A brand new car damaged while in transit, entitled for car value = We do not find any substance in the submission of the Ld. Counsel for the Petitioner. Petitioner has not been able to explain as to what is “Institute Replacement Clause”. Moreover, in the present case, there was damage not to the part or parts of the insured vehicle but it was a case of total loss to the vehicle in the accident. The vehicle in question was a new vehicle and it was not registered with the Regional Transport Office. The said car was to be delivered to the Corporation Bank and if the Bank was to know that the car had suffered damage it would not come forward to purchase the same. Under these circumstances, Respondent No.1 was entitled for compensation to the extent of entire value of the car. Plea taken by the Petitioner that it was liable to indemnify the expenses incurred for repair of the vehicle only, cannot be accepted. We do not find any merit in the Revision Petition and dismiss the same with costs which we assess at Rs.5,000/-.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION No. 4100 of  2007

(From the Order dated 20.09.2007 in Appeal No. 2752/2006 of the State Consumer Disputes Redressal Commission, Karanataka)

Royal Sundaram Alliance Insurance Co. Ltd.

Corporate Claims Dept.,

Sundaram Towers,

No.45 & 46, Whites Road,

Chennai-600 014                                            .. Petitioner

VERSUS

 

1.     M/s. Shripant Motors,

New Sambra Road,

Gandhi Nagar, Belgaum,

Karnataka

 

2.     The Jamuna Transport Co. Ltd.

11, Polilock Street,

Kolkata

 

 3.     Hindustan Motors Ltd.

Hind Motors,

Hoogly,

West Bengal                                            .. Respondent

BEFORE: -

  

        HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

        HON’BLE MRS. VINEETA RAI, MEMBER

 For the Petitioner        :  Mr. S.M. Tripathi and

                                        Ms. Poonam Gupta, Advocates

         For the Respondent No.1 :  Mr. Ravi Panwar, Advocate

                                                    For Mr. S.N. Bhat, Advocate

         For the Respondent No.2  :  N E M O

         For the Respondent No.3   :  Mr. Rahul Chandra and Mr.

                                                     Saman Ahsan, Advocates

         PRONOUNCED ON:      16.04.2012

 

O R D E R

ASHOK BHAN, J., PRESIDENT

        Petitioner which was the Opposite Party No.1 before the District Forum has filed this Revision Petition against the order and judgment dated 20.09.07 passed by the State Consumer Disputes Redressal Commission, Karnataka (in short, ‘the State Commission’) in appeal No.2752/2006 whereby the State Commission upholding the order of the District Forum has directed the Petitioner to pay Rs.3,60,688/- to the Respondent No.1 towards the value of the new  car along with interest @ 9% p.a. w.e.f. 30.07.05 till realization. Petitioner was also granted liberty to take steps for recovery of the said amount from the Respondent No. 2, Jamuna Transport Corporation Ltd. and Respondent Nos. 1 & 3 were directed to co-operate with the Petitioner to get the damaged vehicle registered in its name.

FACTS:-

Complainant/Respondent (hereinafter to be referred to as “Respondent No.1”) had placed an order with Hindustan Motors Ltd., Respondent No.3 herein for supply of one Ambassador Car costing about 3,60,688/- to its customer, namely Corporation Bank Belgaum.  Pursuant to the said order, Respondent No.3 dispatched the Ambassador Car through a truck belonging to Jamuna Transport Corporation Ltd., Respondent No.2 herein. The said truck met with an accident while on its way to Belgaum. In the said accident, Ambassador Car carried in the truck was badly damaged. Since the Respondent No.1 had obtained a “Marine Cargo Open Policy” from the Petitioner Insurance Company it lodged a claim for payment of compensation of Rs.3,60,688/-. Petitioner, on being intimated, appointed a Surveyor to assess the loss. Surveyor in his report stated that the car could be repaired and assessed the loss at Rs.1,48,739/-. Respondent No.1 did not accept the value assessed and claimed the compensation to the extent of entire cost of the car.  Petitioner thereafter repudiated the claim.  Challenging the rejection of the claim, Respondent No.1 filed the complaint before the District Forum.

District Forum allowed the complaint with the following observations and directed the Petitioner to pay the full value of the car, i.e., Rs.3,60,688/- to the Respondent No.1 along with interest @ 9% p.a. from 13.07.05 till realization and cost of Rs.1500/-.  Petitioner was also held entitled to retain the salvage.

“        We have perused the records.  The complainant claims full value of the vehicle on the ground that his business is of sale of cars.  The new car for whom it was booked denied to take delivery of a car damaged in accident.  So he was supplied with brand new car.  It is bounden duty of the O.P.No.1 to indemnify the whole loss.  We are of the opinion that there is no any such rule or condition in the policy that the O.P No. 1 should not indemnify the loss by paying the value of new car.  The O.P.No.1 has to indemnify the whole loss that is caused to the complainant by paying the full value of the car with interest and the car shall be returned with the OP.P.No.1.”

          Petitioner, being aggrieved, filed the appeal before the State Commission which has been dismissed by the impugned order.

State Commission has directed the Petitioner to pay Rs.3,60,688/- to the Respondent No.1 with interest @ 9% p.a. from 30.07.05 till realization. Respondent Nos. 1 & 3 were directed to co-operate with the Petitioner to get the damaged vehicle registered in the Petitioner’s name by producing the necessary documents before the concerned Regional Transport Office.

Replying upon the “Institute Replacement Clause” of the terms and conditions of the policy, Learned counsel for the Petitioner contends that the Petitioner was liable to indemnify for the loss or damage to any part or parts of an insured machine covered under the policy not exceeding the cost of replacement of the part or parts or repair of such part or pars plus servicing charges. Since the Surveyor had assessed the loss on the basis of damage caused to the part or parts of the insured vehicle, the Respondent No.1 was not entitled to get full value of the insured vehicle. The said clause reads as under:-

“Institute Replacement Clause

In the event of loss of or damage to any part or parts of an insured machine caused by a peril covered by the policy the sum recoverable shall not exceed the cost of replacement or repair of such part or parts plus charges for forwarding and refitting, if incurred, but excluding duty unless the full duty is included in the amount insured, in which case loss, if any, sustained by payment of additional duty shall also be recoverable.  Provided always that in no case shall the liability of underwriters exceed the insured value of the complete machine. “

          We do not find any substance in the submission of the Ld. Counsel for the Petitioner. Petitioner has not been able to explain as to what is “Institute Replacement Clause”.  Moreover, in the present case, there was damage not to the part or parts of the insured vehicle but it was a case of total loss to the vehicle in the accident.  The vehicle in question was a new vehicle and it was not registered with the Regional Transport Office.  The said car was to be delivered to the Corporation Bank and if the Bank was to know that the car had suffered damage it would not come forward to purchase the same.  Under these circumstances, Respondent No.1 was entitled for compensation to the extent of entire value of the car.  Plea taken by the Petitioner that it was liable to indemnify the expenses  incurred for repair of the vehicle only, cannot be accepted.  We do not find any merit in the Revision Petition and dismiss the same with costs which we assess at Rs.5,000/-.

