PETITIONER: <ORG>. Vs. RESPONDENT: <NAME> AND <NAME>. DATE OF JUDGMENT23/01/1979 BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH REDDY, O. CHINNAPPA (J) CITATION: 1979 AIR 1203 1979 SCC (3) 123 ACT: New plea, entertainments of-Not permissible at the appellate level. Bombay Co-operative Societies Act , 1925, (Bombay Act VII of 1925) Section 54 and Section 96 of the Gujarat Co- operative Societies Act , 1961-Scope of the words "any dispute touching the business of the society" Bombay Industrial Relations Act, 1946 (Bombay Act 11 of 1947) Section 2(4) notification under, read with s. 166(1) of the Gujarat Co-operative Societies Act, 1961, effect of. HEADNOTE: <ORG> was a society registered under the Bombay Co-operative Societies Act , 1925 and with the coming into force from May 1, 1962 of the Gujarat Co-operative Societies Act, 1961, it came to be governed by the said Act. By Notification No. BIR-1362-5-H dated March 2, 1963, <ORG> directed under s. 2(4) of the Bombay Industrial Relations Act, 1946 (Bombay Act 11 of 1947) that all the provisions of the said Act shall apply with effect from March 15, 1963 to the business of banking by Co- operative <ORG>s in the Saurashtra and Kutch areas of the State, registered and deemed to be registered under the Gujarat Co-operative Societies Act, 1961. The second respondent, <NAME> who was working as an additional supervisor in the Dasada Branch of the appellant <ORG> and whose services were terminated by an order dated February 21, 1962, by giving him one month's pay in lieu of notice under Staff Regulation No. 15, filed an application in <ORG> Rajkot, alleging that his services had been illegally and maliciously terminated as an act of victimisation on account of his trade union activities and praying for setting aside the order of his termination of service and for reinstatement with full back wages. <ORG> by its order dated June 11, 1963, over-ruled the preliminary objection raised by the appellant <ORG>, namely, that "the Bombay Industrial Relations Act, 1946 under which the application was made by the respondent was not applicable to its case, as it was a co-operative society governed by the Gujarat Co-operative Societies Act, under which only the Registrar or his nominee had jurisdiction to decide the dispute, and <ORG> had no jurisdiction to entertain and decide the application". <ORG>'s writ petition challenging the said order of <ORG> was dismissed by <ORG> by its judgment dated August 25, 1967. Dismissing the appeal by certificate, the <ORG> ^ HELD: 1. No new plea can be raised for the first time in the Supreme <ORG>, as a matter of right. In the instant case, the new plea that "the appellant is not doing banking business" was not entertained for the reasons 1024 namely (i) it was much too belated; (ii) it stood in direct contradiction to the position taken by the appellant in its writ petition and the affidavit in support thereof in the High <ORG> wherein it had been clearly admitted that "the society is engaged in the business of banking" and (iii) it was not a purely legal plea but a mixed plea of law and fact and could not be determined on the basis of material already on the record. [1027 F-G] 2. The expression "any dispute" referred to in Section 54 of the Bombay Cooperative Societies Act, 1925 and in Section 96 of the Gujarat Cooperative Societies Act, does not cover a dispute of the kind raised by respondent 2 against the appellant-bank. [1034 C] (a) It is clear from the object and the scheme of the Acts of 1925 and 1961 that the legislature never intended to give such a wide scope to the expression "any dispute" so as to cover all classes of disputes whatever be their nature as the prefix "any" to "dispute" appears to give. The term "dispute" means a controversy having both positive and negative aspects. It postulates the assertion of a claim by one party and its denial by the other. [1031 C-D] (b) The expression "any dispute" has not been defined in the Acts of 1925 and 1961. This expression has been used in a narrower sense limited to contested claims of a civil nature, which could have been decided by civil or revenue courts, but for the provisions with regard to compulsory arbitration by the Registrar or his nominee found in Section 54 of the Bombay Act of 1925 and in Section 96 of the Gujarat Act, 1961. The words "as if the dispute were a suit and the Registrar as Civil <ORG>" occurring in sub-section (k) of Section 97 of the Gujarat Act, also make this position clear. [1031 C, D, E, G] (c) The compulsory arbitration by the Registrar on reference under s. 96 is only a substitute for adjudication of disputes of a civil nature normally tried by the Civil <ORG>. It is incumbent, under sub-section (2) of s. 96 of the 1961 Act, on the Registrar to decide as a preliminary issue, whether the dispute is of a kind under sub-section (1) of s. 96 falling within his jurisdiction. If this preliminary issue is found in the negative he will have no further jurisdiction to deal with the matter. [1031 F, G- 1032 F] (d) Thus considered, a dispute raised against the <ORG> by its discharged servant claiming reliefs, such as, reinstatement in service with back wages, which are not enforceable in a civil court, is outside the scope of the expression "touching the management of the <ORG>" used in s. 96(1) of the Act of 1961, and the Registrar has not jurisdiction to deal with and determine it. What has been directly bidden "out-of-bounds" for the Registrar by the very scheme and object of the Act, cannot be directly inducted by widening the connotation of 'management'. Such a dispute squarely falls within the jurisdiction of <ORG> under the Bombay Industrial Relations Act. [1036 E-G] 3. The law of Industrial disputes or Industrial Relations is a special law dealing with rights and obligations specially created by it. The provisions in s. 54 of the Bombay Act and in s. 96 of the Gujarat Act being general provisions in accordance with the maxim generalia specialibus non derogant, nothing in these general provisions can derogate from Bombay Industrial Relations Act, and the Cooperative Societies Act must yield to the special provi- 1025 sions in the Bombay Industrial Relations Act, whenever a dispute clearly comes within the language of the latter Act. Section 166(1) of the Gujarat Act, in terms, bars the jurisdiction only of Civil or Revenue <ORG>, and not of <ORG> or any Industrial Tribunal constituted under the Bombay Industrial Relations Act or Industrial Disputes Act . The legislature never intended to oust the jurisdiction of <ORG> or <ORG> to determine claims and industrial disputes which cannot be adjudicated by the ordinary Civil <ORG>. [1032 H, 1033 A, 1034 A-B] In the instant case : (a) <ORG> is competent to grant the relief of reinstatement while in view of s. 21(b) of the Specific Relief Act, then in force, the Civil <ORG> was not competent to grant that relief. If a <ORG> is incapable of granting the relief claimed, normally the proper construction would be that it is incompetent to deal with the matter. [1033 F, H] (b) The dispute was raised by the second respondent by writing an approach letter to his employee, the appellant, as required by the Bombay Industrial Relations Act. In substance, it was an industrial dispute. It was not restricted to a claim under the contract or agreement of employment. [1033 F-G] (c) The rights and reliefs claimed by the second respondent could not be determined and granted by a Civil <ORG> in a suit. His allegation was that his services were terminated unfairly and vindictively because of his legitimate trade union activities, as an act of victimisation. The relief claimed is reinstatement in services with back wages. The rights claimed are those which are conferred on workmen and employees under the Bombay Industrial Relations Act to ensure social justice. Such rights which do not stem from the contract of employment can be enforced only in <ORG> constituted under B.I.R. Act. [1033 B-F] Jullundur Transport Cooperative Societies Ltd. v. Punjab State, AIR 1959 Pun. 34; approved. <CITATION> ,  SCR 800; referred to. (d) Neither the Registrar nor his nominee will be competent to grant the relief of requiring change in the service conditions of the employee. Such a relief could be granted by <ORG> which under the Industrial Disputes Act , has the jurisdiction even to vary contracts of service between an employer and employees. [1037 <CITATION>  1 SCR 205; applied. <CITATION> , AIR 1962 Bom. 362 over-ruled. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 236 of 1969.

Appeal from the Judgment and Order dated 24/25th August 1967 of <ORG> in SCA No. 585/63.

<NAME> and <NAME> for the Appellant.

<NAME>, Amicus Curiae for Respondent No. 2. The Judgment of the Court was delivered by <NAME>, J. The appellant is <ORG> (hereafter referred to as the Bank). It is a Society registered under the Bombay Cooperative Societies Act , 1925, as applicable to the erstwhile State of Saurashtra. According to the appellant's writ petition, it is doing banking business. It has 127 Branches spread all over the State of Gujarat. One of its Branches is in Dasada, Surendranagar District. The Head Office of the Bank is at Ahmedabad.

The second respondent, <NAME>, was serving as an Additional Supervisor in the Dasada Branch of the <ORG>. His services were terminated by an order, dated February 21, 1962, by giving him one month's pay in lieu of notice under Staff Regulation No. 15.

The Gujarat Cooperative Societies Act, 1961, came into force from May 1, 1962, and the appellant-Bank, being a Society, under the Cooperative Societies Act , came to be governed by the said Act.

By Notification No. BIR-1362-5-H, dated March 2, 1963, published in <ORG> in March 1963, <ORG> directed under Section 2(4) of the Bombay Industrial Relations Act, 1946 (Bombay Act 11 of 1947) that all the provisions of the said Act shall apply with effect from March 15, 1963 to the business of banking by Cooperative Banks in the Saurashtra and Kutch areas of the State, registered and deemed to be registered under the Gujarat Cooperative Societies Act, 1961.

