HALDIRAM BHUJIAWALA AND ANR. versus ANAND KUMAR DEEPAK KUMAR AND ANR

Citation: [2000] 1 S.C.R. 1247 · Decided: 28-02-2000 · Supreme Court of India · Bench: M. JAGANNADHA RAO · Disposal: Dismissed

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Judgment (excerpt)

HALDIRAM BHUJIAWALA AND ANR. 
A 
v. 
ANAND KUMAR DEEPAK KUMAR AND ANR. 
FEBRUARY 28, 2000 
[M. JAGANNADHA RAO AND AP. MISRA, JJ.) 
B 
Partnership Act, 1932: Section 59(2). 
Suit by u11registered fimi-Maintai11ability of-U11registered finn filed a 
suit for pem1a11ent i11ju11ctio11 restrai11ing the def e11dants from infri11ging its C 
trademark-The suit was based 011 commo11 law and co11tractual rights of 
the plai11tiff-Def e11dants filed applicatio11 for rejectio11 of the plai11t under 0. 7 
R.11CPC011 the grou11d that the suit was barred by S.69(2)---Held: where the 
suit is based 011 commo11 law rights it is 11ot barred by S.69(2)---He11ce, High 
Court rightly dismissed the application-Code of Civil Procedure, 1908, 0. 7 
R.11-Trade and Mercha11dise Marks, Ac~ 1958. 
D 
''Arisi11g from a co11tract''-Mea11i11g of-Held : The words refer to a 
co11tract e11tered i11to by an unregistered finn with third-party defendants i11 
the course of its busi11ess dealings with such third-party def e11da11ts-The 
words do 11ot apply to a contract ref erred to i11 the plai11t only as a historical 
~ 
E 
Suit by unregistered finn-Fili11g of-Bar u11der S.69(2)-Remedy 
agai11st-Held : Plaintiff can withdraw the plai11t with leave and file fresh suit 
after registration of jinn subject to law of limitation-This is so eve11 if the 
suit is dismissed for a Jonna/ defect in view of S.14 of the Limitation Act, 
F 
1963-Limitation Act, 1963, S.14. 
Trademark-Passi11g-off action-Filing of suit against-By unregistered 
finn-Held : Passing-off action is a common law action based on 
ton---H ence, suit can be filed by unregistered fimi a11d is not barred by S. 69(2) 
of Part11ership Act. 
G 
fllterpretatio11 of Statutes. 
E.xtemal Aids-Report of Special Committees-Use of--111 i11terpreti11g 
provisio11s of a11 Act-f'emzissibility-Held: Pennissible--Especially whe11 the 
provisio11s are ambiguous. 
H 
1247 
1248 
SUPREME COURT REPORTS 
[2000] 1 S.C.R. 
A 
Words and Phrases : 
"Arising from a contract"-Meaning of-In the context of S.69(2) of the 
Pa1tnership Act, 1932. "Other cause of like nature''-Meaning orln the 
context of S.14 of the Limitation Act, 1963. 
B 
The respondent-plaintiffs constituted an unregistered partnership 
firm with the appellant-defendants and its trademark was registered with 
the Register of Trademarks. Subsequently, the partnership firm was dis-
solved and under the terms of the dissolution deed the trademark fell 
exclusively the share of the respondents-plaintiffs for the whole country 
C 
except one State, whereas the ownership of the trademark rights for that 
were given to the appellants-defendants. The said registered trademark 
was in the usual course renewed for seven years. The respondents also 
acquired a right on the said trademark on account of prior adoption and 
long user. 
D 
E 
F 
G 
The respondents-plaintiffs came to know that the appellant-defen-
dants commenced business using the said trademark in a place outside 
that State. The respondents, therefore, filed a suit in the High Court 
seeking permanent injunction restraining the appellants from infringing 
the said trademark and from using the same. The cause of action for the 
suit was that the defendants had acted "in violation of common law and 
contractual rights of the plaintiffs". The appellants-defendants filed an 
application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 
for rejection of the plaint on the ground that the partnership firm of the 
respondents-plaintiffs was unregistered and that Section 69(2) of the 
Partnership Act, 1932 was a bar to the maintainability of the suit. The High 
Court dismissed the said application. Hence this appeal. 
On behalf of the appellants it was contended that the suit sought to 
enforce a right "arising from a contract", namely, the dissolution deed and 
since the firm was unregistered the suit was barred by Section 69(2) of the 
Act. 
On behalf of the respondents it was contended that the suit was based 
on the Common Law rights available in a passing-off action; that the 
• 
dissolution deed was merely a reference to a historical fact; that the suit 
was not based on any contract between the appellants and the respondent 
H and, therefore, Section 69(2) of the Act did not apply since the right sought 
.. 
HALDIRAM BHUJIA WALA v. ANAND KUMAR 
1249 
to be enforce did not arise out of a contract between the appellants and the A 
respondents. 
Dismissing the appeal, this Court 
HELD : 1.1. A

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