ORDER
S.N. Kapoor, J.
1. This order shall dispose of an IA No.11157/95 in S.No.2527/95. One Sh.Kailash Kasera, Selling Agent of the plaintiff company, has filed this suit for permanent injunction on behalf of the above named company restraining the defendants and their agents etc. (i) from manufacturing, selling, offering for sale or otherwise directly or indirectly dealing in “textile piece goods/blouse pieces” under the infringing trade name MANJU or MANJU FALLS or any other mark which may be identical or deceptively similar to the registered trade mark MANJU of the plaintiff”; (ii) for restraining the defendants and their agents etc. from passing off their goods as the goods of the plaintiff. The plaintiff further seeks a decree of Rs.5,00,000/ by way of damages and destruction of all the blocks, dies, packing boxes, packing cartons/wrappers, packing boxes, packing material/cartons and stationery etc. used for infringing the aforesaid trade mark. In this very connection, the above I.A. has been filed praying for the following relief: “That during the pendency of the suit, the respondents, their servants, agents, dealers, stockists, representatives, partners/proprietors and all/other persons acting on their behalf may be restrained from manufacturing, selling, offering for sale “textile piece goods/blouse pieces” under the infringing trade mark “MANJU” or “MANJU BLOUSE” or “MANJU FALLS” amounting to infringement of the applicant’s Registered Trade Mark “MANJU”. Further, the respondents be also restrained from passing off their goods as the goods of the applicants.”
2. The plaintiff, a private company, claims to be the proprietor of the trade mark MANJU in respect of textile piece goods under registration No.483715 on 4th January, 1988 under the Trade and Merchandise Marks Act, 1958 (for short the “Act”) valid and subsisting till 3rd January, 2002. According to the plaintiff company, its sales in respect of textile piece goods, including blouse pieces exceeds Rs.40 crores per year. The plaintiff allegedly came to know in the third week of October, 1995 that the defendants were selling “blouse pieces” under the infringing trade mark MANJU in the markets at Delhi in a clandestine manner, thus transgressing into the area of registration of the plaintiff’s trade mark and the plaintiff’s business by extending their business in respect blouse pieces also. Aggrieved by these activities of the defendants, the present suit has been filed by Sh.Kailash Kasera, Selling Agent for Delhi area and duly authorised signatory, seeking to restrain the defendants from dealing in the trade mark MANJU in respect of blouse pieces.
3. The defendants are contesting the suit inter alia on the ground that the present suit is a device adopted by M/s.Shiv Cotton Mills Pvt. Ltd. against whom an order of injunction is operating from using the trade name MANJU in respect of sari falls and blouse pieces. Sh.Kailash Kasera is neither authorised nor competent to sign, verify or file any suit on behalf of the plaintiff company as required under Order 29 of the C.P.C. It is also contended that the learned counsel representing the plaintiff happened to be the counsel also representing M/s.Shiv Cotton Mills Pvt. Ltd. before the trade mark registry. The defendants, in fact, have been carrying on its trade under the trade name MANJU since 1968 and they are also registered proprietor of the trade name MANJU in respect of sari falls since 1968. Hence, the defendants are prior user. The plaintiffs have never sold its goods under the trade name MANJU and neither claims to be its proprietor prior to the filing of the suit. The defendants’ first name is MANJU FALLS duly registered with the Establishment (Shop and Department) of the Delhi Administration since long. They are registered proprietor of the trade name MANJU in respect of sari falls and blouse pieces and other allied and cognate products. Therefore, neither the plaintiff nor anybody else could claim right over the blouse pieces etc. Trade name in favour of the plaintiff in respect of textile pieces goods does not entitle them to include blouse pieces also. It is claimed that if a trader or manufacturer who trades in or manufactures only one or more articles coming under a particular classification, such a trader or manufacturer cannot be permitted to enjoy monopoly and such a registration is liable to be rectified by limiting its ambit to the specific articles which really concern the trader or manufacturer. The defendants have also applied for rectification. The plaintiff company itself is a wrongdoer and no evidence has been shown to substantiate the claim made by the plaintiff in spite of objections taken in the written statement.
