Delhi High Court
Jaggi Ayurvedic Pharmacy vs Jaggi Ayurvedic Research ... on 11 November, 2009
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: October 15, 2009
Date of Order: November 11, 2009
+ IA 3061 of 2005 in CS(OS) 514 of 2005
% 11.11.2009
Jaggi Ayurvedic Pharmacy ...Plaintiff
Through: Mr.S.K. Bansal, Advocate
Versus
Jaggi Ayurvedic Research Foundation ...Defendant
Through: Mr. Sujoy Kumar, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
1. By this application under Order 39 Rule 1 & 2 CPC read with Section 151 of Civil
Procedure Code, plaintiff sought injunction against defendant restraining defendant from
use of trademark, word/ mark, house mark "JAGGI" and restraining defendant from using
the logo, tradedress and carton with trademark "JAGGI".
2. Plaintiff has claimed itself to be a partnership firm of three partners namely Mr.
Om Prakash Jaggi, Mr. Sudesh Kumar Jaggi and Ms. Priya Rani Jaggi. It is stated that
this partnership firm was formed in 1955 under an oral agreement between Mr. Darshan
Lal Jaggi and Mr. Om Prakash Jaggi and it was reduced into writing in 1959 and since
then the partnership firm namely „Jaggi Ayrvedic Pharmacy‟ has been using the trade
name "JAGGI" and logos, trade dress, work/mark "JAGGI" and it became owner and
proprietor of the word/ mark "JAGGI" and became copyright owner of trade dress, logos
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etc.
3. Defendant on the other hand has resisted granting of any injunction on the ground
that the suit was filed by a dissolved partnership firm and was not maintainable. Ms. Priya
Rani Jaggi, one of the partners, filed a suit 1798 of 2002 making Mr. Om Prakash Jaggi
and Mr. Sudesh Jaggi as defendants claiming dissolution of the firm and in that suit vide
order dated 1st September 2008, the learned Single Judge observed that there was an
arbitration clause in the partnership deed and the parties should refer the dispute to
arbitration and the suit was dismissed. However, this order was stayed in RFA 74 of 2008
and the appeal has been admitted by a Division Bench of this Court vide order dated 28 th
April 2009. In any case, the partnership firm stood dissolved and the suit filed by a
dissolved partnership firm was not maintainable.
4. It is submitted by counsel for defendant that it was late Gyan Chand Jaggi who
had started Jaggi Aushadhalaya, since he was an Ayurvedic doctor(vaid). Mr. Gyan
Chand Jaggi had four sons viz. Mr. Darshan Lal Jaggi, Om Prakash Jaggi, T.R. Jaggi and
Mr. Sudesh Kumar Jaggi. The trade name "JAGGI" was adopted by Shri Gyan Chand
Jaggi for his Ayurvedic clinic which he was running as „Jaggi Aushadhlaya. His sons also
followed the trade of his father and one of them did graduation from Unani School of
Medicines and other did graduation in Ayurvedic School of Medicine. M/s Jaggi
Ayurvedic Pharmacy and Jaggi Ayurvedic Research Foundation etc are the names given
by his sons and grandsons to the different firm constituted by them.
5. A perusal of documents filed by plaintiff and defendant and the Pedigree Table
filed by plaintiff and defendant would show that neither the plaintiff nor the defendants
were creators of trademark "JAGGI". „Jaggi‟ was the caste of vaid Shri Gyan Chand
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Jaggi who started an Ayurvedic Clinic and named it as „Jaggi Aushdhlaya‟. Thereafter,
when his sons grew up he associated them in his business. Name "JAGGI" was used by
his sons and grandsons for different firms including for the plaintiff firm and defendant
no.1 firm. I, therefore, consider that neither plaintiff nor defendants, who are Pedigree of
late Shri Gyan Chand Jaggi can claim exclusive rights over the word "JAGGI".
6. In Sohan Lal v Amin Chand & Sons AIR 1973 SC 2572, the Supreme Court held
as under:
"It may be recalled that Bakshi Ram gave notices for the
dissolution of the two firms in January, 1967 to the other partners.
The appellants contend that with the dissolution of the firm the
assets of the firm including the trade marks registered to partners
as co-owners and that two of the partners, namely, the
respondents, have no right to appropriate or use the assets of the
firm to the exclusion of the legal representatives of the other
partner, Bakshi Ram. The suit in which the injunction order was
passed was filed for a declaration that "Amin Chand and Sons"
constituted by the two surviving partners alone was entitled to use
the assets of the firm of "Amin Chand and Sons" of which Bakahsi
Ram was a partner, and it was for restraining the appellants from
using that firm‟s assets, namely, the two trade marks in question,
that the order of injunction was sought. Prima facie, it would
appear that the respondents are not entitled to the exclusive use of
the two trademarks which formed part of the assets of that
partnership of Aminchand and Sons of which the three brothers
were partners. The appellant being the legal representatives of
Bakshi Ram were also entitled to a share of the assets of the
partnership. If that be so, we do not think that the Courts were
justified in granting the injunction restraining the appellants from
using the trade mark. In these circumstances, we think that the
proper course to adopt is to continue in force the order passed by
this Court when it granted the special leave on the basis of the
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application filed by the appellants for stay of the order of
injunction, after setting aside the order under appeal."
This judgment was also followed by this Court in Bagla & Co. v Bagla Cosmetics 2000
PTC 355 and observed as under:
"In my view it is not permissible at this stage, to lose sight of the
fact that the two adversaries are offshoots of the original family
business commenced by the patrial namely Nanu Mal Bagla in
1985. The business is the same and had been jointly carried out by
Nanu Mal Bagla and his two sons. It cannot be held at this stage
which part of the Bagla family was transacting business in the
style of Bagla Cosmetics. It is also not possible at this stage to
return to decisive and unequivocal finding as to which of the
revival factions of the family has been doing business after the
disruption of the family business due to the disappearance of Shri
Nanu Mal Bagla. As has been clearly set down by the Apex Court
in Sohan Lal‟s case (supra), both factions would be entitled to use
of the family name "Bagla". Neither of the parties are entitled to
injunct the other from transacting business by employing the
family name "Bagla". The partnership firm „Bagla Cosmetics‟ of
which Shri Navin Kumar and Pawan Kumar Bagla sons of
Jatinder Kumar Bagla and grandson of Nanu Mal Bagla shall be
entitled to continue to transact business in the name and style
"Bagla Enterprises". Shri Ganeshi Lal Bagla son of Nanu Mal
Bagla and sole proprietor of "Bagla & Co. may continue to
transact business in the name and style "Bagla & Co."
7. I also consider that plaintiff could not have filed this suit in the name of
partnership firm since the partnership ceased to exist once a suit for dissolution is filed.
The partnership is always by will and once a partner has filed a suit for dissolution or has
given notice of dissolution of the firm, the firm cease to exist. The present suit has been
filed by Mr. Om Prakash Jaggi claiming to be one of the partners. He has made the other
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partners as defendants. This itself shows that the partnership was not in existence.
8. I consider that there was no prima facie case in favour of plaintiff and against the
defendants. The application is liable to be dismissed and is hereby dismissed as such.
CS(OS) 514 of 2005
1. The suit number 1798 of 2002 has been filed for dissolution of the partnership
firm. Maintainability of this suit is highly doubtful.
2. List on 15th January 2010 for arguments on maintainability of this suit.
November 11, 2009 SHIV NARAYAN DHINGRA J.
rd
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