Gujarat co-op law’s pre-suit notice requirement applies to Chennai trademark suit, Madras High Court rules

Asian Beverage Pvt. Ltd. sued Kaira District Co-operative Milk Producers Union Ltd., alleging that its use of “AMUL TRU” for beverages infringed the plaintiff’s registered composite mark “TRUE VALLEY” and amounted to passing off.

The plaintiff claimed use of its mark from 2012; the defendant claimed adoption and registration of “AMUL TRU” from 2019 and disputed any exclusive right in the word “TRUE”.

The defendant sought summary judgment under Order XIII-A CPC, including on the ground that the plaintiff had not given the pre-suit notice required by Section 167 of the Gujarat Co-operative Societies Act, 1961.

The plaintiff disputed the provision’s applicability and opposed summary disposal.

1. Whether the suit was defective for non-joinder of the defendant’s marketer, GCMMF, or the plaintiff’s predecessors in title.

2. Whether Section 167 of the Gujarat Co-operative Societies Act, 1961 applied to the suit and required pre-institution notice to the Registrar.

3. Whether the suit could be dismissed by summary judgment under Order XIII-A CPC, without a trial on the trademark and passing-off claims.

Order XIII-A Rule 3 CPC permits summary judgment where the plaintiff has no real prospect of succeeding and there is no compelling reason for the claim to await trial; both conditions must be satisfied.

Under Order I Rule 9 CPC, non-joinder does not defeat a suit unless the absent person is a necessary party—one without whose presence an effective decree cannot be passed.

Section 167 of the Gujarat Co-operative Societies Act, 1961 requires prescribed written notice to the Registrar and expiry of two months before a suit concerning an act touching a society’s business is instituted.

The Court considered Mohan Meakin Ltd. v. Pravara Sahkari Sakhar Karkhana Ltd., (1987) 89 Bom LR 356, on the application of a comparable notice provision to infringement and passing-off claims involving a society’s business, and Sterling Centre Premises Owners Co-op. Societies Ltd. v. Nanubhai R. Shah, (2006) 3 GLR 1853, on determining applicability by reference to the subject matter’s connection with the society’s business.

The Court also noted that passing off remains available under Section 27(2) of the Trade Marks Act, 1999, while registration of a composite mark does not necessarily confer exclusive rights in each component.

The Court rejected the non-joinder objection because neither the assignor nor GCMMF was shown to be indispensable to an effective decree against the defendant.

It held that the claim concerned the defendant society’s manufacture and sale of beverages under “AMUL TRU” in the ordinary course of its business, bringing the dispute within Section 167.

The fact that the suit was brought in Chennai did not, by itself, displace the notice condition applicable to proceedings against the Gujarat society; the Court treated the requirement as connected to the defendant and its business, not as a general extra-territorial regulation of societies.

As notice had not been given to the Registrar before suit, and later passage of time could not cure the failure to comply with the pre-suit requirement, the suit was not maintainable as instituted.

The Court therefore did not decide the contested merits of similarity, registration, prior use, goodwill or delay; it found no need for oral evidence on those matters once the threshold defect was established.

It allowed A. No. 770 of 2023 and dismissed C.S. (Comm. Div.) No. 161 of 2022 as not maintainable for failure to comply with Section 167, without adjudicating the infringement or passing-off merits.

The dismissal did not preclude fresh proceedings after compliance with applicable statutory requirements, subject to limitation and other available objections.

No costs were awarded.