The main legal point established in the judgment is the interpretation of Section 107 of the Trade and Merchandise Marks Act, 1958, which determines the Registrar's jurisdiction to entertain an application for rectification in the presence of a pending civil suit.

JUDGMENT - S.A. BOBDE, J.:---This petition is preferred by Bakemans Industries Limited challenging the order dated 22nd December, 1999 passed by the Deputy Registrar of Trade Marks holding that he has no jurisdiction to entertain the petitioner's application for rectification in view of the provisions of section 107 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as "the Act") and that the application would have to be made to the High Court.

2. The petitioner, Bakemans Industries Limited, adopted a trade mark "GLUCOGOLD" sometime in August, 1997. On 4th August, 1997 they applied for its registration in Class-30 which inter alia includes Bread and Biscuits.

3. On 5th December, 1997, the petitioner did two things, viz. :-

(1) They despatched the present application for rectification to the Registrar by Speed Post. In that application the petitioner prayed for rectification of the register to the effect that the respondents trade mark "GLUCO" be struck off the register.

(2) They filed a suit in the District Court at Patiala under section 120 of the Act which enables the person who is threatened with an action of infringement of a trade mark to obtain a declaration to the effect that the threats are unjustifiable and inter alia for an injunction against the continuance of a threat in that suit apart from the injunction restraining the respondents from issuing groundless threats, the petitioner also sought a declaration that they have infringed the trade mark GLUCO by using their own trade mark GLUCOGOLD. The petitioner also prayed for damages.

The petitioner's application for rectification, despatched by Speed Post appears to have reached the Registrar on 12th December, 1997, at least it appears to have been registered on that date.

4. On 28th January, 1999 the respondent filed an interlocutory application before the Registrar alleging that the Registrar had no jurisdiction in view of section 107 of the Act. Section 107 read as follows :-

"Section 107. Application for rectification of register to be made to High Court in certain cases.

(1) Where in a suit for infringement of a registered trade mark the validity of the registration of the plaintiff's trade mark is questioned by the defendant or where in any such suit the defendant raises a defence under Clause (d) of sub-section (1) of section 30 and the plaintiff questions the validity of the registration of the defendant's trade mark, the issue as to the validity of the registration of the trade mark concerned shall be determined only on an application for the rectification of the register, and notwithstanding anything contained in section 46, sub-section (4) of section 47 or section 56, such application shall be made to the High Court and not to the Registrar.

(2) Subject to the provisions of sub-section (1), where an application for rectification of the register is made to the Registrar under section 46 or sub-section (4) of section 47 or section 56, the Registrar may, if he thinks fit, refer the application at any stage of the proceeding to the High Court."

The Registrar has upheld the respondents objection finding that his jurisdiction to entertain an application for rectification is barred in view of the above mentioned suit filed by the petitioner against the respondents at Patiala under section 120 of the Act.

5. The only question before me, therefore, is whether the Registrar has the jurisdiction to entertain petitioner's application for rectification of the register in view of the fact that the petitioner has also filed a suit in the Court at Patiala.

6. The answer to this question must necessarily depend on the construction of the section 107 of the Act. On a plain reading of the section, it is clear that application for rectification must be made to the High Court and not to the Registrar, in the following circumstances :-

(1) Where there is a suit for infringement of a registered trade mark and in such a suit the validity of the registration of the plaintif

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