PETITIONER: UNION TERRITORY OF CHANDIGARH Vs. RESPONDENT: DILBAGH SINGH AND ORS. DATE OF JUDGMENT03/11/1992 BENCH: [J.S. VERMA, <NAME> AND <NAME>, JJ.] ACT: Civil Services; Chandigarh Transport Undertaking-Conductors-Selection for appointment-Constitution of <ORG>-Select list prepared-Criticism of favouritism and nepotism in awarding marks at Interview-Confirmed on examination by <ORG> though corruption charges not established- however selection unfair and injudicious-<ORG> ordering cancellation of select list and constituting new <ORG>-Validity of-Non affording of opportunity to Members of <ORG> and selected candidates-Effect of. HEADNOTE: For filling up the posts of 32 vacancies of conductors in <ORG> under it, the appellant requested <ORG> to sponsor names of eligible candidates and constituted a Selection board to prepare a Select list. The <ORG> interviewed 446 candidates sponsored by <ORG> and prepared a Select List of 32 candidates on the basis of marks awardable for educational qualifications and performance at the interview. There was criticism that the select list was an amalgum of favouritism, nepotism and even corruption resorted to by members of <ORG>. The appellant got the select list examined which revealed that the select list was not prepared by the members of <ORG> fairly and judiciously, in that, the members had taken undue advantage of awarding marks in the interview to favour candidates of their choice although there was no evidence of corruption. Hence the appellant decided to constitute a new <ORG> to prepare fresh select list on the basis of only 15 per cent marks awardable to candidates or pull down merited candidates. Accordingly, the appellant cancelled the select list of candidates constituted a new <ORG> to prepare a fresh select list from out of candidates including those who had been interviewed by the earlier <ORG> and the criteria to be followed was that 85% marks would be awardable for educational qualifications and 15% marks for performance in interview. When the newly constituted <ORG> was about to interview the candidates, the respondents whose names found place in the cancelled select list approached <ORG> seeking the setting aside of the order cancelling the select list and constituting a new <ORG>. The <ORG>, on the ground of non-affording of opportunity to the members of the <ORG> before cancelling the select list, set aside the order issued by the appellant and directed the appellant to appoint in the available vacancies the candidates from the cancelled select list in preference to candidates from the select list prepared by the newly constituted <ORG>. Beingaggrieved by the <ORG>'s order the appellant preferred the present appeal by special leave. On behalf of the appellant it was contended that affording of an opportunity to the members of the <ORG> before cancelling the select list being neither a requirement of law nor a requirement of any of the principles of natural justice, it could not have been made the sole ground for setting aside the order issued by the appellant. On behalf of the respondents, it was contended that the select list of candidates prepared by the earlier <ORG> has been cancelled by the appellant though there was no proof of corruption charges against the members of the <ORG>; and that an opportunity of hearing ought to have been given to the candidates in the select list before it was cancelled. Allowing the appeal, this court, HELD: 1. The order made by the appellant- <ORG> cancelling the select list cannot but be regarded athe right and just one. Such an order cannot be vitiated on the ground that it had been made without affording an opportunity of hearing to the members of the <ORG> who had prepared it. Further, such an order cannot be vitiated either because no direct evidence was made available to prove corruption charges against the members of the <ORG> in the matter of award of interview marks by them so as to tilt the balance in favour of candidates with poor educational qualifications and against the candidates with high educational qualifications or because there was no opportunity of hearing afforded to the candidates in theselect list to sustain it before its cancellation by the appellant-<ORG>. [318-c-f] 2.Affording of an opportunity of hearing by an <ORG> to the members of a <ORG> constituted by it, before cancelling a dubious select list of candidates for appointment to civil posts prepared by such <ORG> is not and cannot be a requirement of either law or any principle of natural justice. It is so for the reason that no member of a <ORG>. Besides, there is no personal right or interest of any member of a <ORG> which could be adversely affected by the <ORG> cancelling a select list of candidates prepared by the <ORG> when it is found to have been prepared by the <ORG>, in unfair and injudicious manner. [318-G; H 319-A] 3. The select list, which was cancelled by the appellant-<ORG> was found by it to have been prepared in unfair and injudicious manner, in that the interview marks purported to have been awarded by the members of the <ORG> for the performance of candidates at their interview were either inflated to push up the candidates who had got poor marks for their educational qualifications or deflated to pull down the candidates who had got high marks for their educational qualifications. That select list was also found to have been prepared without adopting common eligibility criteria for all candidates. when the said reasons formed the basis for the appellant-<ORG> to cancel the select list, the fact that charges of corruption levelled against the members of the <ORG> in the preparation of that select list had not been established by direct evidence produced in that regard, can make no difference. [319-E-H] 4. Since it is accepted that a candidate who finds a place in the select list as a candidate selected for appointment to a civil post, does not acquire an indefeasible right to be appointed in such post in the absence of any specific Rule entitling him for such appointment and he could be aggrieved by hes non-appointment only when the <ORG> does so either arbitrarily or for no bona fide reasons, it follows as a necessary concomitant that such candidate even if he has a legitimate expectation of being appointed in such posts due to his name finding a place in the select list of candidates, cannot claim to have a right to be heard before such select list is cancelled for bona fide and valid reasons and not arbitrarily.[321-B,C] Shankarasan Dash v. <ORG>, JT (1991) 2 SC 380, relied on. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4649 of 1992.

From the Judgment and Order dated 27.5.1991 of <ORG>, Chandigarh in Regn. No. OA- 139-CH of 1990.

<NAME> for the appellant.

<NAME>, <NAME> and <NAME> for the Respondents.

The judgment of the <ORG> was delivered by <NAME>, <NAME> granted.

The short question arising for our decision in this Appeal is, whether the Order by which <ORG> cancelled the select list of candidates for appointment as Conductors in <ORG>CTU) prepared by <ORG> constituted therefor, because of its view of that select list not having been prepared in a fair and judicious manner, was liable to be interfered with by <ORG> (CAT) on the ground of that Order having not been made after affording an opportunity of hearing thereon to the members of the concerned <ORG>.

The facts giving rise to the said question lie in a narrow compass. In the year 1989, there arose 32 vacancies of conductors in <ORG> of Chandigarh was required to sponsor the names of eligible candidates while a three-member <ORG> constituted by <ORG> was required to prepare a select list of 32 candidates out of such candidates. That selection Board interviewed as many as 446 candidates so sponsored by <ORG> and prepared a select list of 32 candidates on the basis of marks awardable for their educational qualifications plus the marks awarded for their performance at the interview, a criteria which was said to have been followed by a Selection board constituted for a similar purpose in the Year 1953. That criteria, although required the award of marks for the educational qualification possessed by a candidate upto 110, enabled every member of <ORG> to award marks for such candidate's performance at the interview upto 20. The select list of 32 candidates meant to fill the 32 vacancies of conductors in <ORG>, when was announced on September 11,1989, it invited severe criticism from the members of both the public and the Press as to the role of the members of t he <ORG> in the matter of its preparation. The select list, according to the criticism, was the amalgum of favourtism. nepotism and even corruption resorted to by the members of the <ORG>. <ORG> which could not ignore such criticism, got examined the select list with reference to the marks awardable to the candidates for their educational qualification and the marks awarded by the members of the <ORG> to the candidates for their performance at the interview had brought into select list the least qualified candidates who had been awarded least marks for marks for their educational qualifications. Such examination also revealed that uniform standards had not been applied to app candidates by the <ORG> in their selection. These revelations, compelled <ORG> to conclude that the select list of candidates for appointment as conductors in <ORG> had not been prepared by the members of the <ORG> fairly and judiciously in that those members had taken undue advantage of the marks awardable by them at the interview to favour the candidates of their choice although there was no clinching evidence of corruption attributable to the members. This situation made <ORG> to think of cancellation of the dubious select list prepared by the <ORG> and of the constitution of a new <ORG> to prepare a fresh select list on the basis of only 15 per cent interview marks awardable to candidates as against 30 per cent interview marks awardable earlier, lest the power of the <ORG> to award interview marks may be utilised either to pull up unmerited candidates or pull down the merited candidates. Consequently, <ORG> made an order of cancelling the select list of candidates for appointment as conductors prepared by the <ORG> and published on September 11,1989, and constituted a new <ORG> to prepare a fresh select list of candidates including those who had been interviewed by the earlier <ORG>, according to the fresh selection criteria with 85 per cent marks awardable for educational qualifications of candidates and 15 per cent marks awardable for their performance at interview.

The newly constituted <ORG> when was about to interview the eligible candidates for selection as conductor for <ORG>, the Respondents in this Appeal, whose names had found places in the cancelled select list of candidates, filed applications before <ORG> seeking the setting aside of t he aforesaid order made by <ORG> by which it had cancelled the select list prepared by the earlier <ORG> and directed the newly constituted <ORG> to prepare a fresh select list of candidates on the basis of altered criteria of marks. <ORG> which entertained those applications, has by its Judgment dated May 27,1991 not merely set aside that part of the impugned order of <ORG> by which it had cancelled the earlier select list but also directed <ORG> by which it had cancelled to earlier select list but also directed <ORG> to appoint in the available vacancies of conductors in <ORG> the candidates from the cancelled select list in preference to candidates selected as conductors in the select list prepared by the fresh <ORG>. <ORG>, which felt aggrieved by this Judgment of <ORG> has preferred this Appeal by special leave.

In its judgment under Appeal, the <ORG> has, no doubt, expressed its reactions to the views of <ORG> as to t he charge of corruption levelled against the members of the earlier <ORG> in the matter of preparation of select list of candidates by it and the percentage of marks awardable to candidates for their performance at interview while examining the challenge directed against the order made by <ORG> cancelling that select list and requiring the preparation of a fresh select list. Yet, those reactions are not made use of by the <ORG> as grounds for setting aside the order of <ORG> impugned before it. The sole ground, has been from the Judgment, which has weighed with the <ORG> for setting aside that part of the impugned order of <ORG> by which it had can called the select list of candidates prepared by the earlier <ORG> in the non-affording by <ORG> of an opportunity of hearing to the members of its <ORG> before cancelling the select list of candidates prepared by them.

It was contended on behalf of the Appellant - <ORG>-that affording of an opportunity of hearing to the members of the earlier <ORG> before cancelling their dubious select list of candidates for appointment as conductors in <ORG>, being neither a requirement of law nor a requirement of any principle of natural Justice, the <ORG> could not have made it the sole ground for setting aside of the order by which the Appellant had cancelled such select list and hence the Judgment of <ORG> under appeal based on such untenable ground required to be set aside. The learned counsel for Respondents-Candidates in the select list cancelled by <ORG>, however, did not choose to urge that the ground of non- affording of an opportunity by <ORG> to the members of <ORG> before ordering cancellation of their select list, was a valid ground on which the <ORG> could have rested its Judgment under appeal. But, he contended, rather very streneously, that the Judgment of <ORG> under appeal was required to be sustained for the reason that the cancellation of the select list of candidates prepared by the earlier <ORG> had been made by the Appellant (Chandigarh Administration) without proof of corruption charges levelled against the members of that <ORG> in that matter of selection of candidates and further without affording an opportunity of hearing to the candidates in the select list to sustain the same.

We shall now proceed to examine the sustainability or otherwise of the rival contentions. The Judgment of <ORG> itself refers to the enquiry got conducted by <ORG> about the select list of 32 candidates as prepared by its <ORG>. Such enquiry revealed that the members of the <ORG>. Such enquiry revealed that the members of the <ORG> had made use of the interview marks awardable by them for performance of candidates at interview to eliminate merited candidates from the list and to bring in unmerited candidates, is a matter adverted to in the said Judgment. No doubt, the <ORG> (Appellant) has found that there was no direct evidence of corruption produced against the members of the <ORG> for the favour they had shown in the matter of awarding high interview marks to unmerited candidates. Yet, having regard to the systematic manner of award by the <ORG> of high interview marks to candidates with low marks got for their educational qualifications and of low interview marks to candidates with high marks got for their educational qualifications, the <ORG> discerned the tilting of balance by the <ORG> in favour of candidates with poor qualifications and against candidates with high qualifications. Consequently, it concluded that the <ORG> had not prepared to select list of candidates for appointment as conductors in <ORG>, in a fair and judicious manner. When the select list prepared by the <ORG> was thus regarded by the <ORG> as a dubious select list, it cancelled that select list and constituted a new <ORG> to prepare a fresh select list of candidates out of the competing candidates including the candidates whose cases were considered by the earlier <ORG>, on a fresh selection criteria which provided for award of as large as 85 percent marks for educational qualifications of candidates and for award of as little as 15 percent for performance of candidates at interview, by making an order in that regard. The order so made by the <ORG> cannot but be regarded as the right and the just one. Such an order, as is held by <ORG>, cannot be vitiated on the ground that it had been made without affording an opportunity of hearing to the members of the <ORG> who had prepared it. Further, such an order cannot be vitiated either because no direct evidence was made available to prove corruption charges against the members of the <ORG> in the matter of award of interview marks by them so as to tilt the balance in favour of candidates with poor educational qualifications and against the candidates with high educational qualifications or because there was no opportunity of hearing afforded to the candidates in the select list to sustain it before its cancellation by the <ORG>.

Affording of an opportunity of hearing by an <ORG> to the members of <ORG> Constitute by it, before cancelling a dubious select list of candidates for appointment to civil posts prepared by such <ORG> is not and cannot be requirement of either law or any principle of natural justice. It is so for the reason that no member of <ORG> acquires any vested right or interest in sustaining a select list prepared by the <ORG>. Besides, there is no personal right or interest of any member of <ORG> which could be adversely effected, by the <ORG> cancelling a select list of candidates prepared by <ORG> when it is found to have been prepared by <ORG> in unfair and injudicious manner. Therefore, there can arise no need to any <ORG> to afford an opportunity of hearing to the members of the <ORG> before cancelling a dubious select list of candidates for appointment to civil posts prepared by it. Hence, we must hold that the <ORG> was wholly wrong in setting aside the Chandigarh <ORG>'s order by which the dubious select list of candidates for appointment as conductors in <ORG> prepared by <ORG> constituted by it had been cancelled, on its erroneous view that non-affording of an opportunity of hearing tot the members of the <ORG> before cancelling its select list had vitiated that Order. This would be our answer tot he question adverted to at the outset.

Coming to the contentions of the learned counsel for Respondents (selectees in the cancelled select list) that <ORG> when had found no direct evidence which could establish charges of corruption levelled against the members of <ORG> in the matter of preparation of select list of conductors for appointments as conductors in its <ORG>, it should not have made an order cancelling the select list, all that could be said is, that failure on the part of complainants to establish charges of corruption levelled against the members of <ORG> could not have saved the select list, if it was otherwise found to be dubious. The select list, which was cancelled by <ORG> was found by it to have been prepared in unfair and injudicious manner, in that the interview marks purported to have been awarded by the members of <ORG> for the performance of candidates at their interview were either inflated to push up the candidates who had got poor marks for their educational qualifications or deflated to pull down the candidates who had got high marks for their educational qualifications. That select list was also found to have been prepared without adopting common eligibility criteria, for all candidates. When the said reasons formed the basis for <ORG> to cancel the select list of <ORG>, the fact that charges of corruption levelled against the members to <ORG> in the preparation of that select list had not been established by direct evidence produced in that regard, can make no difference.

What remains for our consideration is that contention of the learned counsel for Respondents that the Respondents who were the selectes in the select list should have been heard by <ORG> before it cancelled that list as a dubious one. According to learned counsel, non-affording of an opportunity of hearing to the Respondents- Selectees before the select list in which they had found places as selected condidates for appointment in the vacant civil posts of conductors in <ORG> should be regarded by us a s a sufficient ground not to disturb the Judgment of the <ORG> under appeal, although the Judgment itself is not rendered on that basis. The contention of learned counsel on our view, misconceived and hence calls to be rejected.

<CITATION> , reported in JT (1991) 2 SC 380, a Constitution Bench of this Court which had occasion to examine the question whether a candidate seeking appointment to a civil post can be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list (select list) of candidates for such post has answered the question in the negative by enunciating the correct legal position thus:

"it is not correct to say that if a number of vacancies are notified for appointment and adequate number of condidates are found fit, the successful candidates acquire an indefeasible right to b appointment which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant Recruitment Rules so indicate, the State is under no legal duty to fill u p all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in the <CITATION> .  1 SCR 165; <CITATION> ,  4 SCC 268, or <NAME> and others v. State of Punjab and others:  1 SCR 899."

If we have regard to the above enunciation that a candidate who finds a place in the select list as a candidate selected for appointment to a civil post, does not acquire an indefeasible right to be appointed in such posting the absence of any specific Rule entitling him for such appointment and he could be aggrieved by his non- appointment only when the <ORG> does so either arbitrarily or for no bona fide reasons, it follows as a necessary concomitant that such candidate even if has a legitimate expectation of being appointed in such posts due to his name finding a place in the select list of candidates, cannot claim to have a right to be heard before such select list is cancelled for bona fide and valid reasons and not arbitrarily: In the instant case, when the Chandigarh <ORG> which received the complaints about the unfair and injudicious manner in which select list of candidates for appointment as conductors in <ORG> was prepared by <ORG> constituted for the purpose, found those complaints to be well founded on an enquiry got made in that regard, we are unable to find that the Chandigarh <ORG> had acted either arbitrarily or without bona fide and valid reasons in cancelling such 0dubious select list. Hence, the contentions of the learned counsel for the Respondents as to the sustainability of the Judgment of CAT under appeal on the ground of non-affording of an opportunity of hearing to the Respondents (candidates in the select list) is a misconceived one and is consequently rejected.

In the result, we allow this appeal, set aside the Judgment under appeal, and reject the applications made by Respondents before <ORG>, Chandigarh. However, in the facts and circumstances of this appeal, we make no order as to costs.

G.N. Appeal allowed.


<NAME>, J.

1. The first defendant in these suits is the present <NAME> of <ORG>, an impartible estate. The 1st plaintiff in O.S. No. 9 of 1910 and the sole plaintiff in O.S. No. 17 of 1910 are brothers of the 1st defendant. The 2nd plaintiff in O.S. No. 9 of 1910, is the minor adopted son of the 1st plaintiff. They brought these suits for a declaration of their rights to maintenance at the rate of Rs. 650 per mensem and for recovery of the same with arrears and interest as a charge upon the estate. They also claimed priority over the mortgage rights of certain mortgagees who were made parties to the suit and thus raised questions which need not now be considered as they are not pressed in these appeals. The 1st defendant acknowledged that the plaintiffs were entitled to be maintained out of the estate but pleaded that the financial condition of the estate was such that he could not afford to give his brothers more than Rs. 400 per mensem which was in fact the amount that they were receiving during the period when the estate was under the management of <ORG>. The lower Court gave the plaintiffs a decree for Rs. 400 per mensem during their joint and several lives for the maintenance of their branches of the family and directed that the sums due on account of past and future maintenance at this rate should be recoverable as a charge upon the estate. From this. plaintiffs' appeal on the ground that the amount awarded should not have been less than Rs. 650.

2. The position taken for the appellants is this. The present 1st defendant brought a suit O.S. No. 12 of 1890 for partition against the then <NAME> to which all the brothers were made parties. It ended in a compromise in which the estate was declared to be impartible and the succession to it was declared to be governed by rules of primogeniture, simultaneously it was agreed that the Zemin dar's brothers, mcluding the present plaintiffs and the 1st defendant and their male descendants should be entitled to a maintenance allowance from the income of the estate of Rs. 600 per mensem for the first ten years and of Rs. 700 per mensem thereafter. <ORG> passed a decree in terms of the compromise but on appeal <ORG> held in <CITATION> (1894) I.L.R. 18 M. 410 that the stipulations which were outside the scope of the suit should not have been embodied in the decree and these included the stipulations as to allowances, so they were excluded.

3. After the death of <NAME>, <NAME> succeeded to the <NAME>, and during his time two of the brothers of <NAME> viz., the present 4th defendant and the father of the 6th defendant brought suits against <NAME> in respect of their maintenance allowances and obtained consent decrees for Rs. 650 per mensem.: The other brothers, viz., the 1st plaintiff in O.S. No. 9 of 1910 and the plaintiff in O.S. No. 17 of 1910 and the present <NAME> got registered agreements executed (Exhibits A.C. and I) with <NAME> in similar terms of, Rs. 650 per mensem. On the death of <NAME> the 1st defendant became <NAME>.

4. Now it is urged that the appellants have by virtue of exhibits A and C become creditors of the Estate and not mere maintenance holders, that the agreements are binding on all the successors of the <NAME> who executed them and that there- fore no less sum than what was agreed upon therein can now be given as maintenance. Further it is argued that the compromise having been entered into as a settlement of certain claims to portions of the estate is binding on all who took part in it and their representatives, and creates vested rights in favour of those whose rights are declared in it.

5. Lastly it is contended on the evidence that the amount claimed was not excessive and that the estate could well afford it. On the last point I agree with the Subordinate Judge's opinion that nothing more than Rs. 400 is proper and reasonable for the reasons given in paragraph 10 of his judgment.

6. As for the other points now taken in the appeals it is noticeable that Exhibit A, though purporting to have been executed in pursuance of the razinamah in O.S. No. 12 of 1890, contains terms very different from the- compromise petition (Exhibit D). Not only is the amount of maintenance different in the two documents as I have already stated, but the periodical instalments in which payments are to be made are different, and Exhibit D states the source to be the income of the Zamindari whereas Exhibits A. and C. provide for recovery of the allowance from the estate as well as its incomes. Exhibits A. and C. are three years later than Exhibit D.

7. It is thus impossible to treat Exhibits A. and C. as having the same force and binding character as a decree in a suit terminating litigation and compromising a bona fide claim to property. Nor can the appellants rely on those terms of the compromise (Exhibit P) which have not passed into a decree or order of <ORG> so far as they affect the immoveable property comprised in the document, as the agreement of compromise was not registered. <CITATION> (1911) I.L.R 36 M. 46. Exhibits A. and C are registered and purport to be agreements relating to the payment of maintenance allowances, as is distinctly stated in the first clause of the document.

8. An amount provided as maintenance for a member of a family does not lose its character as a maintenance allowance by being embodied in an instrument or decree, the character, I mean of being liable to be increased or decreased under a cha'nge of circumstances, (Vide Gopikabai v. <NAME> (1900) I.L.R. 24 B. 386. <CITATION> (1904) 14 M.L.J. 339 and <NAME> v. <NAME> (1835) W.R. 598 (P.C.). For these reasons alone I consider that the Subordinate Judge had power to direct the 1st defendant to pay maintenance, at a lower rate than Rs. 650. But as reliance is placed on the binding character of the registered documents under which it is claimed that plaintiffs and their male heirs have acquired a right to an hereditary annuity for all time, I may observe that in so far as Exhibit A. and C. provide that <NAME> and <NAME> and their male descendants have a vested right to recover the fixed allowances through the present <NAME> and after him through the rightful owners of the <NAME>i or their heirs, assignees, executors, administrators, trustees, etc.; from the estate and its incomes by declaring a recurring charge on the Kalahasti estate, these documents create a future interest' in" immoveable property in favour of persons unborn, and thus impose a restraint upon alienation which is contrary to the principles of Hindu Law. In excluding females and collaterals they provide for a line of succession not according to law, and they are therefore invalid' (<NAME> Law of Perpetuities in British India, pp. 123 to 128 and the <ORG> decision in <NAME> v. Sidhesswari Debt (1888) I.L.R. 16 C. 71. .

9. I would therefore dismiss these appeals with costs.

10. The 3rd Respondent in Appeal 216 who got a consent" decree in O.S. No. 33 of 1895 (Exhibit E) on 22nd April 1896 for maintenance allowance of Rs. 650 per mensem has filed a memorandum of objections claiming priority over the appellant's right on the ground of his decree being prior in point of time to Exhibit C which is dated 17th November 1896.

11. In these suits it is unnecessary to determine questions of priority between the various maintenance holders inter se seeing that their right to receive maintenance rests in the first instance not on their decrees or agreements but on their relationship to the owner of the Zamindari.

12. The objection memorandum in App. 216 of 1911 is for this reason dismissed with costs. That in Appeal 217 is out of time and is also dismissed with costs.

<NAME>, J.

13. I agree.

14. I think that considering the income of the Zamindari Rs. 400 is a fair rate of maintenance.

15. The terms of the compromise in O.S. No. 12 of 1890 relating to maintenance were not embodied in the decree. It is not those terms that are now sought to be enforced. The subsequent registered agreement of 1896 is so far as the rate is concerned only binding on the Zamindar who executed it. It is not shown that it was executed under circumstances which would make it binding on the succeeding Zamindars who take the property in their own right.

16. It was not contended, nor could it be successfully contended, that the maintenance formed such a charge on the Zamindari as would preclude the Zamindar for the time being from alienating portions of it for necessary purposes. It would be unreasonable to hold in the circumstances that the maintenance is a fixed unvarying amount.


* HIGH COURT OF DELHI : NEW DELHI + IA No. 5352/2008 in CS (OS) No. 816/2008 M/s. Johnson Appliances (P) Ltd. ......Plaintiff Through: Ms. <NAME> with Mr. <NAME>, Advs. Versus <ORG>. ......Defendants Through: Mr. <NAME>, Adv. Judgment decided on : March 25, 2010 Coram: HON'BLE MR. JUSTICE <NAME> 1. Whether the Reporters of local papers may be allowed to see the judgment? No 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes <NAME>, J.

1. The plaintiff filed IA No. 5352/2008 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 („CPC‟ for brevity) for an interim injunction restraining the defendants, their family members, promoters, officers, agents etc. from using the word/ name/ mark "JOHNSON" in relation to electric water heaters (including instant geysers) in any manner as such use would result in infringement of the plaintiff‟s registered trademark and passing off of the defendants‟ goods as those of the plaintiff‟s.

2. The brief facts of the case are that the mark "<ORG>" was registered on 14.09.1960 vide registration no. 197998-B in class 11 in the name of the predecessors in interest i.e. <ORG> of the plaintiff with regard to hot plates, toasters and water boilers.

3. The predecessors in interest <ORG> was a partnership firm which was dissolved on 01.04.1967 and on the same date a new partnership was constituted which continued business under the mark "<ORG>".

4. A Trust Deed dated 26.06.1979 brought into existence a Trust by the name of <ORG> („JY Trust‟ for brevity) who took over the business of <ORG> by way of an assignment deed dated 22.12.1979.

5. Thereafter the mark "JOHNSON" which was by that time registered in Classes 9, 11 and 21 vide registration nos. 197997-B, 197998-B and 195359 respectively and three pending applications being 319954, 319955 and 319953 for wider specification of goods in the afore-mentioned respective classes were also assigned to <ORG>.

6. The understanding reached between the parties was that actual manufacturing and marketing of the "<ORG>" products was to be done by <ORG>.

7. By letter dated 21.03.1979 <ORG> informed <ORG> that as and when the pending application no. 319955 under class 11 was proceeded for registration, the same would be associated with the mark "<ORG>" already registered in class 11 vide registration no. 197998-B.

8. Another Trust was created by trust deed dated 08.06.1984 by the name of <ORG> („CL Trust‟ for brevity) which was constituted of <NAME>, Smt. <NAME> and <NAME>.

9. By way of an assignment deed dated 01.07.1984 <ORG> assigned the mark "JOHNSON" to <ORG> including the registered and pending trademarks. At this time, applications no. 398343 in class 7, nos. 398341 and 390169 in class 9 and no. 398342 in class 11 were also pending in addition to the previously mentioned pending applications and all of these were assigned to <ORG>.

10. By way of a further assignment, <ORG> by assignment deed dated 05.10.1987 assigned the mark "<ORG>" registered in three classes as well as all the pending registration applications to <ORG> (India) which was a partnership firm consisting of Mr. <NAME> S/o <NAME>, Mrs. <NAME> W/o Mr. <NAME> and Mrs. <NAME> W/o <NAME>.

11. The ownership of the trademark "<ORG>" was once again shifted by agreement dated 02.04.1992 by way of which <ORG> (promoted by the <NAME> family) took over <ORG> (India) the partnership firm along with all its assets and liabilities and became the proprietor of the said trademark.

12. By assignment deed dated 09.03.1994, the trademark "<ORG>" in relation to electric storage water heaters (excluding instant geysers) covered under No. 197998-B in class 11 was assigned to a partnership firm <ORG> by <ORG>

13. The assignment was accepted by <ORG> vide order no. PR/985 dated 20.01.1995 and the mark "<ORG>" registered in class 11 was split in a way that in relation to the item electric water heaters (excluding instant geysers), the mark "<ORG>" became the proprietary concern of <ORG>.

14. By agreement dated 02.04.1997 M/s. <ORG>, the plaintiff herein, took over the business of <ORG> along with all assets and liabilities and consequently, the said trademark with relation to electric water heaters (excluding instant geysers) became the property of the plaintiff.

15. <ORG> issued a certificate on 26.09.1997 recording the plaintiff as the proprietor of the trademark "<ORG>" in relation to the electric water heaters (excluding instant geysers).

16. The said mark was renewed from time to time except on 14.09.2002 after which a TM-13 for renewal was filed but disallowed as time barred.

17. An appeal was filed in the <ORG> and the Registrar‟s order of refusal was set aside vide order dated 10.02.2005. An application for renewal is filed and is pending as per the case of the plaintiff.

18. The flow chart hereunder indicates as to how the said mark over the years has travelled from predecessors in interest of the plaintiff to the plaintiff company :

M/s. <ORG> 22.12.1979 <ORG> 01.07.1984 <ORG> 05.10.1987 <ORG> (India) 02.04.1992 <ORG>

09.03.1994 M/s. <ORG> 02.04.1997 M/s. <ORG>

19. As per the plaintiff, it has been the sole and exclusive owner of the mark "<ORG>" in relation to electric water geysers (except instant geysers) since 02.04.1997 and the plaintiff and its permitted user being <ORG> (India) have together been manufacturing/ trading the said products under the name "<ORG>" all over the country through their distributors/ dealers.

20. It is averred by the plaintiff that the plaintiff has advertised the mark "<ORG>" throughout the country and the said mark is now associated exclusively with the plaintiff. The sales figures of the plaintiff and its permitted user for the last six years are given in the plaint.

21. The plaintiff has alleged that the inter-se disputes between the four brothers of the <NAME> family (of which <ORG> and defendant no. 4 were part) resulted in a Memorandum of Partition dated 12.03.1999 to which all the brothers were signatories. The assignment deed dated 01.04.1999 was a result of and in consonance with the Memorandum of Partition.

22. It is the plaintiff‟s submission that the said Memorandum and assignment deed had nothing to do with the mark "JOHNSON" in relation to electrical water geysers as the rights of <ORG> in the same had ceased to exist vide its assignment deed dated 09.03.1994 with <ORG> which was taken over by the plaintiff and as such, the said disputes etc. do not in any way relate to the subject matter of this suit.

23. The plaintiff has also submitted that there was a Registered User Agreement dated 23.04.1992 between <ORG> and <ORG> („<ORG> brevity) as per which the latter was allowed to use the name "<ORG>" against payment of royalty and further get agency commission as distributors.

24. Even in the Memorandum of Partition (Clause 1.3 of addendum) it was mutually agreed that the assignment would not affect the registered user rights of <ORG> and that the same would not be pressed to pay royalty and with effect from 01.04.1998 <ORG> was mutually held to be not liable to pay any royalty and not entitled to any agency commission.

25. However, defendant no. 4 in contravention of the said Memorandum interfered with the registered user rights of <ORG> due to which <ORG> revoked the assignment deed dated 01.04.1999 vis-à-vis defendant no. 4 vide its letter dated 15.05.2000 to the Registrar of Trademarks.

26. The matter was decided and appealed repetitively and finally the said assignment deed was stayed by this <ORG> vide order dated 18.03.2008 in WP (c) No. 2157/2008. Meanwhile, defendant no. 4 violated the Memorandum of Partition by terminating the registered user agreement to which <ORG> and <ORG> were party.

27. Thereafter defendant no. 4 instituted a suit for infringement, passing off etc. against M/s. <NAME> in this Court being CS (OS) No. 166/2004. No interim order as per the record has been made in favour of defendant no. 4 yet.

28. Another suit being CS (OS) No. 1399/2006 was filed by M/s. Blumac for declaration etc. The plaintiff has submitted that all this litigation has no bearing on the present case.

29. It is the plaintiff‟s averment that defendant nos. 1 and 2 are engaged in manufacturing electric water geysers (except instant geysers) under the mark "<ORG>" and the same are being marketed by defendant nos. 3 and 4. Defendant no. 5 is a distributor of defendant no. 3 and the latter claims to be a licensed user of the mark "<ORG>" in relation to the above-mentioned products due to a license/permitted user agreement dated 27.05.2006 executed in its favour by defendant no. 4.

30. As per the plaintiff, the assignment deed entered into between <ORG> and defendant no. 4 does not relate to the mark "JOHNSON" with regard to the products in question which came into the share of the Plaintiff. The same has been stayed by this Court in order dated 18.03.2008 in WP (c) No. 2157/2008.

31. In view of these averments, the plaintiff has contended that the defendants‟ use of the mark "JOHNSON" for electric water geysers (except instant geysers) is illegal and unlawful and constitutes the acts of infringement and passing off as the defendants are attempting to ride on the goodwill and reputation created by the plaintiff in the country for its products.

32. The acts of the defendants are alleged to be causing grave and irreparable injury to the plaintiff and thus it is prayed that the interim injunction as sought be allowed.

33. The defendants have contended that the suit filed by the plaintiff is bad in law and ought to be dismissed. The submissions of the defendants can be enumerated as under :

I. The plaintiff‟s entire case is built on a fraudulent and doctored document i.e. the deed of assignment dated 09.03.1994 has been fabricated and manipulated in order to portray certain things to this Court. A photocopy of the actual document as it was originally has been filed by the defendants and as per the defendants a comparison of the deed filed by the plaintiff with this copy of the deed will prove the alleged fabrication. Details of the differences are given by the defendants on page 1 and 2 of the written statement.

II. Without prejudice to the above-stated contention, Counsel for the defendants has sought to highlight the difference in the product which was assigned to <ORG> by the deed dated 09.03.1994 and the product in relation to which the plaintiff is contending that the product is being used by it. <ORG> was assigned the mark "JOHNSON" with respect to "electric storage type water heaters (excluding the instant type geysers)" but the said mark was obtained by the plaintiff as regards "electric water heaters (excluding the instant type geysers)". It is the defendants‟ submission that the difference in the two is that the words "storage type" have been omitted in the second type of products and without the said words, the plaintiff‟s product is only what is known in the trade as „immersion rods‟ which are used to heat up water. Even otherwise if it is believed that the two products are the same and are used for storing hot water, the plaintiff‟s product is a „hammam‟ or a „boiling chamber‟ which is a portable drum where water is stored and then heated through an electric element. This type of product is very different form the electric geyser which is mounted on the wall. In fact, the plaintiff‟s brochures and the defendant‟s predecessors has also been filed showing the „hammam‟ product.

III. Defendant no. 4 acquired all proprietary rights in the mark "JOHNSON" by way of the deed dated 01.04.1999 with relation to all the goods specified therein and as regards goods with wider specifications also. Further, defendant no. 4 acquired the said rights from <ORG> itself whereas the plaintiff has claimed to have acquired its rights from <ORG> which obtained the rights from <ORG> IV. The plaintiff has been aware of the defendants‟ rights and use of the mark "JOHNSON" from the year 1999 as the parties are all closely related and are part of the same family. The defendants have established formidable goodwill and reputation and the plaintiff is trying to take advantage of the same.

V. The plaintiff‟s alleged rights in the product derived from registration no. 197998-B in Class 11 which was split with regard to "water boilers" as the assignment dated 09.03.1994 was amended by a TM-16 application dated 18.01.1995 and "Electric water heaters" was changed to "Electric water boilers".

34. The defendants have argued that balance of convenience does not lie with the plaintiff as the defendants cannot be restrained from exercising their rights.

35. According to the defendants, in case the plaintiff‟s claimed goods „Electric Water Heaters‟ are the same as „Electric Storage Type Water Heaters‟, even then these products in the trade, market and consumer parlance and in local language are commonly referred to as "hammams" or "boiling chambers". The product "hammam" is a different type of geyser which is mounted on the wall and is fixed and stationery thereon. The term „instant type geyser‟ refers to fixed or portable geysers which are not hammams. In the hammam, water is stored and heated, while in a geyser water flows in from one inlet then passes through an element and flows out from another. Therefore, the two set of products i.e. hammams and geysers are different as per the written statement.

36. It is contended that defendant No.4 acquired all proprietary rights in the trademark "JOHNSON" under the written Deed of Assignment dated 01.04.1999 executed in its favour by <ORG> Under the Deed of Assignment, Defendant no. 4 was assigned the trademark "JOHNSON" registration Nos. 195359, 197997B and 319955 as per the goods specified therein as well as the pending application bearing Nos.398341 in Class 9, 398342 in Class 11, 398343 in Class 7, 319954 in Class 9 and 390169 in Class 9.

37. The application No.398342 in Class 11 being <ORG> for hot waters and heaters and parts and accessories besides a whole lot of other electrical items have been assigned to the Defendant no. 4 besides the trademark registrations for the goods mentioned. These assigned goods include water boilers.

38. The contention of the Defendant no. 4 is that since the date of assignment deed dated 01.04.1999, the Defendant has been using the trademark "<ORG>" continuously and commercially in relation to the goods falling in Class 7, 9, 11 and 21 except in relation to hammams, within the knowledge of the Plaintiff and therefore, valuable rights in the said goods has been built up by the Defendant.

39. It is also alleged in the written statement that the plaintiff was fully aware about the said right of the defendant from the year 1999 itself as well as of the pending litigation between the defendant and <ORG> wherein all these claims are claimed by the defendant pertaining to the goods in Class 11 also. The Plaintiff is therefore, guilty of concealing the said fact from this Court and has deliberately manipulated the cause of action to read as from the year 2006 although the defendant has been carrying on business since the year 1999.

40. The suit of the plaintiff is barred by limitation and is not maintainable due to the plaintiff‟s acquiescence, delay and estoppel.

41. The defendants have also denied any infringement of the trademark and also of any passing off in view of the honest practices adopted and independent rights claimed by the Defendants in relation to the geysers. It is alleged by the defendants that there is no cause of action for the present suit and the plaint is liable to be dismissed as the plaintiff has no right, title or interest in the subject matter of the trademark and the goods involved in the present case.

42. I have heard learned counsel for the parties. After moving their respective submissions, both the parties have informed the Court that up till the date of deed of assignment dated 09.03.1994, there is no dispute or challenge to the earlier assignments executed between the parties dated 1.7.1984, 5.10.1987 as well as the incorporation of <ORG> by the parties.

43. In the written statement, there is a challenge made by the defendant No.4 pertaining to the deed of assignment dated 09.03.1994. As per the defence raised by the said defendant the said deed of assignment is a forged document and the plaintiff on the basis of the same has procured the split trademark registration and orders from <ORG>.

44. In reply to the first submission of the Defendant No.4 as referred above, Ms. <NAME>, learned counsel for the plaintiff has also referred the Affidavit of Sh. Munni Lal Jain, one of the Directors of <ORG> dated 06.06.2008 wherein he has deposed that on the date of execution of the assignment deed dated 09.03.1994 another assignment deed was entered into between <ORG>. and <ORG>. Both these assignment deeds mentioned were drafted and prepared by the same <ORG>, Patent and Trademark Attorney representing both the parties at that point of time. The same trademark attorney also drafted and prepared the other assignment deed and documents referred in the pleading and particularly the deeds of assignment dated 01.07.1984, 05.10.1987, 09.03.1994 and 01.04.1999. After having received the original assignment deeds entered into between <ORG>. and <ORG> and <ORG>. and <ORG> dated 09.03.1994 from <ORG> along with copies thereof, the same were duly signed and witnessed. One such duly signed and witnessed copy of each assignment deed was retained by <ORG>. for official record and the original deeds were returned to <ORG> for taking the necessary action for the purpose of recording these assignments in <ORG>. In the Affidavit, it was also deposed that subsequently it was discovered that the name of the assignee on the last page of both the assignment deeds was typed as "For <ORG> through its partner <NAME>" whereas one of the assignment deeds in effect related to <ORG>. This error was duly communicated to trademark attorney <ORG> and necessary corrections were made in the copies of the said deeds retained by <ORG>. for official purpose.

45. It is also mentioned in the Affidavit that both the assignment deeds dated 09.03.1994 were duly submitted to <ORG> by <ORG>. Vide letter dated 24.01.1995 <ORG> was informed by the trademark attorney that the said assignments were allowed by <ORG>. The said letter/order No. Pr/985 dated 20.01.1995 is already placed on record by the plaintiff along with the Affidavit as Annexure B.

46. When the learned counsel for the defendants was confronted with these facts, Mr. <NAME> fairly gave up the argument regarding the validity of the assignment deed dated 09.03.1994 entered into between <ORG> and <ORG> and resisted from alleging thereon that the same was a forged document. Despite the oral statement given by the defendant‟s counsel, the said fact is being dealt with by this Court in order to avoid any objection/ confusion in the future litigation.

