AMERICAN DRY FRUIT STORES Vs. ADF FOODS LIMITED

JUDGEMENT

(1.) This motion is taken out by the plaintiffs for the appointment of a receiver and for an order of injunction restraining the defendants from in any manner using the registered trademarks belonging to the plaintiff No. 1 firm and from using any other deceptively similar marks so as to pass off the first defendants' goods as of the goods of the first plaintiff. BASIC FACTS

(2.) The plaintiff No. 1 is a registered partnership firm and plaintiff Nos. 2 and 3 and defendant Nos. 2 and 3 are the four partners of plaintiff No. 1 firm. The plaintiff claim that the plaintiff No. 1 is the proprietor of the suit brand names and the trade marks (here-inafter referred to as "the suit trade marks") which are the subject matter of the suit. The defendant No. 1 is a public limited company which was promoted by the plaintiff Nos. 2 and 3 and the defendant Nos. 2 and 3. By a memorandum of understanding dated 6th february, 1992, the first plaintiff and its partners granted a licence to the first defendant to use the suit trade marks for a period of five years. It appears that the agreement was renewed from time to time and by the last agreement dated 6th February 2003, the first plaintiff renewed the licence granted to the first defendant to use the suit trademarks for a further period of two years. According to the plaintiffs, the agreement of licence came to an end on February 6, 2005 by efflux of time. In or about December 2004, the first defendant sent to the first plaintiff a draft agreement to be executed by the partners of first plaintiff for sale and assignment of the suit trademarks to the first defendant. The plaintiffs however declined to assign the suit trade marks and the first plaintiff continues to be the owner of the suit trademarks. It appears that the disputes have arisen between partners of the first plaintiff firm, the plaintiff Nos. 2 and 3 being on one side and the defendant Nos. 2 and 3 on the other. It further appears that with the knowledge and consent of the defendant Nos. 2 and 3 who are the directors and/or promoters of the first defendant, the defendant No. 1 company has continued the use the suit trademarks though the licence granted to it has come to an end by 6th February, 2005. The first plaintiff along with its two of its partners viz. the plaintiff Nos. 2 and 3 have filed this suit against the defendants for the relief of injunction wherein the present motion is taken out for the interim reliefs. preliminary OBJECTION

(3.) The defendants have appeared and raised preliminary objection to the maintainability of the suit in the present form. Learned Counsel for the defendants submits that the first plaintiff being a partnership firm is not a person in the eye of law. The firm name is only a compendious name for all the partners of a firm. When a suit is filed in the name of a firm, it only means that the suit is filed by all the partners. Though Order 30, Rule 1 (2) of the Code of Civil Procedure allows one of the partners to sign and verify the pleadings, but that is only a procedural aspect regarding signing of the pleadings when a suit is instituted in the firm name. The suit must be deemed to be instituted by all the partners. Therefore, submits the learned Counsel, that only some of the partners cannot file a suit in the name of the firm without the consent of all the partners though such consent may be express or implied. In the present case, the defendant nos. 2 and 3 who are the partners of the plaintiff firm have not given the consent to the plaintiff Nos. 2 and 3 to file the suit in the name of plaintiff No. 1 firm and in fact they have opposed the filing of the suit and therefore, the suit filed in the name of plaintiff No. 1 firm is not maintainable. Learned counsel for the defendants further submits that assuming that a suit could be filed by some of the partners in the name of the firm without the consent, express or implied, of all the partners, in any event suit is not maintainable in the present form. The firm name being only a compendious name for all the partners, the first plaintiff denotes all partners including the defendant Nos. 2 and 3. The plaintiff No. 1 means and represents all the partners including defendant Nos. 2 and 3. The defendant Nos. 2 and 3 would therefore be both plaintiffs (being a part of plaintiff No. 1) as well as defendants and a suit cannot be filed by joining the same person or persons as plaintiff/s as well as defendant/s even in different capacities. Learned counsel for the defendants refers to and relies upon the decision of a Division Bench of this Court in (Rustomji Aspandyarji Sethna and Anr. v. Sheth Purshotamdas Chaturdas and Ors. ) , reported in I. L. R. 25 Bom. 606 : 3 born. L. R. 227 and of a Single Judge in (Chandulal Damodardas v. Keshavlal Kuberdas amin) , reported in 38 Bom. L. R. 486.