….. . . . . . . . . . . . . . .

                                                                   (ASHOK BHAN J.)

   PRESIDENT

                                                            . . . . . . . . . . . . . . . .

            (VINEETA RAI)

   MEMBER

Yd/*

PHOTOS AND NEGATIVES = WHEN THE COMPLAINANT IS NOT ABLE TO SAY WHETHER THE PHOTOS AND NEGATIVES ARE THAT OF THE SCENE OF OFFENCE, IT CAN BE SAID THAT THOSE DOCUMENTS ARE NOT PROVED PROPERLY UNLESS THE PHOTOGRAPHER WAS EXAMINED.

HIGH COURT OF JUDICATURE AT ALLAHABAD 

Reserved
AFR

Criminal Appeal No.1565 of 1982


Hausila Prasad and another ......................... Appellants

VERSUS

State of U.P. and another ..................... Respondents


Hon'ble Vinod Prasad, J.

Two real sibling brothers Hausila Prasad and Rampher, both sons of Sripat, resident of Bahaudeenpur, P.S. Machlishahar, district Jaunpur, have questioned their conviction u/s 436 IPC and imposed sentence of two years RI with fine of Rs.1000/- therefor on each of them, with default sentence being six months further R.I, and also awarding Rs. 1000/= as compensation to the victim complainant Ramraji, recorded by IInd Additional Session's Judge, Jaunpur, in S.T. No.47 of 1980, State Vs. Hausila Prasad and another.
Described briefly, complainant's allegations were that her house is adjacent to the house of Ram Shiromani, her brother-in-law (devar). Adjacent to their houses was a residential thatch in which complainant's and her devar's children resided. There was animosity between complainant and the accused appellants, because of which, a day earlier to the present incident, on 17.12.1978, devar Ram Shiromani and his son Krishna Kumar were framed-in a false case and were got arrested and by the time, present incident occurred they could not get bail. On the date of the incident, 18.12.1978 at 5 p.m., both the appellants came at complainant's thatch vetuparising her, which had attracted Sewak, Ram Jiyawan and many other co-villagers at the scene. Initially complainant inhibited hurled abusive words but later exacerbating their scurrilous act, appellants torched her thatch by their matchsticks, gutting it and another adjacent hutment, completely, alongwith the articles, a bed and a sari, kept in it. Villagers doused the fire because of which adjacent another residential abode of the complainant was saved from being gutted. Adya Prasad, husband of the complainant resides away from the house, in connection with his vocation and hence, during the incident, no male member was present at complainant's house. Because of ensuing night complainant could not proceed to the police station and consequently, following day morning (19.12.1978), she went to the police station but head moharir refused to take down her FIR because of the influence of the accused persons and being in hands and gloves with them. On the same day an application was moved by the complainant before Superintendent of Police, vide Ext. Ka-1, but with no result. Since police did not impart justice to the complainant that she lodged complaint before Special Judicial Magistrate, Jaunpur, on 20.12.1978, Ext. Ka-2, against the malefactors annexing registry receipt, Ext. Ka-3, of the application sent by her to the Superintendent of Police. Four to Six days after the incident, her devar called a photographer, who had photographed the burnt thatch by preparing it's negative and photos,material Ext. Ka-1 and 2.
With aforesaid allegations, complaint of complainant Ram Raji, Annexure No.2, was registered as Complaint Case No.576 of 1978, Ramraji Vs. Hausila Prasad and another, on 20.12.78. Same day her statement under Section 200 Cr.P.C. was recorded. On the strength of aforesaid complaint and statement, recorded during inquiry, accused persons were summoned to stand trial for committing crime under Section 436 IPC. Since that offence was Session's triable, hence case of accused appellants was committed to the court of Session's where it was registered as S.T. No.47 of 1980, State versus Hausila Prasad and another. Both the appellants were charged under Section 436 IPC, which charges were denied by them and they claimed to be tried and consequently, to establish their guilt, their prosecution commenced.
In the trial, prosecution examined complainant RamRaji (P.W.1), Ram Sewak (P.W.2), Ram Jiyawan(P.W.3) as the three fact witnesses. In their statements under Section 313 Cr.P.C., accused persons denied prosecution evidences and incriminating circumstances put to them and pleaded their false implication because of enmity.
Vide impugned judgement of conviction and sentence, trial court recorded a finding that guilt of the appellant for framed charge was established beyond doubt and hence convicted and sentenced them, as has already been mentioned above, hence, this appeal challenging the aforesaid judgement and order.
At the time when the appeal was called out for hearing, nobody appeared to argue the appeal and hence Sri P.C. Srivastava was appointed as amicus curiae to assist the Court.
I have heard Sri P.C. Srivastava, learned amicus curiae and Sri A.P. Singh, learned AGA for respondent state, for and against this appeal, and have gone through the oral and documentary evidences existing on record.
Assailing the impugned judgement of conviction and sentence, it was submitted by learned amicus curiae that the proceeding under Section 145 Cr.P.C. was already in the offing between complainant and accused and since, prior to the date of the incident, there was brawl continuing, therefore, appellants have been falsely implicated. It is further submitted that on the date of the incident itself, prior to the present incident, an incident of assault was alleged to have taken place regarding which Shanti Devi, daughter of complainant, had lodged a case mentioning the time of the incident as 3.30 p.m. but, in the aforesaid offence, accused were acquitted by a competent court. It is therefore, contended that because of animosity appellants were roped in successive crimes, and in one of them they have been acquitted and this second crime is also feigned and fabricated, as no such incident as alleged by the complainant, ever took place and, therefore, appellants be acquitted and their appeal be allowed. Next, it was contended that, but for ipse dixit and bald statements, no other circumstance has been established by the prosecution to bring home the charge against the appellants, so much so that brother-in-law (devar) of complainant, Ram Shiromani and his photographer Mushtafa, never entered into the witness box to lend credence to her allegations and the photo and negative were not admissible in evidence being contrary to section 60-65 of The Evidence Act. On the strength of these submissions, it was contended that appeal be allowed and the appellants be acquitted of the charge levelled against them and they be set at liberty.
Learned AGA argued to the contrary and submitted that all the three prosecution witnesses have corroborated each other regarding setting ablaze of the thatch and the defence has not been able to shatter their testimonies and therefore, guilt of the appellants is proved beyond doubt and their appeal, therefore, be dismissed and their conviction and sentence be affirmed.
I have considered the rival contentions and have vetted oral and documentary evidences. What is established on the record is that there was enmity between complainant and appellants regarding an immovable property, in which connection, a proceeding u/s 145 Cr.P.C. was already going on between them. On the date of the incident, Shanti Devi (daughter of complainant) was alleged to have been assaulted by the appellants, regarding which, she had lodged a case, but in that crime accused persons were acquitted by a court of competent jurisdiction. According to the complainant's version, her thatch was set ablaze on the date and at the time of the incident but to establish that fact, the complainant could not bring on record any convincing evidence except bald statements. She, got the burnt thatch photographed from Mushtfa but the photographer never entered into the witness box to support her case. Complainant (P.W.1), vide paragraph 22 of her deposition, had stated that she does not known how much money was spent in getting the incident scene snapped. Money was given by her dewar and she does not know anything about it. She had further testified that four or six days after the incident, the burn thatch was photographed by photographer Mushtfeen Ahsan, who had delivered it four to six days after it was photographed. As mentioned above this photographer was not examined during trial by the complainant, to support her claim. In such a view, neither negative nor the photograph could be connected with the incident in question. Trial Judge has nowhere mentioned that any effort was made by it to examine the photographer. Unless the negative and the photograph were connected with the incident scene, they were in- admissible in evidence. No foundation or basis of accepting them in evidence was brought on record by the complainant. Her bald statement that she had taken the subpoena to the photographer but he was not present at his residence and it was informed to her that he had gone to Bombay and there was no news of his coming back is not sufficient to accept the negative and the photograph in evidence. Secondary evidence can be permitted but only after the Court comes to the conclusion that the primary evidence in that respect cannot be led. The requirements of section 65 of the Evidence Act has to be complied with before a secondary evidence can be admitted in evidence. No such foundation was laid, either by the prosecution or by the complainant, in that respect and, therefore, no reliance can be placed on the negative and the photograph. At this juncture it will be relevant to note how the photograph and negative were got exhibited by the trial judge. In fact entire deposition of complainant (PW1) was over and she was discharged and date for examining other witnesses was fixed. On 25.5.82, no other witness turned up to testify and therefore application for adjournment was filed by the ADGC, along with another application for recalling (PW1) to prove photograph which was snapped in her presence. Though the trial judge rejected adjournment application, but it allowed recall application and recorded statement of PW1. Perusal of application, however, indicate that no basis was mentioned for leading secondary evidence. Only this much is mentioned in the application- "photographer is not present. Complainant is present. Photo of the burnt Marha was taken in her presence.
It is prayed that the complainant Smt. Ram Raji be recalled to prove the photograph."
On such an application permission to lead secondary evidence should not have been granted.(PW1) had no knowledge about the photo being that of the incident scene. She had no knowledge that photographer had given them the same photographs, which he had snapped regarding incident scene. Three was no occasion for the trial judge to allow the prosecution to lead secondary evidence in such fact scenario. Only photographer would have been in a position to disclose identity of that photo and confirm it of being of the incident scene. Trial judge wholly misapplied the law against mandate of section 65 Evidence Act. Further, as stated above neither devar Ram Shiromani appeared in the witness box nor the photographer.(PW1) had no knowledge about the photograph and hence she could not have proved it. Accused have challenged the genuineness of this photo and negative of being manufactured and not of the incident scene. Thus admitting of negative and photo and marking it as Ext. Ka4 and Ext. ka 5, was illegal. In this respect, some of the judicial pronouncements supporting the aforesaid view are referred to herein below:-
In The Roman Catholic Mission versus The State of Madras and another:AIR1966 SC 1457 it has been held as under:-
"The originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence. The High Court rejected them and it was plainly right in so deciding."