47. It is already admitted between the parties that the trademark No.197998B was initially registered for Hot Plates, Toasters and Water Boilers in Class 11 in the name of <ORG>. There is no dispute that <ORG> made another application bearing No.319955 in Class 11 for wider specification of goods covering items which are part and parcel of registered trademark No.197998B in addition to other goods. <ORG> admittedly informed <ORG> that the said pending applications bearing No.319955 made by it, as and when get registered, would be associated with the mark "<ORG>" already registered bearing No.197998B.

48. As already mentioned that on 09.03.1994, the said trademark in relation to electric storage type water heaters (excluding the instant type geysers) was assigned in favour of <ORG> by <ORG>

49. <ORG> vide its order No.PR/985 dated 20.1.1995 split the mark as per the following details:

MARK REGN. CLASS GOODS PROPRIETOR NO. <ORG> 197998 B 11 Water Heaters M<ORG>s Vidyut (electric) (excluding Udyog the instant geysers) <ORG> 197998 B 11 Hot Plats (electric), M<ORG>s Classic (Split) toasters Equipments <ORG> 319955 11 Toasters (electric), M<ORG>s. Classic Water Heaters Equipments (instant type geysers), Baking Ovens <ORG> 319955 11 Hot Plates (electric) M<ORG>s. Jain (Split) (Coil Stoves), Associates Electric Cooking Range

50. It appears from the preceding paragraph wherein the description of goods is mentioned that both, the trademark registered under Applications No.197998B and 319955, covered the item „water boiler‟. It appears that when the abovementioned two trademarks were split by <ORG> by virtue of assignment deed dated 09.03.1994, the item water boiler got bifurcated into "Water Heaters (electric) (excluding the instant type geysers) and "Water Heaters (instant type geysers)". The description of goods mentioned as Water Heaters (electric) (excluding the instant type geysers) went to <ORG> under the registered No.197998B (which was subsequently taken over by the Plaintiff) and the remaining description of goods/item Water Heaters (instant type geysers) remained with <ORG> under registered No.319955.

51. In fact subsequent to the order No.PR-985 by the <ORG>, the requisite TM-24 and TM-36 applications pertaining to the assignment deed dated 09.03.1994 in favour of <ORG> were filed by the same trademark attorney. The said order was reaffirmed by the Trademark <ORG> vide its order No.PR-25 dated 14.2.1997. There was a further split in the trademark No.319955 on the same very date i.e. 09.03.1994 between <ORG> and <ORG> pertaining to items Electrical Coil Stoves, Electric Hot Plates and Electric Cooking Ranges.

52. The case of the Defendant No.4 is that the expression „Electric storage type water heaters (excluding instant type geysers)‟ that has been used in the assignment deed dated 09.03.1994 entered into between <ORG> and <ORG> <ORG> is in fact a „Hammam‟ which is different from the product „Electric water heaters (excluding instant type geysers)‟ in which the Plaintiff has no right as the Plaintiff who has acquired the right from <ORG> <ORG> is using the same as water heater in the market on commercial scale.

53. The documents filed by the Plaintiff as well as the description of goods referred by the Defendant no. 4 in their respective catalogues and advertising material clearly shows that the two terms „electric storage type water heaters‟ and „water heaters‟ are one and the same thing. This is further fortified from the fact that the said item has been acquired by the Plaintiff by virtue of assignment deed dated 09.03.1994 and the same is being used openly with the knowledge of the Defendant. However, no action was taken by the Defendant against the Plaintiff in case the said item was merely "Hammam" and not water heater.

54. I agree with the learned counsel for the Plaintiff that the Electric water heater/geyser in the market is classified in two categories i.e. the instant type and the storage type. While the former is the one wherein water is not stored, in fact it gets heated instantly as and when it enters the heater/geyser and passes through the heating element before it exists in the heater/geyser, the latter gets stored and then gets heated. The expression „excluding instant type‟ itself connotes that the said product is storage type.

55. This fact is also proved from the printout of the screen shot taken from the website of the Plaintiff which is available at Page114. The Plaintiff has also filed a printout of the website of the Defendant No.4 which indicates that the expressions "geyser" and "heater" are one and the same.

56. Even the Defendants are using the expressions "geyser" and "heater" interchangeably as appears from the various documents filed by the Defendant No.4. The same nomenclature is used by the Defendant in ISI specification i.e. IS 2082 as is apparent from the documents filed by the Defendant No.4 for the product in question is Stationary Storage Type Electric Water Heaters.

57. Therefore, the contentions of the Defendants have no force when it is mentioned that in the assignment deed dated 09.03.1994 entered into between <ORG> and <ORG> the term Electric Storage Type Water Heater is used as „Hammams‟ and then is distinguished from the product Electric Water Heater.

58. From the documents filed by the parties, it is clear that there is no distinction between the two expressions namely „Electric storage type water heaters (excluding instant type geysers)‟ and „Electric water heaters (excluding instant type geysers)‟ as is also evident from the TM- 16 application for amendment dated 18.01.1995 filed on behalf of <ORG> by <ORG>, Trade Marks Agent representing Defendant No.4 in the present case. The operative portion of the prayer in the said application reads as under:

"to read the expression Electric storage type water heaters (excluding instant type geysers) that was used in the assignment deed dated 09.03.1994 entered into between <ORG> and <ORG>, be read as "Electric water heaters (excluding instant type geysers)".

59. As far as the items in question are concerned, the same had been assigned by <ORG> in favour of <ORG> by virtue of assignment deed dated 9.3.1994. <ORG> was taken over by the plaintiff company vide agreement dated 2.4.1997 along with all assets and liabilities.

60. As a matter of fact, pursuant to the assignment deed dated 09.03.1994 <ORG> itself made the application to <ORG> in the prescribed form TM-36 dated 17.05.1995 through the same trademark attorney for striking off the goods i.e. Water Heaters (electric) (excluding the instant type geysers) from the category of goods under their registered trademark No.197998B in Class 11.

61. The inter se dispute, if any, between the assignor of the Plaintiff i.e. <ORG> and Defendant No.4 or any other third party subsequent to the assignment deed dated 09.03.1994 in relation to the goods in question has no concern with the present litigation. Admittedly, the necessary entries have been made by <ORG> on the basis of the execution of the assignment deed between <ORG> and <ORG>. The term „water boiler‟ is also deleted from the description of goods vide orders dated 20.01.1995 and 14.02.1997.

62. In view of the aforesaid reasons, I am of the considered view that any subsequent action by the assignor or third party in relation to the items contrary to the assignment dated 9 th March, 1994 in the registered trade mark or pending applications or any entries made thereon was uncalled for and contrary to the law and orders dated 20.01.1995 and 14.02.1997 already passed.

