BDA LIMITED Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The petitioner by a writ of certiorari seeks quashing of the order dated Sept. 9, 1994 (Annexure 1) passed by respondent No.2, whereby respondent No.2 has reviewed his earlier order dated 17/05/1994 and permitted respondent No.3 to manufacture and sell, inter alia, three brands, namely, Officer's Choice, Calypso Rum and 1000 Guineas.

(2.) The relevant facts material for determination the controversy, as set up by the petitioner are that one Cruickshank and Company Ltd. (hereinafter referred to as C.L.) by a registered deed of assignment dated Feb. 26, 1991 assigned and transferred in favour of the petitioner (hereinafter referred to as B.D.A. or petitioners) three trade marks/labels in respect, of Indian made Foreign Liquor (hereinafter referred to as IMPL), namely, as Officer's Choice, 1000 Guineas and Calypso Rum. Cruickshank and Company Ltd. had conceived and adopted the aforementioned three trade marks/ labels. According to the petitioner by the aforesaid deed of assignment dated Feb. 26, 1991 the aforementioned trade marks have been transferred absolutely and for ever in favour of the petitioner and thereby the petitioner has acquired exclusive right to the use of the said trade marks covered by the deed of said assignment. The C.L. had earlier entered into an agreement dated 7/04/1989 (Annexure B) with respondent No.3, Karamchand Thapar and brothers (hereinafter referred as K.C.T.) for manufacturing and the sale of these three brands and the other agreement dated Feb. 27, 1989 (Annexure C) for using and adopting trade marks of the brands. According to the petitioner there were various litigations in various courts relating to the ownership of the brand and the Supreme Court vide its order dated 10/05/1992 has transferred all the proceedings to Delhi High Court. A Division Bench of Delhi High Court in F.A.O. No.195 of 1993 and F.A.O. (OS) No.183 of 1993 by judgment dated 11/04/1994 has held that the petitioner is the owner of the trade marks in question and is entitled to the prayer of injunction sought for. The copy of the judgment has been annexed as Annexure-D.

(3.) In the proceedings initiated in the City Civil Court Bombay, that court vide its order dated 27/07/1992 while granting injunction in favour of the petitioner had made an exception for the goods of K.C.T., respondent No.3 and the agreement of K.C.T. with C.L. That was obvious for the reason that at the relevant point of time the agreement of C.L. with. K.C.T. for five years was subsisting, as the period of five years, as per terms of the agreement had not expired. That order of injunction of Bombay City Civil Court in favour of petitioner, however, was upheld by Delhi High Court in F.A.O. No.195 of 1993. However, the matter has been left open as regards the exception carved out in favour of K.C.T. as referred to earlier by Delhi High Court in F.A.O. No.196 of 1993 and is pending.