This petition was filed under Article 227 of the Constitution of India against the order dated 27th January 2020 passed by the learned Commercial Court And the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MS. JUSTICE ASHA MENON, in the matter BALDEV SINGH SOLE PROPRIETOR OF M/S MADMAN PLASTIC INDUSTRY V. INDIAN PLASTIC FOOTWEAR AND CLOTHING PVT. LTD. & ORS dealt with an issue mentioned above.
Plaintiff claims to be a leading manufacturer of plastic footwear under the mark MPI (logo) and “MADAAN”. It is claimed that this business has been in existence since 1997 and the goods of the petitioner/plaintiff are sold in various parts of India, also they mentioned that the plaintiff had well-established sales network throughout the country.
the present suit had been filed since respondent No.1/defendant No. 1 company had begun to CM(M)IPD1/2021 infringe this registered trademark of the plaintiff by using the mark, “HOUSE OF MADAAN”. In the written statement filed by respondent No.1/defendant No.1, it was claimed that it had obtained a license from Respondent No. 2/M/s Darshan Singh and Sons HUF. It was also mentioned that Mr Simarpreet Singh and Mr Charanjeet Singh were presently directors of one “M/s Madaan Footcare Private Limited” which had been incorporated in 2001 but the details were not mentioned in the written statement.
In these circumstances, an application under Order I Rule 10 (2) CPC was filed by the plaintiff to implead M/s Darshan Singh and Sons HUF as also “M/s Madaan Footcare Private Limited”. Vide the impugned order dated 27th January 2020.
Mr Mahir Malhotra, learned counsel for the petitioner/plaintiff submits that the impugned order was liable to be set aside, primarily on the ground that the observation of the learned Commercial Court that the petitioner/plaintiff could file a fresh suit against the said M/s Madaan CM(M)IPD1/2021 Footcare Private Limited was violative of the fundamental principle of avoiding multiplicity of litigation.
Investigations and inspection of documents of the Registrar of Companies in Gwalior revealed that the company called “M/s Madaan Footcare Private Limited” was a defunct company since 2006 as it was not carrying on any business of any kind. The directors of respondent No.1/defendant No.1, Singh became directors of the said company on 01st March 2017 after which the two original directors of the said company resigned leaving the company completely in the hands of the said, Mr Simarpreet Singh and Mr Charanjeet Singh.
According to the learned counsel, the adoption of the name “MADAAN” now was a devious attempt by the Respondent No. 1/Defendant No.1 to get over the injunction that was issued vide orders dated 24th October 2017, restraining them from using the mark, HOUSE CM(M)IPD1/2021 OF MADAAN as the trademark “MADAAN” belonged to the plaintiff. Furthermore, this “M/s Madaan Footcare Company” had filed petitions for cancellation of the trademarks in the name of the plaintiff. Hence, it was submitted that the dismissal of the application was improper.
Mr Anirudh Bakhru learned counsel for respondent No.3/ M/s Madaan Footwear Private Limited submitted that employing this application, the petitioner/plaintiff only intended that the injunction order be extended to the operations of respondent No.3 without the claims of the petitioner/plaintiff qua the respondent No.3 being tested before any court. And also, because the directors of respondent No.1 had acquired respondent No.3 would not make the rights of respondent No.3 subject to/limited by the Dissolution Deed.
Meanwhile, they also submitted, relying on the judgment of the Supreme Court in Mohd. Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566. It was noted that the suit had been filed by the plaintiff for a permanent injunction restraining infringement of his registered trademark of “MADAAN”. The plaintiff is using the same for footwear. On 11th February 1994, the plaintiff CM(M)IPD1/2021 firm applied for the registration of the trademark MADAAN when all three brothers were partners.
As observed in Nav Jagriti Niketan Education Society(supra), unless the plaintiff has disclosed the commonality of the transaction or series of transactions between respondent No.1/defendant No.1 and respondent No.3 on the same pleadings, respondent No.3 could not have been held to be a necessary or proper party in the present suit without appropriate pleading.
The court perused the facts and argument’s presented, it thought that- “The conclusion of the learned Commercial Court is, therefore, neither erroneous nor perverse. Learned Commercial Court had also given liberty to the plaintiff to incorporate specific pleadings or to file a separate suit. Thus, there is no CM(M)IPD1/2021 ground made out to interfere with the said order. The petition lacks merit and is, accordingly, dismissed with the pending application”.
Judgment Reviewed by: Mandira BS
