- Bookmark
- Share
- CaseIQ
Thalappakatti Naidu Ananda Vilas Biriyani Hotel v. Thalapakattu Biriyani And Fast Food
Factual and Procedural Background
The Plaintiff, Thalappakatti Naidu Anandha Vilas Biriyani Hotel (represented by partner N. Dhanapalan), instituted C.S. No. 203 of 2007 seeking permanent injunctions for trade mark infringement and passing off against the Defendant. Two interim applications (O.A. Nos. 298 & 299 of 2007) were allowed by the Single Judge on 7.11.2007. The Defendant appealed (O.S.A. Nos. 223 & 224 of 2008); during the appeals the parties agreed to an interim arrangement permitting the Defendant to change its name to “Chennai Rawther Thalappakattu Biriyani” and the appeals were disposed of on 19.11.2008 with a direction to expedite trial.
The Defendant expanded from 4 outlets (existing at the time of the Division Bench order) to 13 outlets and hosted a website using the name “Thalappakattu”. Meanwhile the Plaintiff obtained registration of the trade mark “Thalappakatti” (Application No. 1408388) by Certificate dated 23.9.2010; the Defendant's application (No. 1385141) was refused on 22.9.2010.
Following registration, the Plaintiff sought modification of the Division Bench order (M.P. Nos. 1 & 1 of 2010 in O.S.A. Nos. 223 & 224), later withdrawn with liberty to approach the Single Judge (order dated 6.1.2011). The Plaintiff then filed two fresh injunction applications in the original Suit (O.A. Nos. 48 & 49 of 2007) limited to preventing further openings using the offending mark, and a fresh Suit C.S. No. 32 of 2011 for infringement and passing off based on the new cause of action (additional outlets and registration). O.A. No. 54 of 2011 was also filed for interim injunction in C.S. No. 32 of 2011.
The Single Judge heard senior counsel for both parties, considered preliminary objections concerning maintainability and the effect of the earlier Division Bench consent order, and ultimately disposed of the injunction applications by granting a limited injunction restraining the Defendant from using the name “Thalappakattu” in restaurants/shops opened after 19.11.2008; the Defendant may continue to use the name in the four shops that existed as on 19.11.2008 in the manner agreed before the Division Bench. There was no order as to costs.
Legal Issues Presented
- Whether the Plaintiff's fresh Suit and fresh injunction applications (filed after the Plaintiff obtained registration) were maintainable after the Division Bench's consent order disposing of earlier appeals.
- Whether the Plaintiff was required to seek amendment of the pleadings in the original Suit rather than institute a new Suit for infringement after registration, or whether a fresh Suit on the subsequent cause of action was permissible.
- Whether the subsequent registration of the trade mark related back to the date of the earlier application so as to bar the second Suit under Order 2, Rule 2, C.P.C. (i.e., whether the second Suit and the first are on the same cause of action).
- Whether the Division Bench's consent order of 19.11.2008 estopped the Plaintiff from seeking relief in respect of outlets opened after that date.
- On the merits, whether the Plaintiff had made out a prima facie case, shown balance of convenience, and whether irreparable injury could be presumed to grant injunctive relief for trade mark infringement/passing off.
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff asserted prior long-standing user of the trade mark and trading style dating back to 1957 and running through many years, supported by press materials and use in commerce.
- After registration (certificate dated 23.9.2010), the Plaintiff relied on the statutory rights conferred by registration (Section 28(1) of the Trade Marks Act, 1999) and contended that the opening of additional outlets by the Defendant and the Defendant's continued use of the name constituted fresh causes of action (infringement) and a change of circumstances justifying fresh relief.
- The Plaintiff sought relief confined to shops opened after 19.11.2008, asserting that the earlier consent order should be limited to shops existing on that date and not extend to later-opened outlets.
Defendant's Arguments
- In counter-affidavit the Defendant asserted ancestral/communal use of a similar name: that the family (Rowther) had cultural reasons for the use of “Thalappakattu” and that the Defendant had applied for registration (Application No. 1385141) prior to the Plaintiff's application, alleging prior publication in the Trade Marks Journal.
- Legal objections raised by the Defendant included: (i) the fresh applications and the fresh Suit were not maintainable in law after the Division Bench order; (ii) the withdrawal of the modification petition before the Division Bench barred the Plaintiff from seeking the same remedy before the Single Judge; (iii) the second Suit was a repetition or splitting of claims and remedies and barred by Order 2, Rule 2, C.P.C.; and (iv) the registration of the Plaintiff's trade mark related back to the earlier application so that the Plaintiff should have pursued infringement in the original Suit by amendment.