In Sital Das versus Sant Ram and others:AIR1954 SC 606 it has been observed by the apex court as under:-
"In this case no foundation was laid for reception of secondary evidence under section 65 of the Evidence Act, nor can the copy produced be regarded as secondary evidence within the meaning of section 63. In these circumstances, we must hold that the will alleged to have been executed by Kishore Das in the year 1911 has not been proved and the translation of an alleged copy of it which has been produced in this case should be excluded from consideration."

In Ram Raj versus State : 1991 JIC 181 it has been held by this court as under:-
"The fact that the dead bodies were of Dukkhi and Kandhai has been sought to be established by the evidence of P.W. 6, Babadin and P.W. 9, Gangadin who identified the photographs Exts. 8 and 9 to be of Dukkhi and Kandhai. These photographs have not been proved according to the strict rules of evidence. P.W. 16, S.I. Drig Vijai Singh has simply stated that while he was making investigation, S.I. Dhanai Ram brought a photographer who took photos of both the dead bodies. P.W. 10 Constable Sheo Shankar Tewari, on being shown the photographs, Exts. 8 and 9 stated that they were the photos of the dead bodies which were produced by him before the Medical Officer. S.I. Dhanai Ram or the photographer has not been examined. It was the duty of the prosecution in view of the provisions of sections 60 to 65 of the Evidence Act examine the photographer who might have proved that he had taken photos of the dead bodies and had developed the photographs, Exts. 8 and 9 from the negative or to examine some who might have testified that the photos of the dead bodies were taken and the photographs, Exts. 8 and 9 were developed and prepared from the negatives in his presence. It is usual to produce the negative in the Court."

