1. A trademark infringement and passing-off suit was challenged by the defendant seeking summary judgment, alleging the plaintiff lacked a real prospect of success. (Para 1 , 2 )
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2026 Supreme(Online)(Mad) 104176
IN THE HIGH COURT OF JUDICATURE AT MADRAS
A.D. Maria Clete, J
Kaira District Co-operative Milk Producers Union Limited – Appellant
Versus
Asian Beverage Private Limited – Respondent
A No. 770 of 2023 | C.S. (Comm.Div.) No. 161 of 2022
Advocates:
For the Appellants/Petitioners: Arul Gnana Prakash
For the Respondents: R.Sathish Kumar
For the Appellants/Petitioners: Arul Gnana Prakash
For the Respondents: R.Sathish Kumar
A suit against a co-operative society registered under the Gujarat Co-operative Societies Act, 1961, touching its business, is not maintainable without compliance with the mandatory pre-institution notice under Section 167, regardless of the forum where the suit is instituted.
Headnote:(A) Code of Civil Procedure, 1908 - Order XIII-A - Summary Judgment - Gujarat Co-operative Societies Act, 1961 - Section 167 - Mandatory Notice - Trademark infringement and passing off - Maintainability of suit - A suit against a co-operative society registered under the Gujarat Co-operative Societies Act, 1961, which concerns an act touching the business of the society, is not maintainable without the prescribed written notice to the Registrar and the expiry of the statutory two-month period (Paras 15, 21). The requirement of notice is a condition precedent to the institution of the suit and must be complied with even if the suit is instituted in a forum outside Gujarat (Para 22). Under Order XIII-A Rule 3 CPC, summary judgment may be granted where the plaintiff has no real prospect of succeeding and there is no compelling reason to proceed to trial (Para 11).
(B) Trade Marks Act, 1999 - Sections 17, 27(2), 28(3) and 30(2)(e) - Comparison of marks - Rival marks must be compared as a whole, although dominant and essential features may be considered. Registration of a composite label does not confer an exclusive right over every individual component of the mark (Paras 6, 7).
Facts of the case:
The respondent/plaintiff filed a suit for trademark infringement and passing off against the applicant/defendant for using the mark “AMUL TRU”, alleging it was deceptively similar to its registered mark “TRUE VALLEY”. The applicant/defendant sought summary judgment under Order XIII-A CPC, contending that the suit was not maintainable due to the non-joinder of necessary parties and the failure to serve the mandatory notice under Section 167 of the Gujarat Co-operative Societies Act, 1961, as the defendant is a society registered under said Act.
Findings of Court:
The court found that while the objection regarding non-joinder was not sustainable, the requirement for notice under Section 167 of the Gujarat Co-operative Societies Act, 1961 was mandatory because the dispute concerned the society's manufacture and sale of beverages in the ordinary course of its business. Since no such notice was served, the suit was held to be not maintainable.
Issues: Whether the suit was defective for non-joinder of necessary parties; whether non-compliance with Section 167 of the Gujarat Co-operative Societies Act, 1961 rendered the suit not maintainable; and whether the applicant was entitled to summary judgment under Order XIII-A CPC.
Ratio Decidendi: The court ruled that compliance with Section 167 of the Gujarat Co-operative Societies Act, 1961 is a mandatory statutory requirement for suits touching the business of the society, and the failure to comply with this condition renders the suit not maintainable, thereby satisfying the criteria for summary judgment under Order XIII-A Rule 3 of the CPC.
Result: A.No.770 of 2023 allowed; C.S. (Comm. Div.) No.161 of 2022 dismissed as not maintainable.
Legal Category Hierarchy
- practice and procedure
- intellectual property
- administrative law
Table of Contents
2. The applicant argues the suit is maintainable due to lack of mandatory statutory notice and non-joinder, whereas the respondent claims trial is required for disputed factual issues. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 )
3. The court found that the suit concerned the society's business, making the mandatory pre-suit notice under the relevant State act a condition precedent that the plaintiff failed to satisfy. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 )
4. Failure to issue mandatory statutory notice required by law for suits against a registered society constitutes a threshold bar that renders the legal proceedings not maintainable. (Para 21 , 22 , 23 , 24 , 25 )
5. The summary judgment application was allowed and the suit was dismissed as not maintainable, with no order as to costs. (Para 26 )
