Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 08.11.2013
+ WP (C) No.6962 of 2013
M/S. PACHRANGA INTERNATIONAL PVT. LTD...... Petitioner
Through: Mr. Neeraj Grover &
Ms. Megha Chandra, Advs.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Joginder Sukhija, CGSC with
Mr. Yogesh Yogi, Advs. for R-1.
Mr. S.K. Bansal, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
V.K.JAIN, J. (Oral)
CAV Nos.984-985/2013
Since learned counsel for the caveator/respondent No.2 has
entered appearance, the caveats stand discharged.
CM No.15075/2013 (Exemption)
Allowed subject to just exceptions.
WP (C) No.6962/2013 & CM No.15074/2013 (Stay)
Shri Rajinder Dhingra, a Director of the petitioner-Company and
his father late Shri Asa Nand Dhingra entered into a partnership vide
partnership deed dated 1.1.1983 and started the business of processing,
marketing and manufacturing pickles and allied goods. The said firm
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adopted the trademark PIP in relation to its business. In the year 1984,
Shri Chander Mohan Dhingra, brother of Shri Rajinder Dhingra and
partner/proprietor of respondent No.2, M/s. Pachranga International
(Chander Group), joined the said partnership firm. A partnership deed
dated 1.4.1992 was executed amongst the above-referred three persons.
Clause 10 and clause 12 of the partnership deed dated 1.4.1999 to the
extent they are relevant read as under:
“10. THAT if any partner or partners shall at any time during
pendency of the Partnership commit or be guilty of a flagrant
breach of his duties or infringes or contravenes or violates any
of the terms of this partnership, the majority of partners have a
right to except such partner or partners by tendering a notice in
writing and publish in the name of an as against such person
and thereafter such partner or partners shall cease to be a
partner or partners and the remaining partners shall be at liberty
to form a fresh partnership and to carry on the same business.
That on the expulsion, of such expelled partner or other partners
shall be entitled for their capital and the profits till date.
….
12. xxxx
THAT in case of the dissolution of the firm, the GOODWILL
of the firm will be shared equally by the parties of the second
and third part and the party of the first part will not take any
share of the goodwill of the firm. If the GOODWILL amount is
not settled amicably on dissolution by both the parties, both the
parties are at liberty to use the name Pachranga International
and use the Registered trademark of (PIP) which will read as:
I) PACHRANGA INTERNATIONAL (RAJINDER
GROUP) AND
II) PACHRANGA INTERNATIONAL (CHANDER
GROUP)
This has been agreed into by all the parties, so that no outsider
may make use of the above firm.”
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2. The case of the petitioner is that since Shri Chander Mohan
Dhingra started running a parallel business under the name of a
company Pachranga Syndicate Private Limited, incorporated in the year
1994 and got engaged in the business of the said Company, he was
expelled from the partnership vide notice dated 15.2.2001 and thereafter
the said partnership continued between Shri Asa Nand Dhingra and Shri
Rajinder Dhingra. However, on 18.7.2001, they promoted and
incorporated the petitioner-Company, Pachranga International Private
Limited.
3. This is also the case of the petitioner that a Power of Attorney was
executed by Shri Chander Dhingra and Shri Asa Nand Dhingra in favour
of Shri Rajinder Dhingra on 13.7.1985 and in exercise of the power
conferred upon him, Shri Rajinder Dhingra by way of an assignment
deed dated 26.3.2002 assigned the trademark PIP and the trade name
Pachranga International to his wife Shrimati Sharda Dhingra.
4. On 24.2.2005, the petitioner applied for registration of the
trademark Pachranga, claiming user since July, 2001 and the said
registration was granted after advertising the same in the Trade Marks
Journal. On 3.4.2006, the respondent NO.2 filed an application seeking
removal/rectification of the aforesaid trademark. Vide impugned order
dated 12.7.2013, the Intellectual Property Appellate Board (IPAB)
allowed the said application and directed removal of the trademark
Pachranga International in Class 29. Being aggrieved the petitioner is
before this Court by way of this writ petition.
5. It would be seen from a perusal of Clause 12 of the Partnership
Deed dated 1.4.1999 that in the event of dissolution of the firm, the
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petitioner could have used the mark Pachranga International (Rajinder
Group) whereas the respondent No.2 could have used the mark
Pachranga International (Chander Group). Therefore, the trademark
Pachranga International could not have been used either by the
petitioner or by the respondent No.2. The case of the petitioner,
however, is that since respondent No.2 was expelled from the
partnership, he forfeited his right in the trademark Pachranga
International and in any case Clause 12 of the partnership deed would
have applied only in the event of the dissolution of the firm and not in
the case of expulsion of a partner of the firm. The learned counsel for
respondent No.2, however, submits that the expulsion notice date
15.2.2001 was never received by respondent No.2 and, therefore, there
was no question of expulsion of respondent No.2.
6. A perusal of the impugned order dated 12.7.2013 would show that
the IPAB was of the view that due process was not followed in the
alleged expulsion of respondent No.2. The IPAB also noted that
Pachranga Syndicate Private Limited had been incorporated way back in
the year 1994. In a writ petition it is not possible to go into disputed
questions of facts and record a finding as to whether the aforesaid notice
dated 15.2.2001 was actually served upon respondent No.2 or not. It
would, however, be appropriate to note that ordinarily, a partner of the
firm who is expelled from the business of the firm in this manner,
without giving any share to him in the assets of the partnership firm is
not likely to sit silent on receipt of such a notice. In the ordinary course
of human conduct a partner receiving such a notice is likely to contest
the assertion of the partners in this regard, instead of remaining silent
without even taking steps to recover his share in the income and assets
W.P.(C) No.6962/2013 Page 4 of 6
of the firm from the continuing partners of the firm. Though as per the
notice, respondent No.2 was asked to settle his account with the firm,
this is not the case of the petitioner that the accounts were actually
settled and the share of respondent No.2 in the assets of the firm, as on
the date of the alleged expulsion, was paid to him. This is yet another
indication that the notice dated 15.2.2001 was not received by
respondent No.2 and, in fact, this was a case of dissolution of the firm,
though no formal dissolution deed was executed. Consequently, the
petitioner could have used the trademark Pachranga International
(Rajinder Group) but not the trademark Pachranga.
7. As regards the case of the petitioner that in exercise of the powers
given to him by way of the General Power of Attorney dated 13.7.1985,
Shri Rajinder Dhingra had assigned the trade name and trademark in
question to his wife, Shrimati Sharda Dhingra, I find that the petitioner
has not placed on record a copy of the aforesaid GPA. Therefore, it
cannot be verified whether the aforesaid GPA authorized him to assign
the trademark and goodwill of the firm to an outsider or not. In any
case, the Tribunal did not accept the case of the petitioner in this regard
and was of the opinion that considering the relationship between the
assignor and the assignee and a paltry consideration of Rs.50,000/-
alleged to have been paid by Shrimati Sharda Dhingra to her husband,
the transaction between the husband and wife was a sham transaction.
In the facts and circumstances of the case, I see no reason to take a
different view.
8. For the reasons stated hereinabove no ground for interfering with
the impugned order dated 12.7.2013 is made out.
The writ petition is hereby dismissed. No orders as to costs.
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It is, however, made clear that dismissal of the writ petition shall
not come in the way of the petitioner establishing its case in a civil suit.
NOVEMBER 08, 2013 V.K.JAIN, J
b’nesh
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