Aggrieved by the termination of his service, the second respondent approached the appellant's <ORG>'s Branch by a letter, dated August 20, 1962, stating that since his services were terminated illegally by way of victimisation, he should be reinstated in the service.

Thereafter, the second respondent filed an application in <ORG> at Rajkot, alleging that his service had been illegally and maliciously terminated as an act of victimisation on account of his trade union activities. He prayed for setting aside the order of his termination of service and for reinstatement with full back wages.

The <ORG> filed a written statement, raising a preliminary objection that the Bombay Industrial Relations Act, 1946, under which the application was made by the respondent, was not applicable to its case, as it was <ORG> governed by the Gujarat Co-operative Societies Act, under which only the Registrar or his nominee had jurisdiction to decide the dispute, and <ORG> had no jurisdiction to entertain and decide the application of the second respondent.

By its Order, dated June 11, 1963, <ORG> overruled this objection and held that it had jurisdiction to hear the application.

The <ORG> then filed a writ petition under Article 226 of the Constitution in <ORG> to challenge the Order of <ORG>. <ORG> by a common judgment dated August 25, 1967 dismissed the writ petition, but in view of the importance of the question of law involved, granted a certificate of fitness for appeal to this <ORG>.

On the strength of that certificate, the <ORG> has come in appeal before us against the aforesaid judgment of <ORG>.

In this <ORG> on January 22, 1969, the <ORG> made an application for leave to urge as additional ground, namely, that the <ORG> is not doing banking business, i.e. accepting for the purpose of lending or investment of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or otherwise as defined in Section 5 , Clauses (b) and (c) of the <ORG>ing Companies Act , 1949; and that this being the true position, the Notification No. DIR-1362-IV-H dated March 2, 1963, published in <ORG> dated March 7, 1963, under Section 2(4) of the Bombay Industrial Relations Act, 1946 (Bombay Act XI of 1947) is not applicable to the appellant. This application was strenuously opposed by <NAME>, who is assisting the <ORG> as amicus curiae on behalf of respondent 2, who has not been able to appear and defend himself in this appeal.

We have declined permission to raise this new plea for the first time in this Court, for these reasons: (i) It is much too belated; (ii) It stands in direct contradiction to the position taken by the appellant in its writ petition and the affidavit in support thereof filed in <ORG>. Therein, the appellant had categorically pleaded: "The petitioner is a Society registered under the Bombay Cooperative Societies Act , 1925 (Bombay Act VII of 1925)....and is engaged in the business of banking." (iii) It is not a purely legal plea but a mixed plea of law and fact, and cannot be determined on the basis of material already on the record.

We, therefore, take it that the appellant is a Cooperative Society engaged in the business of banking and, as such, the Bombay Industrial Relations Act, 1946 is applicable to it by virtue of the aforesaid Notification dated March 2, 1963, issued by the State Government under Section 2(4) of that Act.

The arguments of Mr. <NAME>, appearing for the appellant, may be summarised as follows:

(i) The case is governed by the Gujarat Cooperative Societies Act, 1961 (hereafter called the Act of 1961) and not by the Bombay Cooperative Societies Act , 1925 (hereafter referred to as the Act of 1925).

(ii) The phrase "any dispute touching.....the business of the <ORG>", particularly the word "touching" therein, is of very wide amplitude. It would comprehend any matter which relates to, or concerns or affects the business of the <ORG>. Every society, ex-necessitiate employs some servants for the purpose of carrying on its business. That being so, the payment of wages, appointment and removal of its servants under law is a part of the business or "touches" the business of the <ORG>. (Reliance for this argument has been placed on <CITATION> (1).

(iii) Even if contention (ii) is not accepted, the dispute raised by the respondent, <NAME> is one "touching the management of the <ORG>". The expression 'management' takes in the entire staff or establishment of servants which run the affairs of the <ORG>.

(iv) Once it is held that the dispute between the <ORG> and its past servant, <NAME>, touches the "business" or the "management" of the <ORG>, or both, within the meaning of Section 96 , the Registrar or his nominee, alone, shall have jurisdiction to adjudicate such dispute by compulsory arbitration; and the non-obstante clause in the Section shall bar the determination of that dispute by <ORG> or <ORG> under the Bombay Industrial Relations Act.

As against the above, Mr. <NAME>, amicus curiae, submitted as under:

(i) Since the services of the second respondent were terminated on February 21, 1962, before the Act of 1961 came into force, the Act relevant for this discussion is the Act of 1925.

(ii) Irrespective of whether the Act of 1925 or the Act of 1961 governs the appellant-<ORG>, the expression "any dispute" commonly occurring in Section 54 of the Act of 1925 and Section 96 of the Act of 1961, is restricted in its scope to a dispute of a civil nature which is capable of being resolved by the Registrar or his nominee, and does not take in an industrial dispute between the <ORG> and its workmen which under the B.I.R. Act is triable by <ORG>, only.

(iii) B.I.R. Act is a special law, dealing with the special subject of industrial disputes, which in their nature are essentially different from ordinary Civil disputes between an employer and his employee governed by the Law of Contract, B.I.R. Act provides for a special machinery for adjudication of industrial disputes. As against this, the Cooperative Societies Act of 1925/or of 1961 is a general enactment and it must yield to the B.I.R. Act whenever the provisions of the latter by their language are clearly applicable to a dispute. Reference has been made to <CITATION> (1).

(iv) The scope of the expression "any dispute touching the business of the <ORG>", occurring in Section 54 of the Act of 1925/or Section 96 of the Act of 1961 is limited to disputes directly relating to the actual trading or commercial activities of the <ORG>. This expression does not take in a dispute between the <ORG> and its employee relating to the conditions of his employment, which will include the termination of his employment. This point is concluded by the decision of this Court in <CITATION> (2), which follows the ratio of its earlier decision in <CITATION> (3). In view of these decisions, the ratio of <NAME>'s case (ibid) decided by <ORG>, is no longer good law.

(v) The expression "management" in Section 96 of the Act of 1961, means "the Board of Directors", or "the Board of Trustees", or <ORG> or "<ORG>" which has the overall control of the affairs and business of the <ORG>, and it does not include the individual workers or employees, individual workmen or employees of the <ORG> who carry on the day-to-day administration of the <ORG>; nor will it take in matters touching the service conditions of the servants of the <ORG> such as their appointment to service or their discharge, removal from service and their wages. A dispute of the kind raised by the second respondent, therefore, will not fall within the purview of the phrase "any dispute touching the management of the <ORG>" used in Section 96 .

Before appreciating the contentions canvassed on both sides, it is necessary to notice the relevant provisions of the Act of 1925 and the Act of 1961.

The relevant part of Section 54 of the Act of 1925, reads thus:

"(1) (a) If any dispute touching the constitution or business of <ORG> arises between members or past members of the <ORG> or persons claiming through a member or a past member or between members or past members or persons so claiming and any officer, agent or servant of the <ORG> or its <ORG>, and any officer, agent, member or servant of the <ORG> past or present, it shall be referred to the Registrar for decision by himself or his nominee..."

The corresponding Section 96 of the Act of 1961 lays down:

"(1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, management or business of a Society shall be referred in the prescribed form.....if the parties thereto are from amongst the following:-

(a) a <ORG>, its <ORG>, any past <ORG>, any past or present officer, any past or present agent, any past or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the <ORG>, or the Liquidator of the <ORG>...."

A comparison between the portions of the two Sections, extracted above, brings out two points of difference. Firstly, in Section 54 , there is no non-obstante clause, while Section 96(1) begins with the words "Notwithstanding anything contained in any other law for the time being in force". Secondly, while in Section 54 , the word 'management' does not occur, in the corresponding Section 96(1) of the 1961 Act, the word 'management' has been inserted in-between the words 'constitution' and 'business'.

It is significant to note that the phrase "any dispute touching the constitution.... or business of the <ORG>" is a common feature of both the aforesaid Sections. We emphasise this fact, because it is this common feature, rather than the points of difference between the two Sections, that holds the key to a correct solution of the problem before us.

From a conspectus of the decisions cited at the <ORG>, we may devise two broad tests to determine the points in controversy in the instant case. First, whether the expression "any dispute" spoken of in Section 54 of the Act of 1925, and Section 96 of the Act of 1961, is one which is capable of being resolved by the Registrar or his nominee under the relevant Cooperative Societies Act ? Second, whether a dispute raised by a servant against his employer, <ORG>, for setting aside his removal from service on the ground that it was an act of victimisation and for reinstatement in service with back wages, is one "touching the management or business of the <ORG>" within the contemplation of the said provisions?

