JUDGMENT
K.S. Gupta, J.
1. Kulwant Singh filed this application under Order 23 Rule 1 and Section 151, CPC, inter alia, alleging that he was one of the partners of plaintiff firm which stands dissolved. Suit was filed by Smt. Charanjit Kaur, another partner of firm without authorisation and/or knowledge or the applicant. Parties to suit are closely related and the applicant, thus, does not want to proceed with the suit. It was prayed that suit may be dismissed as withdrawn unconditionally or in the alternative dismissed.
2. Smt. Charanjit Kaur, contested the application by tiling reply. It is alleged that at the time suit was filed the plaintiff firm consisted of two partners. Vide deed of dissolution dated 31st March, 2002 the applicant retired from plaintiff firm and all existing assets and liabilities of the firm including trade mark were taken over by Smt. Charanjit Kaur who is now the proprietor of the business. It is denied that suit was filed without authorisation and/or knowledge of the applicant, as alleged. It is alleged that present application has been filed in collusion with defendants with a view to benefit them.
3. I have heard Sh. Swarnabh Paliwal for applicant and Sh. S.K. Bansal for plaintiff and have also been taken through the record.
4. Along with reply, photostat copy of deed of dissolution dated 31st March 2002 has also been filed. Clauses 2, 3, 4 and 8 thereof which are material, are reproduced below:-
“2. That Shri Kulwant Singh voluntarily retires from the partnership firm.
3. That the manufacturing and trading of confectionery articles and raw material of M/s. Sonik Industries and the goodwill of the firm shall be kept with Mrs. Charanjeet Kaur.
4. That the existing assets and liabilities shall be taken by the remaining
partner Mrs. Charanjeet Kaur.
8. That the retiring partner Sh. Kulwint Singh will not have any right/Hen or
any claim on ‘SONIK’ brand/’SONI’ brand in future.”
5. To be only noted that Smt. Charanjeet Kaur has filed I.A. No. 9902/02 under Order 22 Rule 10, Order 6 Rule 17 read with Section 151, CPC seeking permission to continue with the suit and amend the plaint on the lines noted in Para No. 6 of the application and this application is yet to be disposed of. Suit for permanent injunction and rendition of accounts was filed by the plaintiff firm whereof applicant and Smt. Charanjeet Kaur were partners, on 1st December, 2001, inter alia, alleging that Kawaljeet Singh, proprietor of M/s. Sardar Food Products, Shahdara adopted the trade mark SONI in the year 1989 and he continuously used it up to 20th April 2001 in which date it was assigned to the plaintiff firm vide deed of assignment dated 20th April 2001. Said Kawaljeet Singh obtained registration of said trade mark under the provisions of Trade and Merchandise Marks Act on 3rd September 1992 which is still subsisting. It is also alleged that after assignment of trade mark on 20th April 2001 the plaintiff firm has been using the same to manufacture and market the sugar boiled confectionery including sweets and toffees and assignment application dated 26th April 2001 in trade mark office to bring the registration in its name is still pending. Defendant No. 1 is one of the Directors of defendant No. 2 which is also engaged in the business of manufacture and marketing of sugar boiled confectionery including sweets and toffees and has adopted the mark SONI that of the plaintiff illegally. In my view, after having given up right in trade mark SONI under aforesaid deed of dissolution dated 31st March 2002 in favor of Smt. Charanjeet Kaur who continues to carry on the business after dissolution as proprietor thereof and whose application being I.A. No. 9902/02 is pending, it is not open to the applicant to seek withdrawal of
the suit on the ground of either of his having not authorised Smt. Charanjeet Kaur to file suit or having no knowledge about the institution of suit now and the application, thus, deserves to be dismissed being without any merit. Dismissed as such.