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2020 Supreme(Mad) 1163
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. GOVINDARAJ, J.
M. Murali - Petitioner
Versus
Sri Krishna Sweets Private Limited, represented by its Chief Financial Officer and Authorised signatory, Mr. K. Venkasubramanian - Respondent
CRP Nos.2463, 2464 and 2472 of 2019 & C.M.P. Nos.16163, 16172 and 16179 of 2019
Decided On : 27-05-2020
For the Petitioner: Mr. Satish Parasaran, Senior Counsel for Mr. R. Parthasarathy.
For the Respondent: Mr. M.V. Krishnan, Senior Counsel for Mr. Sricharan Rangarajan.
Headnote:
Constitution of India Article 227 – Praying to set aside the judgment – Common Prayer in C.R.P. Civil Revision Petitions filed praying to set aside the judgment and decree passed by the III Additional District Judge, Coimbatore in I.A. and thereby direct the District Court to frame the additional issue regarding the validity of the petitioners trademarks namely are liable to be rectified – All these three revisions are filed by him against dismissal of his petitions to frame additional issues; for grant of time to challenge the validity of trade mark registrations of Plaintiff: and to recall the order in O.S. by the trial court – For the sake of clarity, the Revision Petitioner is called as defendant/revision Petitioner and the respondent as Plaintiff –Held, Assuming in the first instance as suggested by learned counsel for the appellant that no issue as to validity has been framed, we notice that the order framing issues clearly records that no other issue is claimed. Thus notwithstanding there being a clear pleading by the defendant on the suit, as to the invalidity of the mark of the plaintiff, the defendant has overtly abandoned a plea as to invalidity by not insisting on any other issue than the one framed by the trial court – It needs no elucidation that a plea which is raised in written statement but trial of which is not insisted upon by not insisting to frame an issue to that effect, such plea must be deemed to have been abandoned by the party raising the same in his pleadings. It becomes a case of overt abandonment. Once a person has abandoned the plea as to invalidity of the mark, he cannot raise fresh plea de hors the suit by filing a rectification application and resume such plea
ORDER :
Common Prayer in C.R.P.Nos.2463 and 2464 of 2019: Civil Revision Petitions filed under Article 227 of Constitution of India praying to set aside the judgment and decree dated 16.04.2019 passed by the III Additional District Judge, Coimbatore in I.A.Nos.1038, 1039 of 2018 in O.S.No.425 of 2016 and thereby direct the District Court to frame the additional issue regarding the validity of the petitioner's trademarks namely “404943, 484524 and 494525 are liable to be rectified.
Prayer in C.R.P.Nos.2472 of 2019: Civil Revision Petition filed under Article 227 of Constitution of India praying to set aside the judgment and decree dated 16.04.2019 passed by the III Additional District Judge, Coimbatore in I.A.No.1040 of 2018 in O.S.No.425 of 2016 and thereby direct the District Court to recall and set aside the order dated 23.10.2018 passed in I.A.No.221 of 2018 in O.S. No.425 of 2016 and restore order of stay granted on 14.02.2018.
Revision Petitioner is the defendant in the above suit for infringement.
2. All these three revisions are filed by him against dismissal of his petitions to frame additional issues; for grant of time to challenge the validity of trade mark registrations of Plaintiff: and to recall the order dated 23.10.2018 passed in I.A.No.221 of 2018 in O.S.No.425/2016, by order dated 16.04.2019 by the trial court.
3. For the sake of clarity, the Revision Petitioner is called as defendant/revision Petitioner and the respondent as Plaintiff.
4. The litigation is between the siblings. Managing Director of the Plaintiff M. Krishnan is the elder and the defendant M. Murali is the younger. Their father Late Mr. N.V. Mahadeva Iyer, was running restaurant business in the name and style of Sri Krishna Bhavan and a building namely Sri Krishna Bhavan Complex. While defendant was studying in college, his elder brother started a business in the name and style of Sri Krishna Sweets in the year 1979. The defendant after completing his degree also ventured into business. The elder brother got registration of Trade Mark viz figure of Idol Krishna with the word Krishna in stylish letters in English bearing registration No.404943 dated 02.05.1983. Thereafter, the said Proprietorship concern was converted and floated as a Private limited company having the said M. Krishnan and his wife Usha Krishnan as Promoters. Thereafter Mr. Krishnan got trade mark registration for the word Krishna in stylish letters in English vide Certificate No.484524 dated 21.01.1988 and the word Krishna in bold English Capitals vide Certificate No.484525 dated 21.01.1988 in the name of M. Krishnan, trading as Sri Krishna Sweets, Coimbatore in Tamilnadu as Manufacturer and Merchant. On 23.03.2002, the defendant was inducted as Director and continued qua till 27.08.2010. In the meanwhile, the defendant opened his first retail outlet in the same name and style of Sri Krishna Sweets on 06.06.1996 at Pondy Bazaar, T.Nagar, Chennai. In the meanwhile, M. Krishnan assigned the registered trademarks in favour of Mrs. Usha Krishnan on 24.03.2002. By a resolution of Board of Directors dated 30.06.2002, a decision was taken to acquire the business of Sri Krishna Sweets as a going concern with effect from 01.07.2002. A Business Purchase Agreement was entered between Mr. M. Krishnan as Seller and the Plaintiff as Purchaser to take over the assets and liabilities w.e.f. 01.07.2002 on the basis of audited balance sheet as on 30.06.2002. The same was executed by the defendant as the representative Director on behalf of the Plaintiff. In the mean while the defendants business has also flourished. It is stated that the brothers in the meanwhile filed applications for registration of Sri Krishna Sweets as trade mark and withdrew the same. These factual aspects as to whether the defendant started his business in the same name on oral permission of the elder brother or on his own right, whether the assignment is valid or not? and whether attempts were made to register the name Sri Kris
