K. MANGAYARKARASI Vs. N.J. SUNDARESAN

JUDGEMENT

(1.) The Petitioners are Plaintiffs and the Respondent herein is the 1st Defendant in the Suit. The Suit in C.O.S. No.147/2023, is filed the Petitioners/Plaintiffs before the Commercial Court (District Judge Cadre), Coimbatore, seeking for a relief of Permanent Injunction, restraining the Respondent/1st Defendant, his men, agent, power agent, representative, etc., from interfering or using the Plaintiff's Trademark of "SRI ANGANNAN BIRIYANI HOTEL" or "ABH SRI ANGANNAN HOTEL" or any other name format signifying the term, "ANGANNAN." and to pay Damages of Rs.20,00,000.00 for the loss that the Plaintiffs incurred due to the use of the Trademark in Application No.6440505 of "SRI ANGANNAN BiRIYANI HOTEL".

(2.) Pending Suit, the 1st Respondent/1st Defendant filed an Application in I.A. No.9 of 2023, praying to refer the parties to Arbitration. The said Application was allowed by the Commercial Court, District Judge, Coimbatore. Aggrieved over the same, the Petitioners filed the present Civil Revision Petition along with Civil Miscellaneous Petitions.

(3.) Mr. Arun C. Mohan, the learned Counsel appearing for the Petitioners/Plaintiffs would submit that the Court below ought to have considered that the 1st Respondent fraudulently fabricated the Assignment of the Petitioners' Trademark to the 1st Respondent and that the 1st Petitioner did not consent for the said Assignment. The said Assignment was in fact denied as being fraudulent and the aspect of serious Fraud can only be considered by a Civil Court, which has been wholly disregarded to the impugned Order. Since the Assignment Deed itself is a fabricated document and when such serious allegations of Fraud exist, the Fraud renders the Arbitration Clause invalid. The Court below not considered the question and prayer of infringement of Trademark is a question of "right in rem" which is inherently non-arbitrable. The prayer sought for in the Plaint has been disregarded in the impugned Order and the nature of the Suit has not been duly considered therein. The 2nd Respondent is not a Signatory to the alleged Assignment Agreement between the 1st Petitioner and the 1st Respondent. Further, the Petitioners have filed Criminal Complaint against the 1st Respondent for cheating and fabrication of the Assignment Deed and the same has not adjudicated.