Skip to content


Calcutta Metropolitan Group Limited. Vs. Bidyut Kumar Banerjee and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata Appellate High Court
Decided On
Case NumberC.O. No. 1429 of 2009 With CAN No.6011 of 2009 & CAN No.5833 of 2009
Judge
AppellantCalcutta Metropolitan Group Limited.
RespondentBidyut Kumar Banerjee and ors.
Advocates:Mr. Abhrajit Mitra;, Ms. Radhika Singh, Adv
Excerpt:
.....that it is a defence even to an action for passing off or infringement of a trade mark that the plaintiffs (in this case the respondents) marks are an imitation of the mark of another to wit that the respondents had themselves infringed the mark of another. it is thus clear that the principle was applied to an action for infringement of trade mark and passing off. if the purchasers were in such a case to stamp their goods with the trade mark, "a.b. the basis of the ratio is to deny an infringer a right based on the mark or work which infringes the mark or work of another. the respondents in their affidavit in rejoinder denied the allegations that they had infringed the mark of state express 555. there are no averments, much less is there any evidence, to indicate that the respondents'..........but, none of the applicants responded to the said notice at that time. there is no reason why the added plaintiffs wanted to be added only at the time when the evidence of the plaintiff no.1 was going to be concluded. the learned trial judge has not also assigned any reason whey she is allowing all the four applications for being added other owners of some flats. she has simply recorded that the common interest will be affected if no chance was given to them to contest the suit as co-plaintiffs. this is, i hold, is not enough ground to allow the four applications for the coplaintiffs being added by way of addition of parties. if the copy of the plaint as appearing from page 27 of the application is perused, it would reveal that the suit has been filed mainly for personal cause of action.....
Judgment:
1. This application is at the instance of the defendant and is directed against the order dated March 21, 2009 passed by the learned Civil Judge (Senior Division), Fifth Court, Alipore in Title Suit No.99 of 2006 thereby allowing four petitions for addition of parties. The CAN applications being nos.6011 of 2009 and 5833 of 2009 are also taken up for hearing. The short fact is that the opposite party nos.1 & 2 are the co-owners of the apartment no.9C1 on the 9th Floor of Bay Residential Tower at Hiland Park. The petitioner is the developer of the same Hiland Park apartments. The opposite party nos.1 & 2 instituted a Title Suit No.99 of 2006 for declaration, permanent injunction, recovery of compensation, etc. The petitioner is contesting the said suit by filing a written statement and the said suit is at the stage of examination of the P.Ws. At that time, two applications for addition of parties were filed one by opposite party nos.15 to 19 and the other by the opposite party nos.20 to 24 for being added as co-plaintiffs. Thereafter, two separate applications were also filed one by opposite party nos.24 to 28 and the other by the opposite party nos.29 to 33 for addition as co-plaintiffs. All the four petitions for addition as co-plaintiffs were allowed by the imnpugned order dated March 21, 2009. Being aggrieved, the developer has filed this application.

2. Now, the point for consideration is whether the impugned order should be sustained.

3. that the suit has been filed by the plaintiffs as co-owners of the apartment no.9C1 on the 9th Floor of Bay Residential Tower at Hiland Park for reliefs such as, declaration that the defendant no.1/opposite party herein is bound to execute the works in the Hiland Park, declaration that the defendant is bound to take measures for deficiencies in their works, recovery of compensation / refund of money for loss of curtailment and/or reduction in the undivided proportionate share of land, compensation for loss of green covered spaces, loss of open to sky, recovery of compensation along with interest for harassment, loss of valuable time, permanent injunction restraining the defendant nos.1 & 2 from execution and registration of the pending deed of conveyance in favour of the intending purchasers of the added flats, mandatory injunction for demolishing the car parking space, etc. as appearing from page no.47 to 51 of the application. Thus, I find that the plaintiffs have claimed several reliefs and if the plaint is read as a whole it would appear that their claim is mainly based on the personal inconvenience caused to them by the activities of the developer. The defendant no.1 is contesting the said suit by fling a written statement and the plaintiffs tendered their evidence by way of affidavit in March, 2008 and thereafter, the cross-examination of the P.W.1 was going on. The first two applications for addition of parties were filed on November 3, 2008 by the opposite party nos.15 to 19 in one set and the opposite party nos.20 to 24 by another set for being added as co-plaintiffs. The other two applications for addition of parties as co-plaintiffs were filed on December 11, 2008 when the examination of the P.W.1 was at the concluding stage.