In Smt. J. Yashoda v. Smt. K. Shobha Rani:AIR 2007 SC 1721 it has been held by the apex court as under:-
" The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Another AIR 1975 SC 1748 it was inter alia held as follows:
"After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent No. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of respondent No.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court."
In M/s. Himatsingka Seide Ltd., Bangalore and Ors. v. Shambappa Basappa:2010 CR.L.J. 1057 it has been held as under:-
"16. In this case, the party has sought to produce the xerox or photo copy of the alleged M. O. U. The xerox or photo copy by itself will not become secondary evidence, unless it is shown that, it is accurate copy of the original.
17. In case of xerox or photo copy, Section 63 of the Evidence Act requires that, the said copy must itself ensure that it is accurate copy, such as competent authority certifying the copy as accurate copy of the original. Hence, the photo copy by itself may not be admissible, but if it is proved that it is made from the original, it is admissible."
In Suraj Mal versus State: 2010 Cr.L.J. 1583 it has been held as under :-
"............This doctor has not proved the contents of the documents, i.e. injury report whereby an inference can be drawn that all the injuries were found on the person of the injured. In absence of it, a written document cannot be said to be proved by virtue of Section 67 of the Indian Evidence Act."
Further no photo was filed before the Magistrate nor the photographer was examined by(PW1). She even did not possess the photo at that time. She did not file the photo at the time of committal of the case as well. More over from the filed photo it does not indicate necessarily that it belonged to the incident place. There does not seems to be any burnt thatch visible in it. Mud wall also does not contain any inflammable signs.
Turning towards oral evidences of the three fact witnesses, it is revealed that (P.W. 1) and (P.W. 2) are relatives. No independent witness has come forward to support prosecution charge. None of the witnesses has said that they stopped the accused from lighting the thatch. Although (P.W. 1) and (P.W. 3) deposed that both the appellants lighted the thatch by spurting their match sticks but the said version seems to be extremely doubtful as no attempt was made by them to douse the flames at the earliest. None of these witnesses had stated that they made any endeavour to take out the articles kept in the thatch or attempted to put it off. No article burnt in the fire was mentioned by(PW1) except a bed and a sari. Vide para 14/15 of her depositions she had not stated that she also endeavoured to douse the fire. Further vide para 18 of her testimony she deposed that "neither I nor the witnesses caught the accused while they were putting the Madaha (thatch ) to fire and only forbade them verbally. When accused were lighting the thatch I made lots of hue and cry that they were burning the thatch". Such a conduct by (PW1) does not inspire any confidence at all. Second fact witness (P.W.2) further stated that when the accused ignited the thatch, he was standing silently and never endeavoured to stop them, which deposition is most un-natural and un-convincing and indicate his most surreal conduct, which does not inspire any confidence. He had further stated that he had not witnessed for how many match sticks, the fire was ignited. (P.W.1) on the aforesaid aspect is also not very reliable because she had also not endeavoured to stop the accused persons when they were endeavouring to set the thatch to fire. This is clear from her deposition vide paragraph 18 of her testimony. Nobody chased the assailants after they were escaping from the scene of the incident. In such a view, I am not inclined to accept the prosecution version as it is difficult to conclude that it is credible and convincing. As noted above, but for oral bald assertions, there is no other surrounding and res gestae evidences to support the prosecution allegations, and hence it cannot be concluded that prosecution has established appellant's guilt beyond all shadow of doubts.
Appeal is allowed. Conviction of the appellants through impugned judgement and order is hereby set aside. Appellants are acquitted of the charge under section 436 I.P.C. They are set at liberty, they need not surrender, their bail bonds and surety bonds are discharged.
Let a copy of the judgement be certified to the trial court for it's intimation.
Dt/-23.2.2012
RK/Arvind/- 

INTELLECTUAL PROPERTY APPELLATE BOARD Application for removal of the trade mark “Krupa Homoeopathists” registered under No.1344586 in Class 42 from the register of trade marks under the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the Act). =23. The impugned trade mark “Krupa Homoeopathists” has been put to use since 1997 which fact has not been refuted/denied by the applicant. The wordings in the letter dated 08.05.1998 written by the applicant on behalf of Dr. Sundara Rao to the respondent seems to be not natural. Dr. Sundara Rao could not have anticipated things in advance. The respondent’s explanation for adoption of the trade mark ‘K’ stands for Kothari and Rupa is her name is something which cannot be accepted. No doubt Dr. Sundara Rao with his blessings allowed the respondent to use the name “Krupa Homoeopathists” as her clinic name. The respondent has applied for registration after the death of Dr. Sundara Rao which cannot be said to be bonafide. Considering the facts stated above and in the interest of justice, we exercise our discretion and allow the registration to continue on the register with area limitation. The registration granted will be restricted to the State ofMaharashtra only. The applicant shall have the right to continue her services under the said trade mark. 24. Accordingly, the rectification application is disposed of with a direction to the Registrar of Trade Marks to impose the area limitation and to issue a fresh registration certificate on the respondent surrendering the original certificate of registration No.1344586 in Class 42. No order as to costs.

INTELLECTUAL PROPERTY APPELLATE BOARD

Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018

ORA/8/2010/TM/MUM

  WEDNESDAY, THIS THE 28th DAY OF DECEMBER, 2011

Hon’ble Smt. Justice Prabha Sridevan                   …   Chairman

Hon’ble Ms.S. Usha                                                  …  Vice-Chairman

Mrs. Susheelamma Sundara Rao                              …  Applicant

Trading as

Krupa Homoeopathists at

No.31, City Market,

Bangalore-560002.

(By Advocate:  Ms.P.V. Rajeswari)

                                                                Vs

Dr. Rupa Kothari

Trading as

Krupa Homoeopathic Clinic

A-1, Kailash Plaza

90 Feet Road

Ghatkopar

Mumbai-400075.                                                               … Respondent

                                   

                                                                                               

  (By Advocate:  Ms. Usha Chandrasekhar)

ORDER(No.239/2011)

Hon’ble Ms.S. Usha, Vice-Chairman:

            Application for removal of the trade mark “Krupa Homoeopathists” registered under No.1344586 in Class 42 from the register of trade marks under the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the Act).

Brief facts of the case:

2.         The applicant’s husband Dr.D. Sundara Rao a leading Doctor specialized in Homoeopathy was carrying on clinical services for the past several years. He started his practice in the year 1947 at Ramanagaram and shifted to Bangalore from 28.03.1952. He adopted the trade mark “Krupa Homoeopathists” on 28.03.1952 as well adopted the same as his trading style for his clinical services.  By virtue of such long, continuous and extensive user since 1952 the trade mark has become distinctive of his services.

3.         In the year 1994, the respondent herein came to Bangalore from Bombay to get training in Homoeopathy from Dr.D. Sundara Rao. The respondent underwent training for 5 years and left to Mumbai to start her independent practice. The applicant’s husband Dr.D. Sundara Rao died on 30.12.2004 and therefore the applicant continued the clinical service assisted by Dr. Sumana Shivaram and Dr. Geetha under the trading style and trade mark “Krupa Homoeopathists”.

4.         The applicants had applied for registration of the trade mark “Krupa Homoeopathists” under Nos.1878994 in Class 5, 1878995 in Class 16 and 1878996 in Class 42. Dr.D. Sundara Rao was a registered homoeopathic practitioner.

