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Madan Mohan Lal Garg Vs. Brijmohan Lal Garg and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberF.A.O. No. 153-D (T and M) of 1962
Judge
Reported inAIR1971Delhi313
ActsTrade and Merchandise Marks Act, 1958 - Sections 22
AppellantMadan Mohan Lal Garg
RespondentBrijmohan Lal Garg and ors.
Appellant Advocate P.C. Khanna, Adv
Respondent Advocate A.N. Goel and ; R.L. Tandon, Advs.
Excerpt:
the case dealt with the amendment of application for registration of trade mark under section 22 of trade and merchandise marks act, 1958 - the court ruled that the registrar of trade marks dealing with an application for amendment acts quasi judicially in deciding whether it should be allowed or not. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband..........and persian wheels etc. on 9th june, 1960 an application was made to the assistant registrar of trade-marks, new delhi for registration of the trade mark 'shanker'. this application was made in the names of all the partners . the application was contained in the trade-marks journal no. 285, dated the 16th april, 1961 under section 20 of the trade and merchandise marks act, 1958 (hereinafter referred to as the act). during the pendency of this application this partnership firm was dissolved on 1-11-1961 and a deed of dissolution was also executed. the original deed was given to brij mohan lal grag-respondent and a copy of the same was kept by madan mohan lal garg-appellant. on 15-11-1961, the appellant wrote to his solicitors at calcutta who were dealing with the application for.....
Judgment:

1. Madan Mohan Lal Garg-appellant, Brij Mohan Lal Garg-respondent with their father Shanker Lal Garg were carrying on a partnership business under the name and style of 'Meerut Engineering Works'. This firm was manufacturing Sugar Cane Crushers, Centrifugal Sugar Machines and Persian Wheels etc. On 9th June, 1960 an application was made to the Assistant Registrar of Trade-Marks, New Delhi for registration of the Trade Mark 'Shanker'. This application was made in the names of all the partners . The application was contained in the Trade-Marks Journal No. 285, dated the 16th April, 1961 under Section 20 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). During the pendency of this application this partnership firm was dissolved on 1-11-1961 and a deed of dissolution was also executed. The original deed was given to Brij Mohan Lal Grag-respondent and a copy of the same was kept by Madan Mohan Lal Garg-appellant. On 15-11-1961, the appellant wrote to his Solicitors at Calcutta who were dealing with the application for registration of the trade-mark, informing them about the dissolution of the firm and asking them to stop further proceedings.

The Solicitors informed the appellant that they were informing the Registrar of Trade-Marks accordingly. However by letter dated 9th January, 1962 the Solicitors made an application on form Tm - 16 to the Registrar of Trade-Marks , Delhi to amend the pending application to stand in the name of Brij Mohan Lal Garg-respondent, alleging that after the dissolution of the said partnership firm this respondent received the goodwill of the dissolved firm as well as the trade-mark 'Shanker'. The Solicitors were informed that the amendment application will be considered on their filing the necessary documentary evidence such as certified copy of the dissolution deed by which the respondent had become the sole proprietor of the mark in question. They were further informed that the amendment application will proceed to registration only after the respondent was entered as proprietor and after the same was 'notified' in the Trade-Marks Journal. On 14th February, 1962 the appellant wrote to the Registrar of Trade-Marks, Bombay informing him about the dissolution of the said partnership firm and stating that he would also be entitled to use the mark 'Shanker' for his personal business. It was stated by him 'as the circumstances have changed and none has got exclusive right to use the said mark, the above mentioned application is not legally maintainable and the mark ' Shanker ' should not be registered as it was applied or with any amendment.'

It was thus requested that the pending application for registration of the trade-mark be rejected and he be informed. By letter dated 13th March, 1962 the appellant was informed in reply to his aforesaid letter that 'if a person objects to the registration of the trade-mark, the proper course for him to adopt is to oppose the application in the prescribed manner. So far as this application is concerned the period for filing the opposition has expired.' On 2nd April, 1962 the appellant wrote to the Registrar of Trade-Marks, Bombay that on inspection of the file relating to the application for registration of the trade-mark it had been found that the Solicitors had asked for amendment of the application by substituting the name of the respondent alone and thus removing the name of the appellant and his father without authority and against his definite instructions. He stated that the amendment application could not be acted upon and was opposed by him. In these circumstances it was requested 'that no action on the said unauthorised 'TM-16' dated 9-1-1962 be taken without notice to him and without a hearing in the matter and oblige.' By another letter of the same date the appellant informed the Assistant Registrar, Trade-Marks, New Delhi enclosing a copy of his letter to Registrar of Trade-Marks, Bombay and requesting him ' to see that the mark is registered exactly as advertised in the names of the proprietors'.

2. Brij Mohan Lal Garg-respondent by his letter dated 27th June, 1962 sent a true copy of the deed of dissolution of the said partnership firm to the Assistant Registrar Trade Marks New Delhi. The Registrar of Trade-Marks by his letter dated 21-7-1962 informed the respondent that his amendment application had been allowed and the original application stood amended accordingly which was being proceeded further.. In the meantime the Registrar of Trade-Marks had asked the appellant by his letter dated 11-6-1962 to sent the deed of dissolution. The appellant by his letter dated 6th August, 1962 informed him that the original deed of dissolution was with Brij Mohan Lal Garg-respondent who was requiring the registration of the mark in his name. He also requested that 'application be treated as abandoned so that the parties may apply for registration of their trade-marks with other distinctive added features.' The appellant was, however, informed by letter dated 25th August, 1962 that the application in question stood amended in the name of Brij Mohan Lal Garg-respondent as per deed of dissolution and that the application so amended was due for registration and was likely to be registered shortly. By a letter dated l5th September, 1962 the appellant through his attorneys informed the Registrar of Trade-Marks that the amendment asked for by the respondent could not be considered without considering objections raised by the appellant and that he was entitled to an opportunity of being heard before any decision was taken. Registrar of Trade -Marks informed the appellant's attorneys by letter dated 15th September 1962 that the request of the respondent for amendment had been allowed after careful consideration and the 'question of granting hearing to decide the request on TM-16 does not arise.' In the meantime the amendment was notified in the Trade-Marks Journal dated September 1, 1962 under the heading ' applications amended after advertisement.'

3. The appellant on 18th September 1962 put in form TM-44 requesting for condensation of delay for filing the Opposition as the appellant intended to file an Opposition within a month, followed by a notice of Opposition dated 16-10-1962. He was informed by a letter dated 1st November, 1962 that the Opposition was not filed within time and so was refused. He was further informed that he could apply for refund of fees in respect of notice of Opposition. The appellant in this appeal under Section 109 of the Act challenges orders dated 25th of August, 1962 and 1-11-1962 of the Trade-Marks Registry.

4. The first contention of the appellant is that the Trade-Marks Journal dated 1-9-1962 contains advertisement and not notification. In this connection it is submitted that notification amounts to 'advertisement' under Section 21(1) of the Act. In order to appreciate the contention it is necessary to reproduce at this stage the relevant portions of Section 20 and 21 of the Act.

Relevant portion of Section 20(2) of the Act is as under:

'20 (2) Where-

(b) after advertisement of an application-

(i) an error in the application has been corrected: or

(ii) the application has been permitted to be amended under Section 22;

the Registrar may in his discretion cause the application to be advertised again or, in any case falling under Clause (b) may, instead of causing the application to be advertised again, notify in the prescribed manner the correction or amendment made in the application.'

Relevant portion of Section 21 is as under:

' Section 21(1).

Any person may, within three months from the date of the advertisement or readvertisement of an application for registration or within such further period, not exceeding one month in the aggregate, as the Registrar, on application made to him in the prescribed ;manner and on payment of the prescribed fee, allows, give notice in writing in the prescribed manner to the Registrar, of opposition to the registration.'