4. It may be noted herein that at the initial stage, the plaintiffs sought for permission to proceed with the suit under Order 1 Rule 8 of the Code of Civil Procedure. There are 900 owners of the flats at the said premises. The public advertisement relating to the public notice under Order 1 Rule 8(2) of the C.P.C. laid down that any person interested in the suit could have joined within March 2, 2007. But, none of the applicants responded to the said notice at that time. There is no reason why the added plaintiffs wanted to be added only at the time when the evidence of the plaintiff no.1 was going to be concluded. The learned Trial Judge has not also assigned any reason whey she is allowing all the four applications for being added other owners of some flats. She has simply recorded that the common interest will be affected if no chance was given to them to contest the suit as co-plaintiffs. This is, I hold, is not enough ground to allow the four applications for the coplaintiffs being added by way of addition of parties. If the copy of the plaint as appearing from page 27 of the application is perused, it would reveal that the suit has been filed mainly for personal cause of action on the allegation that the activities of the developer has caused prejudice to their rights and interests in respect of the flat as well as the land over which the flats are situated. Therefore, the plaintiffs have mainly filed the suit for their personal claims. If the added plaintiffs are allowed to proceed with the suit, they would also raise their personal claims with regard to their respective inconvenience, if any. Being inspired by such addition of parties at the trial stage, the other owners of the flats may also come for being added as co-plaintiffs. In this way, there may be situation where the suit will not come to an end at any time.

5. As per materials on record, there is an association of the flat owners known as Hiland Park Residents Association Limited, a body corporate registered under the Companies Act, 1956 and this association was formed in the year 2004 meaning thereby it was very much in existence at the time of filing of the suit. When public notice was issued under Order 1 Rule 8(2) of the C.P.C., this association did not choose to be associated with the suit and in fact, this association did not pray for being added as party before the learned Trial Judge. An application has been filed for being added as party in this revisional application by CAN No.6011 of 2009. This revisional court is now exercising its jurisdiction as to legality, correctness or perversity in the order impugned and not beyond that. The suit has been filed as stated above mainly for compensation and injunction for the personal inconvenience caused to the two flat owners. In fact, a contract to have a flat was done between the owners of the flat and the developer and the so-called association was not in the picture at all. The rights, liabilities and contentions between the original plaintiffs and the developer arose out of a contract between them only and the two flat owners have filed the suit to assert their rights as per contracts. Under such circumstances, Mr. Mitra, learned Advocate appearing on the behalf of the petitioner, has referred to the following three decisions:-

1. Kathiawar Industries Limited v. Custodian General of Evacuee Property, Govt. of India reported in AIR 1967 Punjab 337.

Thus, Mr. Mitra refers that a company cannot espouse the case of the shareholders and that a company being different from its shareholders, it has no locus standi to bring a petition in that behalf.

2. Electronics Corporation of India Ltd. and ors. vs. Secretary, Revenue Department, Govt. of Andhra Pradesh & ors. reported in (1999) 4 SCC 458 particularly paragraph no.5.

Mr. Mitra thus submits that even if a company has a single shareholder, in the eye of law, a company registered under Companies Act has a distinct legal entity and it is altogether a separate one from its shareholder, and

3. New Redbank Tea Co. Pvt. Ltd. v. Kumkum Mittal and ors. reported in (1994) 1 SCC 402, particularly paragraph no.11.

6. Thus he submits that a person may be added as a party if he has a direct interest in the subject matter of the litigation.

7. The above three decisions are very much relevant with regard to the matter in dispute in this revisional application. For the reasons stated above and the ration of the above three decisions, I am of the view that the association cannot be added as party to this revisional application. So, the application is totally misconceived. Therefore, the CAN application being no.6011 of 2009 is hereby rejected.

8. Since the lis between the original plaintiffs and the developer arose out of private contract between them and all the rights, interests and contentions between the parties shall be determined according to the deeds of agreement between them and subsequent the deed of sale, I am of the view that the learned Trial Judge has failed to exercise the jurisdiction vested in her. The applications for addition of parties should have been dismissed; otherwise there would not be any end of the litigation. The 900 owners of the flat may be inspired for being added as parties in the suit if the steps adopted by the learned Trial Judge are supported.

9. In view of what has been observed above, I am of the view that this revisional application succeeds. It is allowed. The four petitions for addition of parties, as filed in the Title Suit No.99 of 2006 stand dismissed.

10. Since the suit is old one, the learned Trial Judge is directed to disposed of the suit within six months from the date of communication of this order.

11. Considering the circumstances, there will be no order as to costs.

12. The CAN Application being no.6011 of 2009 stand rejected by this order.

13. The other CAN Application being No.5833 of 2009 praying for vacating the interim order has now become infructuous and so, it is dismissed.

14. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //