Nirmal Kumar vs M/S Tommy Hilfiger Licensing Llc & ...
2015 Latest Caselaw 142 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 9th January, 2015

+                              LPA No.9/2015

       NIRMAL KUMAR                                           .... Appellant
                  Through:            Mr. Kamal Kishore Arora with Mr.
                                      Gaurav Arora & Mr. Himanshu
                                      Arora, Advs.

                                  Versus

    M/S TOMMY HILFIGER LICENSING LLC & ORS. Respondents

Through: Mr. Vikas Mahajan, CGSC with Mr. Vishal Mahajan, Adv. for R-3&4.

CORAM:-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the order dated 29th September, 2014

of the learned Single Judge of this Court, allowing the application of the

respondent No.2 M/s Tommy Hilfiger Licensing BV to be substituted as a

petitioner in W.P.(C) No.826/2014 originally filed by the respondent No.1

M/s Tommy Hilfiger Licensing LLC, as well as of allowing the said writ

petition.

2. Having gone through the paper book and being prima facie of the

opinion that the order of the learned Single Judge requires no interference,

we have heard the counsel for the appellant at length on the admissibility of

the appeal.

3. The writ petition from which this appeal arises was filed by the

respondent No.1 seeking a direction to the respondent No.4 (Registrar of

Trade Marks) herein to cancel/withdraw/recall the Search Certificate No.

TMR-D/CC/34267 issued under Rule 24(3) of the Trademark Rules, 2002

issued to the appellant (respondent No.3 before the learned Single Judge)

and/or impugning the said Search Certificate.

4. The learned Single Judge in the impugned order dated 29th September,

2014 has noted that the Controller General of Patents, Designs and

Trademarks had filed an affidavit in the said writ petition stating that a

Committee was constituted on 11th February, 2014 for conducting an inquiry

into how the impugned Search Certificate could have been issued and the

said Committee had submitted its report dated 22 nd August, 2014 inter alia

to the effect that the Certificate could not have been issued under the law

and the issuance of the said Search Certificate amounted to utter misuse of

power by the official concerned. The impugned order further records the

statement of the counsel for the Registrar of Trademarks that explanation of

the official who had issued the said Certificate had been called as to why

disciplinary action should not be taken against him. The learned Single

Judge in view of the said stand of the Registrar of Trademarks held that the

petition had to be allowed and the Certificate had to be set aside / quashed.

The learned Single Judge however recorded the contention of the counsel for

the appellant that the respondent No.1 / writ petitioner having assigned its

brand / subject trademark to the respondent No.2, was not entitled to

maintain the writ petition. The learned Single Judge further recorded that

respondent No.2 had filed an application for being substituted as a petitioner

and for amendment of the writ petition and held that in view of the said

application of the respondent No.2, the objection of the appellant did not

survive.

5. As the aforesaid would show, the learned Single Judge in the

impugned order has not himself adjudicated the validity of the Search

Certificate impugning which the writ petition was filed and has quashed the

certificate in the face of admission of the Registrar of Trademarks who had

issued the certificate that the same had been wrongly issued. We have thus

enquired from the counsel for the appellant as to what possibly can be the

grievance of the appellant against the impugned order and the grievance if

any of the appellant has to be to the finding of the Committee constituted by

the Registrar of Trademarks that the Search Certificate was wrongly issued.

6. The counsel for the appellant while not disputing the aforesaid,

contends that no notice was given to the appellant by the Registrar of

Trademarks or by the Committee constituted by the Registrar of Trademarks

before concluding that the Certificate had been wrongly issued and thus the

said decision of the Registrar of Trademarks is contrary to the principles of

natural justice.

7. However what the counsel for the appellant forgets is that the

challenge in the writ petition was to the issuance of the certificate by the

Registrar of Trademarks and not to the decision of the Registrar of

Trademarks that the certificate had been wrongly issued. It was / is for the

appellant, if aggrieved from the subsequent decision of the Registrar of

Trademarks, to take appropriate remedy thereagainst. The learned Single

Judge in the impugned order has rightly observed that upon such stand being

taken by the Registrar of Trademarks who had issued the Certificate, he had

no option but to allow the writ petition.

8. The counsel for the appellant then contends that in fact the writ

petition itself was not maintainable as alternative remedy against the

issuance of certificate was available under the statute itself.

9. However we may mention that the rule, of not entertaining a writ

petition if alternative remedy is available, is not an absolute but a

discretionary rule. In the facts of the present case, when the authority

issuing the impugned Search Certificate itself had admitted its mistake, the

writ petition was rightly entertained.

10. The counsel for the appellant has next contended that the learned

Single Judge erred in allowing the respondent No.2 to be substituted as a

writ petitioner in place of respondent No.1 and ought to have dismissed the

writ petition upon finding that the respondent No.1 which had filed the writ

petition was in fact not entitled to or had no locus to maintain the writ

petition. It is further contended that no opportunity was given to the

appellant to even file a reply to the said application. Reliance in this regard

is placed on Anandilal Vs. State of Rajasthan 1975 RLW 34 laying down

that an act which is void at its very inception, cannot be ratified by the

principal.

11. In the aforesaid facts, we are of the view that this objection also has

no merit. The learned Single Judge has rightly held that upon the Registrar

of Trademarks who has issued the certificate itself admitting that the Search

Certificate had been wrongly issued, the setting aside / quashing thereof was

but consequential. Moreover, such substitution is permissible even under

Order I Rule 10 of the CPC, sub rule (1) whereof permits substitution of

plaintiff where a suit has been instituted in the name of the wrong person as

plaintiff through a bona fide mistake. Though the CPC is not applicable to

writ proceedings but the general principles thereof are applicable. We see

no reason to interfere with the discretion exercised by the learned Single

Judge in so substituting the respondent No.2 as the writ petitioner in place of

respondent No.1. Further, in the face of Order I Rule 10 of CPC, the

proposition laid down in Anandilal supra has no application.

12. The counsel for the appellant has lastly contended that such

substitution as allowed in the writ petition would have consequences qua

civil litigation pending between the appellant and the respondents No.1&2.

13. The learned Single Judge as well as this Bench was / is concerned

only with the writ petition and not with the other civil litigation and the said

argument also thus has no merits.

14. We do not find any merit in the appeal and dismiss the same.

No costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE

JANUARY 09, 2015 'gsr'..