Dismissed

Aachi Cargo Channels Private v. Mr.a.D.Padmasingh Isaac

Madras HC8 Oct 2018A/7277/2017

Case brief

AI extract

What is this about?

The Madras High Court dismissed an application seeking to summon plaintiffs to depose in a trademark infringement suit trial. The court held no compelling justification existed for ordering personal appearance and was satisfied that the defendant could draw an adverse inference from the witnesses' pleads of ignorance.

What did the court decide?

Application disposed of as closed with no order as to costs.

Aachi Cargo Channels Private Vs Mr.a.D.Padmasingh Isaac — Service and Employment | Madras HC (2018)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶3

(ORDINARY ORIGINAL CIVIL JURISDICTION)

¶4

MONDAY, THE 8TH DAY OF OCTOBER 2018

¶5

THE HON'BLE MR. JUSTICE M.SUNDAR

¶6

A.No.7277 of 2017 in C.S.No.341 of 2010 1.Mr.A.D.Padmasingh Isaac Trading as Aachi Spices and Foods Old No.4, New No.181/1 6^th Avenue, Thangam Colony Anna Nagar Chennai 600 040 2.M/s.Aachi Masala Foods (P) Ltd., No.6, Ground Floor 15^th Street, Anna Nagar, 'G' Block Chennai 600 040 Rep.by its Director Mr.Ashwin Pandian

¶7

..Plaintiffs/Respondents Vs.

¶8

Aachi Cargo Channels Private Ltd., Door No.9, III Floor, VGP Murphy Squire No:19, GST Road, St.Thomas Mount Chennai 600 016 Tamil Nadu.

¶9

..Defendant/Applicant

¶10

Application praying that this Hon'ble Court be pleased to the original Plaintiffs Mr.A.D.Padma Singh Isaac and Mr.Ashwin Pandian to depose before this Hon'ble Court regarding the material aspects.

¶11

This Application coming on this day before this court for hearing the court made the following order:

¶12

https://hcservices.ecourts.gov.in/hcservices/

¶13

¶14

There are two plaintiffs and a sole defendant in the main suit.

¶15

Sole defendant in the main suit is the lone

¶16

applicant in the instant application. Plaintiffs 1 and 2 in the main suit are Respondents 1 and 2 respectively, in the instant application.

¶17

in the instant application are referred to by their respective ranks in the main suit.

¶18

person. Plaintiff No.2 is a juristic person i.e., a Private Limited Company incorporated under the Companies Act in India.

¶19

Plaintiffs have filed the main suit inter alia complaining of infringement of their registered trademarks. Usual prayers for delivery of alleged

¶20

offending material, accounts and costs also are other limbs of the prayer. The usual residuary limb of prayer

¶21

is also contained in the prayer paragraph.

¶22

In short, this is a suit for alleged infringement of plaintiffs' registered trademarks.

¶23

Though plaintiffs claim registration in several trademarks, a perusal of the plaint reveals that central to the lis is the mark 'AACHI'.

¶24

https://hcservices.ecourts.gov.in/hcservices/

¶25

¶26

The principal face of the plaintiffs' label as

¶27

depicted in the plaint is as follows:

¶28

Instant application has been taken out by the defendant with a prayer to summon plaintiff No.1 Mr.A.D.Padmasingh Isaac and Mr.Ashwin Pandian, Director in plaintiff No.2 company. 10. Instant application has been filed inter alia under Order XXIX, Rule 3 of 'The Code of Civil Procedure, 1908' ('CPC' for brevity) as well as Order XVI, Rule (1) Sub-rule (iv) and Order XVI Rule 14 of the Original Side Rules of the Madras High Court ('OS Rules' for brevity). 11. To be noted, there is no dispute or disagreement between the two counsel before me i.e., Ms.Revathi G Mohan for sole defendant and Ms.Gladys Daniel, counsel on record for both the plaintiffs that interim prayers sought for by the plaintiffs in the interlocutory

¶29

applications were not acceded to, and the same were carried in appeal by way of an intra-court appeal. The Division Bench also did not accede to the interim prayers. The matter was carried upto the Hon'ble Supreme

¶30

https://hcservices.ecourts.gov.in/hcservices/

¶31

¶32

Court which held that all issues are to be decided in the main suit.

¶33

Now, trial in the main suit has commenced and

¶34

one B.Gnanasambandam, has been examined as P.W.1. It is submitted that aforesaid P.W.1 is Senior Manager -L & S. I am informed that abbreviation 'L & S', for which there

¶35

is no expansion in the deposition, stands for 'Legal and Secretarial'.

¶36

It comes to light that instant application has been filed on 05.10.2017, when the cross-examination was in progress.

¶37

The instant application is supported by a one page six paragraphs affidavit and the same reads as follows:-

¶38

of the petitioner /Defendant Company and I am well acquainted with the facts of

¶39

the case herein. 2.I submit that I have filed my detailed “Written Statement along with Counter Claim” in the main suit and the same may be read as part and parcel of this Affidavit.

¶40

https://hcservices.ecourts.gov.in/hcservices/

¶41

¶42

S of the Respondents / Plaintiffs company has filed his proof affidavit along with some documents before this Hon'ble Court and the matter is pending trial.

¶43

4.I submit that, the said Mr.B.Gnanasambandam is neither the Director Principal Officer, Proprietor or the competent person to depose on the material aspects, facts or circumstances in the plaintiffs “adopting” the word mark “AACHI”. 5.I submit that there will not be any prejudice caused to the original plaintiffs to depose before this Hon'ble court about the material aspects on the other hand I will be severely prejudiced if this Hon'ble court rejects this application. 6.I submit that filed this interlocutory application is neither wilful but due to the reasons state above.'

¶44

Though not articulated in the affidavit filed in support of the instant application, it was argued today by learned counsel for defendant that P.W.1 has refused to answer several questions, which has necessitated the filing of the instant application.

¶45

I have perused the deposition of P.W.1.

¶46

https://hcservices.ecourts.gov.in/hcservices/

¶47

¶48

To my mind, it does not appear that P.W.1 has

¶49

refused to answer any question.

¶50

It is pointed out that P.W.1 does not have personal knowledge about adoption of the above mark.

¶51

Faced with the above situation, plaintiffs, who have filed a short seven paragraph counter affidavit dated 30.11.2017 submitted that, it is open to the sole defendant to canvas that adverse inference should be drawn against the plaintiffs in this regard i.e., with regard to P.W.1 pleading ignorance about what according to the plaintiffs are certain vital aspects of the lis.

¶52

I deem it appropriate to extract seven paragraphs of the counter affidavit dated 30.11.2017 filed by the plaintiffs and the same reads as follows:-

¶53

Secretarial of the 2^nd Respondent in the above application and as such I am well acquainted with the facts and

¶54

circumstances of the case. I am swearing

¶55

reply, I state that the above application is being filed under Order 29 Rule 3 of CPC. The application is not maintainable under the said provision.

¶56

https://hcservices.ecourts.gov.in/hcservices/

¶57

¶58

allegations therein expect those that are admitted herein.

¶59

4.I deny the allegation that the written statement along with counter claim filed in the main suit may be read as part and parcel of this affidavit.

¶60

5.Paragraph 3 of the application requires no response.

¶61

6.I state that with respect to paragraph 4, PW1 is the authorized person to depose and give evidence on our behalf of the respondents and the required authorization has already been marked as EX P1. PW1 is the Senior Manager – Legal & Secretarial and he is competent to give evidence on behalf of the Respondents. PW1 has also deposed specifically during his cross examination dated 10.10.2017 that he had knowledge from papers, records and documents of the plaintiffs. I submit that the above suit is filed by the Respondents and it is the Respondent's prerogative to authorize any person who is well versed with the facts of the case to give evidence on their behalf.