As regards the first test, it is to be noted that the expression "any dispute" has not been defined in the Acts of 1925 and 1961. The term "dispute" means a controversy having both positive and negative aspects. It postulates the assertion of a claim by one party and its denial by the other. The word "any" prefixed to "dispute" may at first glance, appear to give the expression "any dispute" a very wide amplitude covering all classes of disputes, whatever be their nature. But the context of these provisions, the object and scheme of the Acts of 1925/1961 show that the <ORG> never intended to give such a wide scope to this expression. The related provisions and the scheme of the Acts unerringly indicate that the expression "any dispute" has been used in a narrower sense limited to contested claims of a civil nature, which could have been decided by civil or revenue courts, but for the provisions with regard to compulsory arbitration by the Registrar or his nominee, found in Section 54 of the Act of 1925/96 of the Act of 1961. The first indication of this being the right construction, is discernible in sub-section (2) of Section 96 which states that when any question arises whether for the purposes of sub-section (1) a matter referred to for decision is a dispute or not, the question shall be considered by the Registrar, whose decision shall be final. This means, it is incumbent on the Registrar to decide as a preliminary issue, whether the dispute is of a kind under sub-section (1) of Section 96 falling within his jurisdiction. If this preliminary issue is found in the negative, he will have no further jurisdiction to deal with the matter.

A further clue to the interpretation of "any dispute" used in Section 96(1) is available in Section 97(1) which prescribes periods of limitation for disputes of the kind specified in its clauses (a) and (b), referred to the Registrar under Section 96 . Sub-section (2) of Section 97 which is in the nature of a residuary provision, states that the period of limitation in the case of any dispute other than those mentioned in sub-section (1) which are required to be referred to the Registrar under Section 96 , shall be regulated by the provisions of the Indian Limitation Act , "as if the dispute were a suit, and the Registrar as <ORG>". The last clause of sub-section (2) which has been underlined, unmistakably shows that only disputes of a civil nature which could be the subject of civil suits triable by ordinary civil courts, will fall within the scope of the expression "any dispute" used in Section 96(1) .

Another definite pointer to the above being the right construction of "any dispute" is available in sub-section (3) of Section 98 which provides:

"Notwithstanding anything contained in Section 96 , the Registrar may, if he thinks fit, suspend proceedings in regard to any dispute, if the question at issue between a society and a claimant or between different claimants, is one involving complicated question of law or fact, until the question has been tried by a regular suit instituted by one of the parties or by the society. If any such suit is not instituted within two months from the Registrar's order suspending proceedings, the Registrar shall take action as is provided in sub-section (1)."

It is noteworthy that this sub-section is substantially in the same terms as the proviso to sub-section (1) of Section 54 of the Act of 1925, extracted earlier.

The proviso to sub-section (1) of Section 54 of the Act of 1925 corresponding to sub-section (3) of Section 98 of the Act of 1961, unmistakably shows that the compulsory arbitration by the Registrar, on a reference under Section 96 , only a substitute for adjudication of disputes of a civil nature normally tried by civil courts.

Further indication regarding the nature of disputes which the Registrar may determine, is furnished by Section 166(1) which provides:

"166(1). Bar of jurisdiction of Courts : Save as expressly provided in this Act, no Civil or Revenue Court shall have any jurisdiction in respect of-

(a) ............

(b) any dispute required to be referred to the Registrar, or his nominee, or board of nominees, for decision."

It will be seen that Section 166 , in terms, bars the jurisdiction only of <ORG>, and not of <ORG> or <ORG> constituted under the B.I.R. Act or Industrial Disputes Act to adjudicate industrial disputes. It is clear that the <ORG> never intended to oust the jurisdiction of <ORG> or <ORG> to determine claims and industrial disputes which cannot be adjudicated by the ordinary <ORG>.

Now, let us turn to the nature of the dispute raised by the second respondent. Is it a dispute relating to a right which he could establish by filing a suit in <ORG>?

-assuming for the moment that nothing in the relevant Cooperative Societies Act is a bar to such a suit. The answer must be in the negative. The respondent is not claiming a civil right arising from the contract of employment with the appellant-Bank. What he is claiming is not enforcement of any term of the contract of his employment on the part of his employer. He is alleging that his services have been terminated unfairly and vindictively because of his legitimate trade union activities, as an act of victimisation. The relief claimed by him is of reinstatement in service with back wages. The rights and reliefs which he is claiming could not be determined and granted by <ORG> in a suit. As <NAME> puts it, "<ORG> proceeds on the footing that no power exists in the <ORG> to make contracts for people and the parties must make their own contracts. The <ORG> reach their limit of power when they enforce contracts which the parties had made." (Quoted with approval in <CITATION> .(1) The rights claimed by the second respondent are those which are conferred on workmen and employees under the Bombay Industrial Relations Act, to ensure social justice. Such rights which do not stem from the contract of employment can be enforced only in <ORG> constituted under the B.I.R. Act. <ORG> is competent to grant the relief of reinstatement claimed by the respondent, while in view of Section 21(b) of the Specific Relief Act, then in force, <ORG> was not competent to grant that relief.

The dispute was raised by the second respondent by writing an approach letter to his employer, the appellant, as required by the Bombay Industrial Relations Act. In substance, it was an industrial dispute. It was not restricted to a claim under the contract or agreement of employment. <ORG> cannot grant the reliefs claimed by the second respondent. As rightly submitted by Mr. <NAME>, if a <ORG> is incapable of granting the relief claimed, normally, the proper construction would be that it is incompetent to deal with the matter.

The matter can be looked at from another angle, also. The law of industrial disputes or industrial relations is a special law dealing with rights and obligations specially created by it. As against this, the provision in Section 54 of the Act of 1925/ Section 96 of the Act of 1961 is a general provision. In accordance with the maxim generalia specialibus non derogant, therefore, nothing in these general provisions can derogate from B.I.R. Act and the Cooperative Society Act must yield to the special provisions in the Bombay Industrial Relations Act, whenever a dispute clearly comes within the language of the latter Act.

In the light of the above discussion, the conclusion is inescapable that the expression "any dispute" referred to in Section 54 of the 1925 Act/ Section 96 of the 1961 Act, does not cover a dispute of the kind raised by respondent 2 against the appellant-Bank.

Coming now to the second test, it may be observed that to a part of it, the pronouncement of this Court in <CITATION> (ibid), furnishes a complete answer, wherein the interpretation of this very phrase "touching the business of the Society" occurring in Section 61 of Andhra Pradesh Cooperative Societies Act, 1964, which largely corresponds to Section 96 of the Gujarat Act, 1961, came up for interpretation. The subject-matter of the dispute was divided into three issues. The first issue comprised a number of service conditions including inter alia salary, scales and adjustment or dearness allowance, conveyance charges, provident fund and gratuity, etc. It was contended on behalf of the <ORG> that the effect of Section 61 and other provisions of Andhra Pradesh Cooperative Societies Act was to exclude the jurisdiction of <ORG> to deal with such disputes under the Industrial Disputes Act . After noticing a number of decisions and after referring to the previous decision of this Court in Deccan Cooperative <ORG>, the Court negatived the contention with these observations:

"The dispute related to alteration of a number of conditions of service of the workmen which relief could only be granted by <ORG> dealing with an industrial dispute. The Registrar, it is clear from the provisions of the Act, could not possibly have granted the reliefs claimed under this issue because of the limitations placed on his powers in the Act itself.... The word "business" is equated with the actual trading or commercial or other similar business activity of the society, and since it has been held that it would be difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects, such as laying down the conditions of service of its employee, can be said to be a part of its business, it would appear that a dispute relating to conditions of service of the workmen employed by the society cannot be held to be a dispute touching the business of the society...Thus it is clear that in respect of the dispute regarding the alteration of various conditions of service, the Registrar or other person dealing with it under Section 62 of the Act is not competent to grant the relief claimed by the workmen at all. On the principle laid down by this Court in the case of <ORG>, Civil Appeal No. 358 of 1967 dated 29-8-68, AIR 1969 SC 1320 (supra) therefore, it must be held that this dispute is not a dispute covered by the provisions of Section 61 of the Act. Such a dispute is not contemplated to be dealt with under Section 62 of the Act and must therefore, be held to be outside the scope of Section 61 ."

The observations quoted above, negate contention (ii) advanced by Mr. <NAME>.

It however, remains to be considered whether the dispute raised by the second respondent in the present case, comes within the purview of the expression "touching the management of the <ORG>" used in Section 96(c) of the Act of 1961.

In this connection, it may be noticed that just as in Section 96(1) , in Section 61 of the Andhra Pradesh Corporation Societies' Act, 1964, also, which came up for consideration in <ORG> case before this Court, the term management does occur in the collocation of words "constitution, management or business". But no specific argument seems to have been then raised that a dispute between the <ORG> and its former servants relating to the conditions of service, comes within the purview of the expression 'touching the management of the <ORG>'. Perhaps, it was taken for granted that if the dispute was not comprehended by the expression "business of the <ORG>", it would not be covered by the words "management of the <ORG>", either. Although there is little discussion in the judgment about the ambit and import of the expression "management", yet in conclusion, it was clearly and emphatically held that the dispute in that case was "outside the scope of Section 61 ."

