Delhi High Court
M/S Tunday Kababi Pvt. Ltd. & Ors. vs M/S Avadh Food Point & Anr. on 17 November, 2014
Author: Rajiv Shakdher
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 17.11.2014
+ CS(OS) 1899/2014
M/S TUNDAY KABABI PVT LTD & ORS ..... PLAINTIFF
VERSUS
M/S AVADH FOOD POINT & ANR ..... DEFENDANTS
Advocates who appeared in this case:
For the petitioner: Ms. Pratibha M. Singh, Senior Advocate with
Mr. Ashutosh, Advocate
For the respondent: Mr. Vaibhav Niti, Mr. Devashish Bharuka,
Advocates for R1 and 2.
Ms. Jasmeet Kaur and Mr. Gaurav Chauhan,
Advocates for proposed D3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J.
I.A. 16926/2014 (by plaintiffs u/151 CPC seeking recall of order
dt.14.8.2014)
1. This is an application seeking recall of order dated 14.8.2014.
2. By this application, the applicants/plaintiffs seek impleadment of
defendant No.3, who was deleted from the array of parties by order dated
14.8.2014 at the behest of the senior counsel appearing for the plaintiff at that
point in time.
3. It is submitted by the senior counsel of the plaintiff that the suit, which
has been filed against the defendants for infringement of trademark, passing
off, etc., is based on inextricable interconnection amongst defendants i.e.,
defendant No.3 and defendant No.1 and 2.
4. The case of the applicants/plaintiffs is that, as a matter of fact, this
aspect is to an extent accepted by defendant Nos.1 and 2 in their application
filed under Order 39 Rule 4 of the Code of Civil Procedure, 1908 (in short
CPC), wherein it is stated that they are using the trademark in issue on the
basis of a franchise agreement executed in their favour by the
non-applicant/defendant No.3.
5. On the other hand, counsel for the non-applicant/defendant No.3 says
that, apart from anything else, it was not disclosed to the court that a
substantive suit has been filed against said defendant, being suit
No.3258/2014 in this court, in which, an interim order has been obtained.
5.1 Ms. Pratibha M. Singh, learned senior counsel for the plaintiff, clarifies
that the interim order, which is dated 31.10.2014, has been issued only qua
defendant Nos.1 and 2 in that suit, and not against the
non-applicant/defendant No.3, who is also impleaded as defendant No.3, in
that suit.
5.2. Counsel for the non-applicant/defendant No.3 says this information
was not supplied to this court when the captioned application came up for
hearing on 31.8.2014.
6. Having heard the learned counsels for the parties, what clearly
emerges is that the applicants/plaintiffs have in paragraph 25 of the plaint,
made an assertion that defendants (which included the
non-applicant/defendant No.3 at the relevant point in time) had filed an
application bearing No.TM2608890 for registration of the trademark in
dispute.
6.1 It is also not in dispute that the said application bears the signatures of
the non-applicant/defendant No.3.
6.2 The record shows that defendant Nos.1 and 2 in their application filed
under Order 39 Rule 4 CPC had made the following assertions, which clearly
indicates that they are basing their rights on a franchise agreement executed in
their favour by defendant No.3:-
"The Applicants/Defendants no.1 and 2 are using the trademark
in dispute on the basis of a franchise agreement with Defendant
no.3 and therefore, can, in no way, be said to be infringement of
right of the Plaintiff."
6.3 Therefore, the plaintiffs being dominus litis would ordinarily be
entitled to take a decision as to the parties they wish to array to their action
subject, however, to limitations provided in law.
7. In this particular case, it appears that the learned senior counsel then
appearing for the applicants/plaintiffs perhaps, inadvertently, took a wrong
call. Usually lawyers action bind their clients except where the enunciation
of law is such that it does not permit him to bind his client on aspects of settled
law. (See Uptron India Ltd. Vs. Shammi Bhan and Anr., (1998) 6 SCC 538
and Central Council for Research in Ayurveda & Siddha and Anr. Vs. Dr.
K. Santhakumari, (2001) 5 SCC 60.)
8. Having regard to the pleadings in the matter, which have been referred
to by me hereinabove, I am of the view that the plaintiffs should be allowed to
withdraw their statement as the defendant Nos.1 and 2 have clearly indicated
that their rights are based on the franchise agreement executed in their favour
by non-applicant/defendant No.3. The other reason, which persuades me to
allow the application, is that the applicants/plaintiffs have approached the
court with reasonable expedition and, therefore, it would perhaps affect their
interest, if they are held bound by the concession made by their lawyer.
9. With regard to the submissions made by the counsel for the
non-applicants/defendant No.3 that the factum of another suit having been
filed not being disclosed to the court, according to me, may not be material for
adjudication of the present application.
10. In any event, if, the non-applicant/defendant No.3 is convinced, that the
instant suit and CS(OS) No.3258/2014 are substantially similar, he has a
remedy available to him in law by appropriate application to seek stay of the
action filed against him. That, of course, would depend on whether
necessary steps are taken by the non-applicant/defendant No.3, and the view
the concerned court may take on such a step being taken.
11. In these circumstances, the application is allowed. The order dated
14.8.2014 is recalled to the extent it records the statement made on behalf of
the applicants/plaintiffs that they seek to delete the non-applicant/defendant
No.3 from the array of parties. Necessary consequence of this will be that
non-applicant/defendant No.3 shall stand arrayed to the instant suit.
Accordingly, a fresh memo of parties will be filed within one week from
today.
12. The application is disposed of.
CS(OS) 1899/2014
13. List before the roster bench on 15.1.2015, the date already fixed.
RAJIV SHAKDHER, J
NOVEMBER 17, 2014/s.pal
