Jagadamba Vegetable Products (P) Ltd vs Ahmed Oomerbhoy Trading As Ahmed Mills

Z.S. Negi, J

1 . The applicant M/s Jagadamba Vegetable Products (P) Ltd. has filed the above rectification applications for removal of the trade mark

'POSTMAN' registered under Nos. 162666, 415564, 312898, 260538, 258918 and 213353 in the name of Ahmed Oomerbhoy trading as M/s. Ahmed

Mills from the Register or rectification of the Register under Section 47/57/125 of the Trade Marks Act, 1999.

2 . It is an undisputed fact that the partnership firm is under dissolution and the Hon'ble High Court of Bombay has appointed a Court Receiver.

However, the Court Receiver, High Court, Bombay is not a party to the rectification proceedings initiated before the Appellate Board. By order dated

30.07.2001, the Hon'ble High Court of Bombay directed the Court Receiver, High Court, Bombay to take steps as may be necessary to safeguard the

trade mark of the respondent as also to take action against persons who may be unauthorisedly using the trade mark of the respondent. In order to

assist the Court Receiver, one Shri Rashid S. Oomerbhoy, a partner of the respondent firm made an application for obtaining and/or to institute

proceedings for and on behalf of the respondent before the Hon'ble High Court, Tribunal, Registrar of Trade Marks etc., by way of Chamber

Summons No. 928/2006 in suit No. 4913/2000. By order dated 02.08.2006, the Hon'ble High Court of Bombay was pleased to grant permission and

authorise him to institute and/or defend proceedings for and on behalf of the respondent and was also pleased to grant liberty to him to apply to the

concerned authority to implead the Court Receiver as a party to the proceedings. The relevant portion of the order passed in Chamber Summon No.

928/2006 in Suit No. 1413/2000 reads as under:

The first defendant would be at liberty to apply to all courts for impleading the Court Receiver as party to this litigation. In the meanwhile, the first

defendant to defend the same and/or institute proceedings for and on behalf of the firm. Needless to state that in all such proceedings parties to

implead Court Receiver appointed in this Suit as party. The costs, charges and expenses for the above are presently being borne by the first

defendant.

In pursuance to the above extracted order of the Court, the applicant (Shri Radhid S. Oomerbhoy) has by way of Miscellaneous Petition Nos. 67 to

72/2008 requested this Appellate Board to implead the Court Receiver, High Court, Bombay as necessary party to the pending rectification

applications. It is averred in the miscellaneous petitions that the Court Receiver as the Receiver of the firm is in possession of all assets of the

respondent firm including the trade marks and copyrights and other intellectual property rights of the respondent firm. The said intellectual property of

the respondent firm is custodia legis and is in possession of the Court Receiver, High Court, Bombay. It is further averred that even though the

applicant was aware that the Court Receiver, High court, Bombay has been appointed as receiver of the respondent firm but neither the Court

Receiver has been impleaded nor notice was served upon him and till date even a copy of the original application is not served upon the Court

Receiver, High Court, Bombay and/or upon the partner of the respondent firm. Averment has also been made to say and submit that the Court

Receiver, High Court, Bombay is an appropriate and necessary party to the rectification applications and therefore, is a necessary party for deciding

the issue in the said applications. The applicant has also stated that the present prayer for impleading the Court Receiver, High Court, Bombay is made

in compliance with the direction given by the Hon'ble High Court, Bombay on 02.08.2006. The applicant has requested to allow the application for

impleading the Court Receiver, High Court, Bombay as respondent in the said applications and pointed out that if the prayer is not granted the

respondent will suffer irreparable harm, loss and injury.

The above M.Ps came up for hearing before us on 03.02.2009 in the Circuit Bench sitting at Mumbai, wherein Shri M.K. Miglani, learned Counsel

appeared for the applicant, Shri Rahul Chitins, Advocate appeared for Shri Rashid Sattar Oomerbhoy and Shri Rahul M. Kadam, Advocate appeared

on behalf of the Court Receiver, High Court, Bombay. W.S. Kane & Co., filed vakalat executed in their favour by the Court Receiver, High Court,

Bombay.

Shri Rahul M. Kadam, learned Counsel for the Court Receiver, High Court, Bombay submitted that the Court Receiver is in possession of all assets

of the respondent, including the intellectual property of the respondent and therefore for the purpose of fair trial of the matter, the Court Receiver

should, as a necessary party to the proceedings, be added as respondent. Since the intellectual property of the respondent is custodia legis and in

possession of the Court Receiver, High Court, Bombay. Learned Counsel relied upon the judgment inK anhaiyalal v. Dr. D.R. Banaji and Ors. A.I.R.

