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———– vs By Advs.Sri.Mohan Jacob George

Kerala High Court ———– vs By Advs.Sri.Mohan Jacob George

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:

THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN

WEDNESDAY, THE 6TH DAY OF NOVEMBER 2013/15TH KARTHIKA, 1935 OP(C).No. 2666 of 2013 (O)

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AGAINST THE JUDGMENT IN OS 15/2007 of I ADDL.DISTRICT COURT, ERNAKULAM ———–

PETITIONER(S):

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DEVANAND SHENOY, AGED 47 YEARS,

S/O.K.G.SHENOY,

RESIDING AT T.C. 4/1411 (1) SURABHIKAVU ROAD, KURUVANKONAM, TRIVANDRUM – 695 003.

BY ADVS.SRI.MOHAN JACOB GEORGE

SMT.P.V.PARVATHI

SMT.REENA THOMAS

RESPONDENT(S):

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1. M/S. M.V.J FOODS (INDIA) PVT.LTD, REGISTERED OFFICE AT H.B. NO.7, PANAMPALLI NAGAR, COCHIN – 682 036, KERALA, REPRESENTED BY ITS DIRECTOR A.G.VIJAYACHANDARA MENON S/O.A.N.GANGADHARAN PILAI, RESIDING AT NANDANAM, THOTTAKKATTUKARA, ALUVA – 683 108.

2. SRI.KURIAN JOHN MELAMPARAMBIL, S/O.M.V.JOHN, RESIDING AT MELAM, CHILAVANNUR,

ERNAKULAM DISTRICT, PIN – 682 020.

BY ADV. SRI.BECHU KURIAN THOMAS

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PJ

OP(C).No. 2666 of 2013 (O)

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APPENDIX

PETITIONER(S)’ EXHIBITS

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EXT.P-1: COPY OF THE PLAINT IN O.S.NO.15/2007 OF THE FIRST ADDITIONAL DISTRICT COURT, ERNAKULAM.

EXT.P-2: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN EXT.P- 1 PLAINT.

EXT.P-3: COPY OF THE APPLICATION FILED AS I.A.NO.2912/2013 IN O.S.NO.15/2007 EXT.P3(A): COPY OF DOCUMENT STYLED AS LICENSE AGREEMENT EXT.P-4: COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANT TO EXT.P-3 I.A.

EXT.P5: COPY OF THE ORDER DATED 30/7/2013 IN IA.NO.2912/2013 IN OS.15/2007 EXT.P6: COPY OF THE WRITTEN STASTEMENT FILED BY THE THIRD DEFENDANT IN OS.NO.15/2007 BEFORE THE FIRST ADDITIONAL DISRICT COURT ERNAKULAM

EXT.P7: COPY OF THE PROOF AFFIDAVIT WITHOUT EXHIBIT FILED BY THE PLAINTIFFS IN OS.NO.15/2007 BEFORE THE FIRST ADDITIONAL DISTRICT COURT, ERNAKULAM.

RESPONDENT(S)’ EXHIBITS

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NIL.

/ TRUE COPY /

P.S. TO JUDGE

PJ

P.N.RAVINDRAN, J.

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O.P.(C)No.2666 of 2013

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Dated this the 6th day of November, 2013 JUDGMENT

The petitioner is the defendant in O.S.No.15 of 2007 on the file of the Court of the District Judge of Ernakulam, a suit instituted by the respondents alleging infringement of trade mark and passing off. The first respondent/first plaintiff is a private limited company incorporated under the Companies Act, 1956. The second plaintiff is a member of the said company and its Managing Director. In paragraph 3 of the plaint in O.S.No.15 of 2007, the plaintiffs had averred that the first plaintiff markets various products under the brand name ‘MELAM’ which is an abbreviation of the second plaintiff’s family name ‘Melamparambil’, that the name ‘MELAM’ is being used by the plaintiffs from 1989 when it started a company by name M.V.J. Exports and Trades and thereafter in 1992 it started to manufacture and market, curry powder, rice powder, spice products, pickles, tea and other food products all under the brand name ‘MELAM’. The plaint proceeds to state that by extensive usage, the name ‘MELAM’ has become distinctive and exclusively identified with the merchandise of the plaintiffs, that the second plaintiff had applied for registering his brand under the trade mark O.P.(C)No.2666 of 2013

