1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 504 OF 2009 IN CHAMBER SUMMONS NO. 1564 OF 2006 ALONG WITH CHAMBER SUMMONS NO. 214 OF 2008 IN SUIT NO. 3443 OF 2004 WITH CHAMBER SUMMONS NO. 1880 OF 2009 Mohan Rocky Spring Water Breweries Ltd. .. Appellant Vs. Shaw Wallace and Company Ltd. and ors. .. Respondents Mr. Vineet Malhotra a/w S.J. Khera for appellant. Dr. Virendra Tulzapurkar, Senior Advocate a/w H.W. Kane for respondent Nos.1 and 2. Mr. D.D. Madan, Senior Advocate a/w Shri Puranik i/by Puranik & Co. for respondent no.3. CORAM: B. H. MARLAPALLE & C. L. PANGARKAR, JJ. January 27, 2010. P.C. 1. This appeal arises from the order dated 8/4/2008 thereby allowing Chamber Summons No. 1564 of 2006 in Suit No. 3443 of 2004. By the 2 said order, the present respondent no.3 came to be added as plaintiff no.3 in Suit No. 3443 of 2004. 2. It was submitted by the learned counsel for the appellant-company (defendant) that the respondent no.3 had no locus to apply for being impleaded as an additional plaintiff as the Deed of Assignment dated 27/5/2005 signed between the original plaintiffs and the respondent no.3 was not registered, it contained declarations which were contrary to the averments made in the plaint by the plaintiffs and the same could not be the basis in the eyes of law to maintain an application either under Order 1 Rule 10 or Order 22 Rule 10 of C.P.C. Mr. Madan, the learned Senior Counsel, on the other hand has raised a preliminary objection to the maintainability of this appeal by relying upon the judgment of this court (DB) in the case of Madhukar Venkatesh Ullal vs. Anita Hermy D’Souza and ors. [2006 (2) BCR 241]. As per Mr. Madan, the impugned order in no way affects the rights of either the original plaintiffs or the defendant and, therefore, the ratio laid down in the case of Madhukar Ullal (Supra) would squarely apply. It was pointed out that so far as the issue of registration of the Assignment Deed is concerned, the same issue has been left open in the impugned order and no finding has been recorded either 3 way as to the effect of non registration of the said Deed. 3. In the appeal memo it has been also stated that the impugned order should not have been passed by the same learned Judge when in the earlier proceedings, the order of “not before me” was passed. 4. On this issue of propriety, there is nothing on record to indicate that the earlier order of “not before me” was brought to the notice of the learned Judge who passed the impugned order. It has been further clarified by the learned counsel for the plaintiffs that the said order of “not before me” related to Notice of Motion No. 1893 of 2005, in which a particular Senior Counsel had appeared and in the Chamber Summons, in which the impugned order came to be passed, the said counsel was not appearing and, therefore, there was no reason for the learned Judge, even otherwise, in detaining himself to hear the Chamber Summons or to recuse from the case. We, therefore, do not find any material, even to remotely hold that the impugned order suffers from lack of judicial propriety. 5. Coming to the merits of the matter, admittedly, the Deed of Assignment was signed on 27/5/2005 between the original plaintiffs and 4 the added plaintiff and on the very same day steps were taken to submit an application for a certificate to be issued under the Trade Marks Act, 1999. Chamber Summons No. 1564 of 2006 was filed on 5/12/2006 by respondent no.3 and in the affidavit in support, it was clarified that the application submitted under the Trade Marks Act, 1999 was pending. The registration certificate under Section 45 of the Trade Marks Act, 1999 has been issued on 3/1/2008 in favour of respondent no.3 by the Competent Authority. If the appellant is, in any way, aggrieved by the said registration certificate, undoubtedly, his remedy lies before the Appellate Board established under the said Act. 6. The fact remains that the respondent no. 3 is the proprietor of the subject trade mark and plaintiff nos.1 and 2 did not oppose its Chamber Summons. The trade mark has devolved on respondent no.3 from the date the application for registration was submitted, though the registration is granted on 3/1/2008 and the impugned order has been passed on 8/4/2008 i.e. subsequently. The non registration of the Deed of Assignment, in our opinion, is not significant when it comes to allowing an application filed under Order 1 Rule 10 read with Order 22 Rule 10 of C.P.C. and if the appellant desires to challenge the said Deed, his remedy may be 5 somewhere else and such an issue cannot be examined in this appeal and in any case the issue of admissibility of the Deed of Assignment and its validity have been kept open by the learned Single Judge in the impugned order. The learned Judge has also noted that it was not necessary to go into the issues as to whether the registration under the Trade Marks Act or Copy Right Act was enough and so also the plaintiff nos.1 and 2 and present respondent no.3 must comply with the requirements of Section 17 of the Registration Act. All these issues were not required to be gone into while deciding the Chamber Summons. 7. We, therefore, do not find any error in the impugned order so as to entertain this appeal and, therefore, the appeal must fail at the threshold. 8. The appeal is hereby dismissed in limine. 9. Chamber Summons No. 1880 of 2009 does not survive and the same shall stand disposed as such. (C. L. PANGARKAR, J.) (B. H. MARLAPALLE, J.)