Tagore Education Society vs Complete Education Society & Anr.
2017 Latest Caselaw 4047 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.518/2016

%                                                   10th August, 2017

TAGORE EDUCATION SOCIETY                ..... Appellant
                 Through: Mr. Rakesh Mittal, Advocate
                          with Mr. Kamlesh Anand,
                          Advocate.
                          versus

COMPLETE EDUCATION SOCIETY & ANR.                      ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.41083/2016 (for condonation of delay)

1. For the reasons stated in the application, delay of 46 days

in filing the appeal is condoned.

C.M. stands disposed of.

FAO No.518/2016

2. In this FAO, notice was issued for today to the

respondents. However notice could not be issued as Registry has

recorded that process fee was returned with objections. I have

therefore heard the counsel for the appellant as to whether any fresh

notice is required or that any notice should be issued at all to the

respondents.

3. The challenge by means of this present appeal is to the

impugned order of the court below dated 24.5.2016 by which the court

below has dismissed the application under Order XXXIX Rule 2A of

Code of Civil Procedure, 1908 (CPC) filed by the appellant/plaintiff.

The subject suit was filed by the appellant/plaintiff seeking injunction

against the respondents/defendants from using the franchise of

TAGORE INTERNATIONAL SCHOOL or in any manner from using

the word TAGORE etc. The appellant/plaintiff claimed to be the

exclusive owner of the trademark and trade name TAGORE as also

user thereof in the larger expression „TAGORE INTERNATIONAL

SCHOOL‟. In this suit the application under Order XXXIX CPC filed

by the appellant/plaintiff was allowed vide order dated 26.11.2011 and

the operative portion of this order dated 26.11.2011 are contained in

paras 11 and 12 and these paras read as under:-

"11. In view of the above facts and circumstances, this Court doth order as follows:-

"The defendants are restrained from representing as a franchise of "Tagore International School" as well as from using the name or mark of

"Tagore International School" or TAGORE, TIS or TES deceptively similar name/s or mark/s and also from using the syllabus, school, uniform, letter heads, stationary, fee receipts, school diary, copies, registers etc. of "Tagore International School" for the academic year 2012-13 and thereafter till final disposal of the suit. The defendants are further directed to continue to pay the quarterly advance payment for the entire academic session 2011-12."

12. With the above directions the application under O XXXIX R 1 & 2 of CPC is disposed off."

4. The suit itself was subsequently withdrawn as per order

dated 4.10.2012 on the statement of the respondents/defendants with

respect to non-user by the respondents/defendants of the trademark

and trade name TAGORE as also TAGORE INTERNATIONAL

SCHOOL. However, by the self-same order dated 24.5.2016, the

application under Order XXXIX Rule 2A CPC which was pending on

the date of withdrawal of the suit on 24.5.2016 was ordered to be

taken up subsequently. It is this application under Order XXXIX Rule

2A CPC which has been dismissed by the court below.

5. It is important to note at this stage that there is no dispute

that the appellant/plaintiff has filed after 4.10.2012 a suit for recovery

of the moneys from the respondents/defendants for academic session

2011-12 and which was the subject-matter of the directions in the

order dated 26.11.2011 by which the injunction application of the

appellant/plaintiff was allowed and for enforcement of which the

subject application under Order XXXIX Rule 2A was pending. By the

order dated 4.10.2012 no doubt the application under Order XXXIX

Rule 2A CPC was detached from the main file and was to be decided

separately, however, trial court notes in the impugned order which is

appealed from that the appellant/plaintiff has already filed a separate

suit for recovery of moneys and which counsel for the

appellant/plaintiff admits pertains to the last line of para 11 of the

order of the trial court dated 26.11.2011 i.e the recovery suit filed by

the appellant/plaintiff is with respect to payments to be made by the

respondents/defendants with respect to the entire academic session

2011-12 and which was the subject-matter of the application under

Order XXXIX Rule 2A. This suit has admittedly been filed after

4.10.2012 when the application under Order XXXIX Rule 2A was

directed to be detached for disposal. It is therefore seen that the

appellant/plaintiff is pursuing two remedies against the

respondents/defendants for the amounts payable for academic session

2011-12, one by way of a suit and second by the subject application

under Order XXXIX Rule 2A.

6. The provision of Order XXXIX Rule 2A CPC gives a

discretionary power to the court. It is not mandatory for the court in

every case to pass orders giving directions by allowing the application

under Order XXXIX Rule 2A. The discretion under Order XXXIX

Rule 2A may or may not be exercised by the court for taking action

against the alleged contemnors under Order XXXIX Rule 2A CPC.

The application under Order XXXIX Rule 2A CPC is essentially for

enforcement/execution, and more so in a case such as the present, the

application under Order XXXIX Rule 2A is in the nature of recovery

proceedings. Once therefore an independent suit being recovery

proceedings are filed by the appellant/plaintiff with respect to the

same relief which is the subject-matter of the application under Order

XXXIX Rule 2A CPC, then, the trial court was justified in passing the

impugned order dismissing the application under Order XXXIX Rule

2A CPC. No doubt, the application under Order XXXIX Rule 2A

CPC was detached for being decided independently in terms of the

order dated 4.10.2012, however, it is only after 4.10.2012 that

appellant/plaintiff chose to exercise the option of filing of the

independent suit for recovery of the same amount which was subject

matter of the application under Order XXXIX Rule 2A CPC, being the

claim of moneys of the appellant/plaintiff against the

respondents/defendants with respect to the academic session 2011-12.

7. There is no merit in the appeal. Dismissed.

AUGUST 10, 2017                           VALMIKI J. MEHTA, J
Ne