Madras High Court
Periyasamy Servai Chandran vs A.Ganesan on 18 February, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
C.R..P.(PD)(MD).No.434 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P(PD)(MD)No.434 of 2025
and
C.M.P(MD) No.2498 of 2025
Periyasamy Servai Chandran
S/o. P.Periyasamy Servai,
Proprietor of SMAART HOME FURNITURE,
Having Head Office at
No.3, New Natham Road,
Iyer Bungalow,
Madurai. ... Petitioner/Petitioner/
Defendant
Vs.
1. A.Ganesan
S/o. Mr.Annamalai,
Partnership of
“Smart Home Grand”,
having head office at
No.232, Nayakkar New Street,
Madurai – 625 001.
2. A.Venkat Annamalai,
S/o. Mr.Annamalai,
Partnership of
“Smart Home Grand”,
having head office at
No.232, Nayakkar New Street,
Madurai – 625 001. ... Respondents/Respondents/
Plaintiffs
1/7
https://www.mhc.tn.gov.in/judis
C.R..P.(PD)(MD).No.434 of 2025
PRAYER: Civil Revision Petition filed under Article 227 of Constitution of
India, against the fair and decreetal order passed in I.A.No.915 of 2020 in
O.S.No.126 of 2019, on the file of the Principal District Court, Madurai,
dated 12.01.2024.
For Petitioner : Mr.H.Arumugam
ORDER
The defendant in O.S.No.126 of 2019 on the file of the Principal
District Court, Madurai, is the revision petitioner herein.
2. The respondents herein as plaintiffs have filed the above said suit for
the relief of permanent injunction restraining the defendant from in any way
infringing the registered trade mark of the plaintiffs by using, adopting or
copying the word “SMART HOME GRAND” either individually or
collectively. They have also sought for a permanent injunction restraining the
defendant from in any way to start new business at any place in Tamil Nadu
in the name and style of “SMART HOME FURNITURE” and for mandatory
injunction to close all the shops running business in the name and style of
“SMAART HOME FURNITURE” especially at Madurai and anywhere in
Tamil Nadu.
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C.R..P.(PD)(MD).No.434 of 2025
3. The defendant has filed a written statement contending that the
plaintiffs in paragraph No.5 of the plaint have contended that they are a
registered partnership firm and they have sought for infringement of a
registered trade mark. However, no records have been produced by the
plaintiffs to establish the fact that they are a registered partnership firm.
Pending suit, the defendant has filed I.A.No.915 of 2020 under Order 7 Rule
11 of C.P.C, to reject the plaint under Section 69 of Indian Partnership Act,
1932. According to the defendant, the suit by an unregistered partnership firm
is not maintainable and therefore, the suit is liable to be rejected.
4. The plaintiffs have filed a counter contending that they have simply
stated that they are partners running a business and they are not a registered
partnership firm. It was further contended that they have filed the present suit
seeking a permanent injunction to prevent infringement of the registered trade
mark as against the third parties. In such circumstances, the non registration
of a firm would not be a bar for filing the present suit. This plea of the
plaintiffs was accepted by the trial Court and the application filed under
Order 7 Rule 11 of C.P.C, was dismissed. Challenging the same, the present
Civil Revision Petition has been filed.
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C.R..P.(PD)(MD).No.434 of 2025
5. According to the learned counsel appearing for the revision
petitioner, in paragraph No. 5 of the plaint the plaintiffs have specifically
contended that they are a registered partnership firm as per the Indian
Partnership Act, 1932. In such circumstances, unless the documents are
placed before the Court to establish that they are registered partnership firm,
the suit is not maintainable and therefore, the plaint ought to have been
rejected.
6. This Court has perused the plaint as well as the application filed by
the revision petitioner herein in I.A.No.915 of 2020. This Court has also
considered the legal effect of Section 69 of Indian Partnership Act, 1932.
7. A perusal of the plaint averments reveal that the suit has been filed
by two individuals describing themselves as business partners of “SMART
HOME GRAND” and nowhere it is mentioned that they are a
registered partnership firm. Admittedly, the plaintiffs in the suit have not
entered into any type of contract with third parties to the business run by
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C.R..P.(PD)(MD).No.434 of 2025
them. A perusal of Section 69 of Indian Partnership Act, 1932, reveals that the
suit cannot be filed by an unregistered firm to enforce the right arising from a
contract or any other right conferred under the Indian Partnership Act.
8. In the present case, the plaintiffs have not tried to enforce any right
arising from the contract or any of their rights conferred under the Indian
Partnership Act. The learned trial judge has also relied upon the judgment of
the Hon'ble Supreme Court in 2000 (2) Supreme Court 145 (M/s. Haldiram
Bhujiweala and another Vs. M/s.Anand Kumar Deepak Kumar and
another), wherein, the Hon'ble Supreme Court has categorically held that a
suit by an unregistered firm for protecting the registered trade mark is not
barred by Section 69(2) of the Indian Partnership Act, 1932. In such
circumstances, this Court does not find any merits in this petition.
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C.R..P.(PD)(MD).No.434 of 2025
9. Accordingly, this Civil Revision Petition stands dismissed. There
shall be no order as to costs. Consequently connected Miscellaneous Petition
stands closed.
18.02.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The Principal District Court,
Madurai.
2. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R..P.(PD)(MD).No.434 of 2025
R.VIJAYAKUMAR,J.
ebsi
18.02.2025
https://www.mhc.tn.gov.in/judis