4. I have heard the learned counsel for the parties and gone through the record.
5.1. For the present the preliminary objection will be considered relating to maintainability of the suit itself. Since there is no dispute that the application relates to a suit by a private limited company, in the present context in view of the submissions made by the learned counsel following four aspects are required to be considered:
(i) Whether the plaint discloses title and requisite descriptions of the plaintiff company in the plaint itself?
(ii) Whether Sh.Kailash Kasera is authorised to institute the suit?
(iii) Whether Sh.Kailash Kasera could sign and verify the plaint on behalf of the plaintiff company?
(iv) If the plaint suffers from any of the abovementioned de fects, what shall be its effect on the injunction application?
5.2. In so far as the question of appropriate title and description of the plaintiff company is concerned, Order 6 Rule 3 C.P.C. requires that the plaintiff should disclose appropriate title and description of the plaintiff in the form prescribed in Appendix (A) of First Schedule of the C.P.C., which reads as under:
1.TITLES OF SUITS
“In the Court of
A.B. (add description and residence)
Plaintiff,
Against
C.D. (add description and residence)
Defendant
2.DESCRIPTION OF PARTIES IN PARTICULAR CASES … … … …
The A.B. Company, Limited, having its registered office at …
Now, title and description of the plaintiff given in the plaint may be seen. It reads as under:
“SHRIJEE SYNTHETICS (BOMBAY) PVT. LTD.
384M, Dabholkarwadi,
Kalbadevi Road,
Bombay400 002. ..Plaintiff”
It is apparent that the title of the plaint filed by a corporation is supposed to indicate its name, place of its work having its registered office. It appears essential to identify the company with reference to its registered office so that in case of need head of the corporation or company could be contacted for settlement of the claim of the plaintiff or otherwise for negotiation. This is not an empty formality. This is essential for the identification of the company and its head to know and ascertain the mind of the company. If we see the title in this light, the title does not give the requisite description about location of its head office in terms of Order 6 Rule 3 read with Appendix A of the First Schedule of the C.P.C.
5.3. As regards the authority of Sh.Kailash Kasera to file the suit on behalf of the company in paragraph 1 of the plaint, it is claimed that “Sh.Kailash Kiser is the Selling Agent for Delhi area and is a duly authorised signatory and a person well conversant with the business activities of the plaintiff company, The present suit being instituted for and on behalf of the plaintiff company for which he is fully competent.” Though the plaint does not disclose that Sh.Kailash Kasera has a power of attorney in his favour but there is an unauthenticated power of attorney on record. It purports to be signed by one Sh.Deshbandhu Kagzi claiming to be the Director of the plaintiff company. This unauthenticated power of attorney discloses that the plaintiff company is having its office at 384M, Dabholkarwadi, Kalbadevi Road, Bombay400 002. Since this power of attorney has not been duly authenticated by any Notary Public, or any Magistrate, Indian Consul or ViceConsul, or representative of the Central Government, no presumption could be raised under Section 85 of the Indian Evidence Act. Nor, this Court can accept and act upon such a power of attorney.
5.3.1. Learned counsel for the defendants relies upon M/s. Nibro Limited Vs. National Insurance Company Ltd., . In that case after analyzing Order 3 Rule 1 as well as Order 29 Rule 1 C.P.C., a Single Judge of this Court came to the conclusion as under:
“23. On the analysis of the judgments, it is clear that Order 29, Rule 1 of the Code of Civil Procedure does not authorise persons mentioned therein to institute suits on behalf of the corpora tion. It only authorises them to sign and verify the pleadings on behalf of the corporation.
24. In my view, the provisions of Companies Act, 1956 and particularly Ss.14, 26, 28, Schedule I Table A and Section 291 are very clear.
