Dismissed

Kerala Vyapari Vyavasayi Ekopana Samithi v. K.S. Radhakrishnan Nair

Kerala HC7 Feb 2018FAO/276/2016

Case brief

AI extract

What is this about?

In this first appeal, the High Court of Kerala dismissed the appeal against the trial court's order returning the plaint for presentation before the proper court. The court held that a District Unit of a society is not a legal entity and cannot maintain a suit. It also observed that since members are entitled to use the trade name, an injunction against them is not possible.

What did the court decide?

The appeal was dismissed. The parties are directed to institute a proper suit before the competent court if advised.

Kerala Vyapari Vyavasayi Ekopana Samithi Vs K.S… — Intellectual Property | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

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WEDNESDAY, THE 7TH DAY OF FEBRUARY 2018 / 18TH MAGHA, 1939

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FAO.No. 276 of 2016

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AGAINST THE JUDGMENT IN OS 12/2015 OF ADDITIONAL DISTRICT COURT - VI, THIRUVANANTHAPURAM DATED 31-10-2016

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APPELLANT(S)/PLAINTIFF

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KERALA VYAPARI VYAVASAYI EKOPANA SAMITHI THIRUVANANTHAPURAM DISTRICT COMMITTEE, REG NO. 262/1981, REPRESENTED BY ITS GENERAL SECRETARY.

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BY ADVS.SRI.M.R.ANANDAKUTTAN SMT.M.A.ZOHRA SRI.MAHESH ANANDAKUTTAN SMT.S.SOUMYA ISSAC

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RESPONDENT(S)/DEFENDANTS:

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1. K.S. RADHAKRISHNAN NAIR PROPRIETOR, NEW KERALA OPTICALS, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM-695001

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2. S.S. MANOJ V.K. LOGISTICS, MURINJAPALAM, PATTOM P.O, THIRUVANANTHAPURAM 695004

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3. N. RAJAN SUSHAMA VIHAR, KADAKKAVOOR P.O, NILAKKAMUKKU, THIRUVANANTHAPURAM - 695306

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4. J. SANKUNNI NAIR PROPRIETOR, S.N STORE, NEAR G.G HOSPITAL, MURINJAPALAM, PATTOM, THIRUVANANTHAPURAM 695004

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5. KARAMANA MADHAVANKUTTY. P, PROPRIETOR, GANESH MEDICALS, KARAMANA P.O, THIRUVANANTHAPURAM - 695003

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6. A MADHUKUMAR PROPRIETOR, NELLIYODE AGENCIES, NETTAYAM P.O, THIRUVANANTHAPURAM 695013

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7. J. PURUSHOTHAMAN NAIR PRESIDENT, VYAPARA BHAVAN, POTHANCODE P.O, THIRUVANANTHAPURAM 695584

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FAO.No. 276 of 2016

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8.	SUKUMARAN
	PROPRIETOR, SREE BHADRA PERFUMES, KSHETHRANADA,
	KATTAKKADA P.O, THIRUVANANTHAPURAM 695572
9.	ABDUL SATHAR
	PROPRIETOR, SHINE FANCY KAZHAKOOTTAM, THIRUVANANTHAPURAM 695584
10.	SASIDHARAN NAIR
	ARAVIND STORES, VENJARAMOODU P.O, THIRUVANANTHAPURAM 695 607
11.	PRASANTH S
	PROPRIETOR, PRASANTH TEXTILES, VALIYAKADA, CHIRAYINKEEZHU, THIRUVANANTHAPURAM - 695304

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R1-R7 & R9-R11 BY ADV. SRI.V.VENUGOPALAN NAIR

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 07-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. ABRAHAM MATHEW, J.

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F.A.O. No. 276 of 2016

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Dated this the 7^th day of February, 2018

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J U D G M E N T

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The appellant is the plaintiff in OS No.12/2015 on the

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file of the Additional District Court-VI,

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Thiruvananthapuram. The reliefs prayed for in the suit are as follows;

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“A) Granting permanent prohibitory injunction restraining the defendants by themselves or their agents and any other person claiming under them from using the registered trade name of “Kerala Vyapari Vyavasai Ekopana Samithi 'its logo of 'device of balance of two trays and its flag.