We will now, focus attention on the expression "management of the <ORG>" used in Section 96(1) of the Act of 1961. Grammatically, one meaning of the term 'management' is: 'the Board of Directors' or 'the apex body' or <ORG> at the helm which guides, regulates, supervises, directs and controls the affairs of the <ORG>'. In this sense, it may not include the individuals who under the over-all control of that governing body or <ORG>, run the day-to-day business of the <ORG>. (see Words and phrases, by <ORG> Permanent Edition, Vol. 26, page 357, citing, <ORG> v. <ORG>). Another meaning of the term 'management', may be: 'the act or acts of managing or governing by direction, guidance, superintendence, regulation and control the affairs of a <ORG>.' A still wider meaning of the term which will encompass the entire staff of servants and workmen of the <ORG>, has been canvassed for by Mr. <NAME>. The use of the term 'management' in such a wide sense in Section 96(1) appears to us, to be very doubtful.

Be that as it may, what has been directly bidden "out- of-bounds" for the Registrar by the very scheme and object of the Act, cannot be indirectly inducted by widening the connotation of 'management'. A construction free from contexual constraints, having the effect of smuggling into the circumscribed limits of the expression "any dispute", a dispute which from its very nature is incapable of being resolved by the Registrar, has to be eschewed. Thus considered, a dispute raised against the <ORG> by its discharged servant claiming reliefs, such as reinstatement in service with back wages, which are not enforceable in <ORG>, is outside the scope of the expression "touching the management of the <ORG>" used in Section 96(1) of the Act of 1961, and the Registrar has no jurisdiction to deal with and determine it. Such a dispute squarely falls within the jurisdiction of <ORG> under the B.I.R. Act.

Learned counsel for the appellant tried to argue as a last resort that the relief sought by the second respondent could be granted by the Registrar by relaxing or moulding the Staff Regulations and Bye-laws which lay down conditions of service governing the employees of the <ORG>. It is pointed out that under the Act of 1961, the Registrar has the power to amend or modify such Regulations and Bye-laws.

We find no merit in this contention, also.

A similar argument was advanced before this Court in <ORG> Case, ibid, and was repelled inter alia, with the reasoning that the bye-laws of the <ORG>, containing the conditions of service were in the nature of a contract between the <ORG> and its employees and a change of such bye-laws, embodying the conditions of employment, "could not possibly be directed by the Registrar where, under s. 62 (4) of the (ANDHRA) Act , he is specifically required to decide the dispute referred to him in accordance with the provisions of the bye-laws". It was further observed that a dispute referred to the Registrar can even be transferred for disposal to a person who may have been invested with powers in that behalf, or may be referred for disposal to an arbitrator. But neither the Registrar nor his nominee will be competent to grant the relief requiring a change in the service conditions of the employees, under section 62 of the Andhra Act. Such a relief could be granted only by <ORG> which under the Industrial Disputes Act , has the jurisdiction even to vary contracts of service between an employer and employees. This reasoning is applicable mutatis mutandis to the instant case.

For all the foregoing reasons, the appeal fails and is dismissed with costs. In token of our gratitude for the valuable assistance rendered to us by <NAME> as amicus curiae, we direct that an honorarium of Rs. 1500/- be paid to him, which shall be taxed as costs awarded against the appellant.

V.D.K. Appeal dismissed.


ORDER

1. The above applications are filed by the applicant/plaintiff, viz., <ORG>, against both the respondents herein, under Order 14, Rule-8 of the Original Side Rules, read with Order 39, Rules-1 and 2 of Civil Procedure Code, seeking the relief of adinterim injunction to be passed against both the respondents herein, their servants, agents and men from manufacturing selling and advertising for sale of any electric mixer machine for kitchen use, using the trade mark of the applicant, 'SUMEET' in any way adopting such design deceptively similar in phonetic and visual aspects of the registered trade mark, 'SUMEET' by way of committing the infringement of the copyright of the plaintiff in their artistic work, containing in Document Nos. 1 to 3 filed along with the plaint by distributing, printing or causing to be printed the work as found in Document Nos. 4, 5 and 6 or printing, distributing and selling in any other manner infringing plaintiff's copyright; and from committing infringement of the copy right, the second plaintiff has in the artistic work shown in Document No. 7, Trade Mark Registration No. 263836 filed along with the plaint by printing, causing to be printed and distributing material containing the plaintiff's artistic style of writing, 'SUMEET' as found on defendants' mixies, Document No. 4, 5 and 6 and other trade literature and stationery of the defendants, till the disposal of the suit.

2. The short facts as culled out from the affidavits, filed in support of all the applications are as follows:--

The first applicant is a proprietorship concern, having adopted its registered trade name, '<ORG>' engaged in manufacturing the power operated kitchen machine during 1963 and registered it subsequently under the relevant provisions of Trade and Merchandize Act, developed its business in manufacturing the said mixies by getting the business of the said product well established and having registered the same under the Designs Act by obtaining the necessary certificates, improved the said designs as the exclusive owner of the said trade mark, '<ORG>' and that in the said sojourn, the proprietrix has innovated lot of methods to be followed by the consumers, who purchased the said mixies, in printing and caused to be printed so many modes through the said power operated mixies in the form of the operational instructions of 'Sumeet Mixies' as well as the trade literature along with the guarantee card in such a way to make all the general public identified with reference to the particular mode, design and pattern of the applicants' product, '<ORG>' power operated mixies and that by doing so, since 1973 onwards she has introduced so many technical changes in the operation of the said product and thereby acquired a very vast market within and outside the country and earned a very good reputation and market in the country and abroad by receiving awards for the good product and so on for being manufactured and marketed in the power operated kitchenware mixies technology.

3. It was the claim in brief being made by the applicants that in extending its business in vast area like manufacturing not only the power operated kitchenware like mixies, but also washing machines, vacuum cleaners and so on with the collaboration by way of entering into agreement with the newly developed companies and started the factories and through the appointed distributors for their products, under the trade name, '<ORG>' floated the business area to several crore as on today.

4. While that being so, in or about the month of March 1992, the applicants/plaintiffs came to know through the advertisements caused in the newspaper, 'The <ORG>', both the respondents herein claimed that they were the manufacturers of <ORG> power operated kitchen machines and claimed that they are the manufacturers. They caused the publications by adopting the same pattern, design, colour and trade mark of the plaintiff and called for the distributorship as well as the advertisement displayed in several parts of this country and that on finding the same and after giving legal notices to the respondents and having found no fruitful results, the applicants have come forward with the above three suits and applications for the relevant reliefs being asked for, viz., for the interim injunction restraining the respondents from manufacturing any product, deceptively similar in phonetic and visual aspects with that of the applicants by way of infringing the plaintiffs' trade mark, '<ORG>' and printing the trade literature and guarantee card by adopting the same with that of the applicants in its entirety and so as to avoid the confusion to be caused in the minds of the common public and to avoid the heavy and irreparable damages being incurred by the applicants herein.

5. On finding a prima facie case inherent with the applicants, on 25-3-1992 and on 9-4-1992, when all the applications were moved urgently, this <ORG> has granted the ad interim injunction order against the respondents, as prayed for.

6. A common counter-affidavit was filed on behalf of the respondents as being sworn by one Mr. <NAME>, claiming to be the Managing Director of the first responent, it was contended inter alia while repudiating each and every one of the averments made in the affidavit, mainly that the suit as well as the applications are liable to be dismissed for the simple reason that the material facts, viz., the relationship among the parties herein and their respective participation in the business of the applicants as well as their sister concerns including the first respondent, have not been referred to either in the plaint or in the affidavit and that so much so, it amounts to the suppression of the material facts disentitling the applicants to get any relief of interim injunction as contemplated by law; and that secondly, that though the name, '<ORG>' was registered by the applicants originally by the mother of the first respondent by name, Tmt. <NAME> and that she has commenced the manufacturing of the power operated kitchen machine by name, <ORG> 'Electrical SP-16 Mixer' though with the different capacity of the motor to be used, but with the actual aid, collaboration and support of the first applicant/first plaintiff as well as this respondent, he became the permitted user of the trade mark, carried on the business and manufactured the same '<ORG>' mixer and kitchenware of the different types with the consent of the applicant for the last more than seven years; and that thirdly by giving actual aid and help and the technical knowhow in manufacturing the said power operated mixie and other kitchenwares and home appliances of the applicants' name '<ORG>' and marketed through the same distributor for all the applicants and their sister concerns and the first respondent is carrying on the business transactions and the accounts are being audited by one and the same chartered accountant and that by giving security to the runing capital secured from <ORG> by the first applicant as well as her husband to the extent of Rs. 2,00,00000/-being operated by the first respondent and that accordingly, as the first respondent since engaged in manufacturing the SP-16 Sumeet Mixies and other home appliances like Washing Machines, Vacuum Cleaners and so on marketed through the same distributors of the applicants by name, '<ORG>' at Madras and others and that so much so, having allowed the first respondent to engage in manufacturing and marketing the different type of <ORG> Kitchenwares and other home appliances under the same trade mark, by claiming the interim injunction against this respondent by filing the suits and applications, the applicant has absolutely acquiesced with the business of the respondent and that lastly, that in view of the allowing the first respondent by the applicant to manufacture and market '<ORG>' power operated mixie since 1984 onwards, this respondent has been engaged in the business by investing heavy amounts and marketed the same product with the same trade litcratrue and guarantee card. But taking advantage of the family bickerings erupted recently about two months back or so, by suppressing the entire facts, coming forward with the suits and applications and obtaining injunction against the respondents caused great havoc, serious prejudice and irreparable loss to the business transaction of this respondent and that in this context, the balance of convenience as well as the irreparable damages are being caused to this respondent and that therefore, the order of interim injunctions granted in all the above applications are to be cancelled forthwith.

