JAYARAM BANAN Vs. GURCHARAN SINGH CHANDHOK

JUDGEMENT

(1.) This is an application under Sec. 106 of the Trade and Merchandise Marks Act, 1958 read with Sec. 151 and Order 39 Rules 1 and 2 of the Code of Civil Procedure restraining the defendants from using the name The Sagar' (South Indian Vegetarian Paradise) and the logo identical which are similar to the plaintiff's logo in respect of defendants' restaurant at 3F, Kamla Nagar and Laxmi Nagar and from using the said logo in relation to any other restaurant which the defendants might open with the name The Sagar'.

(2.) Mr. Rao learned Counsel for the plaintiff has argued that since 1986 the plaintiff is using the trade name The Sagar (South Indian Veg. Paradise) in relation to the restaurant run by him at 18, Defence Colony Market, New Delhi. The case of the plaintiff is that initially these premises were taken over on licence basis from a restaurant 'Shahnaz' which later on was purchased by the plaintiff. It is the case of the plaintiff that the food articles offered for sale and consumption at the said restaurant are exclusively ethenic and authentic South Indian Vegetarian delicacies. All the items are prepared by expert South Indian cooks. The case of the plaintiff further is that on account of the quality of its serving food the customers were petronising the restaurant and The Sagar' restaurant has established a reputation for itself and the trade name and the logo of the plaintiff on account of its popularity and the user become distinctive in relation to the plaintiff's restaurant and South Indian Vegetarian articles. Mr. Rao has also argued that the plaintiff advertised The Sagar' restaurant at 18, Defence Colony Market, New Delhi from 1987 onwards. According to him the business with the name 'The Sagar' at 18, Defence Colony, New Delhi has been registered by Delhi Sales Tax Department and in relation to this number of notices under the Delhi Sales Tax have been received by the plaintiff. It is further contended by the learned Counsel for the plaintiff that from 6.8.1991 the plaintiff had started another restaurant with the name The Sagar Ratna' at Lodhi Hotel which is a unit of the Indian Tourism Development Corporation, and is running the said restaurant on licence basis. The plaintiff is only catering to South Indian Vegetarian food. The plaintiff has also opened a restaurant The Sagar' in Malviya Nagar, According to plaintiff on 14.5.1989 said premises 3F, Kamla Nagar, Delhi was taken by him along with another person belonging to the defendants to run the restaurant at Kamla Nagar and on 4.11.1989 the premises were surrendered, the premises were handed over to the defendant from whom the premises were taken on lease/licence. Mr. Rao has 114 further argued that in the cancellation agreement which is at page 62 of the documents file of the defendant there was stipulation that the defendants will not commence and run a restaurant business or any other allied business in the said premises for a period of 7 years from the date of the execution of the said agreement. The plaintiff instituted the suit when he came to know through an advertisement on 3.11.1993 that The Sagar' (South Indian Vegetarian Paradise) was to be opened at Laxmi Nagar crossing. It was also stated in the said advertisement that shortly it will be opening a similar Restaurant at Town Park, Sector 12, Faridabad also. On enquiry it was revealed that it was the defendant who was going to open the said restaurants. Later on, plaintiff discussed the matter with the defendant he was told that the defendants had been running the restaurant at 3F, Kamla Nagar under the name 'The Sagar'. Mr.Rao has further contended that the partnership pursuant to which premises at Kamla Nagar was taken, between the plaintiff and one Shri Sham Lal Gupta was executed on 1.5.1989. In the said partnership deed it was stipulated that the parties wanted to take a restaurant on lease/licence basis to run the same in partnership and parlies have approached M/s. Chandhiok Syndicate, defendant herein, owner of restaurant at 3F Kamla Nagar ground floor to give the restaurant on lease/licence basis. It was also stated in the said partnership agreement that said M/s. Chandhiok Syndicate in principle had agreed to give the said restaurant at 3F, Kamla Nagar, Delhi on licence basis. Clause 3 of the partnership deed reads as under: "That the business of the firm shall be to run a restaurant at 3F, Kamla Nagar, Delhi"

(3.) Mr. Rao has contended that once the licence obtained to run the restaurant from the defendant was surrendered to the defendants on 4.11.1989 the partnership came to an end by virtue of the provisions of Sec. 42 of the Partnership Act and thereafter there was no partnership between the plaintiff and the said Sham Lal Gupta. The case of the defendants as set out by them is that after the premises were surrendered by virtue of the partnership deed comprising of plaintiff and Sham Lal Gupta on 14.11.1989 the defendant was to run the restaurant and the firm M/s R.S. Associates was to supply the food. M/s. R.S. Associates was the name of partnership launched by plaintiff and Sham Lal Gupta to run the business of restaurant at 3F, Kamla Nagar after taking the premises on licence from the defendants. According to Mr. Bhatia, learned Counsel for the defendants the agreement dated 14.11.1989 was signed by the plaintiff. Plaintiff has denied signing the said agreement. His stand is that signatures are forged on the agreement. Thereafter on the same terms and conditions, the same agreement was executed on 16.11.1989 on stamp paper between defendant and R.S. Associates the partnership concern through its partners the plaintiff and Sham Lal Gupta. This agreement, however, had admittedly not been signed by the plaintiff. It is the case of the defendant that on 26.6.1991 an agreement cancelling the agreement of 16.11.1989 was entered between the defendants and Shri S.L.Gupta who had signed on his behalf as a partner of M/s. R.S. Associates as also on the authority to represent the said partnership concern singularly. In the recital of the said agreement it has been mentioned that due to unforeseen reasons the second party has not been able to supply food to the first party restaurant with effect from 26.5.1991 and, therefore, the agreement entered on 16.11.1989 has to be cancelled. 115