, 680 - September 13, 1968. RASHIDBHAI and BABUBHAI, trading a BABUBHAI RASHIDBHAI, Karauli,
District Sawai Madhopur, Rajasthan; Manufacturer and Merchants. User claimed since July, 1963 (DELHI)"". The mark shows the photograph of
Babu Bhai. In TM-23 there are the signatures of Babu Bhai and Rashid Bhai which is dated 14.12.1994. It was received by the Trade Mark Registry
on 16.12.1999. It reads that both Babu Bhai and Rashid Bhai signed transfer of name in favour of Babu Bhai by virtue of a Dissolution Deed of which
the original and attested copies were enclosed. 1st April 1993 is the date of the Dissolution Deed which is originally in Hindi and the translation is filed
along with the counter statement which says that ""in future the trade mark of BABU Chaap which bears the photograph of Babu Bhai and Rashid
Bhai shall be used by Babu Bhai only who is the absolute owner from 1st April, 1993"". This is the crux of the Deed, which also refers to the three
cheque payments. The cheque numbers are given and that ""now there is no transaction left between the parties"". On 1st March, 2004, a letter is
addressed to Rashid Bhai, the applicant herein, that in view of the retirement from the Partnership firm, the trade mark being transferred in the name
of Babu Bhai and if there is any complaint, it may be filed within seven days time. After this, a letter was sent on 30th March 2004 addressed to the
Joint Registrar of Trade Marks stating that Rashid Bhai has strong objections to the assignment application as he has not received his share of
goodwill and there is request for hearing in this matter. The Registrar of Trade Marks had addressed a letter to the respondent and his counsel
referring to the petition filed by the applicant's counsel. To this, the respondents counsel Loyal Registration Service addressed a letter to the Registrar
referring to the Dissolution Deed and the payment of sums and also to the joint request in TM-23. On 14th November, 2011, the Learned Counsel for
the applicant again addressed a letter to the Registrar of Trade Marks stating that ""the recordal request of TM-23 should not be allowed"". The
Learned Counsel for the applicant referred to the letter dated 21.7.1993. They also submitted that the mark referred only contains Babu Bhai's
photograph but since the Dissolution Deed refers to ""photographs of Babu Bhai and Rashid Bhai it must be some other mark. He submitted that since
no hearing was given and no opportunity was given, the proceedings are void. None of the documents filed by the appellant finds a place in the order.
Therefore there is no consideration of the documents. There is total non-application of mind. He submitted that when the Deed of Dissolution is of the
year 1993 it is unbelievable that joint memo has been signed in the year 1999, after six years. The Learned Counsel referred to various decisions.
2 . Learned Counsel for the respondent submitted that no stay can be granted when the dissolution is admitted and there is nothing further to be done.
The Learned Counsel declared that it is open to this Board to send the impugned documents to a forensic laboratory for their expert opinion as to
whether Rashid Bhai's signature was forged and he will be willing to bear the cost. The Learned Counsel submitted that in the letter objecting to stay.
there is no whisper of any documents being enclosed. In the documents enclosed with the counter statement there is a letter addressed by the
Learned Counsel for Rashid Bhai stating that since Rashid Bhai is no longer a partner in the firm, Babu Bhai cannot use the photograph of his, that is
Rashid Bhai's. There is an affidavit filed before the Registrar of Trade Marks by Rashid Bhai on 14.12.1999 stating that he has not received his
business share from the firm and he expressed his desire to retire from the partnership firm.
3 . Following are the judgements which were relied by the Learned Counsel for the applicant:
(1) Bawa Jagmohan Singh and Others Vs. The Registrar of Trade Marks and Others 2002 (24) PTC 417 (Del) In this case the name of the petitioner
was removed on the basis of Dissolution Deed. The Hon'ble Delhi High Court held that the Registrar was wrong in granting the prayer without issuing
a notice whose name is in the Register.
(2) Kohinoor Paints Faridabad (P) Ltd. Vs. Paramveer Singh & Another 1996 PTC (16) In this case the Hon'ble Delhi High Court gave a ruling that
an order in violation of principles of natural justice is void in law and if such order is relied on for any purpose it can be challenged whenever and
wherever it is produced.