1958 S.C. 725 and submitted that if a court has exercised its power to appoint a Receiver of a certain property, it has done so with a view to

preserving the property for the benefit of the rightful owner as judicially determined. On the other hand, all courts of justice would be only too anxious

to see that property in custodia legis is not subjected to uncontrolled attack, while, at the same time, protecting the rights of all persons who may have

claims to the property.

6 . Shri M.K. Miglani, learned Counsel for the applicant, submitted that the Court Receiver has not moved any application for his impleadment as the

respondent in the rectification applications despite repeated opportunities afforded to the Court Receiver for getting himself impleaded. He further

submitted that the earlier S.R. Nos. 89-94 filed in the rectification application Nos. 44-49/2005/TM/MUM by Shri Rashid Sattar Oomerbhoy seeking

impleadment of Ahmed Oomerbhoy trading as M/s Ahmed Mills as second respondent have been withdrawn by him with the permission of the

Appellate Board. He further submitted that the averment made by the petitioner herein that after coming to know of the appointment of the Court

Receiver, High Court, Bombay as Receiver, the copies of rectification applications have not been served on the Court Receiver is misconceived as no

such copies could be served until the Court Receiver is impleaded as the respondent in the proceedings. However, the Appellate Board has served a

notice dated 24.1.2007 calling upon him to appear before the Appellate Board in person or through a representative to decide the admissibility of

Miscellaneous Petitions filed by Shri Rashid S. Oomerbhoy.

6 . After having heard the respective learned Counsel, we are in agreement with the submission made by the learned Counsel for the applicant that no

copy of rectification application could have been served on the Court Receiver unless he is made a party in the rectification proceedings. The

averment made that no notice has been served on the Court Receiver is wrong as we have noticed the admission of 1st Assistant to Court Receiver

that notice dated 24.01.2007 from the Appellate Board has been received and the same forwarded by him to the advocates to the Court Receiver for

taking note of the contents thereof and recording advice thereto. Regarding request of the counsel for the Court Receiver that The Court Receiver

may be impleaded as the respondent in the rectification proceedings, we are of the opinion that if the Court Receiver is not impleaded, he would be

incapable to exercise the powers conferred upon him under Order 40, Rule 1 of the Code of Civil Procedure, 1908, that is to say to bring and defend

suits for protection and preservation of the property. As has been held in the case of Krishna Bhagwan Agarwal v. 1st Additional District Judge

(1999) 3 All. W.C. 1986 that the effect of appointment of Receiver of running a partnership is that it operates as an injunction against other partners.

In such case, the partners cannot act on behalf of the firm and only Court Receiver has to represent the firm as he steps into the shoes of the owner.

The High Court of Bombay has held that in law and for all practical purposes, the Receiver stands in the shoes of the owner and must be held entitled

to do all such acts necessary for the preservation and protection of the property, including trade marks, for which he is appointed a Receiver The High

Court had occasion to decide an issue as to whether Court Receiver can bring suit for protection of trade mark or not. The issue arose in the case of

Court Receiver, High Court, Bombay v. R.R. Oomerbhoy Pvt. Ltd. and Ors. 2003(2) CTMR 232 (Bom) wherein the Court Receiver, who has been

appointed as Receiver of the assets of the partnership firm in dissolution, instituted a suit against the defendants. The High Court while deciding the

issue has held as under:

Therefore, even if it is true that it is essential for the existence of the trade mark that there should be some connection between the registered

owner and the mark and that the connection is essential, it does not follow that the Receiver cannot bring the suit for protection of the trade mark in

the absence of such a personal connection with the trade mark because the property in the registered trade mark subsists. In law and for all practical

purposes, the Receiver stands in the shoes of the owner and must be held entitled to do all such acts necessary for the preservation and protection of

the property, including trade marks, for which he is appointed a Receiver.

The Court Receiver, in our view, is the necessary party as in his absence no effective order can be passed in the present rectification proceedings. In

the case of State Bank of India v. Krishna Pottery Udyog Association A.I.R. 1994 Him. Pra. 9 0it is held thus: ""A person would be a necessary party

if he ought to have been joined, that is to say, in whose absence, no effective decree can be passed at all. He would be a proper party to be impleaded

if his presence is necessary for an effectual or complete adjudication.

In view of the above proposition of law propounded by the Courts, we are inclined to permit to implead the Court Receiver, High Court, Bombay as

the respondent in the present rectification proceedings. We, accordingly, direct the applicant to file amended cause title to all the applications and, if

necessary, the amended rectification applications within six weeks after the receipt of this order. The Miscellaneous Petitions are disposed of on the

above terms. There shall be no order as to costs.