- The Defendant also claimed that because one application (or more) for registration remained pending (including in another class), that alone should not preclude their use until those applications were finally disposed of.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| A. Abdul Karim Sahib v. A. Shanmugha Mudaliar, 1967 (2) MLJ 468 | That actions for passing off and infringement can be telescoped; relied upon in argument that amendment could have sufficed. | The Court distinguished the case on facts (it involved a pre-trial amendment very shortly after institution) and noted subsequent changes to procedural law (Order 6 Rule 17 proviso). The Court held that the earlier decision did not mandate amendment as the only available remedy here. |
| Sunderabai v. Devaji Shankar Deshpande, AIR 1954 SC 82 | Consent decree may operate as estoppel; consent decrees may have effects similar to a decree "in invitum". | The Court relied on this to explain that the Division Bench consent order would operate as estoppel only in respect of shops in existence as on 19.11.2008 and would not extend to shops opened thereafter. |
| P.L. Anwar Basha v. M. Natarajan, AIR 1980 Mad. 56 | Referenced by the Defendant and in related discussion about relation back and maintenance of infringement suits where registration follows institution. | Cited as part of the discussion on precedents the Defendant relied on; the Court considered but did not treat it as determinative given statutory changes and factual differences. |
| Mumtaz Ahmad v. Pakeeza Chemicals, 2003 (26) PTC 567 (All) | Authority holding that a suit for infringement may be maintainable where registration is later obtained because registration is dated back to the application (as relied upon by the Defendant). | The Court cited the case as representing the Defendant's position but rejected its approach in the present facts, explaining limits of the "relation back" fiction and its consequences if extended to causes of action. |
| Maruti Udyog Ltd. v. Ram Lal, 2005 (2) SCC 638 | A caution against extending deeming provisions too far so as to create anomalous outcomes. | The Court invoked this authority to support the proposition that legal fictions (deeming provisions) must be interpreted purposively and not extended beyond their legislative intent. |
| State of Maharashtra v. Laljit Rajshi Shah, 2000 (2) SCC 699 | When interpreting a legal fiction, the Court must ascertain the purpose of the fiction and confine consequences to those incidental or inevitable corollaries. | The Court applied this principle to refuse extending the deeming fiction in Section 23 of the Trade Marks Act to create a cause of action retrospectively. |
| Rajkumar Kurana v. State, 2009 (6) SCC 72 | A legal fiction must be given full effect only for the purposes for which it was created and cannot be extended to purposes not provided in the statute. | The Court used this authority to reinforce the limitation on extending deeming fictions beyond statutory purpose, relevant to the relation-back argument under the Trade Marks Act. |
| Meghraj Biscuits Industries Ltd. v. Commissioner of Central Excise, U.P., 2007 (3) SCC 780 | Deeming fiction under the Trade Marks Act cannot be extended to other statutes (example: Excise law); caution against over-extension of trademark deeming fictions. | The Court cited this decision to demonstrate that a deeming fiction in the Trade Marks Act should not be imported to create causes of action or consequences beyond the Act. |
| Alka Gupta v. Narender Kumar Gupta, 2010 (10) SCC 141 | Clarified object of Order 2, Rule 2 C.P.C. — to avoid double vexation of defendants and prevent splitting of claims; a second suit is barred only if based on the same cause of action. | The Court applied the test from this authority to conclude that the fresh Suit based on subsequent registration and further acts by the Defendant was not barred by Order 2, Rule 2, C.P.C. |
| Mohd. Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78 (and cited in Om Prakash Srivastava v. Union of India, 2006 (6) SCC 207) | Set out tests for determining whether causes of action in two suits are the same (e.g., whether the claim in the new suit is founded upon a cause of action distinct from the former suit). | The Court relied on this passage (and the tests therein) to analyse whether the second suit was founded upon a distinct cause of action (registration + later acts) and concluded it was distinct. |
| Om Prakash Srivastava v. Union of India, 2006 (6) SCC 207 | Approved the passage from Mohd. Khalil Khan regarding the correct test under Order 2, Rule 2. | The Court relied on the principles approved in this case to apply the Order 2, Rule 2 tests to the facts before it. |
| Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, 1867 (11) MIA 551 (PC) | Early articulation that the correct test is whether the claim in the new suit is founded on a cause of action distinct from that in the former suit. | Quoted as antecedent authority forming part of the test applied under Order 2, Rule 2 by the Court. |
| Read v. Brown, 1888 (22) QBD 128 | Definition: "cause of action" is every fact which will be necessary for the plaintiff to prove if traversed. | Used by the Court to explain the bundle-of-facts nature of a cause of action in analysing whether the two suits involved the same cause of action. |
| Brunsden v. Humphrey, 1884 (14) QBD 141 | If the evidence to support two claims is different, the causes of action are different; causes are same only if in substance identical. | Applied by the Court to conclude the present infringement claim (post-registration) involves facts distinct from the original passing off claim. |
| Chand Kour v. Partab Singh, 1887-88 (15) IA 156 | The cause of action does not relate to the defence that may be set up or to the relief prayed for but to the materials upon which the plaintiff asks the court to reach a conclusion. | Invoked to explain that the present suit (infringement post-registration) rests on different material facts from the earlier passing off suit. |
| Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia, 2004 (3) SCC 90 | In trade mark or copyright infringement cases, ordinarily an injunction must follow; delay alone will not defeat injunction; injunction may be necessary where adoption of the mark was dishonest. | The Court applied this authority to state that injunction is typically appropriate in infringement matters and to support granting a limited injunction on the facts (prior use, registration, defendant's expansion). |
| Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel, AIR 2006 SC 3304 | In trademark infringement cases, irreparable damage is relatively easily shown and may be presumed if prima facie case and balance of convenience are satisfied. | The Court relied on this to conclude that once prima facie case and balance of convenience were shown, irreparable harm could be presumed and an injunction was appropriate. |
Court's Reasoning and Analysis
The Court proceeded in logical sequence: first addressing technical objections relating to maintainability and the effect of the earlier Division Bench consent order, then considering whether the Plaintiff had made out the requisites for interim relief on the merits.
- Maintainability: The Court observed that the First Suit (C.S. No. 203 of 2007) was originally pleaded on the basis of passing off (common law remedy) because the Plaintiff was not registered at the time of institution. After the Plaintiff obtained registration on 22.9.2010, two alternatives existed: amendment of the plaint in the First Suit to plead infringement, or institution of a fresh Suit based on the subsequent cause of action (infringement). The Court found amendment risky because the trial had already commenced and procedural law (proviso to Rule 17 of Order 6, post-Amendment Act 22 of 2002) curtailed the Court's power to allow amendments after trial commencement. Given that registration crystallised statutory rights, the Court held that a fresh Suit based on the subsequent cause of action was permissible and not barred.
- Effect of the Division Bench consent order and withdrawal of modification petitions: The Court held that the consent order of 19.11.2008 operated as estoppel only with respect to the shops in existence on that date. The Plaintiff's subsequent application for modification was withdrawn with liberty to approach the Single Judge, and the Court noted that petitions for modification of a final order passed by consent would not have been maintainable in any event; review was not available because the order was by consent. The court emphasized that the consent was given in the factual context of the Defendant operating only four outlets, and a later unilateral expansion to 13 outlets could not be allowed to defeat the Plaintiff's rights.
- Order 2, Rule 2 C.P.C. and relation-back: The Defendant argued that the second Suit was barred as it arose from the same cause of action as the first. The Court applied the tests cited in precedent (e.g., Mohd. Khalil Khan, Alka Gupta) to determine whether the newer Suit was based on a distinct cause of action. The Court held the grant of registration was a new fact occurring after institution of the first Suit and that infringement as a statutory cause of action required registration; accordingly, the second Suit was not barred by Order 2, Rule 2. The Court also critically examined the contention that registration "relates back" (Section 23) to the application date and thereby renders the second Suit barred. The Court treated the deeming fiction in Section 23 as limited in purpose; it is not to be extended to create a cause of action retrospectively. Doing so would produce anomalous or unfair consequences (e.g., permitting jurisdictional choices or undermining Section 124 stay rights). The Court thus rejected the relation-back argument as a basis to bar the second Suit.
