* HIGH COURT OF DELHI AT NEW DELHI
+ CS (OS) No. 388/2001
Date of decision : October 24, 2008
# TATA SONS LIMITED ..... PLAINTIFF
! Through : Mr. Pravind Anand Advocate
Mr. Mohit Lahoty, Advocate.
Versus
$ VIMAL KUMAR SHARMA & ANR......DEFENDANTS
^ Through : Nemo.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not?
(3) Whether the judgment should be reported
in the Digest ?
JUDGMENT
ARUNA SURESH, J.
1. Plaintiff has filed the present suit for permanent injunction for restraining defendant Nos.1 to 3 from passing off the trade mark `TATA‟ of the CS (OS) No. 388/2001 Page 1 of 15 Plaintiff and also for rendition of accounts, etc.
2. In brief, the case of the plaintiff is that; it is a company duly incorporated under the Indian Companies Act having its registered office at Bombay and Mr. Anil Bhasin is the duly constituted attorney of the plaintiff who is authorized to sign and verify the pleadings and institute the present suit on its behalf. Since its inception in 1917, plaintiff has been continuously and consistently using the trademark and trade name `TATA‟, which is a rare patronymic name possessing the distinctiveness of an invented word, for its own business activities and those of companies promoted by it. The use of the trademark and name `TATA‟ by the plaintiff‟s predecessors in business dates back to 1868. The name `TATA‟ has consistently been associated with and exclusively denotes the conglomeration of companies forming the `TATA‟ Group, colloquially also referred to as the "House of TATA." The House of `TATA‟ consists of over 100 companies of which over 50 companies use `TATA‟ as a key and essential part CS (OS) No. 388/2001 Page 2 of 15 of their corporate name. In addition to the common law rights that have accrued to the plaintiff, it is also the registered proprietor of several „TATA‟ formative trademarks in relation to various goods across various classes.
3. In December 2000, the plaintiff was informed by one of its group companies situated in Delhi about the receipt by its office of a facsimile of a form bearing the name "TATA INDIA LIMITED" and the logo of the letter "T" in a circle, which is associated with the House of Tata for many decades. The plaintiff learnt in January, 2001 that persons calling themselves by the name of "TATA INDIA LIMITED" had written to one Mohd. Jasim of U.P. with reference to his application for employment and asked for various documents along with a bank draft of Rs.1500/- and the said document was brought to the knowledge of an officer of the Plaintiff‟s group company. Upon inquiry from said Mohd. Jasim, it was discovered that the defendants had demanded a further sum of Rs.50,000/- from him while informing him that his CS (OS) No. 388/2001 Page 3 of 15 employment with one of the Tata companies was confirmed. Plaintiff was later informed that said Mohd. Jasim had filed a complaint for cheating against the defendants under Section 420 of the Indian Penal Code.
4. The defendants have been duping innocent and unwary persons by holding themselves out to be a `TATA‟ company despite the fact that they were aware of the plaintiff‟s goodwill and reputation under the trademark and name `TATA‟ which extends, inter alia, to various service sector activities. The defendants are, therefore, indulging into an act of passing off by representing their business as being that of or associated with the plaintiff. By using the impugned trademark and name, the defendants have defrauded the general public and are likely to continue to mislead, deceive or confuse potential applicants into believing that the defendants had the approval or licence of the plaintiff to carry on business under the said trademark and trading style or that the activities of the defendants are in some manner or CS (OS) No. 388/2001 Page 4 of 15 the other connected with or derived from the business of the plaintiff so as to pass off and earn huge and illegal profits thereby.
5. The defendants have no right or title whatsoever to use of the said name or trademark and the use of the word "TATA" in its surname or family name of the firm is malafide. Number of persons have been defrauded by the defendants and they have damaged and injured the intangible goodwill and reputation of the plaintiff which is not assessable in terms of money. Plaintiff has assessed and estimated the losses to the business at least to Rs.20,00,000/- which the defendants are liable to pay.