7. A combined reply affidavit on behalf of the applicants/plaintiffs sworn by Mr. <NAME>, one of the sons of the first applicant and the younger brother of the first respondent Mr. <NAME>, was filed in all the above applications and in which he repudiates each and everyone of the contentions raised by the first respondent in his counter-affidavit, further pleaded that the affidavit sworn on behalf of the first respondent by one Mr. <NAME> describing himself as a Commercial Adviser of the Chairman of the first respondent, cannot be accepted in law in view of the fact that it was barred by the legal norms laid down under Order 19, Rule 3 of Civil Procedure Code and that in reiterating the stand taken by the applicant through her affidavit, it has been claimed that his mother by name, Tmt. <NAME> was the founder of this <ORG> products being manufactured and marketed by adopting the latest technology to capture the entire market within and outside the country which followed the result of establishing four sister concerns in manufacturing the various components which are required to complete the <ORG> kitchenware, originally by entering into several agreements with them and that so much so, it was reiterated in this reply affidavit that though the first respondent company was started by Mr. <NAME> Mathur who was engaged by putting incharge of the company, which did not manufacture any kitchenware mixies till 1988 and that in fact everything was manufactured and the other respondent company was dealing with the same by doing the business of distribution of mixies, manufactured by the sister concerns of the applicant by name, '<ORG>, Bombay and that the first product, viz., Washing Machine by name, <ORG> A-200 was able to produce by the first respondent and that subsequently, he admits that he was with the actual help and aid of the mother and father, able to produce the <ORG> S. P.-16 mixies. He admits the actual help and colloboration of the <ORG>, Bombay by means of entering into separate agreements and that further, he admits the security given by his father and mother for the amount secured by the first respondent by way of loan to the bank to the extent of Rs. 2,00,00000/- arising out of several invoices and that further just to help their first son, his mother and father were kind enough and more affectionate in giving the security as well as commencing the first respondent business company by having the considerable shares and that therefore, it is not for the first respondent to take advantage of the same in claiming the absolute proprietorship or the so-call permissive user with the consent or the acquiescence as pleaded in the counter affidavit. He reiterates further that the first respondent suddenly started to manufacture the '<ORG>' power operated mixie during the month of February or March 1992 by causing the publication in the English daily, 'The <ORG>' by adopting the trade mark of the applicant and adopting the same literature regarding the power operational method andhe guarantee card of the applicants, has committed the act of infringement of the copyright and the trade mark of the applicant and thereby causing every confusion in the minds of the consumers and caused heavy damages to the first applicant and its sister concerns. In other respects, he reiterates each and every one of the averments raised in the affidavits filed in support of the above applications.

8. Upon the above rival pleadings, the questions that arise for <ORG> are the following.

1) Whether the applicants in all the above applications have established and made out a prima facie case against the respondents in seeking the order of injunction as prayed for?

2) Whether the applicants are barred by Doctrine of acquiescence, as pleaded by the respondents?

3) Whether the first respondent has been engaged in producing the power operated kitchenware and home appliances by using the trade mark 'SUMEET' since 1984 onwards?

4) Whether the balance of convenience is in favour of the applicants?

9. POINTS 1 to 4: The relief a'ksed for in all the three suits are for perpetual injunction against the respondents herein from committing the infringement of the applicants' trade mark 'SUMEET' and the applicants' copyright in following the trade literature and the gurantee card by the respondents in manufacturing and marketing the identical products, deceptively similar in phonetic and visual aspects, i.e., the power operated kitchenwares and home appliances of the applicants as well as for damages and so on. The second respondent is supposed to be the sole distributor of the first respondent for all the products being manufactured and marketed by the first respondent, but he has not filed any objections in the above applications.

10. In support of the case of the applicants, as many as 71 documents have been filed and relied on by the applicants in support of their case, as against 37 documents filed on behalf of the first respondent and relied on.

11. In substantiating the applicants' case, the learned senior counsel, <NAME>, has relied on the following case laws:--

1) <CITATION> , reported in 1988-PTC 10;

2) <CITATION> , ;

3) <ORG> v. <ORG> (1980 (1) PLR at pages 129 and 130);

4) <CITATION> , ;

5) <ORG> v. <ORG>, ;

6) An unreported judgment held by the learned brother, Justice <NAME>, in application Nos. 790 of 1986 in C.S. No. 87 of 1986;

7) Another judgment held by the same learned Judge in Application Nos. 4304 of 1986 and 171 of 1987 in C.S. No. 707 of 1986;

8) And one more case law cited is the Order passed in Application Nos. 3036 to 3038 of 1981 in C. S. No. 410 of 1981 (unreported).

12. While placing the reliance on the above referred case laws to substantiate the case on behalf of the applicant, the learned senior counsel drew my attention to the definition provided under Section 2 that various sub-clauses of the Trade and Merchandize Marks Act 1958 as well as the definition under Section 2 of the Copyright Act 1957, and Section 12 sub-clauses 13, 28, 29, 34, 77 to 79, Sections 81 and 96 of the Trade and Merchandize Marks Act with regard to the alleged trade mark of the applicants by name, 'SUMEET' with reference to the alleged infringement of the copyright pertaining to the trade literature to be sold along with the 'SUMEET' mixie of the applicant and the guarantee card for having reproduced in its entirely amounting to infringement of the copyright along with Section 2 and its various sub-sections pertaining to the definition of the copyright, the learned senior counsel relied on Sections 14 , 16 , 17 , 22 , 23 and 51 to 55 of the Copyright Act 1957.

13. Then for substantiating the exclusive right and properietorship over the trade marks and the copyright for the Sumeet trade mark and the trade literature and the guarantee card as was shown in all the documents, Exs. A1 to A4, the learned senior counsel drew my attention to the registration certificate of the designs under the Patents and Designs Act 1911 issued by the authorities constituted under the Act over five designs being adopted and followed by the applicants in producing the power operated Sumeet kitchen mixie and other home appliances by the applicants company as well as its other four sister concerns. While emphasizing the absolute right over the designs and pattern over the various components and the design of Sumeet mixie, the learned senior counsel has frankly admitted that the validity period for the registration of the said designs over four articles were elapsed.

14. Therefore, basing on the above-referred case laws and the various provisions of the Trade and Merchandize Marks Act, Copyright Act and the Patent and Designs Act , importing to the facts of the instant case, the learned senior counsel, <NAME>, vehemently contends that in the context of the business turn over of the first applicant company and its sister concerns exceeds several crores and the established market for their product within or outside the country was ranging to a higher level and even captured the international market, there cannot be any suspicion or difficulty in ascribing that the applicant is the exclusive owner of the Trade Mark of the SUMEET under the relevant provisions of the Trade and Merchandize Marks Acts and that the various recipes invented and caused to be printed in the trade literature by the strenuous effort and outcome of the applicants with the guarantee card to be supplied to the consumers in marketing their product, viz., SUMEET mechanical operators and that its design, pattern and everything have been registered under the relevant provisions of the Act, as borne out by the certificates issued by the authorities concerned, the applicants are to be deemed to be the absolute and sole owner and proprietrix of the trade mark by name, 'SUMEET' and she is the copyright holder of the trade literature as well as the guarantee card and that inasmuch as no document of any kind nor any materials provided or placed by the first respondent to disprove the same in this case, the presumption under the various provisions of the Trade and Merchandize Marks Act as well as the Copyright Act is that the first respondent is infringing the Trade Mark and the copyright in manufacturing the 'SUMEET' kitchenware of various categories by following and adopting the same trade literature and guarantee card and thereby causing not only confusion in the minds of the common public, but also causing very serious damage and irreparable loss to the applicant herein with the consequence that the first respondent along with its distributors render themselves liable to be restrained by means of interim injunction as prayed for till the disposal of the suit.

