Z.S. Negi, Chairman - (1.) THE above two rectification applications are filed by the same applicant seeking removal of two trade marks 'MILKA WONDER CAKE' under No. 1242328 and 'MILKA WONDER CAKE' under No. 732507, registered in the name of the respondent herein, from the Register of Trade Marks or ectification of the Register under Section 47/57/125 of the Trade Marks Act, 1999 (hereinafter referred to as the Act).
(2.) SINCE the facts of both the cases and issues involved therein are similar we will, for the sake of convenience, state the brief facts of one case, i.e. ORA/2005/2007/TM/CH. The applicant, a private limited company incorporated in the year 1987 under the Companies Act, 1956 has sought removal of the above named trade mark on various grounds under Section 57 read with Sections 9,11 and 18 of the Act. The respondent filed their counter -statement denying the material averments made in the application and raising objection at the outset in the counter -statement that the application is not maintainable on the ground that the board of directors of the applicant company has not passed resolution authorizing Mr. K. Jayakrishnan to institute the rectification proceedings against the respondent. During the pendency of the rectification proceedings, a miscellaneous etition (M.P.) accompanying an affidavit of Mr. A. Arumugam, the other director of the applicant company, seeking withdrawal of the rectification application or dismissal thereof as withdrawn was filed on 22 December, 2008. After communication of certain objections raised by the Registry relating to the miscellaneous petition to Mr. V. Senthil Kumar, Counsel for Mr. Arumugam, Mr. Arumugam filed a fresh miscellaneous petition accompapfaa by an affidavit dated 30.1.2009 to implead himself as an inteivener (sic) rectification proceedings on the ground that he as the other director of the applicant company should be heard as he and Mr. K. Jayakrishnan are the only two directors of the applicant company and that he had earlier filed affidavit along with petition dated 22.12.2008 before this Appellate Board in order to set the records straight and to bring to the attention of this Appellate Board true factual position in the affairs of the applicant company and the wrongful activities of Mr. K. Jayakrishnan so as to meet the ends of justice. It is stated by Mr. Arumugam that he is swearing the affidavit as a director and shareholder. Mr. Jayakrishnan is a minority shareholder of the applicant company and he is also a director of Pioneer Bake House Pvt. Ltd., Milka Bakers Pvt. Ltd. and shareholder of Milka Industries Pvt. Limited.
(3.) AVERMENT is made by Mr. Arumugam that in the year 1987 Mr. V.M. Joseph commenced the business of manufacturing and selling bread under the trade mark MILKA and subsequent thereto M/s. Pioneer Bakeries Pvt. Ltd., M/s. New Hope Food Industries Pvt. Ltd. and M/s. Milka Nutriments Pvt. Ltd. were incorporated in the years 1989, 1996 and 1997, respectively, having common shareholders and directors and he was the Chairman of all the three companies from 1996 to 2003 and besides these, three sister concerns, Pioneer Bake House Pvt. Ltd., Milka Bakers Pvt. Ltd. and Milka Industries Pvt. Ltd., of the Pioneer Bakeries Pvt. Ltd. were also under the common management and directors. In the year 1999, Pioneer Bakeries Pvt. Ltd. owed a sum of Rs. 40 lakhs to one Mahalakshmi Trading Co. of Erode and the respondent herein has, on the request of Mr. Arumugam, Mr. Joseph and Mr. Jayakrishnan and agreeing to repay the amounts as and when the applicant company was able to revive its business, provided financial assistance to it during 1999 to 2003. It is stated that when the applicant company resumed its regular business in the year 2004, dispute arose between the directors and shareholders of the aforesaid six companies and Mr. Jayakrishnan on his own initiative refused to repay the amounts to the respondent herein. It is also stated that since the year 2003 there has been no board of directors meeting, annual general body meeting, extra ordinary general body meeting of the applicant company. Mr. Arumugam states that he has never consented to any legal actions initiated by the applicant company and such actions are initiated by Mr. Jayakrishnan in his individual capacity without any approval or consent from him, as the only other director and other shareholders of the applicant company and as such the applicant company will not be in any manner responsible for the costs and consequences of legal actions initiated by Mr. Jayakumar since the year 2003. In the year 2003, Mr. Arumugam, along with others, filed C.P. Nos. 50 to 52 of 2003 before the Company Law Board, Chennai on account of various oppressive acts and mismanagement in the affairs of the company and the Company Law Board by order dated 7.3.2007 directed, amongst others, that the members of the companies shall reconstitute the board of directors; appoint the managing director by 3.4.2007; carry on the regular business in accordance with the articles of association of the companies and meet the statutory obligations. The applicant filed common reply to the instant affidavit of Mr. A. Arumugam and thereafter Mr. A. Arumugam filed his reply statement.;