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High Court Of Delhi
ECONOMIC TRANSPORT CARRIER - Appellant
Versus
ECONOMIC TRANSPORT CARRIER (SOUTH) - Respondent
Interim Application 11851 of 1999
Decided On : 12/13/2002
Held:
In no circumstances the majority of the partners can be allowed to permit a stranger to use their name or trade name as it would amount to offence of passing off. Every partner has a vital interest in the activities of a partnership firm. Majority cannot trample or impede the interests of minority partners.
Use of the name of the plaintiff firm by a stranger is not a minor matter. It hits at the very fount of the not only nomenclature of the firm but its business name also.
The applicants are not the plaintiffs as they have neither filed the suit nor sought any relief against any person, the application is not only highly misconceived but not maintainable also. Plaintiff is a master of the suit who has the power to withdraw or continue with the suit and none else. In this respect, the application is dismissed.
( 1 ) A strange situation has arisen in these proceedings as the suit has been filed by one of the partners of the plaintiff-firm against the defendant-firm which is its namesake and has one common partner, namely, sh. Madan Lal Aggarwal. It is alleged that the defendant-firm has used trade name of the plaintiff-firm by way of passing off in order to derive unjust advantage from the goodwill of the name of the plaintiff-firm. Sh. Madan Lal Aggarwal has been arrayed as defendant No. 2 on the premise that he is partner in defendant firm.
( 2 ) THE instant application under Order 23 Rule 1 cpc has been moved by defendant No. 2, Sh. Madan Lal aggarwal in his capacity as the partner of the plaintiff firm for withdrawal of the suit along with another partner, namely, Smt. Leela Devi Aggarwal.
( 3 ) I am afraid the application is not-maintainable as the provisions of Order 23 Rule 1 CPC confer the power on the plaintiff alone to withdraw the suit. Any party arrayed as defendant even if he happens to be one of the partners of the plaintiff-firm cannot take the place of plaintiff for the purpose of withdrawal of the suit as the relief sought is against another firm which is independent entity though one or two or more may be common partners. Every partner has independent right to protect the interests and preserve the objects of a partnership firm when any other partner seeks to destroy the original firm and clandestinely seeks to derive benefit or unjust advantage from the reputation or goodwill of the said firm. Such an act is always detrimental to the other partners and they too are entitled to protect their interests.
( 4 ) IT is not the case that the plaintiff firm as well as the defendant firm have the same partners. Some of the partners are common in defendant s firm. On account of this phenomena defendant firm is an independent entity and in such a situation neither defendant firm nor any its partners can substitute themselves as plaintiff. Plaintiff alone has an independent entity. Plaintiff is a master of the suit who has the power to withdraw or continue with the suit and none else.
( 5 ) THE application is mischievously conceived and has no merit and is dismissed. S. NO. 1486/98 list on 14th April, 2003.
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