15. Per contra, Mr. <NAME>, the learned senior counsel appearing for the respondents emphasized his argument on the basis of the main contentions raised in the counter-affidavit, viz., that the applications are bereft of all material particulars, viz., the inter-related business transactions among the applicants/plaintiffs and the respondents since 1984 till today, the present applications for getting equitable reliefs are not all maintainable; that by the consent and permission of the applicants and a sister concern, since the first respondent was allowed to engage in marketing <ORG> power operated kitchenwares till today, the applicants have safely landed within the Doctrine of Acquiescence and that nextly, having allowed the first respondent to start the said category of <ORG> S.P. 16 poweer mixie and other home appliances like Washing Machines, vacuum cleaners and so on by using the trade name <ORG> since 1984 onwards marketed through the same distributors of the applicant and by supplying the components required for the said product since manufactured by the sister concerns of the applicant and that suppressing the said fact coming forward with the above applications for the relief of injunction in view of the recent bickerings happened among the parties herein, the order of interim injunction obtained by the applicant is really causing great havoc and irreparable loss for the first respondent and its business transaction and that therefore, the learned senior counsel contends that the very conduct of the applicants as well as their actual support and aid to the first respondent rendered so far clearly disentitled the applicant not to sustain the interim injunction passed already.

16. In support of the above contentions, the learned senior counsel, <NAME>, drew my attention to the following case laws:

1) Amritdhara Pharmacy v. Satya Deo, , wherein it is stated as follows at page 454:--

"If a trader allows another person who is acting in good faith to build up a reputation under a trade name or mark to which he has rights, he may lose his right to complain, and may even be debarred from himself using such name or market. But even long user by another, if fraudulent, does not affect the plaintiff's right to a final injunction; on the other hand, prompt warning or action before the defendant has built up any goodwill may materially assist the plaintiff's case."

2) <CITATION> . This case law was cited for the proof of acquiescence, wherein it was held, following the observation made by <NAME>, J., in the case law Willmott v. <NAME> (1880-15 Ch D 96) as follows at page AIR Mad 131:

"To support a plea of acquiescence in trade mark case, it must be shown that the plaintiff has stood by for a substantial period and thus encouraged the defendant to expend money in building up a business assocaited with the mark,"

3) <NAME> v. <NAME> (1957 MLJ 573 at 573), for the position that as the grant of temporary injunction is governed by equitable principles, the <ORG> will refuse to interfere summarily by such relief notwithstanding the plaintiff's legal rights unless his conduct in the matter is free from blame and there is no acquiescence or other estoppel and the test of acquiescence required to disentitle the plaintiff to an interim injunction need not be strong as is necessary for the refusal of perpetual injunction at the hearing and it is necessary that an application for. interlocutory injunction should be made immediately after the plaintiff becomes aware of the infringement of the mark and that the improper and unexplained delay is fatal to an application for interlocutory injunction and that the inlerim injunction will not be granted if the plaintiff has delayed interfering until the defendant has built up a large trade in which he has notoriously used the mark.

4) Then lastly, a case law reported in <CITATION> , 1940-2 Mad LJ 793 : (AIR 1941 Mad31) held by the Bench of this Court by His Lordship Mr. Justice Sir <NAME> along with His Lordship Mr. Justice <NAME>, wherein it was held as follows at page 34:--

"Delay simplicitor may be no defence to a suit for infringement of a trade mark, but where a trader allows a rival trader to expend money over a considerable period in building up a business with the aid of a mark similar to his own, he will not be allowed to stop his rival's business. What amounts to acquiescence must depend on the circumstances of each case.

Where a plea of acquiescence or abandonment succeeds especially where the defendant has taken the trade mark or another in ignorance, it would be wrong to deprive him of his costs."

17. I have carefully perused almost all the documents filed on behalf of the applicants herein and relied on in substantiating their case for sustaining the interim injunction granted already more particularly with reference to the trade literature covered under Ex. A1, and A2, the colour get-up and design of <ORG> mixie claimed to have been printed in the guarantee card covered under Ex. A2 and the latest receipe covered under Ex. A.3 as well as Ex. A.4 and the copy of the Registration Certificate given under the Trade and Merchandize Marks Act covered under Ex. A.5 and the publication made in <ORG>, covered under Exs. A.6 and A.7 and the pattern of one of the components of the <ORG> niixie pertaining to the Whipper Blade covered under Ex. A.8 and the certificate given by the Controller of Patent dated 22-9-1991 for their design and Patent of the suit trade mark, marked as Ex. A.9. The next important relevant document is Ex. A. 15 in which it has to be seen that the company <ORG> was being made invovled since 1984 by <ORG> <ORG> Research and Holdings Private Limited, to whom, Smt. <NAME> assigned the right. From this document, it has to be seen that the first respondent company has been incorporated under the Company Law on 5-9-1984 and that the various domestic appliances like <ORG> K. 30 Fully Automatic Washing Machine, <ORG> 'sports' Fully Automatic Washing Machine, <ORG> SP 16 Electronic Food Preparation Machine, <ORG> 842-INT Food Processor, <ORG> 842-1 Domestic Mixer, <ORG> PT-20, Aqua Vac Wet and Dry Vacuum Cleaner, <ORG> V-19 centrifuge Juicer attachment to fit all '<ORG>' mixers and so on are being manufactured and that their coprorate name is managed by <ORG> <ORG> Research and Holdings Private Limited, a sister concern of the applicant's company under the corporate name of the first respondent. Paragraphs 1 to 7 of this printed caution notice assumes very significance in the present case to show that the five sister concerns of the applicants' company along with the first respondent company are all being owned and managed by the plaintiff's family including the first respondent company are all being owned and managed by the plaintiff's family including the firs! respndent since 1984 onwards and that they have been involved in manufacturing and selling their automatic kitchen operative mixies and other domestic appliances through the trade mark and name, '<ORG>' in various categories. The next important document is Ex. A.22 supposed to be the photo copy of the chronology of events which took place in the family of the applicant herein followed by Ex. A.23, a letter addressed by the first respondent company during December 1985 to one of the dealers, viz., <ORG>, Madras and Ex. A.24 is another letter addressed to the said dealer. Ex. A.43, is a letter addressed by the father of the applicant as well as the first respondent Mr. <NAME> as well as the husband of Smt. <NAME> to his son the Managing Director of the first respondent on 28-12-1991. Ex. A.45 is the official letter of acceptance and confirmation in printed form being circulated to all the dealers by the first respondent for placing the orders of '<ORG>' applicances.

18. A careful perusal of the abovereferred documents in particular along with the other voluminous documents, clinch the fact that Smt. <NAME>, the mother of the deponents in the affidavits filed in support of the applications, as well as the counter-affidavit, got the trade mark '<ORG>' registered long back as early as 1964 and that by the very strenuous efforts, hard work, skill, exertion, devised so many designs and improved the appliances on par with the modern technology and along with other members of the family, viz., husband, sons and daughters were able to start different business concerns as specifically pleaded in the affidavit and reply affidavit and by entering into various agreements among themselves and by remaining as share-holders and directors in the companies engaged in manufacturing the various domestic power operated machines like mixies, washing machines and so on by using the trade name and marketed <ORG> mixies in various categories and numbers. It has to be seen that during the said sojourn, <NAME>, the present Managing Director of the first respondent was also the director of the plaintiffs company previously and still continuing as shareholder and that during 1984, the first efendant company was incorporated as private limited compay under the Companies Act and in adopting the name '<ORG>', his mother Smt. <NAME> as well as his father gave written consent to the authority constituted under the Companies Act and that the several number of documents produced on behalf of the applicant as well as the respondents, clearly demonstrate the fact that Smt. <NAME> family including her husband, daughter, two sons and the other family members were all directly concerned and involved in all of their sister concern including the first respondent company and have been engaged in manufacturing the various types of <ORG> home appliances and power operation machines and being marketed through a common distributor, viz., <ORG> and Engineers, Madras and all of their accounts were being audited by one and the same auditors concerned and that even to provide the working capital to the first respondent company being run by <NAME> it appears that in the company of the first respondent, both the mother and the father stood guarantee for a sum of Rs.2,00,00,000/- in <ORG>. All virtually go to show that each and everyone in the family of Tmt. <NAME> having involved in almost all the companies incorporated in the Companies Act by entering into agreement or otherwise and having the directorship and shares in almost all the companies and deeply involved in manufacturing either the components, motors and other accessories for their companies' products under the registered trade name and mark, <ORG> and that accordingly, they are being marketed the same through the company distributor.

19. Ex. R.1, the undisputed trade literature and Recipe along with Ex. R.1, a letter dated 6-2-1982 addressed to the first respondent by <ORG> requesting the first respondent to submit 'C' forms in respect of the invoices pertaining to the bill numbers to various amounts asked for the purpose of settling the sales tax assumes every importance and significance in this case. Ex. R.3 is also another letter dated 27-1-1992 addressed to the first respondent reminding the previous demand made under Ex. R.1. Then comes to Ex. R.4 series, the various printed irrevocable order forms placed before the first respondent for the supply of <ORG> power operating mixies, viz., SP-16, 842-INT, K30 W/M and so on were being brought to and relied on behalf of the first respondent. But all these order forms related to 1989 and 1991 onwards. A simitar correspondence covered under Ex. R.5 also assumes significance. Ex. R.6 clinches the fact that <ORG>, Madras is the common dealer for the applicants as well as the first respondent. Further documents Exs. R.7 and R.8 also substantiate the contention of the respondents. Ex. R.9 is the copy of the liability certificate given by <ORG> for the first respondent company.

