Wockhardt Limited vs Chemetac Pharmaceuticals
2004 Latest Caselaw 831 Del

JUDGMENT

O.P. Dwivedi, J.

1. Through this petition which is under Article 227 of the Constitution of Indian petitioner is seeking quashing of order dated 20.8.2004 passed by learned Additional District Judge directing the plaintiff to amend his plaint and incorporate facts disclosing the identity, legal character and status of the defendant so that court can come to conclusion that the defendant being sued is a 'person', even before ordering issuance of summons of the notice.

2. Briefly stated facts leading to this petition are that, petitioner herein filed a suit under Sections 27(2), 28 & 29 read with Sections 134 & 135 of the Trade Marks Act, 1999 and Sections 51 and 55 of the Copyright Act, 1957 alleging that the petitioner has been manufacturing analgestic pharmaceutical product containing 10 mg of Dicyclomine Hydrochloride IP 65 mg of Dextropropoxyphene Hydrochloride BP and 400 mg of Acetamnophen IP. The plaintiff has been using 'SPASMO PROXYVON' as their trade mark for last 26 years and by now they have acquired enormous good will in the market which is evidenced by gradual increase in the sales, year-wise details of which are given in para 19 of the plaint. The plaintiff has been filing suits against various business concerns who are trying to copy their trade mark under different names and ex parte injunctions have been issued in all such cases, details whereof are given in para 16 of the plaint. In para 17 of the plaint it is alleged that in the 1st week of August 2004, the plaintiff came to know that the defendant has launched a similar pharmaceutical product combination bearing deceptively similar trade mark in respect of packagings, as well as a fraudulently similar trade mark 'SPASMO PREXYMON'. The get-up of the packagings in respect of the carton and the blister pack including the impugned trade mark 'SPASMO PREXYMON' of the defendant Along with the identical blue coloured capsules is deceptively similar to that of the plaintiff which fact is evident on a bare perusal of the two competing blister packings/cartons and the trade marks. Plaintiff had filed suit seeking perpetual injunction restraining the defendant from manufacturing, selling their pharmaceutical preparations under the trade mark 'SPASMO PREXYMON' or any other mark/ marks which are identical/ deceptively to these of the plaintiff and other ancillary reliefs. It appears that learned Additional District Judge, to whom suit was assigned for disposal, had some doubts as to the defendant being a legal person and therefore even before ordering issuance of process, learned Additional Judge, vide impugned order, directed the plaintiff to amend his plaint and incorporate facts disclosing the identity, legal character and status of the defendant so that court can come to conclusion that defendant being sued in a 'person'. Feeling aggrieved, the petitioner has preferred this petition.

3. Since the processes had not yet been issued in the case, the question for consideration is only as to whether the court could give such a direction at this stage. Since no processes has been issued to the defendants in the suit as yet, the issuance of notice to the respondent in this petition, at this stage, was thought to be unnecessary. A perusal of the impugned order will reveal that the learned Additional District Judge was obsessed with the idea that the defendant sued has to be a legal person and unless the plaintiff makes disclosure of relevant facts in this regard the suit could not be proceeded with. This is clearly in conflict with the provisions of Order 30 Rule 10 CPC which permits suit being filed against the defendant in their assumed name under which they carry on the business. Such assumed name need not be a legal person. The very object of Order 30 Rule 10 is to catch up with a person who carry on trade in some assumed name and not in their real name, as has been held in case of Rajendra Parsad Oil Mills, Kanpur and Anr. v. Smt. Chunni Devi and Ors., . It was held that in such cases even if plaintiff knew that assumed name is not a juristic person and the name of the company controlling business being run in the assumed name was known to the plaintiff yet it will be open to the plaintiff to sue the defendant in his assumed name. In this connection Full Bench in R.P. Oil Mills case (supra) observed as under:-

There is nothing in Rule 10 or elsewhere to indicate that the provisions contained in Rule 10 did not apply to cases where the identity of the real party was know to the plaintiff. The object of framing Rule 10 may have been to protect the unwary, but there is nothing in Rule 10 which might indicate that in case the plaintiff knew the real person the provisions contained in Rule 10 would be inapplicable. Rule 10 can be availed of whenever a person factually carried on business under a name or style other than his (or its) own name and the provision being a beneficent one cannot be construed strictly and in a manner not warranted by the language of the statute.

In that case, R.P. Oil Mills was the assumed name under which M/s. N.K. Industries Limited a company incorporate was carrying on business and this fact was known to the plaintiff. It was held that even though R.P. Oil Mills Kanpur was not a juristic person, yet the defendant could be sued in their assumed name in view of the provisions of Order 30 Rule 10 CPC. In AIR 1944 Calcutta 138, the Division Bench observed that individuals who carry on business under a firm name or assumed name cannot sue as plaintiff in a assumed name, but he can be sued in the assumed name as a defendant. In this connection, the Division Bench has observed as under:-

There is no inconvenience or injustice, if a person carrying on business under a firm name or any other assumed name is made to sue in his real name, but different and weighty considerations would apply when he is sued by another person in the assumed name in which he carries or has carried on business. Business may be carried on by correspondence and orders may be, and are usually, placed from one part of the world to another through post and goods may he supplied on credit on such orders. A producer or merchant living in one part of the globe cannot be expected to know or to make enquiries and in some cases it is not possible for him to know or to make enquiries as to who is the owner of the business that is being carried on in an assumed name, and in most cases he would only know the name of the real owner after he had brought his suit, for the defendant must then appear in his own name (Order 30 Rule 6). If is to be held that a decree obtained by such a producer or merchant in a suit instituted against the assumed name is void decree, it would lead to manifest hardship, would open up a wide door to fraud and would sap the credit on which commercial dealings largely rest. In our judgment Order 30 Rule 10 Civil P.C., rests on these considerations and they must be kept in view in construing that rule."

4. Of course, after the defendant puts in appearance and it is brought to the notice of the Court that defendant is not a juristic person and some other legal entity is carrying on business under the assumed name of the defendant, the court may ask the plaintiff to incorporate such facts in the plaint although it is not necessary in view of the provisions of Order 30 Rule 10 CPC, but to insist that the plaintiff shall must carry out necessary investigations right at the initial stage and incorporate facts disclosing the identity, legal character and status of the defendant even before issuance of process is clearly un-called for.

5. In the result this petition is allowed and the impugned order whereby plaintiff was directed to amend his plaint and incorporate facts disclosing the identity, legal character and status of the defendant and even before issuance of the process, is hereby set aside. Learned trial court shall now proceed with the case in accordance with law.

Petitioner is directed to appear before learned trial court on 6th September 2004.