5.         The respondent herein who was trained by Dr.D. Sundara Rao had copied the trade mark and had obtained registration under No.1344586 in Class 42 claiming user since 01.12.1997. The respondent’s adoption of the impugned trade mark is dishonest as has been adopted from Dr.D. Sundara Rao. The applicants are prior user of the trade mark and therefore entitled to file this application for rectification. The applicant is a person aggrieved within the meaning of Section 57 of the Act. The impugned registered trade mark is not distinctive nor is capable of being distinguished. The registration is in contravention of the provisions of Sections 9, 11, 12 and 18(1) of the Act. The impugned registration was made without sufficient cause and the continuance on the register is likely to cause confusion. In the interest of purity of Register, interest of justice, equity and good conscience the impugned registration be removed from the Register of Trade Marks.

6.         The respondent in her counter statement stated that she is a homoeopathic doctor practicing since 1998. She worked in Government Hospitals during her degree.  In 1991, she met Dr. Sundara Rao, the applicant’s husband when she was in the second year of Homeopathic degree. In the year 1994, she joined Dr. Sundara Rao. She resided with Dr. Sundara Rao throughout her stay in Bangalore. In the year 1997, she left to Bombay and started her independent practice. The respondent not only assisted Dr. Sundara Rao in his service but also handled his city clinic in Bangalore.

7.         The respondent with the blessings of Dr. Sundara Rao left to Bombay and on his insistence and desire independently adopted “Krupa Homeopathists” as her trading name. By letter dated 8.5.1998 he expressed his happiness and full consent to the respondent to adopt the trade name “Krupa Homeopathists”. In the letter he had mentioned that the letter was written to her by his wife the applicant herein under instructions from him.

8.         The respondent adopted the trade mark “Krupa Homeopathists” to respect the wishes of her Guru. She adopted the name Krupa as ‘K’ for Kothari and ‘Rupa’ as her name from the name Rupa Kothari. The clinic in Bombay under the name “Krupa Homeopathists” was inaugurated by Dr. Sundara Rao along with his wife the applicant herein.

9.         The respondent applied for registration of the impugned trade mark No.1344568 and obtained the same. The respondent has been using the mark since 1997 with the knowledge and consent of the applicant. The respondent states that in medical profession, patients seek assistance of a particular doctor and not by their service name.

10.       The respondent is aggrieved by the application for rectification as it has no basis in law and it is purely vexatious and frivolous only to harass the respondent. In fact, the applicant has suppressed vital information before this Board.  They have not made out any valid ground for rectification.

11.       Dr. Sundara Rao was the sole proprietor of the trade mark “Krupa Homoeopathists”. The applicant herein had full knowledge of the respondent’s adoption of the trade mark “Krupa Homeopathists”. The applicant herself cannot be the proprietor of the mark since the services are of a personal nature, therefore the applicant has no locus standi to file the present application. The rest of the averments were denied by the respondent.

12.       The applicant filed her reply to the counter statement stating that the applicant i.e. Dr. Sundara Rao permitted the respondent to use the name “Krupa Homeopathists” but never thought that she would claim monopoly over the same. The respondent had filed the impugned application just three months after the date of death of Dr. Sundara Rao.  The respondent was aware of the fact that the applicant was continuing the services of Dr. Sundara Rao with the assistance of other doctors. Dr. Sundara Rao gave permission for the respondent to use the name as the respondent was already using the name in order to avoid any displeasure. The other contents were denied.

13.       On completion of the pleadings, we heard Ms.P.V. Rajeswari, learned Counsel for the applicant and Ms. Usha Chandrasekar, learned Counsel for the respondent on 14.9.2011 and 7.10.2011.

14.       The learned Counsel for the applicant submitted that the impugned application was made on 15.3.2005 claiming user since 1.12.1997 and the certificate was issued on 30.5.2007. The application has been made on 15.3.2005 after the death of Dr. Sundara Rao only with other intentions.  The applicants have made applications for registration in Classes 5,16 and 42 which are pending. The Counsel then pointed out to letter dated 8.5.1998 written by Dr. Sundara Rao to the respondent and submitted that it was not a natural one.  The respondent is not the proprietor as per the provisions of Section 18(1) of the Act.  The Counsel then relied on a passage from the book “Law of Trade Marks & Passing Off” by P. Narayanan and submitted the onus to prove proprietorship was on the applicant. AIR 1969 Bombay 24 – Sunder Parmanand Lalwani and others, Appellants v. Caltex (India) Ltd. Respondent was also relied on in support of the above proposition. The applicant’s Counsel finally submitted that the adoption was dishonest and the mark ought to be rectified.

15.       The learned Counsel for the respondent in reply submitted that the respondent underwent training from the year 1992 and completed her course in the year 1994. The respondent submitted that they had been using the trade mark “Krupa Homoeopathists” since the year 1997 with the consent and knowledge of the applicants. If that is the case, the applicant can not have any objection for the registration.  Having acquiesced the use now cannot oppose the same. In this context the respondent relied on the judgment reported in 2008 (37) PTC 413 (SC )- Khoday Distilleries Limited (now known as Khoday India Limited), Appellants vs. The Scotch Whisky Association and Ors., Respondent and the respondent relied on Bowden Wire case reported in 1913 (30) RPC 30. There has been a delay in filing rectification application. The applicant has not built goodwill on her own but only of Dr. Sundara Rao. The respondent therefore prayed that the trade mark to continue on the register and the application for rectification be dismissed.

16.       The matter was heard at length and orders were reserved on 14.9.2011.  Subsequently we found that the matter pertains to Mumbai Jurisdiction and the Registry of this Board had by mistake numbered and posted the matter in Chennai.  We therefore directed the registry to list the matter for clarification. On 07.10.2011, when the matter was listed, we suggested to both the Counsel if this matter could be settled amicably in order to avoid any embarrassment. They were given 15 days time to report to this Board. We received a reply that they could not enter into any settlement and therefore we proceeded to pronounce this order. It was also made clear to both the Counsel that this matter pertains to Mumbai jurisdiction and the Jurisdictional High Court would be Hon’ble Bombay High Court.

17.       We have heard and considered the arguments of both the Counsel and have also gone through the pleadings and documents.

18.       The main issue to decide is to see whether the applicant is a person aggrieved and has a locus standi to file and maintain an application for rectification. Persons are aggrieved who are in some way or the other interested in having the mark removed from the register or persons who would be damaged or injured if the mark remained on the register. The applicant herein has been rendering medical services under the trade mark “Krupa Homoeopathists”.  In fact the applicant’s husband Dr. Sundara Rao was providing services since three decades. The applicant who continues to provide service through other doctors is a person aggrieved as the impugned trade mark if on the register would cause damage to them. Therefore the applicant is a person aggrieved and has a locus standi to file and maintain an application for rectification.