25. It is wellsettled that under Section 291 of the Companies Act except where express provision is made that the powers of a company in respect of a particular matter are to be exercised by the company in general meeting in all other cases the Board of Directors are entitled to exercise all its powers. Individual directors have such powers only as are vested in them by the Memorandum and Articles. It is true that ordinarily the court will not unsuit a person on account of technicalities. However, the question of authority to institute a suit on behalf of a company is not a technical matter. It has farreaching effects. It often affects policy and finances of the company. Thus, unless a power to institute a suit is specifically conferred on a particular director, he has no authority to institute a suit on behalf of the company. Needless to say that such a power can be conferred by the Board of Directors only by passing a resolution in that regard.
26. Chapter IV of the Delhi High Court (Original Side) Rules deal with the question of presentation of suits. Under this Rule, suit can be presented by a duly authorised agent or by an advocate duly appointed by him for the purpose. This authorization, in my view, in the case of a company can be given only after a decision to institute a suit is taken by the Board of Directors of the company. The Board of Directors may in turn authorise a particu lar director, principal officer or the secretary to institute a suit.”
5.3.2. Another judgment referred to by counsel for the defendants is Ferruccio Sias and Anr. Vs. Shri Jai Manga Ram Mukhi and Ors., 1994 (1) Delhi Lawyer 72. From this judgment it appears that the plaint must disclose that the person who has signed and verified the plaint has got authority to institute the suit on behalf of the corporation. There is no such averment in the plaint. In Ferruccio Sias’s case (Supra), the following observations were made in paragraphs 18 and 20:
“18. …It is necessary requirement that there be a proper authority by Resolution of the Board of Directors, or there has to be a power of attorney authorising institution of the suit on behalf of the Corporation, or there has to be power conferred by the Articles of Association of a Corporation, in a particular officer, to institute suits on behalf of the Corporation….”
19. …
20. The authority to institute suit is distinct from and in addition to what is contemplated by Order 29 C.P.C., which deals only with signing of plaints and verification of pleadings by certain persons mentioned in that provision.”
5.3.3. Article of Association of the plaintiff company has not been filed to indicate that Sh.Deshbandhu Kagzi, firstly, himself had the authority. Secondly, no copy of the resolution has been filed authorising Sh.Deshbandhu Kagzi to institute the suit or to execute a power of attorney to institute the suit. Neither articles of Association of the plaintiff company has been filed nor resolution of the Board of Directors has been filed to indicate the authority of the said Director to execute the power of attorney in favour of Sh.Kailash Kasera. When there is prima facie lack of authority to institute the suit on behalf of the company when the Director who purports to be the Director is not shown to be a Director authorised by a resolution of the company to institute the suit and execute a power of attorney, the unauthenticated power of attorney cannot be accepted as a basis to say that the suit has been instituted by a competent person. As such, on the face of the record there is nothing to indicate, prima facie, that Sh.Kailash Kasera has any authority to file the present suit on behalf of the plaintiff company.
5.4. As regards the objection relating to signing and verifying the pleadings, Sh.Kailash Kasera himself does not claim to be the principal officer of the plaintiff company. He just claims to be a Selling Agent of the plaintiff company. When there is a relationship of principal and agent, it becomes difficult to accept the proposition that the Selling Agent can file a suit on behalf of his principal. Selling Agent is neither Secretary of the plaintiff nor the principal officer of the company nor the Director of the plaintiff company. In some cases instituted on behalf of the commercial banks, the bank agents have been taken to be the principal officer of the bank, but in those cases such agents were employees of the bank and were designated as an agent at a particular station. Therefore, Sh.Kailash Kasera cannot be treated equal to the agent of a bank, simply because the nomenclature is the same. Therefore, I feel that there is noncompliance of the Order 29 C.P.C. and the plaint does not appear to be signed and verified by a duly authorised person. For the foregoing reasons, therefore, it is, prima facie, apparent that the plaint has not been signed and verified by duly authorised and competent person.