- Interpretation of legal fictions: The Court emphasized that deeming provisions must be interpreted in light of their purpose and limited to corollaries necessary to give effect to the fiction (citing State of Maharashtra v. Laljit Rajshi Shah, Rajkumar Kurana, and Meghraj Biscuits). It held that a deeming fiction cannot be elevated into a factual cause of action.
- Merits (prima facie case, balance of convenience, irreparable harm): The Court reviewed earlier findings (order dated 7.11.2007) that the Plaintiff was the prior user of the mark, that the dispute involves the same name and same goods/services, and that this finding was not disturbed by the Division Bench. With registration obtained and the Defendant's registration refusal, the Court concluded that the Plaintiff had a prima facie case. The Defendant's expansion after the consent order and continued use of the name risked dilution of the registered mark and nullification of its value. Citing Midas and Ramdev, the Court held that once prima facie case and balance of convenience exist, irreparable harm can be presumed in trade mark cases. On that basis the Court granted a limited injunction confined to shops opened after 19.11.2008.
Holding and Implications
Holding: All interim applications for injunction are allowed to the extent that the Defendant is restrained from using the name “Thalappakattu” (or any deceptively similar name) in respect of restaurants/shops opened after 19.11.2008.
Direct consequences and scope:
- The Defendant may continue to use the name in the four outlets that existed as on 19.11.2008 in the manner agreed before the Division Bench (i.e., the interim arrangement permitting use of the expression “Chennai Rawther Thalappakattu Biriyani”).
- The Defendant is prohibited from using “Thalappakattu” or deceptively similar names in shops/restaurants opened after 19.11.2008.
- There is no order as to costs.
Broader implications:
- The Court refused to extend the deeming fiction of Section 23 of the Trade Marks Act to create a retrospective cause of action; it emphasized that legal fictions must be confined to their statutory purpose and not be extended so as to produce anomalous results. The judgment therefore clarifies (in the context of this dispute) that registration does not automatically convert an earlier passing off cause of action into an infringement cause of action retrospectively for the purpose of Order 2, Rule 2 analysis.
- The decision applies established principles for granting injunctions in trade mark cases: a prior finding of prior user, registration, unsuccessful registration attempt by the Defendant, expansion of the Defendant’s business after a consent order, and same-mark/same-goods facts together justify interim relief where prima facie case and balance of convenience are shown; irreparable harm may be presumed.
- The Court did not state that it was laying down any new legal precedent beyond applying and reconciling existing authorities and statutory interpretation; its conclusions are bound to the facts and statutory interpretation set out in the opinion.
JUDGMENT
1. Thalappakatti Naidu Anandha Vilas Biriyani Hotel, Dindigul represented by its partner N. Dhanapalan came up with the Suit C.S No. 203 of 2007, seeking (i) a decree of permanent injunction restraining the Defendant therein from committing infringement of the Plaintiff's trade mark, and also (ii) a decree of permanent injunction restraining the Defendant from passing off their food products as that of the Plaintiff's. Pending Suit, the Plaintiff moved two Applications for injunction in O.A Nos. 298 & 299 of 2007, one for infringement and another for passing off. Both the Applications for injunction were allowed by me by an order dated 7.11.2007 Challenging the common order passed in both the applications, the Defendant in C.S No. 203 of 2007 filed two Appeals in O.S.A Nos. 223 and 224 of 2008. In the course of hearing of the Appeals, both parties agreed to an interim arrangement, as suggested by the Division Bench, without prejudice to the contentions of each other. As per the said interim arrangement, the Defendant in C.S No. 203 of 2007 was permitted to change their name as “Chennai Rawther Thalappakattu Biriyani”. The Appeals were accordingly disposed of on 19.11.2008 with a direction to expedite the trial of the Suit.
2. Thereafter, the Defendant in C.S No. 203 of 2007 filed a Written Statement in June 2009 and issues were framed on 3.7.2009 The Suit was posted for trial and documents on the side of the Plaintiff were marked in September 2010. However, the cross-examination of PW-1 did not proceed.
3. But in the meantime, the Defendant in C.S No. 203 of 2007, who originally had only 4 outlets in the City of Chennai, started expanding its business and opened 9 more outlets (in addition to the 4 already in existence). The Defendant also hosted a website with the name “Thalappakattu”.
4. Even before the institution of the above Suit, the Plaintiff in C.S No. 203 of 2007 had applied for registration of the trade mark “Thalappakatti” under Application No. 1408388. The Defendant in that Suit had also applied for registration under Application No. 1385141. By an order dated 22.9.2010, the Deputy Registrar of Trade Marks allowed the application of the Plaintiff and issued a Certificate of Registration on 23.9.2010 By another order of the same date, the Defendant's Application was refused.
5. Therefore, on the basis of the registration obtained by them, the Plaintiff filed Applications in M.P Nos. 1 & 1 of 2010 in O.S.A Nos. 223 and 224 of 2008, seeking a modification of the order passed in O.S.A Nos. 223 & 224 of 2008 dated 19.11.2008 But the Applications were later allowed to be withdrawn with liberty to file appropriate Application in the Suit itself, by a common order passed by the Division Bench of this Court dated 6.1.2011
6. With the liberty so granted, the Plaintiff in C.S No. 203 of 2007 filed (i) O.A Nos. 48 & 49 of 2007 in C.S No. 203 of 2007 for interim orders of injunction restraining the Defendant from opening further retail outlets/restaurants by using the offending trade mark and restraining the Defendant from continuing to use the offending trade mark, and (ii) C.S No. 32 of 2011 for infringement and passing off, based upon the subsequent cause of action viz., the opening of more outlets by the Defendant and the registration of the trade mark of the Plaintiff Along with C.S No. 32 of 2011, the Plaintiff has also moved O.A No. 54 of 2011 for an interim injunction restraining the Defendant from committing infringement of the Plaintiff's registered trade mark.