63. The important aspect of the matter is that all the relevant parties who were involved in the various assignment deeds and agreements and filing the necessary application for making the amendment were represented by the same <ORG> attorney. It appears from the documents filed by the parties that the assignor <ORG> after the assignment of items in favour of the plaintiff has made subsequent application in <ORG> claiming its rights for the same items owned by it and incorrectly got the order passed on 26.09.1997. It appears from the order/letter dated 26.09.1997 issued by the <ORG> Office the item water boiler is still shown in the name of <ORG> under the trademark No.319955 in Class 11, despite earlier orders already passed by according the assignment dated 9.3.1994 in favour of the Plaintiff. Thus, order/letter issued by the <ORG>s Registry vide order/letter dated 26.9.1997 is contrary to the orders already passed.

64. The learned counsel for the Defendant No.4 Mr. <NAME> has argued that in any case Defendant No.4 has acquired the right by virtue of the assignment deed dated 01.04.1999 between <ORG> and Defendant No.4, another application No. 398342 in Class 11 which was filed in respect of electric geyser. One cannot but come to the conclusion that once the right pertaining to the water heaters has already been assigned in favour of M/s. Vidyut Udyog by virtue assignment deed dated 09.03.1994, the question of reassignment of the same goods under application No.398342 by the same company <ORG> in favour of Defendant No.4 does not arise unless mala fide intentions are there.

65. Learned counsel for the Plaintiff submits that the application No.398342 in Class 11 was already obtained by the Defendant, factum of which is mentioned in suit bearing No. CS(OS)166/2008 and despite having knowledge about the abandonment which is referred in the said suit the said application was assigned in favour of <ORG>.

66. It is clear from the facts that the expression „water boiler‟ was already split in the year 1994 on the basis of the assignment deed dated 09.03.1994. By the assignment deed dated 01.04.1999 between <ORG> and Defendant No.4, the assignor could not have under any circumstances assigned the items after the execution of deed of assignment dated 9.3.1994 as item/products „water boiler‟ was already deleted from the said registration no.319955 by virtue of the assignment deed dated 09.03.1994.

67. The items which are subject matter of assignment deed dated 09.03.1994, the assignor or Defendant No.4 cannot subsequently claim any rights in pending applications or registered Trade Marks whether those are specifically mentioned or not in the deed of assignment otherwise, the very purpose of assignment of the mark is defeated.

68. It is also pertinent to mention that Defendant No.4 was aware of the assignment made in favour of M/s. Vidyut Udyog by <ORG> on 09.03.1994. The said Defendant No.4 was also aware about the taking over of M/s. Vidyut Udyog by the Plaintiff on 02.04.1997 as the said Defendant was one of the Directors in the Plaintiff company at that point of time and only resigned from the Directorship of the Plaintiff company on 01.10.1997. Claiming any right on the basis of assignment deed dated 01.04.1997 after the retirement from the Directorship of the Plaintiff company on 01.10.1997 shows the mala fide intention of the Defendant No.4.

69. There is a malafide intention on part of defendant No.4 by filing a fresh application for the same items in <ORG> in the year 2009 after having knowledge that the goods in question had already been assigned in favour of the predecessor in interest of the Plaintiff.

70. This Court is of the considered view that any order passed or entry made in the Register of Trademarks in relation to the assignment of the trademark and/or change in the constitution contrary to the valid written document/assignment is null and void and is to be treated as against the law. The Court dealing with the dispute can ignore the said entry if found that the party has obtained the same by making misrepresentation or by any other illegal manner. An entry made in the Register on the basis of misrepresentation or fraud, cannot disentitle the valid rights of a party who has become the lawful owner of the trademark by virtue of a valid document. In other words, the effect of proprietary rights acquired by the party by means of valid document cannot be lost on the basis of wrongful entry if made.

71. The next submission of the learned counsel for the Defendants is that Defendant No.4 has been using the trademark "JOHNSON" in relation to water heater since 1999 after the assignment deed dated 01.04.1994.

72. The documents filed by the Defendants have been examined by this Court. One more opportunity was given to the parties to produce cogent evidence in order to show that they have been using the trademark "JOHNSON" in relation to water heater during the course of hearing, since 1999. Prima facie there is no cogent evidence produced by the defendants to show the continuous use of the mark in relation to the goods in question. From the document, no doubt, it appeared that the defendants have been using the trademark "JOHNSON" in relation to various electric and electronic goods, however, except vis-à-vis the product water heater.

73. On the other hand, the Plaintiff has been able to establish a prima facie case in its favour as there was a valid assignment deed in favour of M/s. Vidyut Udyog which was acquired by the Plaintiff. The Plaintiff has become the subsequent registered proprietor of the trademark "JOHNSON" in relation to the goods in question. Necessary entry in this regard has already been made in the register of Trademarks.

74. The balance of convenience also lies in favour of the Plaintiff and against the Defendants as the Defendants were fully aware from day one that the item in question had been assigned in favour of the Plaintiff‟s predecessor in interest. On the other hand, the Defendant No.4 is using the trademark "<ORG>" in relation to electric kettles, toasters, ceiling fans, pressure cookers, mixer grinders, vacuum cleaners, hand blenders, electric tandoors, heat convectors etc. as per the documents filed by the Defendant no. 4 for which the plaintiff has raised no objection.

75. The Defendant No.4 if authorized by <ORG> is also entitled to use the mark "JOHNSON" in respect of instant type geysers. However, the Defendants are not entitled to use the trademark "JOHNSON" in relation to the water heaters (electric) in any manner.

76. From the aforesaid reasons, this Court is of the view that if the injunction is not granted in favour of the Plaintiff, the Plaintiff will suffer irreparable loss and injury in its business.

77. Therefore, till the disposal of the suit, the Plaintiff is entitled to an injunction restraining the Defendants, their servants, agents or anyone acting on their behalf from using the trademark "JOHNSON" in relation to electric water heaters (excluding the instant type geysers), directly or indirectly, in any manner whatsoever.

78. By following the decision of <ORG> in terms of paragraph 37 of the judgment of <ORG> in the case of <ORG> Vs. Union of India, (2005) 6 SCC 344 wherein <ORG> has said that it is high time that actual compensatory costs be imposed with respect to legal proceedings as well as in light of Section 35 of the Code of Civil Procedure, which provides that costs have to follow. In view of the fact that the defendant No. 4 has in this case knowingly contested the interim application for injunction despite having the knowledge that the mark in question in relation to the particular goods has already been assigned in favour of the plaintiff‟s predecessors in business by virtue of assignment deed dated 09.03.1994 and the necessary entry has been made in the Register of Trade Marks by <ORG> still he had chosen to raise false and frivolous pleas in the written-statement and reply to the injunction application. In lieu of this Defendant No.4 shall bear costs of Rs. one lac to be deposited in the name of Registrar General of this court within two weeks from today, who will make the total amount available for utilization of Juvenile Justice.

79. It is made clear that any observation made herein shall be treated as tentative in nature and shall not constitute any expression of final opinion on the issues involved and shall have no bearing on the final merit of the case and submissions of the parties in the suit. CS (OS) No. 816/2008 List before the Roster Bench on 27th April, 2010.

<NAME>, J.

MARCH 25, 2010 acm