5.5. It may be mentioned here that the specific objection was taken by the defendants in their written statement that the suit has been filed by an unauthorised person at the instance of M/s.Shiv Cotton Mills Pvt. Ltd. to the extent that “the defendants crave leave of this Hon’ble Court that an enquiry be held and necessary proceedings be initiated as provided under Section 340 Cr.P.C. and necessary proceedings be initiated against Mr.Kailash Kasera and M/s.Shiv Cotton Mills Pvt. Ltd. and their other persons who are involved in this conspiracy…” In replication, except reaffirming that Sh.Kailash Kasera is duly authorised and competent person to sign and verify the plaint and to institute the suit, it has not been disclosed who has authorised him, how he was authorised and whether the person who authorised him (Kailash Kasera) himself had the authority or not. However, the unauthenticated power of attorney was filed on 18th April, 996 after filing of the replication on 4th March, 1996.
6. In such circumstances, there are three options open for this Court: either to reject the application for interim injunction and give the plaintiff time to remove the defects first, to ensure that stranger is not meddling in between at the instance of M/s.Shiv Cotton Mills Pvt. Ltd. or to reject the plaint or to dismiss the suit. Before opting for any of these options it may be mentioned that the allegation made by the defendants is that the present suit has been filed at the behest of M/s.Shiv Cotton Mills Pvt. Ltd., who filed a suit No.1463 of 1990 for injunction against the defendants and its partner Sh.Daya Ram. An injunction application (I.A. No.3589/90) moved on behalf of M/s.Shiv Cotton Mills Pvt. Ltd. in the said suit was rejected holding that the defendants were using the trade mark MANJU for selling petticoats and blouse pieces since 1968. The defendants were the first user, balance of convenience was in their favour; and the plaintiffs were held not entitled to injunction. It is also notable that this suit has been filed only in 1995. When the injunction application in the case M/s.Shiv Cotton Mills Pvt. Ltd. was about to be decided, an application was filed for withholding the decision on the I.As. in M/s.Shiv Cotton Mills Pvt. Ltd.’s case on the pretext of filing the present suit by the plaintiff against the defendants. The fact of filing of the application has not been denied in the replication.
7. In the aforesaid circumstances, it is felt that it would not be appropriate to pass any injunction order in respect of the suit which suffers from the above said defects. Nor would it be proper to express any opinion about the claim of the plaintiff company, for it may or may not be a totally independent case filed on behalf of the plaintiff company. It may also be fault of advice given or of Sh.Kailash Kasera not to remove the defects. It may be weakness of Sh.Kailash Kasera that he could not procure the appropriate authority from the appropriate person, though one of the Directors of the plaintiff company might have intended to do so. In such circumstances, I feel it would be appropriate to dismiss the application.
8. It is also contended that suit is liable to be dismissed on this ground. However, in this regard while in M/s. Nibro Limited Vs. National Insurance Company Ltd. (supra) and Ferocious Seas and Anr. Vs. Shri Jai Manga Ram Mukhi and Ors. (supra), the two suits were dismissed but in the case of Mohd. Islam Vs. Delhi Wakf Board and Ors., 1965 Punjab Law Reporter [Suppl.] 417), a defective plaint was allowed to be amended by filing an appropriately signed and verified copy of the plaint. It may also be mentioned that in United Bank of India Vs. Naresh Kumar, , the Supreme Court in case of a public institution like the United Bank of India took the following view in paragraph 9 as under:
“9. …Procedural defect which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.”
Though the plaintiff company is not a public corporation and public interest is not involved yet since there is a registration of the trade name MANJU, it appears to be just and fair neither to reject the plaint nor to dismiss the suit.
9. Accordingly, I dismiss I.A.11157/95 with no order as to costs.
10. The matter be listed before the Regular Bench as per roster, on 10th March 1999.