-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Chamber Summons No.1564 of 2006 in Suit No.3443 of 2004 with Chamber Summons No.214 of 2008 1. Shaw Wallace and Company Ltd. and another ..Plaintiffs vs. Mohan Rocky Spring Water Breweries ...Defendant and SKOL Breeries Ltd. ..Applicant Mr.H.W.Kane with Mr.R.Kasam i/b Mr.A.H.Kane for plaintiffs/applicants Mr.T.K.Cooper i/b Mr.S.J.Khere and Co. for defendants. CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. 8th April, 2008 8th April, 2008 8th April, 2008 P.C. P.C. P.C. 1. The original plaintiffs and the applicants who are proposed plaintiffs have filed this Chamber Summons with a prayer that the suit be allowed to be amended to implead the applicant as plaintiffs no.3 and title of the plaint be amended as per Schedule I to the chamber summons so also all consequential amendments be permitted. 2. In the affidavit in support which has been filed in this Chamber Summons, it is stated that the plaintiffs have by the Deed of Assignment dated 27th May, 2005 -2- assigned and transferred to the applicants several registered trade marks and/or pending trade marks. A copy of the deed of assignment is annexed to the chamber summons and it is also stated that the Registrar of Trade Marks has been approached to register the deed of assignment and that Registrar of Trade Marks has accepted the agreement made by the applicants in that behalf. In such circumstances, the applicant can be added as plaintiff no.3. The applicant having taken over the marks under the Deed of Assignment would be entitled to claim the relief which the plaintiffs are seeking is the submission of Mr.Kane. 3. Mr.Cooper appearing for the defendants has firstly urged that the chamber summons at the instance of the applicant is not maintainable. It is the plaintiffs who should have come forward and sought amendment of the plaint. The third party applicant cannot approach the Court and seek amendment to the plaint, more so, when there is nothing to indicate that the plaintiffs have moved the chamber summons. He invites my attention to the affidavit in support and submits that none of the averments in the chamber summons and the affidavit in support are by the plaintiffs nor are there is any supporting material. The chamber summons be, therefore, -3- dismissed on this ground alone. 4. Alternatively, he contends that the deed of assignment cannot be relied upon. It is not registered. He relies upon section 17 of the Registration Act and submits that the said provision would require registration of this deed of assignment and unless and until the same is registered it cannot be made a foundation for claiming any reliefs much less those claimed by the original plaintiffs. If the plaintiffs have assigned their marks then, they are disentitled on their own showing for claiming the relief and, therefore, this suit cannot be prosecuted by them. Thus, the remedy of the applicant would be to file the substantive suit of its own and rely upon all such material including the deed of assignment if the same is valid in law. For all these reasons, he submits that the chamber summons be dismissed. 5. I have perused the chamber summons and the plaint averments for the limited purpose of deciding the issue of amendment to the plaint. In the affidavit in support there is a specific statement made that the deed of assignment has been executed with regard to certain trade marks and the trade marks forming part of the suit have been included therein. The plaintiffs are party to the -4- chamber summons. It is not as if the plaintiffs are opposing joinder of the applicants as party plaintiffs. Their interests are common. It is by virtue of the deed of assignment executed by them that the plaintiffs are proposing joinder of the applicants as plaintiff no.3. The first objection is, therefore, unsustainable in the peculiar facts of this case and is, therefore, over ruled. The applicant is being added as a plaintiff. Therefore, the objection is hyper technical. 6. As far as registration of the deed of assignment is concerned the plaint can be allowed to be amended on the basis that there is deed of assignment. A very limited issue is being considered. There is no question of going into the merits of the rival contentions or claims arising out of the deed of assignment at this stage. It is not as if the plaint being allowed to be amended that the defendants are estopped from urging that the plaintiffs and more particularly the applicants cannot claim any relief on the basis of the documents, namely, the deed of assignment. All contentions with regard to admissibility of deed of assignment and it validity are kept open. Subject to the same being kept open the chamber summons can always be allowed and I see no prohibition in law in doing so. Whether the registration under the Trade Marks -5- Act or Copy Right Act is enough and additionally the plaintiffs and applicants must comply with section 17 of the Registration Act or not are matters which are not necessary to be gone into at this stage. If the deed of assignment is not a valid document, then, the applicants would not be in a position to claim any relief. That is how the suit may be dismissed. However, presently, when the deed of assignment is being brought on record, and is also presented to the appropriate authority, according to the plaintiffs for registration which request has been granted, them, I see no reason to reject the prayer of the plaintiffs and applicants jointly to amend the plaint. 7. In the above circumstances, the chamber summons is made absolute in terms of prayer clauses (a) and (b). Amendment to be carried out within four weeks. Amended copy of the plaint be served on the defendants within a period of 6 weeks thereafter. Written statement/additional written statement, if any, to be filed within 8 weeks from the date of receipt of the copy of the amended plaint. All contentions with regard to legality and validity of the deed of assignment, maintainability of the plaintiffs’ claim and merits are kept open. -6- 8. Mr.Cooper at this stage prays for stay of this order. There is no reason to grant this prayer because four weeks’ time is granted to amend the plaint and to carry out the subsequent acts. Within this period the original defendants can always prefer an appeal against this order. In such circumstances, request of Mr.Cooper is rejected. 9. In Chamber Summons No.214 of 2008, Mr.Khera submits that the said chamber summons is for inspection of the documents relied upon by the plaintiffs. Mr.Kane appearing for the applicants/plaintiffs makes a statement that within a period of two weeks from today the copy of the Resolution passed by the plaintiffs and the applicants would be supplied to defendants’ Advocate if not already supplied so also he will be allowed to inspect the originals in the office of Mr.Kane on the date and time to be fixed by prior appointment. 10. As far as the documents which are reflected in the schedule to the chamber summons at page 5, Mr.Kane states that whatever has been annexed to in the deed of assignment dated 27th May, 2005 would be permitted to be inspected land even the xerox copy of the same would be provided to the defendants. However, he submits that this would be done provided the documents which are referred to -7- in the deed of assignment or copies thereof are available with the applicants. This statement is made by Mr.Kane without prejudice to the rights and contentions of the plaintiffs as also the applicants/newly added plaintiffs. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)