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Judgment
S. Usha, J
The original rectification applications have been filed for cancellation of trade marks registered under Nos. 612192, 612191, 612193 and 632558 in
class 33 under the provisions of the Trade Marks Act, 1999.
The Respondent No. 1 has filed four miscellaneous petitions one each in the rectification applications with a prayer to stay the proceedings until the
rectification application filed before the Registrar of Trade Marks in CAL-225852 in opposition No. 403783 in class 33; Suit No. 632 of 2009 and
notice of motion No. 993 of 2009 filed by the applicant against the Respondent No. 1 in the Hon'ble High Court of Bombay; counter claim No. 6 of
2010 and notice of motion No. 1287 of 2010 filed by the Respondent No. 1 against the applicant in the above-mentioned suit be heard and disposed of
and to file additional affidavit to bring on record the further facts which has arisen subsequent to the filing of the rectification application or in the
alternative the present rectification application and the rectification application CAL-22852 pending before the Registrar of Trade Marks be heard
together.
The only statement by the Petitioner was that the subject matter in the civil suit and the rectification applications were one and the same. The other
statement was that if no stay is granted it would cause irreparable loss and hardship to the Petitioner whereas on the other hand if stay is granted the
Respondent No. 1 will not be injured or affected in any manner.
The matter was heard on 8.6.2010 in the Circuit Bench Sitting at Mumbai. Shri N. Mahabir learned Counsel appeared on behalf of the Respondent
in the miscellaneous petition (applicant in the main rectification application) and Shri W.S. Kane learned Counsel appeared on behalf of the Petitioner
in the miscellaneous petition (Respondent No. 1 in the original rectification application).
The learned Counsel for the Petitioner submitted that the rectification application was filed in the year 2007 and subsequently certain developments
had taken place and thought it necessary to bring it on record by filing additional affidavit. The counsel further submitted that the rectification
application be stayed till the suit pending before the Hon'ble High Court and the other rectification application be heard and decided.
The learned Counsel for the Respondent No. 1 mainly contended, though had not filed the counter to the miscellaneous petition, that the
miscellaneous petition is filed only to delay the proceedings and no merits seen in the miscellaneous petition and deserves to be dismissed.
We have heard both the counsel and have gone through the pleadings and documents. We shall first deal with the issue of stay of the proceedings.
On perusal of the records placed before us, it is seen that the suit has been filed in the year 2009 and the counter claim filed in the suit has been filed
in the year 2010. The present rectification application has been filed in the year 2007, whereas the other rectification application CAL-225852 before
the Registrar in the year 2006. When that be the case, we do not think it just to stay the present rectification application for no valid reasons as the
pleadings are all complete and pending for hearing.
The present rectification application has been filed in the year 2007 and as on date it is seen that the pleadings are all complete and ripe for hearing
the matter, to file a such a miscellaneous petition at the last minute only goes to show that the Respondent i.e. the Petitioner is only trying to delay the
hearing of the matter. That apart, the Petitioner has not shown any sufficient grounds for grant of stay order except that the subject matter is one and
the same. The Petitioner has also not made it clear as to how they will be prejudiced if no order of stay is granted.
We, therefore, are of the opinion that no case has been made out for an order of stay to be granted. The prayer (a) for stay is dismissed.
The other prayer is to file additional affidavit to put forth the matter as to the developments which had arisen subsequent to the filing of the
rectification application. Being a suit in nature, we do not think it fair to shut the doors of the Petitioner in placing the developments before us for
proper adjudication. We grant three weeks time to the Petitioner to file the same with an advance copy to the Respondent/applicant. The
Respondent/applicant may file his reply if any within three weeks thereon. The prayers (a) & (c) are dismissed and prayer (b) is allowed. The
miscellaneous petition is therefore partly allowed with no order as to costs.