20. As many as 27 copies of documents have been relied on behalf of the first respondent as per the type set copies of the documents filed on behalf of the first respondent to show that from May, 1984 onwards till today, the first respondent company was actually being engaged in manufacturing several power operating mixies and other home appliances under the trade name, '<ORG>' in different categories, types and designs through the same distributors of the applicants herein, till today.

21. Having perused the catena of case laws referred by the learned counsel, <NAME>, to substantiate the contention made by the applicant in the affidavit, plaint as well as the reply-affidavit and the voluminous documents relied on by himself, I am so satisfied to accept the case of the applicant that with regard to the trade mark of '<ORG>', the trade literature, operating instructions and recipe along with the guarantee card are concerned being followed by the applicant pursuant to the registration of the trade mark under the relevant provisions of the Trade and Merchandize Marks Act and the Copyright Act having evolved a particular design and mode and patent for their product and that upon which the original owner Smt. <NAME> is deemed to have the exclusive and proprietory right to the registered trade mark and the copyright over all the components and design, colour scheme and the patent being evolved and adopted by herself contained in the trade literature and the guarantee card and that in consequence thereof, she has been able to develop a first-hand commercial market within and outside the country as evident from the various documents and statistics provided by the applicant herein.

22. It may be remembered at this stage that in so far as the registered trade mark and copyright of the long user is concerned, there is no challenge or controversy of any kind being prostrated on behaif of the first respondent. In fact, the counter affidavit filed in all the applications are so silent about the proprietory, exclusive and absolute right of <NAME> over her registered trade mark and her assignment of the security in favour of applicability 1984 and the long user. In the context of no dispute or controversy about the registered trade mark in the name of <NAME>, by the contesting respondents, on perusing the various provisions of the Trade Merchandize and Marks Act and Copyright Act , as relied on by the learned senior counsel <NAME>, with the support of the various case laws cited by him, I have absolutely no discontent or difficulty in holding that the word, 'Sumeet' is the registered trade mark absolutely and exclusively being owned by the first owner, Tmt. <NAME>, and that the copyright acquired therefrom through the printed literature of the guarantee card with reference to its particular design, colour scheme and get-up, she along with her sons and daughters, husband and family members was able to expand the said manufacturing of the power operated mixie machines and other home appliances by using the trade name, '<ORG>' through the means of various companies started as sister concern including the first respondent, they were able to earn a good reputation and market within and outside the country all through.

23. In view of the <ORG> admitted facts, there exists no need for me to traverse each and every one of the case laws referred by the learned senior counsel referred by the applicant one by one, though the facts are different in its entirety from the instant case and I have no quarrel over the legal ratios enunciated therein and I have come to the conclusion that in so far as the trade mark 'SUMEET' is concerned, the first owner is Mrs. <NAME>, mother of the first respondent and she has assigned the same to his 1st applicant subsequently.

24. It will be worth noticing at this stage to note that the contention of the first respondent through the counter-affidavit is resting on the different footing from that of the arguments advanced on his behalf by the learned senior counsel. The peculiarity of this case is that the contesting defendants are not disputing the registration of the trade mark SUMEET, but adopting the same that the first respondent in manufacturing and marketing the same power operated kitchen mixies as well as other home appliances under the same trade name and mark and the trade literature, guarantee card on the ground that since 1984 onwards, this respondent was allowed to do so, by having given the written consent to incorporate the first respondent company and that further having given the actual financial help and guidance, through the same distributors by means of furnishing guarantee to the extent of two crores and allowed his son <NAME> to run this first respondent company as one of the sister concerns till the dale of filing this suit and allowed him to engage in manufacturing the same type of mixies under the registered trade mark SUMEET and having marketed through the same distributor by name, M/s. Repro-rashgraphers and Engineers and so on will clearly amount to honest, concurrent and permissive owner and that the applicants have completely acquiesced fully in initiating the present legal proceedings against him.

25. The next contention advanced by <NAME>, the learned senior counsel on behalf of the first respondent is that though all the companies incorporated by the applicants' family including the first respondent numbering about five as has been referred in the affidavit and incorporated the first respondent company under the same name during the year 1984 till the year 1992 for a period of about eight years, the first respondent has been allowed to manufacture the same power operated kitchen mixies and other household appliances by adopting the same literature and name, guarantee card and that inasmuch as the said aspect has been suppressed wantonly and deliberately, the applicant is not entitled to have the relief of interim injunction all on a sudden as if the first respondent has started the manufacturing of his products by infringing the trade mark and copyright, all on a sudden and that this amounts to a clear suppression of the very important material aspects which ought to have been brought in the affidavit as well as in the plaint. Then the learned senior counsel, <NAME> contends that having allowed the first respondent to start the same business transaction since 1984 onwards and allowed him to spend huge sums to the tune of several crores in manufacturing and marketing the SUMEET product of the automatic power operated home appliances obtaining the order of interim injunction in all the above applications during the month of March 1992, clearly causes every obstacle and serious prejudice and damage to the first respondent and that therefore, the balance of convenience rests only with the first respondent and that with a view to avoid irretrievable damage being caused to the first respondent, the order of injunction passed in the above applications are to be vacated forthwith. At this juncture, it may be very useful for me to advert the specific pleadings taken in the reply-affidavit filed and deposed by <NAME>, younger brother of the first respondent as well as the other son of the original owner of the trade mark at page-5 of the reply-affidavit in para-9, viz., O. A. Nos. 226 and 227 of 1992 in C. S. No. 343 of 1992, which is as follows:

"As it was found that <ORG> could not get on and co-operate with the others in '<ORG>' business, at the instance of <NAME>, a new company came to be incorporated in 1984 for the manufacture of larger electrical appliances like washing machines, vacuu cleaners, industrial mixies etc., to be managed by <ORG> independently although 1 was also a joint promoter of this company"

Then in Para-10, it is averred as follows:

"The agenda of this company did not include manufacture of domestic mixie, but only larger electrical appliances as would be evident from deponent's circular letter dated December 27, 1985 written in his capacity as Managing Director of defendant-1 to various dealers inviting deposits and term loans."

Then in para-11, it is averred as follows:

"It is significant that his projection for the next 5 years did not include domestic mixers at all, and indeed no domestic mixer was manufactured by defendant-1 till 1989. His claim that since 1986, defendant-1 SMPL started manufacturing kitchen appliances and mixers under the trade name, '<ORG>' is false. Although defendant-1 company was started with great fanfare, deponent as its Managing Director, made no progress in the matter of the projected manufacture of washing machines etc. Instead defendant-1 was engaged solely in the business of marketing <ORG> SP-16 Mixers manufactured by <ORG>). This was all their business for six long years till 1989 from time of incorporation."

Then in para-12, it is averred as follows:--

"The first washing machine emerged out of the factory of defendant-1 only in November 1988. Thereafter, in or about June 1989, defendant-1 commenced manufacture of Mixer model 842-INT. <NAME> represented that this model is meant only for export to Russia and requested plaintiff-2 to supply a different type of motor, viz., 550 Watts motor for the said mixer. This product was not. meant to be marketed in India. Hpwever, <NAME> did not keep his word and defendant-1 started marketing this product in India despite the objections of plaintiff-2."

Then in para-15, he has pleaded as follows :--

"It is true that the printing of the matter was done by <ORG>, Conway Printers and art work was done by <ORG>, <ORG>. Ogilvy Benson and <ORG>, Bombay."

In the combined reply affidavit filed in O.A. No. 271 and 272 of 1992, the same deponent on behalf of the applicant has pleaded in para-6 of the affidavit which reads as follows:--

"Taking advantage of his position in the family and the fact that he was a Director of <ORG>, till 12-3-1992, <NAME> did not pay fully for the supplies of SP-16 mixies made by <ORG>, to <ORG>. For the supplies made during the period from 31-7-1989 till 31-3-1990, there is a outstanding sum of Rs. 1.73 and odd crores. For the period from 1st April 1990 to 30th June 1990, there is a further amount of Rs. 18.61 lakhs outstanding. In all as on date, <ORG> under the control of <NAME> owes <ORG>, belonging to the other members of the family, a sum of about Rs. 2 Crores apart from an equal amount of Rs. 2 crores siphoned off by <NAME> from other concerns of'the family, and this is the subject matter of correspondence and exchange of notices among the parties. The details of indebtedness with voucher numbers, date of supplies etc., from 31-7-1989 to 31-3-1990 are set out in the documents filed by me."

Then in para-11 at the end of page-7 of the reply-affidavit, he has specifically pleaded as follows:--

"It is true that my father <NAME> and my mother Mrs. <NAME> stood guarantee for the borrowings of <NAME> of <ORG> to the tune of over Rs. 2 crores. They are paying very heavily for their kind and considerate gesture."

Then in para-13 at page-8, he avers as here-under:

"Since we do not have presses suitable for the manufacture of this component in our concerns, the manufacturing of Whipper Blade is entrusted to stainless steel fabricators."

The names of the said steel fabricators were given at the end of the same paragraph.