5. Admittedly, the case of the parties falls under sub-clause (ii) of Clause (b) of sub-section (2) of Section 20 of the Act. The Registrar, in these circumstances, has been given discretion to notify in the prescribed manner the correction or amendment made in the application for registration of a mark instead of advertising the application again. The afore-mentioned letter of the Registrar of Trade-Marks dated 6th February, 1962 clearly shows that the Registrar had decided to proceed to registration if the application for amendment was allowed after its due notification in the Trade-Mark Journal. Moreover, the ;manner in which the amendment has been put in the Trade Mark Journal of September 1, 1961 under the heading 'Applications amended after advertisement' shows that this is not a re-advertisement but is a notification. I may here point out that it is desirable if the Trade Mark Journal either contains specific headings or Chapters or parts as are there in the official gazette of the Government of India to show clearly whether an application was being advertised or readvertised or was being simply notified. May be, the persons dealing in trade-marks are conversant with the present system and find no difficulty in finding out whether an insertion is a notification or a re-advertisement . The Trade-Mark Journal is also meant for the public in general and it should unambiguously and clearly show under what heading a particular insertion falls instead of forcing a person to first find out the practice and then find out about the nature of an insertion. Had this been so, the parties would not have been allowed to take unnecessary long time to argue that the insertion in question was an advertisement or a notification.

6. The submission of the learned counsel for the appellant that since Sec. 21(1) of the Act mentions the words 'advertisement' or 're-advertisement', it means notification under Section 20(2)(b) amounts to 're-advertisement' does not have any force. Section 21(1) of the Act lays down the limitation during which a person may give notice of Opposition to the registration. It also lays down the starting point of period of limitation which is the date of advertisement or re-advertisement of an application for registration. 'Re-advertisement' can be ordered under Section 20 of the Act wherein the Registrar has been given a discretion to cause an application to 'be advertised again'. The omission of the word 'notification' from Section 21(1) of the Act clearly shows that it was not meant to give cause to a person to give a notice of Opposition to registration. The reason also seem to be simple. The amendments or corrections are usually of simple character and are of no practical significance to the person who intends to oppose. It is in these circumstances that Registrar has to exercise his discretion to re-advertise or to notify the correction or amendment.

7. It is then contended by the learned counsel for the appellant that it was the duty of the Registrar of Trade Marks to have given him an opportunity of being heard before amendment asked for by Brij Mohan Lal Garg was allowed. Mr. R.L. Tandon, learned counsel for the Registrar, contends that on their own showing the appellant had inspected the records and he knew that the application for amendment had been filed by the appellant. He further contends that in the letters written by the appellant to the Registrar the appellant had raised all the objections he could raise against the proposed amendment and so he was not entitled to any further opportunity.

8. In my opinion when the Registrar was dealing with the application for amendment filed by Madan Mohan Lal Garg respondent he was acting quasi-judicially in deciding whether to allow or not the proposed application. Admittedly the original application was on behalf of a partnership firm consisting of the appellant, respondent No. 1 and their father. Because of the dissolution the Solicitors of the firm had been informed t drop the proceedings. In this situation when on of the partners, who was one of the original applicants asked for amendment of the application, the others were entitled to a noticed and also to an opportunity of being heard before any decision was taken. Even if this be assumed to be an administrative order, still the position would not be different. It is no answer to the right of the appellant of being heard that he had come to know about the pendency of the application. This knowledge did not give him any opportunity of being hear, his letter dated 2nd April, 1962 written to the Registrar that he had come to know, after inspecting the file about the amendment of the application,; when on to state that no action should be taken on that application without notice to him and without a hearing in the matter. He had again raised this question by a letter from his attorneys after he had been informed by the Registrar that the amendment had been allowed. In all his letters to the Registrar the appellant had been praying that the main application for registration had been withdrawn and should not be proceeded with. When he came to know of the amendment he had asked for a hearing. Admittedly no opportunity of being heard was granted to the appellant before the decision was taken and this objection was raised by his attorney ;by their letter dated September 5, 1962.

9. It is again no answer that the deed of dissolution on which the parties stake their claims to the mark 'Shanker' had been duly considered by the Registrar of Trad-Marks. Before interpreting this document it was duty of the Registrar to give an opportunity to the appellant so that he could submit his contentions and interpretation of the relevant portions of this deed. The opportunity which has to be granted to a party has to be real opportunity and not a sham one. In the present case not even a sham opportunity has been granted.

10. In these circumstances I am constrained to quash and set aside the order allowing the amendment asked for by Brij Mohan Lal Garg respondent and to remand the case with the direction than an adequate opportunity of hearing be given to the appellant before the application for amendment is allowed. In the circumstances of the case there will be no order as to costs.

11. Case remanded.


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