19.       On perusal of the letter dated 8.5.1998 written by the applicant and attested by the applicant’s husband Dr. Sundara Rao, it is stated –

“I am glad to know that you want to open your clinic and name it as Krupa Homoeopathists. I am very happy to know your loyalty and affection to our Institution. You are completely at liberty to use that name without any liability on your side. Nobody can find fault with you or claim anything from you on this count.

All my best wishes for your prosperity. This is in handwriting of my wife and I have attested my signature.”

20.       The letter has been written to the respondent by the applicant in her own handwriting and appears to indicate that Dr. Sundara Rao allowed the respondent to use the name for the clinic and nothing more. The letter seems to be very unnatural.

21.       In an application for rectification, the onus is always on the applicant to prove his case. The onus then shifts to the respondent. The decision relied on by the applicant AIR 1969 Bombay 24 – Sunder Parmanand Lalwani and others, Appellants v. Caltex (India) Ltd. Respondent is not relevant to this case on hand as it was an appeal against the order of the Registrar where the onus was on the applicant for registration. The applicants have failed to discharge the onus.

22.       The main defence of the respondent was that the applicant had acquiesced in their use and so the application for rectification is not maintainable.  The Counsel relied on the Khoday’s Judgment (supra). We do not think that that case applies to the facts of this instant case. The mark in that case was on the register for more than 18 years, here that is not the case. This submission is therefore rejected as the mark was registered on 30.5.2007 and the rectification application was filed on 24.12.2009.

23.       The impugned trade mark “Krupa Homoeopathists” has been put to use since 1997 which fact has not been refuted/denied by the applicant. The wordings in the letter dated 08.05.1998 written by the applicant on behalf of Dr. Sundara Rao to the respondent seems to be not natural.  Dr. Sundara Rao could not have anticipated things in advance. The respondent’s explanation for adoption of the trade mark ‘K’ stands for Kothari and Rupa is her name is something which cannot be accepted. No doubt Dr. Sundara Rao with his blessings allowed the respondent to use the name “Krupa Homoeopathists” as her clinic name. The respondent has applied for registration after the death of Dr. Sundara Rao which cannot be said to be bonafide. Considering the facts stated above and in the interest of justice, we exercise our discretion and allow the registration to continue on the register with area limitation. The registration granted will be restricted to the State ofMaharashtra only. The applicant shall have the right to continue her services under the said trade mark.

24.       Accordingly, the rectification application is disposed of with a direction to the Registrar of Trade Marks to impose the area limitation and to issue a fresh registration certificate on the respondent surrendering the original certificate of registration No.1344586 in Class 42.  No order as to costs.

(S. Usha)                                                                      (Justice Prabha Sridevan)

Vice-Chairman                                                             Chairman

REPORTABLE:  YES/NO

RR/-

(This order is being published for present information and should not be taken as a certified copy issued by the Board.)

INTELLECTUAL PROPERTY APPELLATE BOARD This rectification application has been filed for removing the trademark Sahajanand with a logo, bearing No: 902852 in class 7. The applicant is Sahajanand Laser Technology Limited and the respondent the trademark holder is Sahajanand Technology Pvt. Ltd. 17. A person who has suppressed the truth is not entitled to any relief from us. On this ground alone we do not think we will entertain this rectification application. Many invoices have been filed to show the date from which the applicant has used the name and the respondent has used the name. Since both the respondent and the applicant are offshoots from the original partnership firm where Arvind Bhai Patel and Dheeraj Lal Kotadia were partners both of them claim on the basis of the use by the firm that their date of user is from 1993. According to the respondent when the partnership severed, the Surat office along with all its properties fell to the share of Dheeraj Lal Kotadia. We have already seen that Sahajanand Laser SOS Pvt. Ltd., was incorporated by Kotadia which later became Sahajanand Laser Technology Pvt. Ltd., the predecessor of the respondent. These are special circumstances for us to consider. ORA/141/2008/TM/AMD filed by the respondent was dismissed by this Board on the ground that there is no confusion or deception. The same finding applies now in favour of the respondent. The applicant cannot be heard to say that when it comes to him there will be confusion and deception. Moreover, it is the applicant who has adopted this business name 13 years later. The adoption of the business name and the trade mark by the respondent cannot be said to be dishonest. Both have given reasons why they have adopted the respective trade marks. Since there is no dishonesty on the part of the respondent we are entitled to invoke our discretion under S.12 of the Trade Marks Act, 1999 in favour of the respondent. 18. But as we have said earlier this rectification application deserves to be dismissed on the ground of fraud and suppression and is dismissed with costs of Rs.10000/-.

INTELLECTUAL PROPERTY APPELLATE BOARD

Guna Complex, Annexe-l, 2nd floor, 443, Anna Salai, Teynampet,  Chennai 600 018

(Circuit Bench Sitting at Ahmedabad)

ORA/114/2006/TM/AMD

WEDNESDAY, THIS THE 28^TH DAY OF DECEMBER, 2011

HON'BLE Smt. JUSTICE PRABHA SRIDEVAN                        ...     CHAIRMAN

HON’BLE Ms. S. USHA                                                                 …    VICE-CHAIRMAN

Sahajanand Laser Technology Limited,

A company Incorporated under the Indian Law,

Trading as Sahajanand Laser Technology,

48-A, Arvind Estate, B/h. Indica Laboratory,

L.B.S. Road, Bapunagar,

Ahmedabad – 380 025.                                                               ... Applicant

(Represented by Advocate:    Shri R.R.Shah)

Vs

Sahajanand Technology Pvt. Ltd.,

303, Gandhi Smruti Apartment,

Parsi Street, Saiyedpura,

Surat – 395 003.

The Registrar of Trademark,

The Trade Marks Registry,

Ahmedabad.                                                                                 ... Respondents

(Represented by Advocate:  Shri S. Suryanarayanan )

ORDER (No.240/2011)

Hon’ble Justice Prabha Sridevan, Chairman:

This rectification application has been filed for removing the trademark Sahajanand with a logo, bearing No: 902852 in class 7. The applicant is Sahajanand Laser Technology Limited and the respondent the trademark holder is Sahajanand Technology Pvt. Ltd.

