Tata Sons Limited vs Vimal Kumar Sharma & Anr.
2008 Latest Caselaw 1900 Del

*           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

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

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

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

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

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

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

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

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

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.

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.

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

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

„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

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