7. Thus, I have on hand, two fresh Applications for injunction in the First Suit viz., C.S No. 203 of 2007, where the reliefs are confined to further opening of outlets using the offending trade mark and committing further infringement of the registered trade mark. I also have on hand, a fresh Suit C.S No. 32 of 2011 instituted on the basis of the subsequent cause of action viz., the opening of more outlets and the registration of the trade mark of the Plaintiff
8. I have heard Mr. R. Muthukumaraswamy, learned Senior Counsel for the Applicant/Plaintiff and Mr. Arvind P. Datar, learned Senior Counsel for the Respondent/Defendant.
9. Before proceeding to consider the rival submissions, it is necessary to take note of the following facts:
(i) The case of the Plaintiff in the First Suit was that way back in the year 1957, one P. Nagaswamy Naidu, the father of N. Dhanapalan, one of the partners of the Plaintiff-firm started a hotel business in Dindigul, which became famous for the Biriyani prepared and served at the hotel; that the said P. Nagaswamy Naidu was known as Thalappakatti Naidu and hence the hotel became popularly known as Thalappakatti Naidu Biriyani Hotel; that after the death of the father P. Nagaswamy Naidu in 1978, his son adopted the name and style of Thalappakatti Naidu Anandha Vilas Biriyani Stall with the picture of his father wearing a Turban; that after running the business as a Proprietor from 1978-2002, N. Dhanapalan convered the business into a partnership; that the partnership business expanded to Coimbatore and Thiruppur; that the trade mark and trading style of the Plaintiff gained wide reputation through print and electronic media; and that when the Defendant started using the same name for the hotels run by him at Anna Nagar and Vadapalani, the Plaintiff was compelled to come up with the First Suit.
(ii) In the Applications for injunction filed in the First Suit, the Defendant filed a common Counter Affidavit contending (1) that his grandfather Hussain Rowther was the Chief of the Horse Regiment in the palace of the Rajah of Sivaganga, who used to wear a Turban which is called in Tamil Nadu as “Thalaipagai”, (2) that the forefathers of the Respondent were called Thalappakattu Rowthers in Chettinadu; (3) that as a mark of respect for his forefathers, the name Thalappakattu was adopted by the Defendant and the Defendant had applied for registration of the mark under Application No. 1385141 in Class 30; (4) that in the year 2006, many persons were found using the trade mark Thalappakattu, which forced the Defendant to issue cease and desist notices to them; (5) that while the Defendant filed an Application for registration of the trade mark in September, 2005, the Plaintiff filed an Application only subsequently; and (6) that the trade mark of the Defendant had already been published in the Trade Marks Journal and the statutory period for filing objections having already lapsed, the Application for registration is deemed to have been accepted.
(iii) In O.A Nos. 298 and 299 of 2007 in C.S No. 203 of 2007, the Plaintiff filed a set of 36 documents and the Defendant filed a set of 24 documents.
(iv) On the basis of the pleadings and the documents, I came to the conclusion in my order dated 7.11.2007 that the Plaintiff is the prior user of the trade mark “Thalappakatti Naidu”; that an article written in a newspaper way back on 20.10.1995 proved that the trade mark and trading style was adopted by P. Nagaswamy Naidu in 1957 itself, attracting many political leaders and film personalities to their shop; and that the articles published in various magazines and newspapers in 1995 and 1996 established the adoption and use of the trade mark and trading name “Thalappakatti” by the Plaintiff for nearly 50 years. Therefore, in paragraph 14 of the order dated 7.11.2007, I recorded a finding (1) that the Plaintiff is the prior user of the trade mark and the trading style; (2) that the dispute is in respect of the same name and not similar name; and (3) that the use of the trade mark and trading style is in respect of the same goods and services.
(v) A contention was raised in the first round of litigation that the Plaintiff had not established the acquisition of great reputation and goodwill and that the use of the trade mark by the Plaintiff was not continuous but only dis-juncted. But I rejected these contentions.
10. As stated earlier, my order dated 7.11.2007 became the subject matter of 2 Appeals in O.S.A Nos. 223 and 224 of 2008. But the Division Bench did not upset any of the findings recorded in the order dated 7.11.2007 On the contrary, the parties agreed to an interim arrangement, for whatever reasons that we cannot now probe into. The order of the Division Bench reads as follows:
“The present Appeals are directed against the common order dated 7.11.2007 made in O.A Nos. 298 and 299 of 2007 respectively in C.S No. 203 of 2007 where under the learned Single Judge has granted interim injunction prohibiting the present Defendant/Appellant to continue the same trade mark as claimed by the Respondent/Plaintiff
2. This Court, while entertaining the above Appeals, passed an order dated 11.9.2008 to the following effect:
“Heard the learned Counsel for the parties. Let the matter be taken up by the Third Bench on 20th October 2008. In the meantime, the Appellant will run its outlets with the Name Board that it is selling “Chennai Thalappakattu Biriyani”. This of course is without prejudice to the rights and contentions of the parties”.
3. In the course of the hearing, it was suggested by us that any decision on the relative merits of the contentions of either party is likely to prejudice the contention of other party in dispute and therefore, it would be more appropriate to make the interim arrangement without prejudice to the right of both the parties. Accordingly, it has been suggested by the learned Senior Counsel for the Appellant that as an interim measure, the Appellant shall use the expression “Chennai Rawther Thalappakattu Biriyani” in the place of the present name and all such letters will be of equal prominence.
4. The learned Senior Counsel for the Respondent stated that this order should only be considered as an interim arrangement and without prejudice to the contentions which have been raised by the Respondent/Plaintiff in the Suit.
5. Accordingly, instead of going into the merits of the contention of either of the parties, we dispose of the Appeals with an observation that the Appellant will be permitted to change the present name in the Name Boards, Wrappers as well as Pamphlet as mentioned below in English and in Tamil and such letters will be of equal prominence:
“Chennai Rawther Thalappakattu Biriyani”
6. It is made clear that this is purely an interim arrangement without prejudice to the contention of both the parties in the Suit as well as before the Trade mark Registry. The Appellant is directed to effect necessary changes in the name in the Board, Wrappers, Pamphlets etc., on or before the end of this month.
7. Keeping in view the urgency expressed and the nature of dispute involved in the case, we request the learned Single Judge to dispose of the Suit on merits, as expeditiously as possible, preferably within a period of three months”.