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B) Directing the defendants and their men to surrender the plaintiff all the name boards, brochures, label, notices, etc, consisting of the offending trade name 'Kerala Vyapari Vyavasi Ekopana Samithi' and logo of 'device of balance of two trays and flags'.

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C) Restarting the defendants and their men from conducting seminars, meetings using the trade name “Kerala Vyapari Vyavasai Ekopana Samithi' in the State of Kerala.

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D) Granting such other and further reliefs as are prayed for by the plaintiff in these proceedings and as are deemed fit just proper and necessary by the Hon'ble court on the facts and in the circumstances of the case.”

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2.The suit is shown to have been instituted under Section

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F.A.O. No. 276 of 2016

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..2..

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134 of the Trade Marks Act. The maintainability of the suit was heard as a preliminary issue. By the impugned judgment the trial court found that the suit does not come under Section 134 of the Trade Marks Act and it is not maintainable in District Court. Accordingly, he ordered to return the plaint for presentation before the proper court.

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3.Heard the learned counsel for the appellant and the respondents.

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4.The description of the plaintiff is as follows; “Kerala Vyapari Vyavasayi Ekopana Samithi” (for short, “the Samithi”). In paragraph 3 of the plaint it is made clear that the plaintiff is the Thirvananthapuram District Unit of the Samithi. The District Unit of the Samithi is not a legal entity or a legal person. The legal entity is the Samithi only. The District Committee cannot maintain a suit in its name.

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5.Section 9 of the Travancore-Cochin Literary, Scientific

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& Charitable Societies Registration Act, under which

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F.A.O. No. 276 of 2016

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..3..

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the Samithi is registered runs as follows;

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“9. Suits by and against societies.- Every society may sue or be sued in the name of the president, chairman or principal secretary, or trustees, as shall be determined by the rules and regulations of the society and in default of such determinations in the name of such person as shall be appointed by the governing body for the occasion:

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Provided that it shall be competent for any person having a claim or demand against the society, to sue the president or chairman or principal secretary or the trustees thereof if, on application to the governing body, some other officer or person be not nominated to be the defendant.”

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6.A suit by the society shall be instituted in the name of

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its office bearers of the Samithi as stipulated in its bylaws. Clause 42 of the bylaw of the Samithi provides that it is the General Secretary of the Samithi who is competent to institute suits. Here, the suit has been instituted not by the General Secretary of the Samithi and not in the name of the Samithi. It has been instituted by the General Secretary of a District Unit in the name of the District Unit. For these reasons, the suit is not maintainable in any court.

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7.The learned District Judge found that the cause of action for the suit arose from the dispute between two

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..4..

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F.A.O. No. 276 of 2016

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factions of the District Unit of the Samithi. The learned counsel for the appellant submits that the cause of action is the illegal use of the trade name and logo of the Samithi. A reading of the plaint clearly shows that the dispute relates to election of office bearers of the District Unit. It is only an election dispute. It is not the form, but the substance of the allegations in the plaint, that has to be looked into. I have no doubt that the dispute is between two factions in the District Unit of the Samithi. A suit under Section 134 of the Trade Marks Act is not maintainable.

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8.Learned counsel for the appellant submitted that there is no prayer to declare the present office bearers as elected office bearers of the District Unit. That is true. The main relief is a perpetual injunction prohibiting the defendants from using the registered trade name of the Samithi and its logo. It was admitted at the hearing that every member of the Samithi is entitled to use them. In para 13 of the plaint it is stated that the defendants are

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F.A.O. No. 276 of 2016

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..5..

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members of the Samithi. So, an injunction cannot be granted prohibiting them from using the trade name or logo of the Samithi. For these reasons also, the suit is not maintainable.

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9.It is true that the District Judge has ordered return of the plaint. But, the suit is not maintainable in any court. So, the suit should have been dismissed.

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In the result, this appeal is dismissed. The parties concerned may institute a proper suit before the competent court with regard to their claims if they are so advised.

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Sd/- K. ABRAHAM MATHEW JUDGE

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bka/

Kerala Vyapari Vyavasayi Ekopana Samithi v. K.S. Radhakrishnan Nair

Case brief

What is this about?

What did the court decide?

Kerala Vyapari Vyavasayi Ekopana Samithi v. K.S. Radhakrishnan Nair

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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