The proviso to Order 25, Rule 1, Sub-Rule (1) of the Code of Civil Procedure is mandatory and foreign companies having no immovable property in India can be ordered to furnish security for costs.

PRATIBHA BONNERJEA, J.

( 1 ) THE above suit is a passing off action instituted by the plaintiffs against the defendants for permanent injunction restraining them, their servants, assigns and each of them from manufacturing, selling or purchasing perfumery, cosmetics and toiletries containing the name "ontue" or any other similar name on the allegation that the name 'ontue' not only sounds similar to plaintiffs' trade mark "jontue" but its style of writing 'ontue' is almost a facsimile of stylized writing "jontue". There is also a prayer for damages for Rs. 1,01,000/- or an enquiry into damages and decree for the amount found due on such enquiry. It is also alleged in the plaint that the plaintiffs Nos. 2 and 3 are wholly owned and are subsidiaries of the plaintiff No. 1 and they have been carrying on business all over the world including India since 1976 using their trade mark 'jontue'. In the above suit an interlocutory application was taken out by the plaintiffs for restraining the defendants from carrying on business in the name of 'ontue' and the said application is pending. The plaint in the suit has been verified by one Debashis Sen on behalf of the plaintiffs and the petition has been verified by one Sudhir Ahuja and both of them are claiming to be the constituted attorneys of the plaintiffs.

( 2 ) THERE is a controversy between the Plantiffs and the defendants regarding the representative capacities of Debashis and Sudhir Ahuja on the grounds that in spite of repeated demands on behalf of the defendants, inspection of the alleged original power of attorney was not given to the defendants. A xerox copy was shown which contained the alleged signature of the plaintiff No. 1 only. It is the defendants' case that all three plaintiffs are independent juristic persons, having separate legal identity. The plaintiff No. 1 was incorporated under the appropriate American Law and has its registered office in New York. The plaintiff No. 2 was incorporated in Switzerland under its appropriate law and the plaintiff No. 3 was incorporated in accordance with the appropriate law of France. This allegation at the defendants are corroborated by the cause title in the suit. Under the circumstances, the defendants allege that all this three companies must execute the power-of attorney in favour of the aforesaid two person for instituting the present suit an their behalf as otherwise the plaintiffs Nos. 2 and 3 will remain unrepresented.

( 3 ) THE present petition has been taken out by the defendants for striking out the names of the plaintiffs Nos. 2 and 3 on the grounds mentioned above.

( 4 ) IN dealing with the said allegations, Sudhir Ahuja did not specifically deny that the three plaintiffs have separate legal entities, neither he made any express averment that the alleged power-of-attorney was executed by the three plaintiffs in favour of Debashis Sen and Sudhir Ahuja, He only denied the allegations in the petition and alleged that in spite of plaintiff's Advocate-on-record making several appointments for giving inspection of the original power of attorney, the defendant's Advocate-on-record did not take inspections of the same in time. Hence the original document was returned to M/s. P. D. Ahuja and Co. , keeping a xerox copy there of. The defendants have taken inspection of this xerox copy.

( 5 ) THE next point taken by the petitioners herein is that all the three plaintiffs are foreign companies having their respective registered offices outside India and none of them has any immovable property in India. Hence they should be directed to furnish security for costs under the provisions of the proviso to O. 25, R. 1, sub-r. (1) of the Code of Civil Procedure. The fact that none of the plaintiffs has any immovable property in India has been clearly admitted, by Sudhir Ahuja in Para 11 of his affidavit-in-opposition filed in this proceeding. It is also an admitted fact that all the plaintiffs are foreigners. To understand the petitio

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