11. In pursuance of the aforesaid order of the Division Bench dated 19.11.2008, the previous Suit C.S No. 203 of 2007 was also taken up for trial and it is pending without much progress, for reasons best known to both parties, who blame each other. Therefore, in the normal circumstances, if there had been no change of circumstances and no subsequent developments, the parties should be directed to work out their remedies only in the said Suit, on the basis of the principle of finality to litigation, since the order of the Division Bench had attained finality as between the parties. However, the Plaintiff has come up not only with two fresh Applications for injunction in the previous Suit, but has also come up with a fresh Suit on the basis of two subsequent events viz., (i) the opening of additional outlets/restaurants by the Defendant, and (ii) the grant of registration of the Plaintiff's trade mark and the rejection of the Defendant's Application for registration. According to the Plaintiff, these events constitute (i) a fresh cause of action, and (ii) a change of circumstance.
12. In the background of the above facts, it is contended by Mr. Arvind P. Datar, learned Senior Counsel for the Defendant (i) that neither the fresh Applications in the previous Suit nor the fresh Suit, are maintainable in law after the order of the Division Bench; (ii) that after the withdrawal of the Application from modification of the order of the Division Bench, it was not open to the Plaintiff to seek the same remedy before the Single Judge, as it would result in a conflict of opinion; (iii) that the present Suit is nothing but a mere repetition of the previous Suit except with some cosmetic changes, as the Application for registration of the trade mark was pending even at the time when the First Suit was filed and hence the Suit is also barred by principles enunciated in Order 2, Rule 2, C.P.C
13. Since the scope of the dispute on merits, is lesser than the scope for dispute on the above technical objections, let me first deal with the above technical objections.
Maintainability:
14. The objections with regard to the maintainability of the fresh Applications for injunction in the old Suit as well as to the maintainability of the fresh Suit, are not really well founded. The First Suit C.S No. 203 of 2007 was based upon the cause of action that the Plaintiff had in respect of passing off. There is no dispute about the fact that the Plaintiff had not obtained registration of the trade mark in 2007, at the time of institution of the First Suit, though the Application for registration was pending at that time. But after the order of the Division Bench dated 19.11.2008, the Plaintiff had obtained registration of the trade mark. The registration is certainly a fresh cause of action. While the cause of action for the First Suit is passing off, the cause of action for the Second Suit is infringement. While an action for passing off is a common law remedy, an action for infringement is a statutory remedy. Section 27(1) of the Trade Marks Act, 1999, bars the remedy of a Suit for infringement in respect of an unregistered trade mark. However, sub-section (2) of Section 27 makes it clear that an action for passing off is not barred by virtue of Section 27(1). Section 28 of the Act, lists out the rights conferred by a registration of the trade mark. Under sub-section (1) of Section 28, the registration of a trade mark gives to the registered Proprietor, the exclusive right to the use of the trade mark and to obtain a relief in respect of an infringement. The right conferred by Section 28(1) of the Act, crystallised to the Plaintiff, only upon the registration of their trade mark on 22.9.2010
15. Upon the registration of the trade mark on 22.9.2010, the Plaintiff had two alternatives on hand viz., (i) to file an Application for amendment of the pleading in the First Suit C.S No. 203 of 2007 so as to include the factum of registration and the factum of infringement or alternatively, (ii) to file a fresh Suit on the subsequent cause of action.
16. In A. Abdul Karim Sahib v. A. Shanmugha Mudaliar, 1967 (2) MLJ 468, T. Ramaprasada Rao, J., as he then was, held that an action for passing off can easily be telescoped into an action for infringement and vice versa. Therefore, relying upon the said decision, it was contended by Mr. Arvind P. Datar, learned Senior Counsel for the Defendant, that the appropriate course of action for the Plaintiff was only to seek an amendment of the pleadings in the previous Suit.
17. But I do not agree. The decision in A. Abdul Karim Sahib arose out of an Application for amendment, dismissed by the Trial Court. On revision to the High Court, the amendment was allowed on the ground that the actions for passing off and infringement could be telescoped into each other. For holding so, the learned Judge took note of the fact that the Suit was instituted on 24.9.1962 and that within two days of the institution of the Suit, the Plaintiff secured registration of his trade mark and that the amendment sought was a pre-trial amendment.
18. But the Code of Civil Procedure underwent a sea change in 1976, 1999 and 2002 and the decision in A. Abdul Karim Sahib was prior to 1976. After Amendment Act 22 of 2002, the Court's powers to allow an Application for amendment has been curtailed by virtue of the Proviso to Rule 17 of Order 6, if the trial had already commenced. In the case on hand, the trial had already commenced, by the time the registration of the trade mark was granted on 22.9.2010 Therefore option of seeking amendment of the Plaint was a risky one.
19. Moreover, an Application for amendment would have only resulted in a rewinding of the entire sequence of events and putting the Plaintiff back to square one. Therefore, the Plaintiff has chosen the second option. So long as there is no bar for the second alternative, the Suit instituted on the fresh cause of action and the fresh applications for injunction filed in the previous Suit cannot be said to be not maintainable.
20. As a matter of fact, an Application for amendment was prone to be objected to by the Defendant on the ground that the same was based upon a new cause of action and that it was barred by the proviso to Rule 17 of Order 6. Today the Defendant appears to be taking a very charitable stand, by contending that the Plaintiff could have simply sought an amendment of the pleading in the previous Suit itself. But I do not think that this charity would have been extended if an application for amendment had actually been filed.
21. In so far as the fresh Applications for injunction filed in the previous Suit are concerned, a careful perusal of the prayers therein would show that they are confined only to further infringement of the trade mark, over and above the interim arrangement agreed to before the Division Bench. Therefore, those Applications cannot also be said to be not maintainable in law. Hence, the first objection relating to the maintainability of the fresh Suit as well as the maintainability of the fresh Applications for injunction in the old Suit, is rejected.
Withdrawal of the Applications for Modification before the Division Bench:
22. It is true that after obtaining registration of the trade mark, the Plaintiff herein filed two Miscellaneous Petitions in M.P Nos. 1 & 1 of 2010 in O.S.A Nos. 223 and 224 of 2008, praying for a modification of the order passed in those Appeals, by restraining the Respondent from using the name “Thalappakattu”. The Petitions for modification were also based upon the subsequent events viz., (i) the opening of 9 outlets in addition to the existing 4, and (ii) the grant of registration of the Plaintiff's trade mark and the rejection of the Application of the Defendant for registration of the trade mark.