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‘MELAM’ on 4.1.1994 and it was awarded the trade mark on 28.2.2003 with effect from 4.1.1994 for goods included in class 3 of the fourth schedule to the Trade Marks Act, 1999 and thus the second plaintiff is the proprietor of the registered trade mark ‘MELAM’. It was also averred that the second plaintiff is the Managing Director of the first plaintiff and that the first plaintiff also holds the proprietorship of all classes of products. It was alleged that the defendants have been manufacturing and selling agarbathi sticks under the name ‘MELAM’ and has passed off his goods as that of the plaintiffs. The reliefs sought in O.S.No.15 of 2007 are as follows:-

“i. A permanent prohibitory injunction restraining the defendants or anybody

acting under them or any other person

including their Principal Officers, Directors, agents, franchisees, servants, licensees, from using the registered trade mark

‘MELAM’ and in any manner dealing with

the trademark ‘MELAM’ with or without any prefix.

ii. A permanent prohibitory injunction restraining the defendants or anybody

acting under them or any other person

including their Principal Officers, Directors, agents, franchisees, servants, licensees, from using the mark MELAM and pass off

their goods as that of the plaintiff.

iii. An order for rendition of accounts of profits illegally earned by the defendants by

reason of passing off their goods and/or business as the goods and business of the plaintiff and a decree be passed against the defendants in the sum of the amount so

ascertained.

O.P.(C)No.2666 of 2013

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iv. Allowing the plaintiff to realize an amount of Rs.1,00,000/- (one lakh) as damages

from the defendant and their assets.

v. An order of delivery up to the plaintiff all the incriminating material, goods, advertisement or any other material bearing trade mark ‘MELAM’ with or without any prefix and suffix or any other mark

which is identical with or deceptively

similar to the plaintiff’s trademark MELAM with an undertaking on affidavit for not using in future.”

2. Upon receipt of summons, the defendants entered appearance and filed Ext.P2 written statement wherein inter alia it was contended that the trade mark ‘MELAM’ containing the distinctive photographic device of a row of standing elephants along with the human beings beating traditional musical instruments is their registered trade mark and they have exclusive proprietary rights over the said label mark ‘MELAM’. Various other contentions are also raised in the written statement. After evidence on both sides was closed and the suit stood posted for arguments, the plaintiffs filed I.A.No.2912 of 2013 under section 151 of the Code of Civil Procedure praying that the evidence of the plaintiffs may be reopened for the purpose of marking an agreement dated 17.5.1994. In paragraph 3 of the affidavit filed in support of the said application (a copy of which is produced as Ext.P3) the Director of the first plaintiff had averred that the first plaintiff is a company to whom the second plaintiff had licensed the right to use the logo O.P.(C)No.2666 of 2013

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and trade mark ‘MELAM’, that the said right was given by an agreement dated 17.5.1994 valid for a period of 20 years and that the said document could not be produced during the evidence stage since the original document was misplaced due to shifting of the offices of the first plaintiff. It was further averred that yesterday (28.6.2013) while searching for some papers they came across a file containing the agreement dated 17.5.1994 by virtue of which the second plaintiff conferred the right to use the trademark upon the first plaintiff. The deponent had also averred that unless the agreement dated 17.5.1994 executed between the first and second plaintiffs is permitted to be marked as an additional exhibit, the plaintiffs will be put to irreparable loss and hardship.

3. The defendants resisted the said application by filing Ext.P4 counter affidavit wherein it was contended that the agreement is a false, fabricated and concocted document brought into existence subsequent to the examination of the plaintiff on 17.11.2012, that there is no provision to enable the assignment of a registered trademark by way of an agreement, that there is no pleading in the plaint regarding any such agreement between the parties, that the application is highly belated, that there is no truth in the averment in the affidavit filed in support of the application that the said document could not be traced out earlier, that the O.P.(C)No.2666 of 2013

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second plaintiff had in February 2013 filed an appeal before the Intellectual Property Appellate Board, challenging the registration of the trademark ‘MELAM’ in favour of the defendants and in that appeal, produced the very same agreement as document No.8 and therefore, there is no truth in the averment in the affidavit filed in support of the application that the document could not be traced out earlier. It was also contended that on seeing the agreement the defendants had applied to the Stamp Depot, Kottayam under the Right to Information Act as regards the authenticity of the stamp paper and that the Stamp Depot, Kottayam had informed the defendants that they have not issued any such stamp paper. The trial court considered the rival contentions and allowed I.A.No.2912 of 2013 by Ext.P5 order passed on 30.7.2013. The said order is under challenge in this original petition filed under Article 227 of the Constitution of India.