¶62

7.The allegations contained in paragraph 5 and 6 are denied as incorrect. The suit is at the stage of trial. PW 1's evidence has been completed. At this juncture the Applicant/Defendant has come out with

¶63

https://hcservices.ecourts.gov.in/hcservices/

¶64

¶65

this application only to delay the proceeding. This application is vexatious and will put the Respondents to unnecessary difficulty. There is no sufficient cause shown by the Applicant to summon the Respondent and it's Directors to depose regarding material aspects. It is also submitted that the Applicants are the prior users and proprietors of the Trade Mark AACHI since 1995. Despite the same no interim injunction was granted in our favour and we are put to severe hardship injunction was granted in our favour and we are put to severe hardship and damage. Now the Respondent has come out with this application only with the view to drag on the proceedings and delay the trial from seeing its positive end in our favour.'

¶66

I now turn to provisions of law under which the instant application has been filed.

¶67

As alluded to supra, the instant application has been filed under Order XXIX, Rule 3 of CPC and Order XVI,

¶68

Rule 1 Sub Rule (iv) and Order 16, Rule 14 of the O.S Rules.

¶69

https://hcservices.ecourts.gov.in/hcservices/

¶70

¶71

A perusal of the aforesaid pleadings of the sole defendant (To be noted, I have extracted the pleadings of the plaintiffs also) reveals that no compelling case has been made out for this Court to require the personal appearance of the Secretary or Director or the Principal Officer of the Corporation i.e., Plaintiff No.2 or for that matter Plaintiff No.1 who is a natural person. This puts an end to the prayer under Order 29 Rule 3 of CPC.

¶72

With regard to the aforesaid provisions of O.S. Rules, the same pertain to subpoena. A perusal of the pleadings supra will reveal that no case has been made out, much less a compelling case for issue of subpoena. However, I have also considered the argument that P.W.1 has refused to answer some questions. To be noted, I

¶73

have perused the deposition and found that he has not refused to answer questions, but has pleaded ignorance about certain aspects.

¶74

Orders passed in interlocutory applications do

¶75

not weigh in the final disposal of the suit. Making a departure from this position, learned counsel for

¶76

plaintiffs makes a submission that it is open to the sole defendant to canvass that adverse inference should be

¶77

drawn against the plaintiffs with regard to any shortcomings in the deposition of P.W.1. This is recorded.

¶78

https://hcservices.ecourts.gov.in/hcservices/

¶79

¶80

Learned counsel for plaintiffs also submits that it is open to the sole defendant to press into service the instant order and what has been recorded supra while canvassing that adverse inference should be drawn, when

¶81

the main suit is taken up for hearing.

¶82

defendant brings to my notice that counter claims have been made in the suit and that the counter claims pertain

¶83

to validity of trademark registration in favour of the plaintiffs.

¶84

suitable applications with regard to validity of plaintiffs' registered trade marks, this order will not be an impediment and it is open to the sole defendant to do so. If the sole defendant choses to adopt such a course, such applications will be dealt with and disposed of on their own merits.

¶85

aforesaid submissions made on behalf of plaintiffs that it is open to the sole defendant to canvass that adverse inference should be drawn against the plaintiffs and that the said plea shall be heard and disposed of on its own merits douses the anxiety, if any, on the part of the sole defendant qua the instant application.

¶86

This application is disposed of as closed recording https://hcservices.ecourts.gov.in/hcservices/

¶87

¶88

the aforesaid submissions. Considering the nature of the application and the trajectory of the hearing, there shall be no order as to costs.

¶89

Sd./- M.S.J.
08.10.2018
//Certified to be a true copy//
Dated this the day of 2018.
DL/14.11.2018 COURT OFFICER
From 25.09.2008 the Registry is issuing certified
copies of the Order/Judgment Decree in this format.

¶90

https://hcservices.ecourts.gov.in/hcservices/

Aachi Cargo Channels Private v. Mr.a.D.Padmasingh Isaac

Case brief

What is this about?

What did the court decide?

Aachi Cargo Channels Private v. Mr.a.D.Padmasingh Isaac

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

Similar cases

Raj T.V and Another Vs Sree Anupama Production

Sun T.V. Ltd.,Formerly Known Vs 1.M/S.ANAND Movie Land

Aktiebolaget Volvo Vs Volvo Industries (India)

Vs

Dart Industries Inc. Vs Modi Dp Plastics

M/s.Kalanjiyam Cut Piece Vs M/s.Kalanjiyam Textiles