23. However, on 6.1.2011, the Miscellaneous Petitions were withdrawn with liberty to move this Court in accordance with law. Therefore, the Division Bench passed an order on 6.1.2011 which reads as follows:
“Learned Counsel for the Petitioner seeks permission of this Court to withdrawn the abovesaid Miscellaneous Petitions with liberty to file an Application before the learned Single Judge.
Permission granted and these Miscellaneous Petitions are dismissed as withdrawn with such liberty.”
24. The filing of the Miscellaneous Petitions before the Division Bench and their withdrawal with liberty to approach the Original Court, cannot bar the Plaintiff either from filing the fresh Applications in the old Suit or from filing the fresh Suit. The reasons are as follows:
(i) After the disposal of the Appeals in O.S.A Nos. 223 and 224 of 2008, by order dated 19.11.2008, the Division Bench was not seized of any matter, to enable the Plaintiff to move the Division Bench. Petitions for modification of a final order passed by consent, are not maintainable at all. The only manner in which the Plaintiff could have lawfully invoked the jurisdiction of the Division Bench, was by filing Review Applications and not by filing Petitions for modification. But Review Applications were also not maintainable, in view of the fact that the order dated 19.11.2008 passed by the Division Bench, was a consent order and a review of the said order would not satisfy any of the requirements of Order 47, Rule 1, C.P.C Therefore, the Plaintiff was prudent enough to withdraw an Application filed imprudently. Hence, this cannot bar the Plaintiff from seeking remedy before this Court.
(ii) In any case, the Division Bench had granted liberty to the Plaintiff, while dismissing as withdrawn, the Applications for modification. Therefore, there was no impediment for the Plaintiff
(iii) It is a misconception to think that the order passed by consent, on 19.11.2008, by the Division Bench, was sought to be modified by the Plaintiff by filing these Applications. When the Division Bench passed orders on 19.11.2008, on the consent of both parties, the Defendant had only 4 shops. The order of the Division Bench discloses that the consent reached between the parties before the Division Bench, was in pursuance of a suggestion made by the Court itself. Therefore, the consent given by the Plaintiff could be taken to be limited only to the circumstances prevailing at that time. It is an elementary principle of the Law of Contract that the consent of a party would be valid only when the parties are ad idem. The parties have agreed upon the same thing in the same sense at that time. If one of the parties attempts to do something which infringes upon the free nature of the consent given by the other, the latter cannot be left remediless. The situation prevailing at the time when consent was reached between the parties before the Division Bench, was that the Defendant was only running 4 shops. But after the consent order, the Defendant had started 9 more shops, taking it for granted that they now have a license. In such circumstances, I do not think that the Plaintiff can be non-suited on the basis of the order of the Division Bench.
(iv) As pointed out earlier, the Plaintiff is not now going back on the consent given before the Division Bench. The reliefs now sought by the Plaintiff are confined only to those shops, over and above the 4 shops which were functioning at the time when the Division Bench passed the order. Though the fresh Suit filed by the Plaintiff is for infringement, based upon the registration of their trade mark, the reliefs sought in the Interim Applications in the old Suit are restricted to the opening of fresh outlets, other than the 4 covered by the order of the Division Bench. Therefore, the Plaintiff cannot be said to be seeking a modification of the order of the Division Bench, before a Single Judge. All that the Plaintiff is now seeking, is that the consent order of the Division Bench should be restricted only to the shops that were in existence as on 19.11.2008, the date on which the Division Bench disposed of the Original Side Appeals. It is not the case of the Defendant that even on 19.11.2008, all the 13 shops were in existence. Therefore, the second contention of the Defendant is on a misunderstanding of the scope of the present Applications and hence it is liable to be rejected.
(v) It is needless to point out that even a consent decree does not operate as res judicata in the strict sense of the term. It may, for all intents and purposes, have the same effect, as a decree passed “in invitum”. It only raises an estoppel, See Sunderabai v. Devaji Shankar Deshpande, AIR 1954 SC 82. Therefore, the order passed by the Division Bench on 19.11.2008 in O.S.A Nos. 223 and 224 of 2008, would operate as estoppel, as against the Plaintiff, in respect of the shops that were in existence as on that date. This is more so, in view of the fact that the consent order was actually purely by way of interim arrangement and hence, the same would go only so far as to cover the shops in existence at that time and would not go beyond.
Bar under Order 2, Rule 2, C.P.C
25. The third contention of the Defendant is that the fresh Suit is barred by the principles enunciated in Order 2, Rule 2, C.P.C This contention is based upon the fact that the old Suit C.S No. 203 of 2007 itself was filed by the Plaintiff, both for infringement and for passing off. This was despite the fact that the Application for registration of the trade mark was merely pending, but registration had not been obtained. Therefore, it is the contention of the learned Senior Counsel for the Defendant that the second Suit is also based upon the cause of action pleaded by the Plaintiff in the First Suit and that therefore, the Second Suit is barred.
26. It is further contended by the learned Senior Counsel for the Defendant that the registration of a trade mark relates back to the date of the Application. The Application for registration was made by the Plaintiff even before the institution of the First Suit. Therefore, according to the learned Senior Counsel, the subsequent grant of registration would relate back to the date of filing of the Application, thereby curing the defect in the original institution of the Suit as one for infringement.
27. In support of the above contention, the learned Senior Counsel for the Defendant relied upon a decision of the Allahabad High Court in Mumtaz Ahmad v. Pakeeza Chemicals, 2003 (26) PTC 567 (All). In the said case, the Allahabad High Court quoted the following passage from Kerly's Book “Law of Trade Marks and Trade Names”, 10th Edition:
“The Writ for infringement may be issued before registration of the mark, provided that registration has been applied for, since the registration is dated back to the application.”
Therefore, in the light of Section 23 read with Section 131 of the 1958 Act and following the decision of this Court in P.L Anwar Basha… v. M. Natarajan…., AIR 1980 Mad. 56, the Allahabad High Court held that the Suit in that case, was maintainable for infringement, though the registration was obtained after the institution of the Suit.
