Vasanta Bhavan Hotels India ... vs Vasantha Bhavan
2023 Latest Caselaw 9121 Mad

                                                                 O.S.A.(CAD) Nos.80 and 81 of 2023



                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED:     27.07.2023

                                                       CORAM :

                           THE HON'BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICE
                                                        AND
                                    THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU


                                        O.S.A. (CAD) Nos.80 and 81 of 2023

                     Vasanta Bhavan Hotels India Private Limited
                     rep. by its Director, Anand Krishnan
                     having its office at No.34
                     Developed Plots (South Phase)
                     Industrial Estate, Guindy
                     Chennai – 600 032.                                              .. Appellant

                                                         Vs

                     Vasantha Bhavan
                     No.115, 144, Gandhi Bazaar
                     Opp. Bus Stand, Gingee
                     Tamil Nadu – 604 202.                                    .. Respondents

Prayer: Appeals under Section 13 of the Commercial Courts Act against the common fair and decreetal order passed by the learned Single Judge dated 9.1.2023 in O.A.Nos.567 and 568 of 2022 in C.S. (Comm. Div.) No.190 of 2022.

For the Appellant : Mr.Sathish Parasaran Senior Counsel for Mr.M.V.Bhaskar

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For the Respondent : Mr.R.Sathish Kumar

COMMON JUDGMENT (Delivered by the Hon'ble Chief Justice)

The present appeals are filed against the common order

passed by the learned Single Judge of this court rejecting the

applications filed by the appellant for injunction restraining the

respondent from using the offending trademark “Vasanta

Bhavan” and the trading style “Vasantha Bhavan”.

2. Mr.Sathish Parasaran, learned Senior Counsel for the

appellant, submits that the trademark “Vasanta Bhavan” has

been used by the plaintiff since the year 1974 for its hotel

business. The device of “Namma Veedu Vasanta Bhavan” was

registered vide TM.No.2272730 under Clause 43, wherein a

user has been claimed since 7.1.2003 and that word “Namma

Veedu Vasanta Bhavan” has been in use since 1974. Learned

Senior Counsel submits that in the teeth of registration

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obtained by the appellant, it is not open for the respondent to

use the offending mark for their hotel business.

3. Learned Senior Counsel for the appellant further

submits that the respondent firm was dissolved in the year

2011, i.e., on 31.1.2011. The partners have clearly admitted

that there is no goodwill and, therefore, only the appellant has

enjoyed the goodwill in the eyes of the consumers in entirety.

4. Learned Senior Counsel for the appellant also submits

that it cannot be a case of acquiescence as observed by the

learned Single Judge. The respondent is guilty of fraud, and if

the respondent is guilty of fraud, the question of acquiescence

does not arise. Learned Senior Counsel relies upon the

judgment of the Apex Court in the case of Power Control

Appliances and others v. Sumeet Machines Private Limited,

(1994) 2 SCC 448. It is submitted that Late A.Muthukrishnan is

related to the appellant. However, the respondent claimed that

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he is their grandfather.

5. Learned counsel for the respondent submits that the

hotel business “Vasanta Bhavan” was started by Late

A.Muthukrishnan. He is relative of the respondent as well. The

appellant and the respondent belong to the same village and

are neighbours. As such, the appellant cannot claim ignorance

of the business carried on by the respondent in the name and

style of “Vasantha Bhavan” since 1967 at Arni and 1983 at

Gingee. The said Late A.Muthukrishnan also helped the

respondent in setting up its business in several ways. There

was a dispute amongst the partners of the respondent

partnership firm. The dispute was resolved through the

mediation of Late A.Muthukrishnan. Learned counsel for the

respondent relies upon the settlement memo dated 29.5.2011

signed in the presence of of Late A.Muthukrishnan.

6. Learned counsel for the respondent further submitted

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that the respondent is using the word “Vasantha Bhavan” for its

hotel business since 1983, through the predecessor, namely

V.Selvaraj. The partnership firm was leading from 1.10.1983

and the said partnership firm also received registration before

the Regional Commissioner, Employees Provident Funds, Tamil

Nadu and Puducherry, and a TAN number was also allotted to

the respondent on 5.5.1998. The business was done at Gingee

and Arni.

7. We have considered the submissions canvassed by

learned counsel for the parties.

8. The learned Single Judge has observed that the facts

on record prima facie indicate that the trademark was adopted

by Late Muthukrishnan, during his lifetime, as is evident from

the paper advertisement made during the year 1974.

9. The learned Single Judge has also observed that the

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documents filed by the respondent also confirm that the word

“Vasantha Bhavan” was used by them in Gingee and Arni and

the business in Gingee, which was in the hands of the

predecessor of the respondent, was continued by the

respondent. The documents prima facie also depict that several

statutory proceedings have been initiated against the

respondent by the statutory authorities when the word

“Vasantha Bhavan” has been used. It is clear that the said

mark/word “Vasantha Bhavan” was used by the respondent at

least since the year 1983. The learned Single Judge, prima

facie, came to the conclusion that the user of the respondent is

also prior to the trademark application filed by the appellant for

registration of the respective trademarks in the year 2012.

10. That apart, the learned Single Judge has restrained

the adoption of the legend “V” above the word “Vasantha

Bhavan” by the respondent in all the communications and

business transactions, including the board and advertising

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material. Learned counsel for the respondent, on instructions,

has undertaken that during the pendency of the suit, the

respondent would not use the mark/word “Vasantha Bhavan”

outside Gingee.

11. In view of the aforesaid, it cannot be said that the

learned Single Judge has committed error while rejecting the

applications seeking temporary injunction. It is trite that the

Appellate Court would be loath in interfering with the discretion

exercised by the trial court. The learned Single Judge has

arrived at a plausible conclusion, as such we are not inclined to

interfere with the order passed by the learned Single Judge.

In the result, the appeals, as such, are disposed of.

However, with no order as to costs. Consequently,

C.M.P.Nos.15949, 15954 and 15974 of 2023 are closed.

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(S.V.G., CJ.) (P.D.A., J.) 27.07.2023 Index : No Neutral Citation : No sasi

To:

The Sub Assistant Registrar Commercial Cases High Court, Madras.

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https://www.mhc.tn.gov.in/judis O.S.A.(CAD) Nos.80 and 81 of 2023

THE HON'BLE CHIEF JUSTICE AND P.D.AUDIKESAVALU,J.

(sasi)

O.S.A. (CAD) Nos.80 and 81 of 2023

27.07.2023

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https://www.mhc.tn.gov.in/judis