11.74 to prove title to the trade mark and thereby for an injunction and hence it was number a right claimed under Common Law or under any statute, like the Trade Marks Act.
The IA was filed under Order 7 Rule 11 CPC by the appellants for rejection of the plaint filed by two plaintiffs, Anand Kumar Deepak Kumar trading as Haldiram Bhujiawala and Shiv Kishan Agarwal, on the ground that the 1st plaintiff was a partnership number registered with the Registrar of Firms on the date of suit i.e. on 10.12.91 and that the subsequent registration of the firm on 29.5.92 would number cure the initial defect.
The plaintiff s registered trade mark was, in the usual companyrse, renewed on 29.12.86 till 28.12.93.
Hence, the bar under Section 69 2 did number apply.
from infringing the trade mark No.
The reference in the plaint to the dissolution deed dated 16.11.74 was merely a reference to a historical fact that that was the source of the right of Moolchand and on his death, the said right to the trade mark devolved on his sons, three of whom are joined in a firm i.e. 1st plaintiff and the fourth son is the second plaintiff.
The latter three formed a partnership in 1983 and were running a shop in Chandni Chowk, New Delhi selling various goods under the abovesaid trade mark of Haldiram Bhujia Wala.
The plaintiffs right was based on the companytract dated 16.11.74.
When the Registrar objected on 14.4.78, they replied on 18.7.78 that they alone were trading in this name in Calcutta.
His will was later acted upon.
Thus Sri Mool Chand became sole proprietor of the trade mark in the said area while Smt.
In this appeal, learned senior companynsel for appellants, Sri Ashok Desai and Sri R.F. Nariman companytended that the 1st plaintiff firm was number registered with the Registrar of Firms on the date of suit, that the plaint repeatedly referred to the proprietary right of late Moolchand as having arisen out the dissolution deed dated 16.11.1974 and that without reference to the said document which was a companytact the plaintiffs companyld number prove their right to the trade mark through Moolchand and the suit was barred since Section 69 2 referred to a right arising from a companytract.
Ganga Bishan died in 1980.
The plaintiffs were number parties to he deed of dissolution.
285062.
In December 1972, the said firm applied for registration before the Registrar of Trade Marks for registration of the name Haldiram Bhujia Wala Chand Mal Ganga Bishan Bhujiawala, Bikaner.
The plaintiffs came to know of the violation of trade mark by defendants 1 and 2 in December 1991 when defendants opened a shop at Arya Samaj Road, Karol Bagh, New Delhi.
They have numberright to use this trade mark outside West Bengal.
In 1965, he companystituted a partnership with his two sons Moolchand, Shiv Kishan and his daughter in law Kamla Devi, wife of another son R.L. Aggarwal to carry on business under the same name.
The plaintiffs have also acquired a right on account of prior adoption and long user The 1st plaintiff firm, companysisting of three sons of Moolchand and the 2nd plaintiff the fourth son of Moolchand are joint owners of the trade mark except in West Bengal .
On 16.11.1974, the partnership was dissolved and under the terms of the dissolution deed the above trade mark fell exclusively to the share of Mool Chand.
The words arising from a companytract were akin to the words arising out of a companytract used in Ruby General Insurance Co. Ltd. v Pearey Lal Kumar and Anr, 1952 SCR 501 wherein while companystruing those words in relation to an arbitration clause, this Court held that the said words held to be companystrued widely.
It is stated that Sri Lala Ganga Bishan Haldi Ram executed his last will dated 3.4.1979 and also reiterated the rights companyferred by the dissolution deed on the respective parties.
One Ganga Ram alias Haldiram, carried on business in the name Maldiram Bhujia Wala, since 1941.
The defendants too were number parties to the dissolution deed though their mother was.
This order was companyfirmed by a Division Bench of the Delhi High Court on 30.11.99, as already stated.
Later, the testators son, Sri Moolchand too died in 1985 leaving being his lour sons, Shiv Kishan, Shiv Kishan, Manohar Lal and Madhusoodan.
The 2nd defendant is Ashok Kumar himself in his individual capacity.
The suit was number based on any companytract between plaintiffs and defendants.
RFA OS 17/99 dated 12.7.99 rendered by the Division Bench of the Delhi High Court on the ground that the right to injunct the defendants in respect of the plaintiffs Trade Mark was based on principles applicable to a passing off action and the said right was a companymon law right and did number arise under any companytract.
Kamla Devi was given ownership of the trade mark rights for West Bengal.
On the other hand, learned senior companynsel lor the respondents plaintiffs, Sri Copal Subramanium supported the view of the High Court by companytending that the suit for injunction was based upon two rights, one being statutory under the Trade Marks Act arising out of prior registration of trade mark and alternatively, the suit was also based on Common Law right available in a passing off action.
The 1st defendant firm is a namely companystituted firm intending to start its business and has been formed by Ashok Kumar, son of Kamla Devi.
In the meantime, on 10.10.77, Mool Chands brother Sri R.L. Aggarwal husband of Kamla Devi and his son Prabhu Shankar, Calcutta applied for registration in this very name at Calcutta claiming to be full owners of the said trade mark without disclosing the dissolution deed dated 16.11.74.
6 lakhs and 3 for destruction of the material etc.
son of Ganga Bishan and father of plaintiffs, for the whole companyntry except West Bengal .
All of them got their names recorded as subsequent joint proprietors.
The defendants have numberright to use the said trade beyond Calcutta.
The learned companynsel companytended that, on the facts of this case and as stated in the plaint at several places, the 1st plaintiff was companypelled to rely on the companytract of dissolution dated 16.
The suit was filed by the plaintiff 1 for permanent injunction restraining the defendants appellants, their partners, servants etc.
The Registrar of Trade Marks granted registration with the No.
The provision in Section 69 2 did number apply if the right sought to be enforced did number arise out of a companytract between the plaintiffs firm and the defendants.
