IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP No. 326 of 2007(H)
$1. TRIVANDRUM AYURVEDA OUSHADHA NIRMANA
... Respondent
2. THE RETURNING OFFICER,
3. THE DEPUTY REGISTRAR OF CO-OPERATIVE
1. DR.N.VISWANATHAN
... Petitioner
Vs
! For Petitioner :SRI.N.K.SUBRAMANIAN
^ For Respondent :SENIOR GOVT.PLEADER
*Coram
The Hon'ble MR. Justice K.PADMANABHAN NAIR
% Dated :13/04/2007
: O R D E R
K. PADMANABHAN NAIR, J.
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R.P. NO. 326 OF 2007
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Dated this the 13th day of April, 2007
O R D E R
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This Review Petition is filed to review the final judgment
passed in W.P(C) No.5327 of 2007. Petitioner is a member of the
Thiruvananthapuram Ayurveda Oushada Nirmana Vyavasaya Co-
operative Society Ltd. According to the petitioner he filed a
nomination, but that was suppressed by the Returning Officer.
When the Writ Petition came up for hearing, it was submitted by
the learned Government Pleader, on instructions, that for getting
a nomination paper, a person will have to sign in a register kept
for that purpose and the petitioner did not obtain any nomination
paper. It is also submitted that 11 persons approached the
Society and they were supplied with the nomination papers and
all of them had signed in the register. Petitioner submitted that
there is no such practice of affixing signature in the register for
getting a nomination paper. It is submitted that the rules also
does not provide that to obtain a nomination paper a person shall
R.P. NO. 326 OF 2007
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affix his signature in a register. Petitioner produced Annexures
A and B dated 19.2.2007. It was stated that petitioner and
another person received nomination papers on 9.2.2007 and
they have filed the same on 12.2.2007.
2. Since there is dispute regarding the filing and
receiving of the nomination paper, I am of the view that the
matter can be resolved only in an election petition. It is also
open to the parties to produce evidence before the competent
authority regarding the procedure for filing of nomination paper,
if any. The petitioner can produce Annexures A and B also
before that authority.
Review Petition is closed without prejudice to the right of the
petitioner to file election petition and adduce evidence.
K. PADMANABHAN NAIR, JUDGE.
vsv
K. PADMANABHAN NAIR, J.
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13TH APRIL, 2007
? IN THE HIGH COURT OF KERALA AT ERNAKULAM
+FAO No. 99 of 2006()
#1. K.P.ASHRAF, S/O.MUHAMMED KUNHI,
… Petitioner
Vs
1. I.T.C. TRADING COMPANY,
… Respondent
2. THE MANAGING PARTNER,
3. THE MANAGING PARTNER,
4. THE PROPRIETOR,
For Petitioner :SRI.HARIDAS THAIKKANDY
For Respondent :SRI.A.MOHAMED MUSTAQUE
The Hon’ble MR. Justice K.PADMANABHAN NAIR
Dated :13/04/2007
O R D E R
K. PADMANABHAN NAIR, J.
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F.A.O. NO. 99 OF 2006
AND
F.A.O. NO. 185 OF 2006
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Dated this the 13th day of April, 2007
J U D G M E N T
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Plaintiff-petitioner in I.A.No.443 of 2006 in O.S.No.3 of 2006
and the defendant-respondent in I.A.No.355 of 2006 in O.S. No.2
of 2006 on the file of the District Court, Thalassery is the common
appellant in these FAOs. Original Suit No.3 of 2006 is filed by the
appellant in these appeals for a decree of injunction against the
respondents from selling or marketing their products using the
trade mark containing the words “Ashraf Special” and for other
reliefs. Original Suit No.2 of 2006 is filed by the respondents in
FAO No.185 of 2006 against the appellant to restrain him and his
men from continuing the unjustifiable groundless threat or taking
any proceedings against them in connection with the sale of
Ashraf Special Brand Ghee Rice till the Trademark Registration or
the Appellate Authority decides the dispute with respect to the
registration of Ashraf Special Brand Ghee Rice after considering
F.A.O. NOS.99 AND 185 OF 2006
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their objections.
2. The appellant as well as the respondents in FAO
No.185 of 2006 filed petitions under Order XXXIX Rules 1 & 2
CPC for order of temporary injunction. Both petitions were heard
together. The learned District Judge disposed of both the
petitions directing the parties to maintain status quo with respect
to the stocking, distribution and sale of the rice till the disposal of
the matter by the Registrar of the Appellate Board. The parties
were restrained from taking any further proceedings on the basis
of the disputed registered trade mark till the disposal of the
appeal pending before the Appellate Board. These two appeals
are filed against that common order.
3. Appellant is admittedly a registered trademark dealer.
He filed O.S. No.3 of 2006 against some rival dealers alleging
that they are trying to infringe his trade mark and are attempting
to sell the products using the same name. According to the
appellant he is purchasing rice from one Sree Sree Gangadhar
Rice Mill, Burdwan and marketing the same. Appellant produced
documents to show that he had obtained the trade mark duly
F.A.O. NOS.99 AND 185 OF 2006
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registered. Contesting respondents contended that the appellant
obtained the trade mark by suppressing the material facts and
hence they have filed a rectification application before the
Intellectual Property Appellate Board, Chennai for revocation of
the trade mark granted to the appellant. When the matter came
up for hearing before the appellate court, the appellate court
took a view that there is an effective alternative remedy provided
under Section 124 of the Trade and Merchandise Marks Act, 1958
and the respondents had already approached the Appellate
Board for revocation of the trade mark and as such the parties
will have to wait till the disposal of the rectification application
filed before the Appellate Board. Section 124(5) of the Act
enjoins that final disposal of the suit is to be stayed. But there is
no bar for the court to pass any interlocutory order.
4. The District court held that the proceedings in both the
suits are liable to be stayed till the disposal of the matter by the
Registrar of the Appellate Board and directed the parties to
maintain the status quo in stocking, distributing and selling of the
rice as on the date of the suit. Learned counsel for the appellant
F.A.O. NOS.99 AND 185 OF 2006
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submitted that the Appellate Board by its order dated 30.3.2007
held that the application, ORA. NO. 11 OF 2006, filed by the first
respondent in FAO No.99 of 2006 lacks merits and dismissed
the same without any order as to costs.
5. A perusal of the impugned order shows that the court
below has not considered the contentions raised by the parties
on its merits. The proceedings were stayed on a technical ground
that the matter was pending before the Appellate Board and
directed the parties to maintain status quo till the disposal of the
matter by the Appellate Board. Since the appeal is already
disposed of, it is only just and proper that the District court
consider the injunction applications and dispose of the same on
merits in accordance with law as expeditiously as possible.
6. In the result, the appeals are allowed. The common
order passed by the District Court, Thalassery on 12.4.2007 in I.A.
No.353 of 2006 in O.S. No.2 of 2006 and I.A. No.443 of 2006 in
O.S. No.3 of 2006 is hereby set aside. Both applications are
remanded to the court below for fresh disposal. The District
Court is directed to take I.A. No.353 of 2006 in O.S. No.2 of 2006
F.A.O. NOS.99 AND 185 OF 2006
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and I.A. No.443 of 2006 in O.S. No.3 of 2006 back to file and
dispose of those applications in accordance with law after
hearing both sides as expeditiously as possible, at any rate,
within a period of two months from the date of receipt of a copy
of this judgment.
Registry is directed to send back the records, if any, called
for to the District Court, Thalassery along with a copy of this
judgment.
K. PADMANABHAN NAIR, JUDGE.
vsv
K. PADMANABHAN NAIR, J.
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13TH APRIL, 2007