V. Ravi - (1.) (No. 39 of 2013)
(2.) THREE Miscellaneous Petitions filed by the appellant came up for hearing before us on 25.09.2012. The brief facts giving rise to these MPs are stated below separately. A.M.P. No. 142 of 2012: 1 a. The appellants and their family are engaged in the processing & marketing of rice of all kinds using several trade marks. Recently, the trade marks were divided by assigning and transferring it in the different name and entities. b. The trade mark now in appeal UDAN PARI (amongst others) stands transferred/assigned to M/s Jain Riceland Pvt. Ltd., New Delhi in which the appellant Shri Bupender Jain is also one of the Directors of the said company. Copy of the assignment deed executed on 12th April, 2012 by Shri Bupender Jain trading as M/s Mahaveer Rice Traders, Delhi in favour of Jain Rice Land Pvt. Ltd. is also furnished. It has thus become imperative to file the present M.P. for amendment/modification of the name & address of the appellant as this transaction took place during the pendency of the present appeal. c. The subject M.P. has been filed bonafide in the interest of justice, equity and in good conscience without any delay. d. No prejudice will be caused to the respondent if the said amendment in the name and address is allowed. The respondent to the main petition have objected to this M.P. on the following grounds: a. The petition is an after thought idea and belatedly filed. b. The M.P. has been supported by a defective affidavit as it does not disclose the exact date on which Shri Bupender Jain became a Director of M/s Jain Rice Land Pvt. Ltd. and deserves to be rejected outright. c. There is no Board resolution authorizing Shri Bupender Jain to depose, verify and prosecute the instant appellate proceeding. d. The appellant/petitioner has deliberately avoided filing the complete set of 'Articles of Association' and 'Memorandum of Association' of M/s Jains Rice Land Pvt. Ltd. and is therefore not entitled to any relief. e. The MP has been deliberately filed in an attempt to build up an entirely new case at the appellate's stage. f. The MP is completely misconceived and an abuse of the process of law as it is filed after the evidence stage in the main petition has since long been closed and the case is mature for hearing on merit. The appellants are determined to prolong the final adjudication of the main appeal and g. their conduct is dishonest and malafide. During the last four years, since the filing of the impugned appeal, the appellant have filed three separate MPs [No. 132/08, 186/08 and 187/08] all of which has been dismissed by the Board for valid reasons. h. The so called assignment deed now tendered is a sham document as the appellants main application has already been dismissed by the Registrar holding that they are not the proprietor of the impugned mark Udan Pari. i. The impugned trade mark alone has been assigned by the appellant for a nominal sum of Rs. 1000/ - to M/s Jain Rice Land Pvt. Ltd. The goodwill of business does not stand transferred/assigned automatically and the request for assignment is based on unproved statement. j. The date of adoption of the impugned trade mark Udan Pari has not been disclosed and therefore the appellant have come before the Board with an unclean hand. k. In view of the foregoing, no valid case for allowing the M.P has been set out and the same deserves to be dismissed. Rejoinder OF APPELLANT: In rejoinder, the appellant state that the M.P seeks amendments which are formal, just and necessary for determination of the controversy in these proceedings. It does not take away any defence or rights pleaded or raised by the respondent. The appellant further state that there has been no delay in approaching the Board for seeking amendment of the name & address of the appellant. The parties to the deed are in family relation and they can assign and transfer rights in their trade mark for consideration of even rupee one. The respondent/opponent herein have no right to interfere or challenge the content of the assignment deed and or the consideration amount entered in the deed. All the grievances raised by the respondent are baseless, frivolous and are not relevant to the proceedings. AUTHORITIES: i) In support of the miscellaneous petition the appellant relied on the following authorities. The respondent relied on the following authorities. 1. Union of India Versus Moksh Builders and Financiers Ltd and others etc. Transfer of Property Act, 1882, Section 53 -Sham transaction - - Real owner of a house purchasing it in name of his son - - Real owner in arrears of large amount of income tax - - Incorporation of Company during recovery proceedings - - Company dominated by his son and his relatives - - Sale of house by his son to Company - - Held it was sham transaction so as to save the house from sale for realisation of income tax. 2. M/s. Onam Agarbathi Company Versus The Deputy Commissioner of Income Tax The taxing statute to be applied in order to assess the substance of transaction so as to ascertain whether it is a sham or make believe transactionor one which is real and genuine and therefore is eligible for deduction of Commission payments under the Act - - Hence, Courts are required to look into the form of transaction to find out its substance so as to ensure that there is no avoidance of tax by a method not permissible in law.
(3.) M . Venkataramana Hebbar (D) By Legal Representatives Versus M. Rajagopal Hebbar & Ors. If a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted.;