6. During the pendency of the suit, plaintiff came to know that Mr H.P. Singhal had nothing to do with defendant No.2 `Tata India Limited‟ and two of the persons responsible for operating the fraud company under the said name were apprehended by the police of Police Station Navi Karim and they remained in judicial custody for some time. A Bank CS (OS) No. 388/2001 Page 5 of 15 account, being operated by one of the said persons with Allahabad Bank, Azadpur Branch, New Delhi was also traced. Consequently, plaintiff filed an application under Order 1 Rule 3 & 10 read with Order 6 Rule 17 Code of Civil Procedure (CPC) for amendment in the memo of parties and consequent amendment by way of amended plaint. This application being IA No.7711/2001 was allowed vide order dated 24th January, 2002. Amended memo of parties had already been filed by the plaintiff along with the application. However, plaintiff has failed to file amended plaint in compliance of the said order of this court. Perusal of the record indicate that amended plaint has not been placed on the record though copies of the same were being filed along with process fee to be served upon the defendants.
7. After amendment in the memo of parties, name of Mr. H.P. Singhal and Tata India Limited have been deleted from the array of defendants and instead the name of Mr. Vimal Kumar Sharma along with two other persons, namely, Ravinder Pratap Singh CS (OS) No. 388/2001 Page 6 of 15 and Rakesh Kumar Meena had been arrayed as defendant Nos. 1 to 3. The Manager, Allahabad Bank, Azadpur Branch has also been arrayed as defendant No.4. Since there is no amended plaint before this court, it is presumed that no relief is sought against defendant Nos.2 to 4, though, the present suit under the circumstances can continue as against defendant No.1 who has been described as trading under the name „TIL Management‟ and also as „Tata India Ltd.‟.
8. Defendants were duly served by way of publication but none on behalf of defendant Nos. 1 to 3 had put in appearance. Defendant No.4, Manager, Allahabad Bank appeared in the court and filed his written statement but he also absented himself and was proceeded ex-parte.
9. The plaintiff company has filed affidavit of Mr. V.Gurumoorthi, working as an Executive Administration and Accounts, with the plaintiff company, as PW1 in evidence. He is the only witness who has been examined by the plaintiff to CS (OS) No. 388/2001 Page 7 of 15 support its case. In the Affidavit Mr.V.Gurumoorthi has stated that he is employed as Executive Administration and Accounts of the plaintiff company and is also constituted attorney of the plaintiff company and is authorized to file the present suit as well as lead evidence by way of affidavit on behalf of the company. He has placed on record and proved in evidence the photocopy of the power of Attorney dated 19.09.2001 as Ex.P1. The fact remains that the amended plaint has not been filed and the plaint before this court is signed by one Mr. Anil Bhasin, the then duly appointed constituted attorney of the plaintiff, authorized to sign and verify the pleadings and file the present suit on behalf of the plaintiff. It is pertinent to note that even application under Order 1 Rule 10 CPC read with Order 6 Rule 17 CPC was signed by Mr. Anil Bhasin and the affidavit annexed to the said application has also been sworn in by him. Plaintiff has not placed on record any evidence to prove that Mr. Anil Bhasin was the constituted attorney and duly authorized to sign and verify the CS (OS) No. 388/2001 Page 8 of 15 pleadings and file the present suit on behalf of the plaintiff. In the absence of any evidence, it is held that Mr. Anil Bhasin was neither the constituted attorney of the plaintiff company nor was authorized to sign and verify the plaint and therefore, the suit has not been instituted by a duly authorized person on behalf of the plaintiff company. Power of Attorney of Mr. V. Gurumoorthi is of no relevance to the filing of the suit, though it may be relevant for the purposes of appreciating his affidavit filed in evidence by the plaintiff company.
10. In the Affidavit, PW1 Mr. V.Gurumoorthi has almost reproduced the plaint itself corroborating constitution of the company, its having different branches of business, number of sister concerns and the business which has expanded over the years as the company was established in the year 1917.
11. Tata Compendium 2002-2003 Ex.P2 indicates the financial status of the company and Tata Group CS (OS) No. 388/2001 Page 9 of 15 Corporate Profile, 2002 Ex.P3 speaks of various companies incorporated with the trademark TATA. Certificate for use in legal proceedings of the trademark "TATA" for one of its registration has been placed on the record and proved in evidence as Ex.P5.