4. I heard Sri.Mohan Jacob George, learned counsel appearing for the petitioner and Sri.Bechu Kurian Thomas, learned counsel appearing for the respondents. Sri.Mohan Jacob George, learned counsel appearing for the petitioner contended that the case set out in the affidavit filed in support of I.A.No.2912 of 2013 is that the agreement could not be traced out earlier, that the affidavit filed in support of the application is sworn to on 29.6.2013, that in O.P.(C)No.2666 of 2013

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February 2013 the second plaintiff had filed an appeal (Ext.P4) before the the Intellectual Property Appellate Board, Chennai and produced along with it as document No.8 a copy of the very same agreement and therefore, the averment that the document could not be traced out earlier cannot be believed. The learned counsel submitted with reference to the averments in the plaint and in the affidavit filed in lieu of chief examination by the Director of the first plaintiff examined as PW1, that there is no averment or any statement about the agreement now sought to be produced and therefore, even if the document is produced in evidence it cannot be looked into for any purpose whatsoever. Inviting my attention to the decisions of the Apex Court in Ravinder Singh v. Janmeja Singh and Others [(2000) 8 SCC 191] and Gian Chand and Brothers and Another v. Rattan Lal alias Rattan Singh [(2013) 2 SCC 606] the learned counsel for the petitioner contended that no amount of evidence on a plea which is not raised can be looked into and that no amount of evidence can cure the defect in a pleading. The learned counsel contended that in the absence of any averment in the plaint or a statement by PW1 about the existence of such an agreement, no purpose will be served by allowing the evidence to be reopened. Referring to the letters sent by the Sub Treasury Officer, Kottayam that after the Kottayam Sub Treasury was O.P.(C)No.2666 of 2013

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established, stamp papers had not been issued from the stamp depot, the learned counsel for the petitioner contended that for that reason also the court below ought to have dismissed the application.

5. Per contra, Sri.Bechu Kurian Thomas, learned counsel appearing for the respondents contended that the case set out in the affidavit filed in support of the application is not that the copy of the document could not be traced out or was unknown to the parties, that the original thereof was misplaced and was traced out only on the previous day, that it was the original which was produced along with the application and not a copy and therefore, nothing turns on the fact that a copy of the very same agreement had been produced before the Intellectual Property Appellate Board, in February 2013. The learned counsel contended that the plaintiffs had in paragraph 3 of the plaint averred that the second plaintiff is the proprietor of the registered trademark ‘MELAM’, that he is the Managing Director of the first plaintiff which is a juristic person namely a private limited company incorporated under the Companies Act, 1956, that the averments in paragraph 3 of the plaint as also in paragraph 4 of the proof affidavit filed by the Director of the first plaintiff company would indicate that there was some sort of jural relationship between the parties and therefore, the mere fact that the nature of the relationship was not pleaded O.P.(C)No.2666 of 2013

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may not matter much when evidence is sought to be reopened for the purpose of marking an agreement entered into between the plaintiffs. The learned counsel also invited my attention to the decision of the Apex Court in K.K.Velusamy v. N.Palanisamy [2011 (2) KLJ 240 (SC)] and submitted that the inherent power of the court under section 151 of the Code can be invoked to reopen evidence or recall witnesses for further examination and that the said inherent power is not affected or curtailed by the provisions contained in rule 17 of Order XVIII of the Code of Civil Procedure. As regards the letters sent by the Sub Treasury Officer, the learned counsel submitted that the stamp papers are not issued from that Sub Treasury but from another Sub Treasury, that if the letter sent by the Sub Treasury Officer, Kottayam were to be accepted it would mean that no stamp papers were ever issued in Kottayam District and that no reliance can therefore be placed on the said document to find that the disputed document is a fabricated one. Inviting my attention to section 37 of the Trade Marks Act, 1999, the learned counsel for the respondents contended that the first respondent was competent to assign the trade mark to the first plaintiff and therefore the defendants cannot take exception to the agreement being received into evidence.

