2012 (4) TMI 775 - HC - Indian Laws

Summary

Issues Involved:
1. Maintainability of the application for stay of the suit u/s 124 of the Trade Marks Act, 1999.
2. Requirement of leave of the Court before filing rectification proceedings.
3. Applicability of the principle of constructive res judicata.

Summary:

1. Maintainability of the Application for Stay of the Suit u/s 124 of the Trade Marks Act, 1999:
The defendant sought a stay of the suit u/s 124 of the Trade Marks Act, 1999, arguing that rectification proceedings against the plaintiff's trade mark MERONEM were pending. The plaintiff opposed, stating the application was not maintainable as it violated Section 124 of the Act, was time-barred, and was previously dismissed by the Court. The Court noted that the defendant had filed the rectification in 2005, and the application for stay was not maintainable as it was filed without the Court's leave.

2. Requirement of Leave of the Court Before Filing Rectification Proceedings:
The Court emphasized that u/s 124(b) CPC, if rectification proceedings are not pending, the party seeking rectification must obtain the Court's prima-facie satisfaction regarding the invalidity of the registration. The Court referenced previous judgments, including Kedar Nath v. Monga Perfumary and Flour Mills and Patel Field Marshal Agencies vs. P.M. Diesels Ltd., to highlight that the leave of the Court is a prerequisite for filing rectification proceedings after the institution of the suit. The Court found that the plaintiffs had not obtained such leave, rendering their rectification application invalid.

3. Applicability of the Principle of Constructive Res Judicata:
The Court held that the defendant's application was barred by the principle of constructive res judicata, as the issue had already been decided by the learned Single Judge and Division Bench, and the defendant had accepted these findings without challenge. The Court cited Barkat Ali & Another v. Badrinarain and Dwijendra Narain Roy vs. Joges Chandra De to support the principle that a party cannot re-agitate an issue that has been conclusively decided.

Conclusion:
The Court dismissed the defendant's application for stay of the suit, finding it to be an abuse of the process of law and barred by the principle of constructive res judicata. The application was dismissed with costs of Rs. 5,000. The case was listed before the Joint Registrar on 29.05.2012.