28. But the above contention loses sight of one important fact. The “Doctrine of Relation Back”, incorporated in Section 23 of the Trade Marks Act, is by way of a deeming fiction. Relatio est flictio juris, etintenta ad unum. It means that “relation is a fiction of law and intended for one thing”. What is intended for one thing cannot be applied for everything. A deeming fiction can put something back in point of time for various purposes. But a cause of action cannot be created through a deeming fiction. “Fiction” is antithesis to “action” and cause of action cannot be converted into cause of fiction.
29. Moreover, the passage extracted by the Allahabad High Court from the 10th Edition of Kerly's Law of Trade Marks and Trade Names, does not tally with paragraph 14-122 at page 395 of Kerly's Law of Trade Marks and Trade Names, 14th Edition (London 2005 and South Asian Edition 2007). It reads as follows:
“Date from which rights are conferred
The rights of the Proprietor have effect from the date of filing of the Application for registration. But no infringement proceedings may be began before the date on which the trade mark is in fact registered. In this respect, the position is the same as under the old law.”
Therefore, what is extracted by the Allahabad High Court, from Kerly's Law of Trade Marks and Trade Names, does not tally with what is contained in the 14th Edition of the book.
30. Cause of action as pointed out by various Courts, is a bundle of facts and not a mixture of facts and fiction. Fact is different from fiction. Therefore, a deeming fiction cannot be elevated to the level of a fact, so as to make it a cause of action. The cause of action for a Suit for infringement should comprise of a minimum of two facts viz., (i) the registration of the trade mark and (ii) some action of the Defendant, amounting to infringement, If a person is held entitled to file a Suit for infringement, merely on the basis of the pendency of his Application for registration and solely on an anticipation that the trade mark would be registered, one of the above two facts would be in existence on the date of institution of the Suit. But the other fact which forms part and parcel of the same cause of action viz., the registration, would arise subsequently and the Suit would become maintainable, only if the deeming fiction available in respect of registration, is also made available to a cause of action. Moreover, the Application of the principle of deeming fiction available in Section 23 of the Act, to causes of action, would create lot of confusion. By way of example, let me take a case where the Plaintiff could not get registration till the disposal of his Suit for infringement. The Court would naturally dismiss the prayer for infringement, if registration is not obtained till the date of disposal of the Suit. But if registration is obtained during the pendency of the Appeal, the Plaintiff would then be entitled to seek a decree in the Appellate Court, if the contention of the Defendant is accepted. This will lead to an anomalous situation. In Maruti Udyog Ltd. v. Ram Lal, 2005 (2) SCC 638, the Supreme Court cautioned that a deeming provision cannot be pushed too far so as to result in an anomalous or absurd position.
31. As a matter of fact, the expression “registered proprietor” is defined under Section 2(1)(v) of the Trade Marks Act, 1999 to mean the person for the time being entered in the Register as Proprietor of the trade mark. The rights conferred by Section 28(1) for proceeding against someone for infringement, are only on the “Registered Proprietor”. If on the date of institution of the Suit, the Plaintiff was not the registered proprietor, within the meaning of Section 2(1)(v) of the Act, he would have no right to institute a Suit for infringement under Section 28(1) at all.
32. The issue has to be looked at, from another angle also. Under Section 124(1) of the Act, the Defendant in an action for infringement is entitled to seek a stay of the Suit, if he satisfies the conditions laid down in clause (a) or (b). This opportunity will arise for the Defendant, only after the Plaintiff obtains registration. If the deeming fiction available in Section 23, is also extended to the cause of action, the occasion for the Defendant to invoke Section 124, may arise even after the trial of the Suit. Similarly, Section 134(2) of the Trade Marks Act, 1999, entitles the registered proprietor of a trade mark to institute the Suit for infringement in the Court within whose jurisdiction the person instituting the Suit resides or carries on business. This facility is not available to a person filing a Suit merely for passing off. If the deeming fiction contained in Section 23 is extended, even to causes of action, an unregistered proprietor may institute a Suit for infringement and passing off in a wrong Forum and thereafter, try to take advantage of Section 134(2) on the basis of subsequent registration. Therefore, the interpretation to Section 23 should be in consonance with the other provisions of the Act and the interpretation should be confined only to the purpose for which the fiction was created. In State of Maharashtra v. Laljit Rajshi Shah, 2000 (2) SCC 699, the Supreme Court held that in interpreting a provision creating a legal fiction, the Court has to ascertain for what purpose the fiction is created and after ascertaining this, the Court has to assume all those facts and consequences which are incidental or inevitable corrollaries, to give effect to the fiction. But while doing so, the fiction is not to be extended beyond the purpose for which it is created or beyond the language of the Section by which it is created.
33. Again in Rajkumar Kurana v. State, 2009 (6) SCC 72, the Supreme Court held that a legal fiction has to be given full effect, but it cannot be extended to the purpose not specifically provided in the Statute. This is not a new concept developed in the recent past. It was stated long time ago by Lord Mansfield as follows: “Fictions of Law hold only in respect of the ends and purposes for which they were invented. When they are urged to an intent and purpose not within the reason and policy of the fiction, the other party may show the truth” Morris v. Pugh, 3 Burr. 1241 at p. 1243.
34. In Meghraj Biscuits Industries Ltd. v. Commissioner Of Central Excise, U.P., 2007 (3) SCC 780, the Appellant before the Supreme Court was selling biscuits under the brand name “Meghraj”, which happened to the registered trade mark of another Company. The Department of Central Excise contended that the Appellant was not eligible to the benefit of SSI Notification. It was contended before the Department that the Registrar of Trade marks granted registration on 30.6.2000, with retrospective effect from 30.9.1991, the date of the Application and that therefore, differential duty cannot be claimed. This contention was raised on the strength of retrospective effect given to the Certificate of Registration under the provisions of the Trade Marks Act, 1999. But the Supreme Court rejected the said contention, holding that the deeming fiction created under the Trade Mark Law was based upon the Principle of Deemed Equivalence to public user of such mark and that the deeming fiction cannot be extended to the Excise Law. Therefore, it is clear that a deeming fiction cannot be extended to a purpose not specifically provided for under the Act itself.
