Madras High Court
M/S.Mohan Meakin Ltd vs M/S.Empee Distilleries Ltd on 8 December, 2023
Author: Abdul Quddhose
Bench: Abdul Quddhose
C.S.No.175 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.12.2023
CORAM
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
C.S.No.175 of 2005
1. M/s.Mohan Meakin Ltd.,
Rep. by its Authorised Signatory &
Power of Attorney,
Shri. T.Krishnamurthy,
Mohan Nagar, Ghaziabad,
Uttar Pradesh - 201 007.
2. M/s. Mohan Breweries and Distilleries Ltd.,
Rep. by its Company Secretary &
Vice President (Finance),
Shri. T.Krishnamurthy,
Rayala Towers, Chennai - 600 002. ... Plaintiffs
Vs.
M/s.Empee Distilleries Ltd.,
693, Mount Road, Chennai - 600 006. ... Defendant
PRAYER: Plaint filed under Order IV Rule 1 of Original Side Rules read
with Sections 134 and 135 of the trademarks Act, 1999 seeking the
following reliefs:
a) Permanent injunction restraining the defendant, its men, agents,
assignees, dealers and/or retailers from infringing the 1st Plaintiff's
registered trademark 'Old Monk Vide T.M. No.273257 by using offending
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C.S.No.175 of 2005
mark "Old Secret" or any other mark deceptively similar or identical with
that of the plaintiff's registered trade mark "Old Monk" for marketing XXX
Rum and/or any alcoholic beverage classifiable in class 32 or 33 of the IV
schedule to the Trade Marks Rules, 2002;
b) Permanent injunction restraining the defendant, its men, agents,
assignees, dealers and/or retailers from infringing the 1st Plaintiff's "Old
Monk' label registered Vide T.M. No. 432911 by using offending label
having similar getup and colour scheme bearing words "Old Secret" or any
other label deceptively similar or identical with that of the plaintiff's "Old
Monk'' label for marketing XXX Rum and/or any Alcoholic beverage
classifiable in class 32 or 33 of the IV schedule to the Trade Mark Rules,
2002;
c) Permanent injunction restraining the defendant, its men, agents,
assignees and dealers, retailers from selling and/or using and/or adopting the
offending label for their "Old Secret" XXX Rum similar and/or deceptively
identical with that of the 'Old Monk' label of the plaintiffs;
d) Permanent injunction restraining the defendant, its men and agents
from diluting the plaintiff's "Old Monk" XXX Rum label by using or
adopting similar and/or deceptively or identical label with a similar colour
scheme, get-up for marketing their alcoholic beverages in particular "Old
Secret' XXX Rum;
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C.S.No.175 of 2005
e) Permanent injunction restraining the defendant from using or
adopting bottles bearing the MBDL logo for selling their XXX Rum or any
other alcoholic beverage;
f) Direct the defendant to deliver to the plaintiff for destruction all
offending labels, packing materials, and "Old Secret" XXX Rum bearing
offending label manufactured by the defendant offered for sale or proposed
to be offer for sale in violation of plaintiffs proprietary rights over the "Old
Monk" XXX Rum Label;
g) Direct the defendant to render true account of profit made by them
on sale of "Old Secret" XXX Rum bearing offending label in violation of the
first plaintiff's proprietary rights over the "Old Monk" XXX Rum Label;
h) to pay cost of the suit.
For Plaintiffs : Mr.R.Anish Kumar
For Defendant : Mr.Bijesh Thomas
JUDGMENT
The suit has been filed for infringement and passing off.
2. The plaintiffs are the registered proprietors of the trademark "Old
Monk" XXX Rum. The plaintiffs were aggrieved by the defendant, using the
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label "Old Secret" XXX Rum label which according to the plaintiffs is
deceptively similar to that of the "Old Monk" XXX Rum label of the
plaintiffs. Under those circumstances, the reliefs sought for in the plaint has
been claimed. Pleadings are complete in the suit. However, it is an admitted
fact that the defendant has gone under liquidation pursuant to the orders
passed by the National Company Law Tribunal (NCLT), Chennai.
3. A liquidator was also appointed by the NCLT, Chennai since the
resolution plan, proposed, ended in failure. The defendant Company has
also now been taken over by a new management pursuant to the orders
passed by the NCLT, Chennai. Admittedly, the plaintiffs have not taken any
steps to serve notice in this proceeding on the I.R.P. appointed by the NCLT,
Chennai, pursuant to the moratorium order passed by the NCLT, Chennai
under Section 14 of the Insolvency and Bankruptcy Code, 2016.
4. As observed earlier, the resolution plan, proposed, also ended in
failure and the liquidator appointed by the NCLT, Chennai, pursuant to
orders passed by the NCLT, Chennai, has sold the Company to a third party
who has now taken charge of the assets of the Company.
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5. The Honourable Supreme Court in the case of Ghanashyam
Mishra and Sons Pvt. Ltd. Vs. Edelweiss Asset Reconstruction by its
decision dated 13.04.2021 has made it clear in paragraph No.95 of the said
judgment that once a resolution plan is duly approved by the adjudicating
Authority under Sub Section (1) of Section 31 of the Insolvency and
Bankruptcy Code, 2016, the claims as provided in the resolution plan shall
stand frozen and will be binding on the Corporate Debtor and its employees,
members, creditors, including the Central Government, any State
Government or any local authority, guarantors and other stakeholders. On
the date of approval of resolution plan by the adjudicating authority, all such
claims, which are not a part of the resolution plan, shall stand extinguished
and no person will be entitled to initiate or continue any proceedings in
respect to a claim, which is not part of the resolution plan.
6. Admittedly, the plaintiffs' claim was not part of the resolution plan,
which was placed before the NCLT, Chennai which is the adjudicating
authority. The plaintiffs did not also take any steps during the pendency of
the proceedings before the NCLT, Chennai, to either make a claim which is
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the subject matter of the suit or serve notice of the present proceedings on
the I.R.P. appointed by the NCLT, Chennai.
7. The suit is of the year 2005. The liquidator was earlier appointed
by the NCLT, Chennai and thereafter, the management of the defendant
Company has also changed hands pursuant to the orders passed by the
NCLT, Chennai due to the insolvency of the defendant Company. Though,
the learned counsel for the plaintiffs may contend that the present suit is a
trademark suit and therefore, it cannot be treated as a claim coming within
the purview of Section 31 of the Insolvency and Bankruptcy Code, 2016, the
said contention has to be rejected as the plaintiffs have admittedly not taken
steps to prosecute their claim in a diligent manner by taking steps to serve
the I.R.P. appointed by the NCLT, Chennai pursuant to the moratorium
order passed by the NCLT, Chennai under Section 14 of the Insolvency and
Bankruptcy Code, 2016.
8. The petitioner having not prosecuted the claim diligently, that too
when the management of the defendant Company has changed hands in
view of the insolvency of the defendant Company pursuant to the orders
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passed by the NCLT, Chennai, the question of prosecuting this claim before
this Court at this stage cannot be entertained by this Court.
9. For the foregoing reasons, nothing survives for further adjudication
in this suit. Accordingly, this suit is closed.
08.12.2023
Index : Yes/No
Speaking Order : Yes / No
Neutral Citation Case: Yes / No
ab
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ABDUL QUDDHOSE. J.,
ab
08.12.2023
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