A.D.Padmasingh Isaac v. Hotel Heavenly Foods Pvt Ltd
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(ORDINARY ORIGINAL CIVIL JURISDICTION) TUESDAY, THE 30TH DAY OF APRIL 2019 THE HON'BLE MR. JUSTICE S.VAIDYANATHAN A.No.3564 of 2019 in C.S.No.330 of 2019 1.Mr.A.D.Padmasingh Isaac Trading as Aachi Spices and Foods Old No.4, New No.181/1, 6th Avenue, Thangam Colony, Anna Nagar, Chennai-600 040 2.M/s.Aachi Masala Foods (P) Ltd., Old No.4, New No.181/1, 6th Avenue, Thangam Colony, Anna Nagar, Chennai-600 040 Represented by its Director Mr.Ashwin Pandian 3.M/s.Heavenly Foods Pvt.Ltd.
Plot No1926, 34th Street, I Block, Ishwarya Colony, Anna NagarWest, Chennai -600 040 Represented by its Director Mrs.Shiny Ashwin. ..Applicants/Plaintiffs Vs.
Hotel Aachi Tea & Coffee & Hotel Aachi Meen Kulambu Saapadu Arcot-Vellore Road, Opposite to SSS College, Arcot Bye pass ...Respondent/Defendant The Application praying that this Hon'ble Court be pleased to permit the Applicant to combine join the causes of action of infringement of registered trade mark and passing off and pass such further or other order. This Original Application coming on this day before this court for hearing the court made the following order:
The present Application has been filed seeking to grant leave to the Applicants/Plaintiffs to file a single suit for joiner of cause of action in respect of infringement of registered trade mark and passing off together in a single suit.
2. Learned counsel for the Applicant/Plaintiff submitted that in order to avoid multiplicity of proceedings, the Plaintiff is filing a combined Suit for infringement of Trademark and passing off and that no prejudice would be caused to the Defendant, if permission is granted to combine the cause of action.
3.
At this juncture, it is worth referring to the decision rendered in the case of Brooke Bond India Limited, Calcutta vs. Balaji Tea (India) Pvt. Ltd., Raipur in O.S.A.Nos.278 and 279 of 1989, decided on 25.11.1992, wherein, in paragraph 21, it is held as under: "21.
We have no reasons to think that if the law permits a person to institute a suit at a forum of his choice and that person exercises his discretion and chooses a particular Court for action, he abuses the process of the Court. Learned Single Judge has noticed and rightly said that Section 62 of the Copyright Act permits a deviation from the general law. But then, that gives a discretion to the litigant to decide the forum. It is his choice and not the choice of the Court. No exception can be taken if his discretion is not to the liking of the Court. Learned single Judge has in this behalf said at quite few places in his judgment that the Court may not in such cases be in a position to dismiss the suit as not maintainable or is one filed in a Court without jurisdiction, yet has
said, 'but the Court will certainly refuse to grant relief to him'. We are recording our disagreement. No Judge can afford to deny a relief if in law and in equity such relief is available to a party, evidently not for the reason that he does not like the choice of the forum and the action in Court by a litigant. Since we have taken the view that the copyright action emerges from the same bundle of facts from which the trade mark and passing off actions emerge and copyright action is maintainable in this Court (learned Single Judge has also so found), we are of the opinion that it will not serve the ends of justice, if leave is refused for joiner of causes of action falling under the Copyright Act and the Trade and Merchandise Marks Act."
4.
On a perusal of the plaint, it is seen that there appears an infringement of the Plaintiffs' Trademark and passing off by the Defendant herein. In view of clause 14 of the Letters Patent Act and in view of the above decision of this Court, this Application is ordered, as prayed for. sd/- S.V.N.J 30.04.2019 //Certified to be true copy// Dated at Madras this the 3rd day of May 2019. TE/03/05/2019 COURT OFFICER(O.S.) From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.