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SUPREM,E COURT OF INDIA
K.K. MATHEW AND M.H. BEG, JJ.
1. Sohan Lal and others, Appellants
Versus
Amin Chand and Sons and others, Respondents;
Civil Appeal No. 227 (N) of 1970, Civil Appeals Nos. 1296-1297 of 1971 and Civil Misc. Petns. Nos. 2183-2184 of 1972, D/ 22-8-1973.
Civil Appeal No. 227 (N) of 1970.
Civil Appeal Nos. 1296-1297 of 1971.
2. Sohan Lal and others, Appellants
Versus
Shiv Dayal and others, Respondents;
Civil Misc. Petns. Nos. 2183-2184 of 1972.
3. Sohan Lal and others, Appellants
Versus
Amin Chand and Sons and others, Respondents.
Indian Arbitration Act, 1940 - Section 34, 13 (b), 14 (1), (2), (3), 39 (1) (ii) - Indian Contract Act, 1872- Section 45 –Civil Procedure Code, 1908- Section 107, Rule 4 of Order XXX, Rule 7 of Order 47 - Constitution of India, 1950 - Article 136 - Indian Partnership Act, 1932 - Section 43 - Partnerships Firms - Trade Marks - Order of Injunction - Bakshi Ram filed two suits for rendition of accounts - Whether legal representatives of Bakshi Ram were entitled to continue suits - Whether legal representatives are competent to continue suits - Whether appeal has abated - Whether before institution or during pendency of any suit, it shall not be necessary to join legal representative of deceased as a party to suit - Whether that court reviewed its previous order vacating injunction and then passed order of injunction after granting review - Whether it modified its previous order vacating injunction in exercise of its inherent power - Whether there was any justification for passing order of injunction - Whether appellate court was right in confirming it - Whether legal representatives of Bakshi Ram were competent to proceed with two suits - Whether partnerships "Amin Chand and Sons" and "Landra Engineering and Foundry Works" stood dissolved by notices issued by Bakshi Ram - Whether two suits instituted by Bakshi Ram for rendition of accounts were competent, - Whether there was any bar in his legal representatives continuing suits – Held, It would seem that there was no bar to Bakshi Ram filing suits for rendition of accounts if partnerships stood dissolved by notices issued by him and perhaps there would then be no reason also why his legal representatives could not continue suits - However, Court do not express any final opinion on merits of controversy – Court need only say that that opinion of court is not binding on arbitrators and counsel for respondents did not contend otherwise - It is clear that there are allegations to show that applicants were using name of firm "Amin Chand and Sons" under which respondent Shiv Dayal and his partner are carrying on business, on goods manufactured by applicants - In these circumstances, Court do not see how respondent has committed any contempt by disobeying order of this court - There can be no dispute that respondent was entitled to file a complaint on ground that applicants were manufacturing goods under trade marks as being manufactured by firm of "Amin Chand and Sons" and were passing off goods as manufactured by respondent firm - It would appear that applicants have filed a petition under Section 561-A of Code of Criminal Procedure before High Court of Punjab and Haryana for quashing order of Magistrate holding that complaint was maintainable - Petitions dismissed.
Judgment
MATHEW, J.:- Civil Appeal No. 227 of 1970. There were two firms called "Amin Chand and Sons" and "Landra Engineering and Foundry Works." The partners of the firms were three brothers Bakshi Ram, Shiv Dayal and Kishan Chand, after the retirement of the 4th partner. Certain trade marks were registered in the names of the firms. On January 30, l967, Bakshi Ram gave notices to the other partners dissolving the firms. The notices were served upon the other Partners sometime before March, 1967. On October 3, 1967, Bakshi Ram filed two suits for rendition of accounts against the other two partners in the subordinate Judge s court at Jullundur. The defendants in the suits filed applications under Section 34 of the Indian Arbitration Act for stay of the trial of the suits on the ground that the court had no jurisdiction to proceed with the trial in view of the clause for arbitration in the partnership agreements. On February 4, 1968, Bakshi Ram died and his legal representatives, 10 in number, were brought on record. On June 24, 1968, the parties agreed to have the matter referred to arbitration. The court stayed the trial of the suits and referred the matter to arbitrators. Before the arbitrators, a question was raised whether the legal representatives of Bakshi Ram were entitled to continue the suits. The arbitrators stated a special case for the opinion of the court under the first part of S. 13 (b) of the Act on the question of law, whether the legal representatives are competent to continue the suits. On December 20, 1968, a suit was filed by a firm called "Amin Chand and Sons" through Shiv Dayal, in the District Court at Rohtak against three of the legal representatives of Bakshi Ram trading under the names "Bakshi Ram and Sons", "Sohan Lal and Brothers" and "Kaybus Industries and others , for a permanent injunction restraining them from using certain trade marks. The plaintiff-respondents in the suit applied for restraining the defendant-appellants and their dealers from manufacturing or selling agricultural implements under trade marks Nos. 125062 and 138974 which were originally registered in the name of Amin Chand and Sons of which Bakshi Ram, Shiv Dayal and Kishan Chand were partners. The court granted an ex parse injunction. That was vacated on the objection of the defendants in the suit. Thereafter applications were filed by the plaintiff-respondents for reviewing the order dismissing the application for temporary injunction, and for issue of a temporary injunction to restrain the defendant-appellants from using the trade marks registered in the name of Amin Chand and Sons of which Bakshi Ram was a partner. These applications were allowed and temporary injunction as prayed for was granted. The defendant-appellants preferred an appeal against that order to the High Court. The High Court confirmed the order. This appeal, by special leave, is directed against that order.
2. During the pendency of the appeal here, one of the appellants, namely, Dharam Vir, died on May 14, 1970. The application to implead his legal representatives was filed only on July 14, 1970. The respondents, by way of preliminary objection, contended that the appeal has abated.
3. So, the first question for consideration is whether the appeal has abated. The plaint shows that three persons were sued in the names of the firms /under which they were carrying on business. The injunction order was issued against these persons in the names of the firms. The injunction order operated against these persons as carrying on business in the names of the firms.
4. Order 30, Rule 4 of the Civil Procedure Code provides that notwithstanding anything contained in S. 45 of the Indian Contract Act, 1872, two or more persons may sue or be sued in the name of a firm under the foregoing provisions and if any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased a
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