6. I have considered the submissions made at the Bar by the O.P.(C)No.2666 of 2013

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learned counsel appearing on either side. I have also go through the pleadings and the materials on record. The court below has by the impugned order held that though there is no pleading in the plaint to the effect that the second plaintiff had assigned its trademark to the first plaintiff or permitted the first plaintiff to use the trademark registered in his name, some relationship is impliedly alleged in respect of the trademark between the plaintiffs and therefore, the document can be permitted to be produced as part of the evidence. As regards the plea that the document was produced earlier before the Intellectual Property Appellate Board and that it is a forged one, the trial court was of the opinion that if the document is a fabricated one, production of the document will be at the risk of the plaintiffs. As regards the delay in producing the document, the trial court was of the opinion that notwithstanding the delay, production of the document should be allowed.

7. After considering the submissions made at the Bar and on going through the pleadings, I am of the opinion that though the entirety of the reasons stated by the trial court may not bear scrutiny, no interference is called for with the impugned order. The Apex Court has in Salem Advocate Bar Association, T.N. v. Union of India [(2005) 6 SCC 344] held as follows:- “13. In Salem Advocate Bar Assn. case

O.P.(C)No.2666 of 2013

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it has been clarified that on deletion of Order 18 Rule 17-A which provided for leading of additional evidence, the law existing before the introduction of the amendment i.e. 1-7- 2002, would stand restored. The Rule was deleted by Amendment Act of 2002. Even

before insertion of Order 18 Rule 17-A, the court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order 18 Rule 17-A did not create any new right but only clarified the position. Therefore deletion of Order 18 Rule 17-A does not disentitle production of evidence at a later stage. On a party satisfying the court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the court may permit leading of such evidence at a later stage on such terms as may appear to be just.”

It was held that on a party satisfying the court after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the court may permit leading of such evidence at a later stage on such terms as may appear to be just. In the instant case, the case set out by the plaintiffs in the affidavit filed in support of the application is that the plaintiffs had entered into an agreement on 17.5.1994 whereby the second plaintiff had licensed the right to use the logo and trade mark ‘MELAM’ to the first plaintiff for a period of 20 years, but the said document could not be produced during the evidence since the original was misplaced due to shifting of the office of the first plaintiff. The case set out in the affidavit filed in support of the O.P.(C)No.2666 of 2013

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application is not that the plaintiffs were unaware of the agreement but that the original thereof was misplaced and could not be traced out till the previous day and therefore nothing turns on the fact that a copy of the very same agreement had been produced before the Intellectual Property Appellate Board, Chennai in February 2013, a few months before the original thereof was sought to be produced.

8. As noticed by the trial court, the second plaintiff is the Managing Director of the first plaintiff, which is a private limited company. The very fact that the second plaintiff had joined the first plaintiff and had instituted the suit wherein the averment is to the effect that the first plaintiff is the proprietor of the registered trademark would indicate that there was some sort of jural relationship between the plaintiffs, apart from the fact that the second plaintiff is a member of the first plaintiff company and its Managing Director. In such circumstances, it cannot be said that nothing has been said about the jural relationship between the parties in the plaint and therefore, the document stated to have been entered into between them cannot be produced or looked into. Likewise, I also find no merit in the contention that in view of the letters sent by the Sub Treasury Officer, Kottayam, the document should not have been received. The letter sent by the Sub Treasury Officer, Kottayam is to the effect that no stamp papers have been O.P.(C)No.2666 of 2013

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issued from the Sub Treasury. If that letter were to believed and acted upon it would mean that the stamp papers had not been sold to anyone in Kottayam District from the day Kottayam Sub Treasury was established. I therefore find no reason why this Court exercising jurisdiction under Article 227 of the Constitution of India should interfere with the impugned order. The court below has in exercise of the discretion conferred on it allowed the application to reopen the evidence for the purpose of marking the agreement dated 17.5.1994. The petitioner will certainly get an opportunity to cross-examine the witnesses examined on the side of the plaintiffs and also lead evidence, if so advised, in respect of their contention that the document is a fabricated one. I am therefore of the opinion that no prejudice whatsoever will be caused to the defendants by virtue of the evidence being re-opened.

I accordingly hold that there is no merit in the original petition. It fails and is dismissed.

Sd/-

P.N.RAVINDRAN

JUDGE

vpv

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