26. A careful consideration of the above specific pleadings taken and sworn by the younger brother of Mr. <NAME>, the Managing Director of the first respondent in the context of the voluminous number of documents relied on both parties, clearly demonstrate the fact that the trade name, '<ORG>' as registered by the original owner under the relevant provisions of Trade and Merchandize Marks Act and as assigned subsequently and the Copyright acquired over the trade literature and the guarantee card by <ORG>. Madhuri Mathur family were freely allowed to be used by her sister concerns numbering five inclusive of the first respondent and the plaintiffs-2 to 5 started subsequently and that in all, each and every member of <ORG>, Madhuri Mathur family having and holding shares in different quantities and holding directorship posts and that accordingly, all were engaged in producing the power operated kitchen machines and other home appliances by using the trade name, '<ORG>' and that in manufacturing such power appliances and marketing the same through the common distributors, all were found engaged jointly in following and adopting the trade literature schemed out and innovated and that was the reason why all were engaged in expanding the business by starting several companies and established their market for their various products.

27. In this context, I am able to see that there is every force in the arguments advanced on behalf of the first respondent by <NAME>, the learned senior counsel that the applicants/plaintiffs having allowed the first respondent to start the manufacturing of SP-16 electronic mixies with 550 Watts of specific motor and component of the same either for the purpose of exporting to Russia or for marketing within the country, the same was allowed by all including the original owner of the trade mark and the copyright holder to adopt, follow and market their product under the registered brand name of '<ORG>' and thereby allowed the first respondent to manufacture the abovesaid kitchenware for a long period and this aspect has been proved clearly by almost all the prescribed irrevocable order form placed by various distributors and retail sellers from the year 1988 onwards.

28. On the basis of the above established factual aspects, <NAME>, the learned senior counsel persuaded me to accept that this is a peculiar case in which the entire family of <NAME> was all along engaged in manufacturing and marketing the various power operated home appliances under the registered trade mark and name, '<ORG>' by following the trade literature printed with the third parfy, M/s. Conway Printers and they were able to establish their business jointly though in the name of different sister concerns and in the context of Doctrine of Acquiescence which is in favour of the first respondent and the legal norm of honest and concurrent user of the registered trade mark as clearly envisaged by the case laws referred to by me already, virtually prevent the applicants from getting the interim injunctions sustained, passed already.

29. Having cogitated the rival pleadings and the undisputed facts with reference to the various case laws placed before me in the context of the admitted facts, I am fully satisfied to hold that because <NAME>, a qualified man having passed M.B.A. in abroad, was inducted by the <NAME>' family to be acting as the Director and shareholder of almost all of their family concerns and if that was the position, I am able to gauge for at least to some extent, that he would have contributed his labour and skill followed by the event of starting a new concern during 1984 and that in which it was represented by the learned senior counsel that the first respondent's mother as well as the father has considerable shares even today and further as was admitted that their another son Mr, <NAME> was also the director of the first respondent for some time is the past. As was rightly pointed out by the learned senior counsel, <NAME>, that this factum though assumes much significance and importance in this case has not been referred to or averred either in the affidavit or in the plaint for the obvious reasons known to the applicants and the other members of their family.

30. <NAME>, the learned senior counsel made a strenuous effort in persuading me not to accept the contention that the material facts abovereferred have been suppressed, but he tried to persuade me that the said facts are not relevant for the purpose of this case. Having considered very meticulously, I feel totally unable to accept the contention of the learned senior counsel appearing for the applicant. Then another contention was advanced on behalf of the applicant that the counter-affidavit sworn by one <NAME>. <NAME> in the capacity of the Commercial Adviser to the Managing Director, <NAME> is not competent to swear the affidavit as was specifically provided under Order 19, Rule 3 of Civil Procedure Code. In view of this specific claim made by the said deponent in para-3 that he in the capacity of the Commercial Adviser to the Managing Director of the first respondent knows the facts of the case and having perused the legal norms provided in the procedural law, I am not able to accept the contentions advanced on behalf of the applicants. Tt is pertinent at this stage to note that the bickerings among the family more particularly between the son, the Managing Director of the first respondent and the applicants' family, started recently as evident from the photo copies of the letters addressed by the first respondent as well as the minutes of the companies arrayed in the category of the plaintiffs 2 to 5. A careful perusal of all these documents relied on reveals the fact that only recently in March 1992, the bickerings went so deep among the members of the applicants' family and that in consequence of the same, compelled the applicants and the other family members to approach this Court by way of filing these suits and applications by suppressing the very relationship and the factum of allowing the first respondent to manufacture SP-16, 1NT 842 mixics by adopting the same trade mark copyright design, colour scheme, get-up and so on. and to expand his business by involving huge money into the same since 1986 onwards as the applicant had admitted the same in the reply affidavit.

31. In considering the gamut of Section 96 of the Trade and Merchandize Marks Act and its applicability to the facts of the instant case or as to whether the respondent is entitled to claim honest and concurrent user as was envisaged in Section 12 , Clause-3 of the Trade and Merchandize Marks Act, in my firm view, has to be gone into during the time of trial only and cannot be totally adjudicated over the same in the present applications. Ofcourse, it is always open for the parties to vindicate their rights during the trial and having considered very meticulously every rival pleadings and the case laws referred to and the established circumstances on the basis of the established factual aspects, I am fully satisfied to hold that the dispute in the present case is a family affair and as long as the bickerings simmered among themselves till the end of 1991, no infringement of either trade mark, or copyright or other allegations dominated in the minds of the applicants. But, on the other hand, the affectionate mother the applicant herein, the father <NAME> and <ORG> younger brother who sworn the reply affidavit on behalf of the mother have allowed the first respondent to he one among themselves in manufacturing and marketing <ORG> power operated household mixies and other home appliances, by adopting the same trade mark and copyright since 1984 onwards and that only after the bickerings errupted, I am able to see that the same forced the applicant to drag other family members to file several suits and applications, under the pretext of the infringement of trade mark and copyright. Under these circumstances, I am fully satisfied to hold that in view of the peculiarity of the instant case and special circumstances which transpired exclusively among the family members of Mrs. <NAME>, the doctrine of acquiescence and the honest and concurrent user will attract directly and that therefore, I am inclined to hold that the first respondent has clearly proved his case and the points-2 to 4 are in favour of the first respondent. In this context, since I have given my finding, on points 2 to 4 that the first respondent has succeeded, then in consequence thereof, naturally, there is no prima facie case proved by the applicant under Point No. 1 and that therefore, I answer this point against <NAME> applicant and in favour of the first respondent. I answer the points-2 to 4 in favour of the first respondent and against the applicants.

32. May be the applicant is the original first owner of the trade mark by name, '<ORG>' and acquired the exclusive proprietory trade literature and the guarantee card on the basis of the designs registered. But, it is significant to note that she has assigned the said rights in favour of <ORG>. In the context of no dispute with regard to the said process by the said mother and the case of the first respondent rests on different footing, viz., on the basis of concurrent user and acquiescence for a period of almost 7 1/2 years, i.e., from 1984 till the date of filing the action, I am so clear in my mind that the first respondent has been allowed to invest huge money in the development of the said company and having allowed him to spend such an enormous amount to adopt the same trade mark, colour scheme, trade literature in the product manufactured by him and marketed the same through the company and therefore, taking action all of a sudden in the context of the legal norm and thereby stopped the first respondent from the said activities by the operation of Order 39, Rules 1 and 2 of Civil Procedure Code is not justifiable nor reasonable in any extent. In this context, I am able to see that if the order of ad-interim is vacated, no prejudice will be caused to the applicants, because as a joint collaborator and sou and member of the family, he has to run the business as was done previously. Stopping the business of the first respondent by way of interim injunction, involved already huge money in establishing the market will totally ruin Ihe business of the first respondent and make it to a standstill and to this extent, I see that the balance of convenience is in favour of the first respondent, and not with the applicants herein. It was one of the contentions advanced on behalf of the applicants is that in a clear case of infringement of trade mark and copyright, the only criterion that has to be seen is whether the applicants have established a prima facie case and it would follow that the question of balance of convenience and irrevocable damages are not to be considered at all. But, in the context of the reply-affidavit and the pleadings, raised therein, I am not in a position to countenance the arguments advanced on behalf of the arguments.

33. Having identified the honest and concurrent user of the registered trade mark and copyright by the first respondent with the actual aid, help and financial assistance by the applicants and their family members for a period of more than 7 1/2 years, the doctrine of acquiescence and the honest and concurrent user would certainly be made applicable to the facts of the present case. It is always open for the applicants to work out their remedy only in the suit, but in so far as the relief claimed in the applications are concerned, since I am able to see that the strong prima facie case is inherent only with the respondents, and I am not able to countenance the ad interim injunction passed already.

34. In the result, O.A. Nos. 226, 227, 271 and 272 in all the above three suits are dismissed. Consequently, the order of interim injunctions passed against the respondents already by this <ORG> are hereby vacated forthwith. There will be no order as to costs, under the circumstances.

35. Order accordingly.