12. However, PW1 has not stated anything of his own knowledge if defendant No.1 Vimal Kumar Sharma and for that matter defendant No.2 and 3 were passing off trademark of "TATA" while operating company in the name of Tata India Ltd. and indulged in employment services and thereby defrauded the public and also caused irreparable loss and injury to the reputation, goodwill and business of the plaintiff company. He has failed to prove in his statement that defendant Nos.1 to 3 were employing people with an understanding that the employment was for plaintiff company and for that purpose they obtained deposit of Rs.1500/- on the job application form and another sum of Rs.50,000/- for finalization of the alleged employment with any of the Tata company. CS (OS) No. 388/2001 Page 10 of 15
13. Perusal of the entire affidavit indicates that most of the statement made in the affidavit is based on the advice given to the witness may be by the plaintiff company or may be by the counsel for the plaintiff. Some of the documents have been marked in evidence which happen to be photocopies and therefore these documents cannot be treated as proved in evidence. Hence; such documents cannot be considered for any purpose.
14. In para 7 and 8 of the affidavit he has deposed that originals of the documents marked in evidence were not traceable and therefore could not be filed. The fact remains that plaintiff never filed any application seeking permission to lead secondary evidence in the absence of the originals having become untraceable despite endeavour made by the plaintiff to trace them out. Plaintiff is a big concern having annual transaction of crores of rupees and must be maintaining its record regularly in the due course of business. Unfortunately none of the relevant records have been placed and proved in evidence by the plaintiff. CS (OS) No. 388/2001 Page 11 of 15
15. Under the circumstances, I do not find any convincing evidence on the record to conclude that defendant Nos. 1 to 3 were running a company in the name of „Tata India Limited‟ as a recruitment office and were playing fraud upon the plaintiff company, innocent persons from the public and duping them of their money on false pretext that they would be given employment in one of the companies affiliated with the plaintiff company or companies having registered trademark "TATA".
16. A Local Commissioner was also appointed at the instance of the plaintiff by this court. He submitted his report dated 12.03.2001. However, this report has not been exhibited in evidence by the plaintiff for the reasons best known to it. As per this report, the Local Commissioner did not find any kind of office nor even sign-board in the name and style of „TATA INDIA LIMITED‟ at TIL House, E-92, Pandav Nagar, Samsapur Road, Delhi-91. He, therefore gave his report that office of „TATA INDIA LIMITED‟ did not exist at E-92, Pandav Nagar. Though, the Local Commissioner did record some CS (OS) No. 388/2001 Page 12 of 15 statements of the persons/workers working in different offices in the said building who disclosed that number of persons had approached their shops inquiring about „TATA INDIA LIMITED‟ as they had sent their applications along with demand draft of Rs.1500/- in the name of „TATA INDIA LIMITED‟ with a view to secure job and to get recruitment in the Tata Group of Companies.
17. None of the persons examined by the Local Commissioner have been examined by the plaintiff to prove its case. Even Mohd. Jasim has not been examined as a witness to prove that he had been defrauded by the defendants on the false representation that they would get him employment with the plaintiff company.
18. Thus, there is no evidence to indicate that defendants were passing off the trademark of the plaintiff for running their business of employment/services and thereby duping the persons of their money with false assurances that they would be getting employment in one of the CS (OS) No. 388/2001 Page 13 of 15 „TATA Companies‟. Plaintiff has not examined any of these named victims nor proved the documents/copies of the documents collected by the plaintiff to indicate that it were the defendants who were passing off the trademark „TATA‟ and thereby defrauded the public at large and illegally earned huge amount.
19. It is pertinent to mention here that plaintiff has not even cared to prove in evidence the complaint filed by one of the victims Mohd. Jasim, who was allegedly cheated by the defendants. Defendant Nos.1 to 3 were probably named by Mohd. Jasim in his complaint or their names might have cropped up during the investigation of the case.
20. Manager, Allahabad Bank, Azadpur Branch, Azadpur Delhi has also been wrongly impleaded by the plaintiff. As an employee of the bank, he had opened the account in the name of „TATA INDIA LIMITED‟ on introduction by other account holder of the bank. Besides, Bank cannot be held responsible for any of the acts of defendant CS (OS) No. 388/2001 Page 14 of 15 Nos.1 to 3.
21. Consequently, since the plaintiff has failed to prove its case, the same is accordingly dismissed. There are no orders as to costs.
ARUNA SURESH (JUDGE) OCTOBER 24, 2008 vk CS (OS) No. 388/2001 Page 15 of 15