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Alka Ayrvedic Private Limited v/s Bindal Food Products

    F. Nos. 1-7/2006-CRB(NZ) and F. No. 1-8/2009-CRB(NZ) & 1-9/2009-CRB(NZ)
    Decided On, 30 April 2010
    At, Copyright Board
    M. K. Miglani, Saurabh Kapoor

Judgment Text

The Order of the Court was as follows :

These are three applications for rectification filed in between Alka Ayurvedic Pvt Ltd and Bindal Food Products, the former has filed its application for expunction of registration number A75134/2005 standing in the name of the latter and the latter has moved two applications for expunction of registration numbers A-57315/99 and A- 57314/99 standing in the name of the former. The matter was heard at New Delhi on 24.2.2010.

2. Alka Foods Pvt Ltd. has moved an application dated 18.7.2009 requesting for the substitution of name of petitioner in its favour in relation to registration number A-75134. Circumstances leading to this request as explained in the application are that by assignment deed dated 18th September, 2008 M/s Alka Ayurvedic Pvt Ltd had assigned all its rights in the registered trade marks and copyrights and as well as common law rights in favour of Pritam Dass, proprietor of Alka Food Industries. By a partnership deed dated 1.1.2009, the said proprietory firm of Pritam Dass was converted into a partnership firm and his son Shri Anil Kumar Gera joined as partner. Shri Pritam Dass expired on 21.1.2009 and in terms of partnership deed the business was continued by Shri Anil Kumar Gera as proprietor of Alka Food Industries. Through a dissolution deed dated 15.3.2009 entered into between by the said Anil Kumar Gera and other legal heirs of Shri Pritam Dass, Shri Anil Kumar Gera became the sole proprietor of the firm. Through an assignment deed dated 5.5.2009, the said Anil Kumar Gera proprietor of Alka Food Industries assigned all his rights in the subject trademarks and copyrights with the goodwill in favour of Alka Foods Pvt. Ltd., the applicant herein. Affidavit enclosed with the instant application duly attested by the oath commissioner bearing his date of attestation as 18.7.2009 is undated. Copy of assignment deed submitted dated 18.9.2008 has been executed by M/s Alka Ayurvedic Pvt Ltd in favour of Shri Pritam Dass, Proprietor of Alka Food Industries, inter alia, for registration numbers A-57314/1999 and A-57315/1999. Further, copies of a partnership deed and a dissolution deed have been submitted. Again, a copy of an assignment deed 5th May, 2009 assigning by Shri Anil Kumar Gera trading as Alka Food Industries, inter alia, registration numbers A-57314/1999 and A-57315/1999 in favour of Alka Foods Pvt Ltd has been submitted.

3. Short question before us is about the substitution of Alka Ayurvedic Pvt Ltd by Alka Foods Pvt Ltd as a petitioner in rectification application relating to registration number A75134/2005 and as respondent in rectification application relating to registration number A-57315/99 and A-57314/99.

4. Learned counsel for the applicant explained that the short question is about bringing on record the assignments made. Learned counsel for Bindal Food Products raised questions about the differing signatures of Shri Pritam Dass on different documents. The application dated 19.2.2007 for rectification filed bears signature in English. Assignment deed dated 18.9.2008 bears his signature in English. Partnership deed dated 1.1.2009 bears his signature in Hindi. He has raised question of genuineness of signatures. He has raised questions as to necessary authorization through Board resolutions at various stages which has not been done. In the instant application dated 18.7.2009, there is no reference as to the Board resolution passed authorizing Shri Anil Kumr Gera to move the application. Again, in matter of assignment made on 18.9.2008 by Alka Ayurvedic Pvt Ltd there is no reference to such authorization. So is the position in relation to assignment made on 5.5.2009. He has relied upon Ramchandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915, Nibro Ltd. v. National Insurance Co. Ltd., AIR 1991 Del. 25 and Rajghria Paper Mills Ltd. v. General Manager, Indian Security Press, AIR 2000 Del 239.

5. Supreme Court in Ramchandra Keshave Adke v. Govind Joti Chavare, AIR 1975 SC 915 citing Taylor v. Taylor, [1876] Ch. D. 426 through Jassel M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. Delhi High Court in Nibro Ltd. v. National Insurance Co. Ltd., AIR 1991 Del 25 held as under:-

"25. It is well-settled that under Section 291 of the Companies Act except where express provision is made that the powers of a company in respect of a particular matter are to be exercised by the company in general meeting in all other cases the Board of Directors are entitled to exercise all its powers. Individual directors have such powers only as are vested in them by the Memorandum and Articles. It is true that ordinarily the court will not unsuit a person on account of technicalities. However, the question of authority to institute a suit on behalf of a company is not a technical matter. It has far-reaching effects. It often affects policy and finances of the company. Thus, unless a power to institute a suit is specifically conferred on a particular director he has no authority to institute a suit on be

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half of the company. Needless to say that such a power can be conferred by the Board of Directors only by passing a resolution in that regard". The above judgement has been approvingly followed by the same court in Rajgharia Paper Mills Ltd. v. General Manager, Indian Security Press, AIR 2000 Del. 239. There is nothing in the pleadings and the arguments of the learned counsel for the applicant in the instant matter that necessary resolutions were passed by the relevant companies in both the situations. Accordingly, we dismiss the application with no orders as to cost.