Judgment:
ORDER
K.B. Siddappa, J.
1. This Revision is filed against the judgment passed in C.M.A.No. 13/95 on the file of II Additional District Judge, Cuddapah.
2. The plaintiff is a firm represented by its partner. It filed I.A.No. 142/95 cm the file of III Additional District Munsif, Cuddapah, to grant temporary injunction restraining the respondents 1 to 4 and their men, agents and representatives from carrying on the business or any transaction in the name of M/s. A.K. Minerals, Cuddapah.
3. The brief facts in the affidavit are as follows:
The plaintiff stated that the 1st respondent who is a partner of the firm along with other partners fraudulently and wilfully entered into a partnership with respondents 2 to 4 and are carrying on business for the past 3 years and competing with petitioner's firm using the name of the firm i.e., M/s. A.K. Minerals. The partners of the petitioner firm are (1) Ananta Padmanabha; (2) Smt. A. Tulasamma; (3) Sri A. Sai Prasad; (4) Sri A. Anja; (5) Sri A. Venkataramana and (6) Sri A. Ramachandra (R-1 in the petition). The firm was registered under Ex.A-2 dated 1-3-1982 and was carrying on the business. One of the partners Sri Ananta Padmanabha, died and his sons Sham Pavan was taken as a partner and the partnership is reconstituted under a deed Ex.A-4, dated 1-2-1994.
While the matters stood thus, 1st respondent with an intention to make illegal gain, showed the other partners as retired with effect from 31-3-1992 and it is shown by the 1st respondent that he took respondents 2 to 4 as partners and reconstituted a new partnership under Ex.B-1 agreement. Thereafter, the so called firm is carrying on business in the self same name of M/s. A.K. Minerals, Cuddapah. This amounts to infringment of the right of the plaintiff firm to carry on the business. Not only mat, the respondents are making use of mineral lease which is in the name of the plaintiff-firm. The Registered Number of the plaintiff firm is 4322/82. The respondents registered their firm under No. 4498/92 dated 26-5-1992 (Ex.B-1). This he cannot do. Hence, the petition.
4. The respondents resisted the petition. It is their case that the original partners, except the 1st respondent, retired from the partnership with effect from 31-3-1992. They have taken away their share capital. Therefore, A. Venkataramana, who is representing the petitioner-firm has no locus-standi to file this petition. The other partners have not joined the petition because they have already taken their share capital. Mr. A. Venkataramana alone is agitating to cause loss to the respondents. Further, Mr. A. Venkataramana was managing the plaintiff-firm right from its inception i.e., 1-3-1982. He could not manage the affairs of the firm properly. He was afraid to continue the business any longer. Therefore, he along with others retired handing over the business to the 1st respondent. The 1st respondent enlisted respondents 2 to 4 and constituted a new firm with a new registered No. 4498/92 dated 26-5-1992, and is carrying on business under the same name. They also took the ground that no rights of the plaintiff-firm are infringed. The Court fee etc. paid is not correct. Not only that, after reconstitution of the partnership firm under Ex.B-1, the firm carried on its activities. It paid Commercial taxes. The firm also paid Income-tax. Therefore, it is not desirable to grant the injunction as prayed for. Hence, they prayed to dismiss the petition.
5. The petitioner marked Exs.A-1 to A-10. The respondents marked Exs.B-1 to B-36.
6. Considering the facts and circumstances of the case, the trial Court granted injunction as prayed for. However, on appeal the lower appellate court in C.M.A.No. 13/95, reversed the finding and allowed the appeal.
7. Aggrieved by the said judgment, the present Revision is filed.
8. The learned counsel appearing for the Revision petitioner submitted that the lower appellate Court was not right in reversing the well considered order of the trial Court. Admittedly, the petitioner's firm is registered with No. 4322/82 under Ex.A-2 dated 1-3-1982. The 1st respondent and others were also partners. The firm carried on the business. However, clandestinely the 1st respondent with an intention to make illegal gain showed the other partners as retired under Ex.A-5 dated 1-4-1992 and constituted another partnership firm with respondents 2 to 4. This is quite illegal. It is not the case of the respondents that the partnership constituted under Ex.A-2 was dissolved. When there is a dissolution of the partnership, necessarily it has to be informed to the Registrar in Form No. 5 of the Partnership Act. Admittedly this was not done. When one of the partners died, namely, Ananthapadmanabha, his son was taken as a partner on 1-2-1994. This was intimated to the Registrar on 16-6-1994andafresh partnership has come into existence with effect from 1-2-1994 under Ex.A-4 deed and the firm is carrying on business. In this firm the 1st respondent is also a partner. He cannot form another partnership in the same name and carry on the same trade. It would infringe the Trade Mark of the petitioner.
9. I entirely agree with the submission made by the learned counsel for the petitioner. In its judgment the lower appellate Court categorically held 'In the present case the plaintiff firm is not dissolved'. In such a case it is not known how the respondents are carrying on business in the name of the old firm, by constituting another firm with new registered number 4498/92, under Ex.B-1. The learned District Judge gave strange reasons for vacating the injunction granted by the lower Court. He held that one partner cannot restrain the another partner from doing business in the name of the firm. This is not the case of the petitioner-plaintiff. They want their partner, the 1st respondent, not to use the name of their firm by taking other partners and reconstituting another firm. There is no such permission for the 1st respondent to conduct business of the petitioner firm by taking other people as partners. Further, there cannot be any provision in the Partnership Act to enable the firm to file a suit against others for injunction restraining them from doing business even if it competes with the business of the plaintiff firm. But certainly using the trade name of the petitioner-firm is infringement of the right of the plaintiff firm under Copy Right Act and Trade and Merchandise Marks Act. The petitioner might not have framed the relief properly. But their right is certainly infringed when their name is used by another firm for doing the same business. They are certainly entitled for the injunction as prayed for.
10. The learned Judge as already stated gave strange reasons for refusing equitable remedy. He held that the opinion of the lower Court that the firm cannot be compensated in terms of money does not hold good. He also held that the plaintiff firm can file a suit for damages etc. which is untenable. What is the volume of the business etc. is not estimated easily in a suit for damages. First of all the respondents have no business to use the Trade Mark of the plaintiff. Admittedly, when they used the same Trade Mark they are to be stopped at once.
11. The lower appellate Court dealt also with the provisions of Court Fee and the valuation of the relief. If the relief is not properly valued the plaintiff may be directed to incorporate proper provision and also to pay the proper Court fee thereon. The reasons given by the Lower Appellate Court for vacating the injunction granted were not at all convincing. Hence, the impugned judgment is set-aside. The order of the lower Court is restored.
12. Accordingly, the Civil Revision Petition is allowed with costs.