P.N.Nag, J. - (1.) The petitioner by writ of certiorai seeks quashing of the order, dated September 9, 1994 (Annexure -1) passed by respondent No. 2, whereby respondent No. 2 has reviewed his earlier order, dated May 17, 1994 and permitted respondent No. 3 to manufacture and sell, inter alia, three brands, namely, Officer's Choice, Calypso Rum and 1000 Guineas.
(2.) THE relevant facts material for determining the controversy as set up by the petitioner are that one Cruichshank and Company Ltd. (hereinafter referred to as C L.) by a registred deed of assignment, dated February 26, 1991 assigned and transferred in favour of the petitioner (hereinafter referred to as B. D. A. or petitioner) thrso trade marks/labels in respect of Indian made Foreign Liquor (hereinafter referred to as IMPL), namely, as Officer's Choice, 1000guineas and Calypso Rum. Cruickshank and Company Ltd. had con ceived and adopted the aforementioned three trade marks/labels. According to the petitioner by the aforesaid deed of assignment, dated February 26, 1991 the aforementioned trade marks have been transferred absolutely and for ever in favour of the petitioner and thereby the petitioner has acquired exclusive right to the use of the said trade marks covered by the deed of said assignment. THE C. L. had earlier entered into an agreement, dated April 7, 1989 (Annexure -B) with respondent No. 3, Karamchand Thapar and Brothers (hereinafter referred as K. C. T.) for manufacturing and the sale of these tnree brands and the other agreement, dated February 27, 1989 (Annexure -C) for using and adopting trade marks of the brands. According to the petitioner there were various litigations in various courts relating to the ownership of the brand and the Supreme Court, vide its order, dated May 10, 1992 has transferred all the proceedings to Delhi High Court. A Division Bench of Delhi High Court in FAO No. 195 of 1993 and FAO (OS) No. 183 of 1983 by judgment, dated April 11, 1994 has held that the petitioner is the owner of the trade marks in question and is entitled to the prayer of injunction sought for. THE copy of the judgment has been annexed as Annexute -D. In the proceedings initiated in the City Civil Court, Bombay, that court, vide its order, dated July 27/28, 1992 while granting injunction in favour of the petitioner had made an exception for the goods of K. C. T. , respondent No. 3 and the agreement of K. C. T. with C. L. That was obvious for the reason that at the relevant point of time the agreement of C. L. with K. C. T. for five years was subsisting, as the period of five years, as per terms of the agreement had not expired. That order of injunction of Bombay City Civil Court in favour of petitioner, however, was upheld by Delhi High Court in FAO No. 195 of 1993. However, the matter has been left open as regards the exception carved out in favour of K. C. T. as referred to earlier by Delhi High Court in FAO No. 196 of 1993 and is pending. In a proceeding instituted by the petitioner at Agra to enforce the negative covenant, provided in the deed of assignment aforementioned, during the pendency of the agreement, the case set up by respondent No. 3 is that prior to ei tering into an agreement of assignment by C. L. with the petitioner on 26th February, 1991, C. L. had entered into an agreement with K. C. T. on April?, 1989 and February 27, 1989 referred to hereinbefore, for a period for five years permitting K. C. T. to use the said trade marks and the labels therefore in respect of the aforementioned whisky and K. C. T. has been using the said trade mark ever since.
(3.) SIMILAR stand has been taken in Civil Revision No. 639 of 1993 pending before Delhi High Court, arising out of the proceedings instituted at Bangalore i. e. Suit No. 14 of 1993 and it has been averred therein by the respondent that by the agreements, dated April 7, 1989 and February 27, 1989 K. C. T. has been allowed to use the trade marks of the aforementioned labels in respect of whisky for five years for consideration and on the terms and conditions contained in those agreement. All the aforementioned proceedings instituted at Agra, Bangalore, City Civil Court, Bombay and Delhi High Court, according to the petitioner, clearly demonstrate that respondent No. 3 could use the trade mark and manufacture the whisky brands only during the period provided under the agreement i. e. five years, which expired on April 1, 1994 and thereafter respondent No. 3 had no right to use the trade name and the labels of whisky by efflux of time and the exception granted in the case of K. C. T. in the City Civil Court, Bombay has become infructuous on April 1, 1994. By the assignment deed, dated February 26, 1991, the petitioner has become the sole exclusive owner of the trade marks/labels and is only entitled the manu facture the aforementioned brands of whisky.;