BRAKES INTERNATIONAL Vs. TILAK RAJ BAGGA

JUDGEMENT

(1.) Although the various parts of the version put forth do not dovetail very well into one another, let me, in my own way, provide a graph of the events. M/s. Forward Auto Industries was a firm comprising of two partners namely Tilak Raj Bagga and Trilok Chand. It was dissolved in the year 1985. However, much before that, (on April 3,1984, to be precise) they had got registered in Class 12 and in Part A a trade mark called FINEX. On June 15,1987 the said Trilok Chand alongwith Vijay Kumar and Yogesh Kumar trading as M/s. drakes International moved a petition under Section 44 of the Trade and Merchandise Marks Act, 1958 (hereinafter called the Act) alleging assignment of the said trade mark in their favour and on that basis got themselves registered as proprietors of the same. On May 8,1988 Tilak Raj Bagga moved an application under Section 56 of the Act for rectification alleging that the assignment had been obtained by Trilok Chand and others by misrepresenting the facts and under undue influence and misrepresentation. Later, by way of amendments, he also sought rectification on the ground that the order under Section 44 was void having been passed without notice and opportunity of hearing. On November 7,1996 the Assistant Registrar of Trade Marks holding that the order of assignment was passed without notice to Tilak Raj Bagga and as such was violative of the principles of natural justice, ordered the removal of the entry made in favour of Trilok Chand and others and consequent restoration of the position as it existed prior to June 15, 1987. The present petition is directed against the said order of the Assistant Registrar.

(2.) Besides what has been noticed above, what more needs to be mentioned is that in the year 1988, Tilak Raj Bagga had filed a civil suit challenging the validity of the alleged assignment on the ground of its having been obtained under undue influence and misrepresentation etc. and for declaration that he continued to be the co-owner of the said Trade mark alongwith Trilok Chand. Admittedly the said civil suit is still pending disposal.

(3.) Mr. Madan Bhatia, the learned Counsel for the petitioner, submits that Section 44 of the Act does not specifically require pre-decisional hearing and that consequently the Assistant Registrar was not justified in invoking the audi alteram partem rule.