2.                  The respondent filed ORA/141/2008/TM/AMD for removal of the applicant’s registered mark No. 1052254. This was dismissed on the ground there was no confusion or deception, and that the objection under S.9 does not survive.   It would have been better if both the matters had been heard together, the Board could have got a holistic view. It is the Bar which should urge for joint hearing of such matters, because the pendency of matters with common issues are within their knowledge. In W.P.(C) 4956-57/2005 the Hon’ble Delhi High Court has observed, “Two of the cases were effectively appeals against the orders dated 6th January 2000 and 4th April 2000 respectively of the AR. They concerned the grant of registration in favour of NBRM and KRBL in respect of identical device marks of TAJ MAHAL for rice for export purposes. One of the issues involved in those matters was prior user. The orders of the AR show that evidence had been led before the AR by both parties in the form of affidavits and documents. Had the four cases been heard together, the parties could have relied upon the same evidence for the purpose of their respective claims of prior user. Alternatively, the IPAB could have, in the rectification petitions of KRBL, given a time bound direction to the parties to file their affidavits of evidence and then proceeded to hear all the four cases together. The IPAB would then have had a holistic view of the issue and could have avoided the possibility of inconsistent orders.” Here too, the offending marks are identical, further this rectification proceedings is earlier to the other one filed by the respondent herein. If the pleadings had not been made ready in this case, the Board could have given a time-bound direction to file all the pleadings and heard the matters together. This is a salutary practice and in the interest of all parties concerned, and will advance the cause of justice and facilitate the decision making process too.

3.                  The applicant’s trademark is Sahajanand and the respondent’s mark is Sahajanand. The applicant applied in 2001, the respondent applied in 2000. The applicant claims user from 28.7.1993, the respondent claims user from 15.3.1993. So both on the basis of application and user the respondent has priority. Now we will examine the pleadings and the evidence against this background.

4.                  According to the applicant their mark Sahajanand Laser Technology was used by Sahajanand Electronics from 1988. Sahajanand Electronics assigned the mark to Sahajanand Laser Technology in 1993. This is a partnership firm and the partners were Dhirajlal Kotadia, Arvindbhai L.Patel, Dhirajlal J.Babaria and Ashwin Babaria. The deed of partnership is dated 28.7.1993. Dhirajlal Kotadia retired in 2001, and the firm was reconstituted on 20.4.2001. The partners of this reconstituted firm were Lavjibhai P.Patel, Dineshbhai L.Patel, Jyosnaben A. Patel and Rekhaben D. Patel. On 12.9.2001 this firm filed an application for registration of trademark No.1044110 claiming user from 3.6.1997. On 13.3.2006 the firm became Sahajanand Laser Technology Limited. Amendment applications have been filed to change the user from 3.6.1997 to 28.7.1993.

5.                  The applicant has claimed prior user of the mark and the trade name. In the Civil suit the respondent has stated that the first sale transaction was in March 1994. The respondent has started business under the identical name Sahajanand Laser technology Pvt Ltd.Dhirajlal Kotadia who was the partner in the firm is the director of the respondent’s company and he has started the company to take advantage of the goodwill of the trademark/trade name. Allegations of fraud and false claim of proprietorship have been made against the respondent. There is no bonafide use. So the mark has to be rectified.

6.                  In the counter statement the respondent alleges laches and delay. Their application was advertised in trademark journal dated 25.11.2003. In the civil suit the respondent had filed a reply on 8.1.2002 referring to this application. The applicant kept quiet, and did not take any action. After the respondent disclosed in the suit that the mark has been registered this application has been filed. The following facts have been suppressed, Sahajanand Laser Technology Pvt. Ltd was earlier Sahajanand Laser SOS Pvt. Ltd., which was incorporated on 15.3.1993. When the application was made Arvind L. Patel was a director of the respondent.  Both the respondent and the applicant at the time of its constitution were operating from the same place. Dhirajalal Kotadia was also a partner of the firm Sahajanand Laser Technology and when the other partner who was also a director of the respondent started a branch office at Ahmedabad all the immovable properties of the partnership were handed over to the respondent. When the applicant sought registration of its company Sahajanand Laser Technology (India) Pvt. Limited on 10.10.2001, the respondent objected to it because of the similarity of names, and a fresh application was made to register itself as Shreeji Laser Technology Pvt. Ltd. These facts would show that the applicant cannot call itself the successor of the partnership firm Sahajanand Laser Technology. The applicant is falsely trying to represent that Sahajanand Laser Technology firm and the applicant are one and the same. The applicant commenced its business only on and from 6.11.1995, this is stated in the reply affidavit filed in the suit, but the applicant has not extracted the paragraph in the affidavit fully but in a truncated form. The respondent was incorporated in 15.3.1993, before the retirement of Kotadia and the new firm came into existence only on 28.7.1993. Kotadia retired w.e.f. from 1.4.2000. The allegations of confusion were denied. The respondent is the rightful proprietor of the mark.

7.                  The reply filed by the applicant apart from attacking the counterstatement has not stated how the transfer of trademark right passed on.

8.                  We will look at the evidence.

9.                  On 29^th August 2002, the Registrar of Companies (Gujarat, Dadra and Nagar Haveli) certified that Sahajanand Laser Technology Private Ltd, which was originally incorporated on 15.3.1993 as Sahajajanand laser SOS Private Ltd had since changed its name to Sahajanand Technologies Pvt. Ltd., (the respondent herein). The Directors of Sahajanand laser SOS Pvt Ltd., were Dhirajlal Kotadia and Arvindbhai L.Patel (these are seen from Annexure A of the counter statement).

10.             On 23.4.2002 Shreeji Laser technology Private Ltd., was incorporated. The Certified copy of the memorandum of association of Shreeji Laser Technology Pvt. Limited shows that originally the name of the company was Sahajanand Laser Technology (India) Pvt. Ltd., and by scratching that and writing in hand Shreeji a fresh application for incorporation had been made. The directors are Arvindbhai L. Patel and others (Annexure C). Annexure D is the copy of the reply affidavit filed in the suit. It is stated that accepting the respondent’s objection to the applicant’s name The Registrar of Companies had declined registration of Sahajanand Laser technology (India) Pvt. Limited. And annoyed by the refusal the suit had been filed. It is stated that the deed of retirement would show that the immovable properties of the firm were to be taken by the partner Kotadia.  It is stated that it was because of Kotadia’s efforts the business of the firm flourished and that even in the year 2001 Minimum Alternative Tax of approximately Rs.49.00 lakhs was paid by the respondent. The letter dated 12.10.2002 is the objection of the respondent to the ROC that the applicant has objections to the registration of any company having words “Sahajanand Laser”. Annexure E is Form 32 to record that on and from 12.8.2000  Arvidbhai Patel ceased to be a director of Sahajanand Laser Technology Pvt. Ltd. Annexure G are copies of orders passed as “dismissed as not pressed” on 29.11.2006 applications filed by the applicant herein under 22 CPC. Interestingly the applicant obtained an order from ROC, on 28.2.2006 for changing its name from Shreeji to Sahajanand.