6. Is an assignor of intellectual property rights a necessary party in an infringement suit?
No, an assignor is not a necessary party to every subsequent infringement action brought by the assignee unless their presence is required to pass an effective decree. (Para 12 , 13 )
7. Does a statutory notice requirement in a State act apply to suits instituted in a different state?
Yes, if the defendant is a society registered under the State act in question and the impugned activity occurs in the course of its business, the notice requirement is attracted regardless of the forum state. (Para 21 , 22 )
8. Can a suit be dismissed by summary judgment if it lacks a mandatory pre-suit notice?
Yes, if the absence of statutory notice is an established legal impediment to the institution of the suit and the material factual foundation is not in dispute, the suit is not maintainable and may be dismissed under Order XIII-A CPC. (Para 11 , 25 , 26 )
##PAGE1##
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 01.10.2026 PRONOUNCED ON : 09.10.2026 CORAM:
THE HONOURABLE DR. JUSTICE A.D. MARIA CLETE A No. 770 of 2023 in C.S. (Comm.Div.) No. 161 of 2022 Kaira District Co-operative, Milk Producers Union Limited, Amul Dairy, Road, Anand-388 001.
..Applicant(s)
Vs Asian Beverage Private Limited.
15/430, Dr.Alagappa Road, Purasawakkam, Chennai 600 084., Rep.by its Authorised Signatory C.Vijayakumar. ..Respondent(s)
PRAYER : To issue Summary Judgment against the Respondent/Plaintiff and dismiss the present suit C.S.(Comm.Div) No.161 of 2022 with exemplary costs.
For Applicant(s): Mr. Arul Gnana Prakash for M/s.BFS Legal For Respondent(s): Mr.R.Sathish Kumar
O R D E R
The applicant/defendant, Kaira District Cooperative Milk Producers Union Ltd., seeks summary judgment under Order XIII-A of the Code of Civil Procedure, 1908, as applicable to commercial disputes, dismissing the suit instituted by the respondent/plaintiff, Asian Beverage Pvt. Ltd., alleging infringement of its registered trademark “TRUE VALLEY” and passing off by reason of the applicant/defendant's use of the mark “AMUL TRU” in respect of identical or similar products.
##PAGE2##2. The plaintiff claims adoption and continuous use of “TRUE VALLEY” since 26.01.2012 and registration under No.2276842 in Class 32, and alleges that the defendant's use of “AMUL TRU” for identical goods is deceptively similar and likely to cause confusion. The defendant denies infringement and passing off. It states that it is a district-level co-operative society, originally registered under the Bombay Co-operative Societies Act, 1925, and organized in the year 1946, whereas Gujarat Co-operative Milk Marketing Federation Limited (GCMMF) is also a co-operative society registered under the Gujarat Co-operative Societies Act, 1961 and functions as a State-level federation for, inter alia, marketing the products of its members, including the defendant. According to the defendant, GCMMF markets its products bearing AMUL and its variants, including AMUL TRU, while the intellectual property in the mark AMUL TRU vests with the defendant. The defendant claims adoption and use of “AMUL TRU” since 02.03.2019 and registration of its marks. It further contends that the plaintiff's registration is confined to a composite label and does not confer any exclusive right over the word “TRUE”.
##PAGE3##3. The applicant/defendant contends that the suit is not maintainable for want of the notice prescribed by Section 167 of the Gujarat Co-operative Societies Act, 1961, and for non-joinder of Gujarat Co-operative Milk Marketing Federation Ltd. (GCMMF) and the plaintiff’s predecessors in title. It further submits that the plaintiff’s registration is for a composite label and does not confer an exclusive right over the word “TRUE”; that “AMUL TRU” is independently registered; and that the marks and packaging are dissimilar. Relying also on the prominence of “AMUL”, the alleged absence of established goodwill and the plaintiff’s conduct and delay, the applicant submits that the plaintiff has no real prospect of succeeding.
4. The respondent opposes the application. It claims use of “TRUE VALLEY” since 2012, preceding the defendant’s adoption of “AMUL TRU” in 2019, and relies on the alleged phonetic and visual similarity between “TRUE” and “TRU” in relation to identical goods. It disputes the applicant’s interpretation of the registration limitations and denies suppression and unjustified delay. It states that it opposed the defendant’s applications in March
##PAGE4##2021, sought rectification in March 2022 and instituted the suit in August 2022. It contends that Section 167 is inapplicable and that neither GCMMF nor the former proprietors are necessary parties. According to the respondent, the disputed questions require a trial.
5. Learned counsel for the defendant submitted that the plaintiff has no real prospect of succeeding in the suit and that there is no compe