35. Coming to Order 2, Rule 2, C.P.C, it is needless to point out that to invoke the same, both Suits must have been on the same cause of action. As pointed out by the Supreme Court in Alka Gupta v. Narender Kumar Gupta., 2010 (3) MWN (Civil) 852 (SC) : 2010 (10) SCC 141, “the object of Order 2, Rule 2, is two fold viz., (i) to ensure that no Defendant is sued and vexed twice in regard to the same cause of action, and (ii) to prevent a Plaintiff from splitting of claims and remedies based on the same cause of action”. The Supreme Court pointed out that Order 2, Rule 2, does not bar a second Suit based on a different and distinct cause of action. It was also pointed out in the same decision that the Court should see if the reliefs claimed in both the Suits arose from the same cause of action. Applying the above principles, it could be seen clearly that the third contention of the Defendant on the basis of Order 2, Rule 2, C.P.C, is not well founded.
36. The following passage from Mohd. Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78, was quoted with approval by the Supreme Court in Om Prakash Srivastava v. Union of India, 2006 (6) SCC 207, as follows:
“61. (1) The correct test in cases falling under Order 2, Rule 2, is ‘whether the claim in the new Suit is in fact founded upon a cause of action distinct from that which was the foundation for the former Suit’: Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, 1867 (11) MIA 551 (PC).
(2) The cause of action means every fact which will be necessary for the Plaintiff to prove if traversed in order to support his right to the judgment: Read v. Brown, 1888 (22) QBD 128.
(3) If the evidence to support the two claims is different, then the causes of action are also different: Brunsden v. Humphrey, 1884 (14) QBD 141.
(4) The causes of action in the two Suits may be considered to be the same if in substance they are identical: Brunsden v. Humphrey, 1884 (14) QBD 141.
(5) The cause of action has no relation whatever to the defence that may be set up by the Defendant nor does it depend upon the character of the relief prayed for by the Plaintiff It refers to the media upon which the Plaintiff asks the Court to arrive at a conclusion in his favour: Chand Kour v. Partab Singh, 1887-88 (15) IA 156. This observation was made by Lord Watson in a case under Section 43 of the Act of 1882 (corresponding to Order 2, Rule 2), where Plaintiff made various claims in the same Suit.” (IA PP. 139-140).”
If the above tests are applied, it will be clear (i) that the grant of registration is a fact, which actually happened after the institution of the First Suit, (ii) that such registration alone gave rise to a cause of action for infringement, and (iii) that therefore, the subsequent Suit is not barred by the principles underlying Order 2, Rule 2, C.P.C
Merits of the Case:
37. Once the preliminary technical objections raised by the Defendant are rejected, the question to be considered then is as to whether the Plaintiff has made out a prima facie case and the existence of balance of convenience in his favour.
38. As pointed out earlier, it was held by me even in O.A Nos. 298 and 299 of 2007 in C.S No. 203 of 2007 (i) that the Plaintiff is the prior user of the trade mark and the trading style, (ii) that the dispute is in respect of the same name and not similar name, and (iii) that the use of the same trade name and trading style are also in respect of the very same goods and services. Those findings were recorded even in the action for passing of. Those findings were not set aside by the Division Bench, but the parties entered into a compromise.
39. Today the Plaintiff has also obtained registration of the trade mark and the Application of the Defendant for registration of their trade mark stands dismissed by an order dated 22.9.2010 Though it is contended by the Defendant that they have filed two Appeals and a Rectification Application, there is no stay of the order. In an additional Counter Affidavit filed by them, the Defendant has raised suspicion about the manner in which the Certificate of Registration was issued to the Plaintiff but there can be no presumption in law that a statutory authority could not have performed his duties properly.
40. The Defendant has also contended that they had filed one more Application for registration under Class 42. But the same cannot make the Defendant entitled to commit infringement till their Application for registration is disposed of.
41. Once it is found (i) that the Plaintiff is the registered proprietor of the trade mark, (ii) that the Plaintiff was the prior user of the trade mark, far ahead in point of time than the use by the Defendant, (iii) that the Defendant's attempt to get the same mark registered failed before the Registrar, (iv) that at the time when an interim arrangement was reached by consent before the Division Bench, the Defendant had only 4 outlets, but started 9 more outlets thereafter, and (v) that the case is one of same marks and not similar marks, applied on the very same type of goods and services, an injunction should automatically follow. This is the mandate of the Apex Court in Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia, 2004 (2) CTC 77 (SC) : 2004 (3) SCC 90, in paragraph-5, held as follows:
“5. The law on the subject is well settled. In cases of infringement either of trade mark or of copyright, normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest.”
42. In Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel, AIR 2006 SC 3304. In Ramdev, the Apex Court quoted Kerly's Law of Trade Marks and Trade Names (13th Edition), where it was pointed out that in Trade Mark infringement cases, irreparable damage, in this sense, is relatively easily shown, since infringement may easily destroy the value of a mark or at least nullify expensive advertising in a way that is hard to quantify for the purposes of an inquiry into damages.
43. By showing the existence of factors indicated in the preceding paragraphs, the Plaintiff has established a prima facie case. The consent given by the Plaintiff before the Division Bench, for buying peace, purely by way of a temporary arrangement, appears to have been understood as a sign of weakness and misused by the Defendant. The opening of more outlets and the use of the name by the Defendant, is certainly an onslaught on the registered trade mark and would dilute and weaken the registered mark. Therefore, the balance of convenience is also in favour of the Plaintiff
44. In para 124 of its decision in Ramdev (cited supra), the Supreme Court pointed out that if the first two prerequisites (prima facie case and balance of convenience) are fulfilled, in trade mark actions, irreparable loss can be presumed to have taken place. Therefore, the Plaintiff is entitled to an order of injunction.
45. In view of the above, all the Applications for the injunction are allowed, granting a limited order of injunction, in favour of the Plaintiff, restraining the Respondent from using the name “Thalappakattu” in any of the restaurants/shops, opened after 19.11.2008, the date on which a consent order was passed before the Division Bench in O.S.A Nos. 223 and 224 of 2008. In other words, the Defendant is entitled to use the name, in respect of the 4 shops that were in existence, as on the date 19.11.2008, in the manner as agreed to before the Division Bench. But the benefit of the consent given by the Plaintiff before the Division Bench, would not be available to the Defendant, in respect of the shops/restaurants opened after 19.11.2008 In other words, the Defendant is prohibited from using the name “Thalappakattu” or any other name deceptively similar to the registered trade mark of the Plaintiff, in the shops/restaurants opened after 19.11.2008 There will be no order as to costs.
Alert