11.             Annexure I to the application is the deed of partnership of Sahajanand laser technology. Both Dhirajllal Kotadia and Arvindbhai Patel are partners. It is dated 15.3.1993.Annexure J is the deed of retirement of Kotadia dated 21.12.2000. The deed records that the business will continue in the same name but there is no clause relating to trademark rights. Annexure K is the reconstitution of partnership dated 20.4.2001.Tthe other documents relate to sale etc.

12.             The dishonesty of the applicant. The applicant had stated in Para 15 of the rectification application that” The company of respondent No. 1 is doing same kind of business under the identical name Sahajanand Laser Technology Pvt Ltd. Moreover, it has also come to the knowledge of applicant that Shri Dhriajlal V. Kotadia is the Director of Registered Proprietors company who was the part of partnership firm and retired from the said partnership firm that is Respondent No. 1 over here and it seems that after retirement from the partnership, Dhirajlal V. Kotadia started the company in the same name to get whole advantage of the goodwill of the trademark/trade name, logo and copyright subsists in it. This averment is made with absolute malafide. The respondent was already in existence when the applicant adopted this name. The applicant had attempted to get registration of the name Sahajanand laser technology (India) Pvt. Ltd. On that date the respondent company was already in existence as Sahajanand laser technology Pvt. Ltd. It objected to this name being registered. The ROC accepted the objection, and the applicant had perforce to change its name to Shreeji. How it got back the same name in 2006 is inexplicable, but we are not concerned with that. But already there is suppression of material facts. Of course in Annexure D filed with the rectification application they have filed the TM 16. But they have not stated under what circumstances they had to change their name to Shreeji and how they changed again to Sahajanand. No litigant can selectively withhold truth from the court. This is fraud. In S.P. Chengalvaraya Naidu vs. Jagannath 1994 SCC (1) 1 the Hon’ble Supreme Court has held that fraud avoids all. When the applicant had to change its name because the respondent objected the name was similar to theirs, it requires temerity of a great degree to state on oath that the respondent was riding on the applicant’s reputation. That is why carefully Arvindbhai Patel is not the deponent in any of the pleadings. He was in the know of things right from the matter. A dishonest person cannot be treated as a person aggrieved. On this ground alone the application must be dismissed.

13.             In an identical situation in 1996 PTC  16 Montari Overseas Ltd., vs. Montari Industries Ltd., the adoption of an identical name as the name of the company which stood registered under the Companies Act, 1956 was held to lack bonafide. The facts there are as follows:

The plaintiff was  one Montari Industries. It had several subsidiary concerns. The names of all these companies contained the word ‘Montari’. That was incorporated in 1983. The defendant was Montari Overseas incorporated in 1993. The Court referred to section 20 of the Companies Act which provides that no company will be registered by a name by which a company in existence has been previously registered. In case where a company has been incorporated with a name which is identical or too nearly resembles the name of a company which has been previously incorporated, S.22 makes a provision for getting the name of the former altered. The defendant was the appellant before the Hon’ble Delhi High Court submitted that the adoption of that corporate name using the word ‘Montari’ was not due to lack of bonafide and there has been no evidence to show confusion. The plaintiff/respondent maintained that the adoption was not bonafide. The Hon’ble Delhi High Court observed “normally a company cannot adopt the name which is being used by another previously established company as such a name would be undesirable. In view of the confusion which it may cause or likely to cause in the minds of the public… One of the pernicious effects of adopting the corporate name of another is that it can injure the reputation and business of that person.”

14.              Before the Hon’ble Delhi High Court, there was no dispute with the defendant was incorporated 10 years after the incorporation of the plaintiff. In that case the Court held the defendant cannot say it had no knowledge of the corporate name of the plaintiff. Therefore the Court felt that the adoption of the corporate name with the word ‘Montari’ figuring in it was not innocent.

15.             The Hon’ble Delhi High Court held that “There is another aspect of the matter. Section 20 of the Companies Act 1956 treats a name of the company to be undesirable if it is identical with or too nearly resembles the name by which a company in existence has been previously registered. Since the legislature itself considers name of a company which is identical with the name of the other pre-existing company to be undesirable, the legislative intent must be given effect to by giving injunctive relief to a plaintiff against a defendant, who has copied the corporate name of the plaintiff.”

16.             In this case the respondent company was incorporated in 1993 and its name contained the word “Sahajanand”. In 2001 when the applicant sought registration of incorporation, the applicant was asked to change its name by the Registrar of Companies because of the similarity to the respondent’s name. It is only in 2006, 13 years thereafter the applicant managed to get itself registered on the Register of Companies with the present name.

17.             A person who has suppressed the truth is not entitled to any relief from us. On this ground alone we do not think we will entertain this rectification application. Many invoices have been filed to show the date from which the applicant has used the name and the respondent has used the name. Since both the respondent and the applicant are offshoots from the original partnership firm where Arvind Bhai Patel and Dheeraj Lal Kotadia were partners both of them claim on the basis of the use by the firm that their date of user is from 1993. According to the respondent when the partnership severed, the Surat office along with all its properties fell to the share of Dheeraj Lal Kotadia. We have already seen that Sahajanand Laser SOS Pvt. Ltd., was incorporated by Kotadia which later became Sahajanand Laser Technology Pvt. Ltd., the predecessor of the respondent. These are special circumstances for us to consider.  ORA/141/2008/TM/AMD filed by the respondent was dismissed by this Board on the ground that there is no confusion or deception. The same finding applies now in favour of the respondent. The applicant cannot be heard to say that when it comes to him there will be confusion and deception. Moreover, it is the applicant who has adopted this business name 13 years later. The adoption of the business name and the trade mark by the respondent cannot be said to be dishonest. Both have given reasons why they have adopted the respective trade marks. Since there is no dishonesty on the part of the respondent we are entitled to invoke our discretion under S.12 of the Trade Marks Act, 1999 in favour of the respondent.

18.             But as we have said earlier this rectification application deserves to be dismissed on the ground of fraud and suppression and is dismissed with costs of Rs.10000/-.

      (S. USHA)                                                         (JUSTICE PRABHA SRIDEVAN)

VICE-CHAIRMAN                                                       CHAIRMAN

psn

(Disclaimer: This order is being published for present information and should not be taken as a certified copy issued by the Board.)