Delhi High Court
Akhil Bhartiya Kayastha ... vs Akhil Bhartiya Kayastha ... on 23 March, 2022
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:25.03.2022
07:53:14
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23rd March, 2022
+ CM(M)-IPD 2/2021 & CM APPL. 27383/2020
AKHIL BHARTIYA KAYASTHA MAHASABHA ..... Petitioner
Through: None.
versus
AKHIL BHARTIYA KAYASTHA MAHASABHA
& ANR. ..... Respondents
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J.(Oral)
1. This hearing has been done through hybrid mode.
2. None appears for the parties.
3. The present petition challenges the order dated 23rd January, 2020 in
CS(COMM) 181/2019 titled Akhil Bhartiya Kayastha Mahasabha v.
Yogendra Nath Srivastava passed by the Ld. District Judge (Commercial
Court), Dwarka Courts, New Delhi (hereinafter "Commercial Court"). Vide
the said order, the Commercial Court has held that the dispute raised in the
suit is not a commercial dispute within the meaning of section 2(1)(c) of the
Commercial Courts Act, 2015 (hereinafter "Act"). The Commercial Court
reasoned that since the Petitioner/Plaintiff society is not involved in any
trade or commercial activities and is only rendering social services there
would be no transaction in the present suit which would fall in the category
of commercial dispute. The relevant extract of the impugned order reads as
under:
CM(M)-IPD 2/2021 Page 1 of 4
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:25.03.2022
07:53:14
"A conjoint reading of Section 2(c)(i) with
Section 2(c)(xvii) and the statement of objects and
reasons shows that the commercial courts are to
deal with the commercial dispute especially those
engaged in trade and commerce. The plaintiff is not
stated to be involved in any trade and commerce. In
the present case, there is no such transaction, which
would fall in the category of commercial transaction
or commercial dispute.
In view of above, the suit is not a commercial
dispute within the meaning of Section 2(1)(c) of the
Commercial Courts Act, 2015. The file be sent back
to the court of Ld. ADJ-02/SW/Dwarka Courts for
disposal in accordance with law. Plaintiff to appear
before the court of Ld. ADJ-02/SW/Dwarka Courts
on 30.01.2020 at10.00 am, the date as prayed for."
4. In this matter, notice was issued to Respondent No.2 & 3 vide order
dated 19th November, 2020. However, till date the Plaintiff has not taken
steps to serve the Respondents/Defendants and Process fee has also not been
filed.
5. A perusal of the suit itself shows that the Plaintiff seeks protection of
its mark 'Akhil Bhartiya Kayastha Mahasabha' and an injunction is sought
against the Defendant from using the said mark/name.
6. The suit was instituted on 4th November, 2019 and a perusal of the
order sheets of the Commercial Court would show that the matter was
adjourned on a few occasions and summons/notice was not issued to the
Defendants. Finally, vide the impugned order the Commercial Court has
held that in terms of the Act, the dispute in the suit is not a commercial
dispute.
CM(M)-IPD 2/2021 Page 2 of 4
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:25.03.2022
07:53:14
7. A perusal of Section 2(c)(xvii) Act shows that all disputes which are
raised covering intellectual property rights relating to registered, and
unregistered trademark, copyright, patent, design, domain names,
geographical identifications, and semiconductor integrated circuits are
commercial disputes.
8. The Plaintiff, in the present case, claims rights in respect of the mark
'Akhil Bhartiya Kayastha Mahasabha'. It is the case of the Plaintiff that it
helps disabled and physically challenged persons and renders various social
services. The dispute in question is related to the name/mark 'Akhil Bhartiya
Kayastha Mahasabha' itself which is pending before the Trade Mark
Registry bearing Application No. 3651016 for the registration of a device
mark. The Defendants have adopted the mark/name 'Akhil Bhartiya
Kayastha Mahasabha' which is an identical name, because of which the
Plaintiff is aggrieved. The substance of the dispute is clearly an intellectual
property rights dispute relating to an unregistered mark/name. Irrespective
of the constitution of the Plaintiff or the Defendants, the same would be a
commercial dispute in terms of Section 2(c)(xvii) of the Commercial Courts
Act, 2015. Clearly, the Commercial Court has erred in holding that the
same is not a commercial dispute as the Plaintiff was not involved in trade
and commerce.
9. Under such circumstances, the impugned order is not sustainable in
the opinion of the Court. The same is set aside.
10. The suit CS (COMM) No. 181/2019 titled Akhil Bhartiya Kayastha
Mahasabha v. Mr. Yogendra Nath Srivastava, shall now be restored to its
original number and shall be listed before the concerned District Judge,
Commercial Court, Dwarka Courts in New Delhi. The suit shall proceed
CM(M)-IPD 2/2021 Page 3 of 4
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:25.03.2022
07:53:14
further from the stage at which it was prior to the impugned order dated 23rd
January, 2020.
11. Copy of this order be communicated to Ms. Dhurjati Verma, ld.
Counsel for the Petitioner by the Registry on email id-
[email protected] and Mobile No- 9811667456.
12. The appeal is allowed in the above terms. The suit shall now be listed
on 12th April, 2022 before the concerned District Judge.
13. The digitally signed copy of this order, duly uploaded on the official
website of the Delhi High Court, www.delhihighcourt.nic.in, shall be treated
as the certified copy of the order for the purpose of ensuring compliance. No
physical copy of orders shall be insisted by any authority/entity or litigant.
PRATHIBA M. SINGH, J.
MARCH 23, 2022
dj/sk