(3) K.L. Rajakrishnan Vs. Parthas Textiles, Kottayam 1997 PTC (17) (DB) In this case, the Division Bench of Hon'ble Madras High Court held that
the Registrar being quasi judicial authority must observe the principles of natural justice.
4 . The Learned Counsel for the respondent also referred to rule 5 of the Limitation Act, 1963 which provides for time for suit for share of dissolved
partnership, which is three years from the date of dissolution. He submitted that this is the particular situation which the respondent in this case is
pursuing.
The Learned Counsel for the respondent relied on the following judgements:
(1) Harmohan Singh Vs. Gurbax Singh 93 (2001) DLT 647 Where the Hon'ble District Court of Delhi has held that when as per the Dissolution Deed
the defendant has relinquished his rights and interest in the Partnership Firm, it would include right of the trade mark and when the registration was
applied by plaintiff and defendant as partners and when after signing the Dissolution Deed one partner raises such dispute, then injunction must be
granted that the trade mark belongs to the plaintiff.
(2) The learned counsel for the respondent referred to an unreported judgement dated 25.08.2011 (LPA 609/2011 on the file of Hon'ble High Court of
Delhi) where it is observed that ""There can be no trace of doubt a trade mark is an asset. The execution of the dissolution deed has not been
challenged anywhere. What was contended before the learned single Judge was that the trade mark is not an asset."" The trade mark was registered
in this case.
(3) AIR 1974 sc 1094 - Saligram Ruplal Khanna and another Vs. Kanwar Rajnath - In this case it was held that suit for rendition of accounts filed
beyond three years barred by the Limitation Act, 1963.
(4) Harsh Vardhan Rastogi Vs. Champion Publications 2007 (35) PTC 365 (Del.) In this case the Hon'ble High Court of Delhi held that the
Dissolution Deed itself become assignment of trade mark. This was also a case where brothers were fighting with each other.
In the present case, we have considered all the judgements that were relied on by the applicant. There can be no two opinions regarding the
question that if no hearing is given and if no opportunity is given, order thereafter passed, it is void. But we will also have to look at the facts of the
case. The argument that the Dissolution Deed may refer to some other mark since it refers to photographs of Babu Bhai and Rashid Bhai cannot be
accepted because there is no pleading that such other mark of the partnership firm exists. On the contrary there is a letter by the applicant's counsel
that the respondent cannot use Rashid Bhai's photograph. Therefore, we cannot brush aside the submission made by the Learned Counsel for the
respondent, that the photographs of both the brothers were used. In any event in the absence of evidence of any other mark belonging to the
partnership firm, we have to prima facie take it, that the mark referred to in the Dissolution Deed is impugned mark.
Next, the applicant keeps on harping only on one grievance that he has not been paid his share in the goodwill. This means a quantification of share
in the partnership which can only be in monetary terms. Then his remedy lies elsewhere. This authority cannot grant any decree for accounts or
payment of unpaid share of a partnership firm.
8 . It is true that the application denied that TM-23 is not his but he admits his Dissolution Deed which means he admits that he agreed to go out of the
partnership. Then 2007 (35) PTC 365 (Del.) (cited supra) applies. Perhaps, the appellants grievance that he has not been suitably compensated is
correct but that does not mean that he continues to be joint owner of the trade mark, once the partnership was dissolved and he had surrendered his
rights in the mark. In these circumstances alone which are peculiar to this case, we do not think we will be justified in granting of stay merely on the
ground that the Registrar did not grant time for hearing. Even assuming that section 45 of the Act was invoked by the appellant at the time of hearing
it cannot come to his rescue because validity of the Dissolution Deed is admitted. What is not admitted is the full payment. Section 45 does not dealt
with that. Further section 45 only refers to a person who becomes entitled by assignment or transmission to a registered trade mark in the prescribed
manner. In this case, Babu Bhai became entitled by the Dissolution Deed and he applied. Therefore, the proviso of Section 45 cannot be invoked by
the applicant. When the Dissolution Deed, which is the key document in this case, by which the proprietorship got changed is not in dispute, we do not
think that the applicant has made any prima facie case for grant of stay even though the order does not indicate that he was heard or the documents
were considered. The Stay Petition is dismissed.