TMI Blog2022 (12) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... e a person against whom he does not seek any relief. No relief has been sought against the applicant. The entire case of the plaintiff is based on the infringement of the trademarks of the plaintiffs by the defendant. Therefore, it cannot be said that an effective decree cannot be passed in the present suit in the absence of the applicant. It is not even the case of the applicant that the applicant is a necessary party, as the present application seeks impleadment only on the basis of the applicant being a proper party - In terms of the legal position, for a person to be a proper party to a suit, it is to be seen whether the presence of such person would enable the Court to completely, effectively and properly adjudicate upon the issue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, Advocate Mr. Ajay Kumar Pandey, Senior Panel Counsel for the applicant/custom in IA.3096/2020 with Mr. Vikas Kumar Sharma, Advocate AMIT BANSAL, J. (Oral) I.A. 3096/2020(O.I R.10 of CPC) 1. The present application has been filed on behalf of Commissioner of Customs (General), Air Cargo Complex, Sahar, Andheri (East), Mumbai 400009 seeking impleadment in the present suit as a proper party. 2. The application is premised on the infringement of the intellectual property rights of the plaintiff in terms of the Custom Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 (hereinafter referred to as IPR Enforcement Rules ), on account of the import of goods by the defendant. The applicant had passed a sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4. I have heard the counsels for the parties. 5. The Supreme Court in Mumbai International Airport (P) Ltd. v. Regency Convention Centre Hotels (P) Ltd., (2010) 7 SCC 417, has observed that the general rule with regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. 6. In Kasturi v. Iyyamperumal, (2005) 6 SCC 733 , the Supreme Court laid down the tests to determine as to who is a necessary party and proper party in a suit. The relevant portions are set out below: 7*. In our view, a bare reading of this provision, namely, second part of Order 1 Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit. 7. In Vidur Impex Traders (P) Ltd. v. Tosh Apartments (P) Ltd., (2012) 8 SCC 384, the Supreme Court has succinctly laid down the principles to be followed while deciding an application filed under Order 1 Rule 10(2) of the CPC. Paragraph 36 in this regard is set out below : 36. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are : 1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sought against the applicant. The entire case of the plaintiff is based on the infringement of the trademarks of the plaintiffs by the defendant. Therefore, it cannot be said that an effective decree cannot be passed in the present suit in the absence of the applicant. It is not even the case of the applicant that the applicant is a necessary party, as the present application seeks impleadment only on the basis of the applicant being a proper party. 10. In terms of the legal position discussed above, for a person to be a proper party to a suit, it is to be seen whether the presence of such person would enable the Court to completely, effectively and properly adjudicate upon the issue in the case. 11. At this stage, a reference may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiffs, the said determination shall be binding on the applicant and there cannot be any question of destruction of the infringing goods. On the other hand, if a final determination is made by this Court that the goods have infringed the trademarks of the plaintiffs, appropriate orders shall be passed with regard to the aforesaid goods. 14. In view of the discussion above, the applicant is neither a necessary party nor a proper party for the adjudication of the suit. There is no merit in the present application and the same is dismissed. 15. Needless to state this is without prejudice to any other statutory rights/remedy of the applicant. CS(COMM) 835/2018 16. In the order dated 5th July, 2019, the submission of the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
