Order
1. Leave granted. In an appeal by the defendants challenging the judgment and decree dated 16-9-2004 passed by the learned trial court decreeing the suit for specific performance, permanent injunction and damages, the High Court of Delhi, by the impugned order, has held 2011 SCC OnLine Del 2567 the suits, filed by the plaintiffs, to be not maintainable.
2. The suit was filed specifically for the following reliefs:
“(i) A decree of permanent injunction be issued to restrain the defendants, jointly and severally, their Directors, partners, distributors, representatives, servants and agents from using the word ‘baker’ or any other word similar thereto as a corporate name or trading style.
(ii) A decree of permanent injunction be issued to restrain the defendants, jointly and severally, their Directors, partners, distributors, representatives, servants and agents from passing-off their business, services and goods as and for that of the plaintiffs by use of the word ‘baker’ or any other word deceptively similar thereto as a trade mark or as a trading style.
(iii) A decree for the specific performance directing the defendants, jointly and severally, to perform their contractual obligation, under agreement dated 21-12-1984 and forthwith take necessary steps to change, or cause to be changed, the corporate name of the second defendant, by deleting the word baker therefrom.
(iv) A decree of direction to the defendants, jointly and severally, to take appropriate steps before the Registrar of Companies and before all other appropriate authorities to effect the change of the corporate name of the second defendant so as to delete the name baker therefrom.
(v) A decree in the sum of Rs 5,05,000 payable by the defendants, jointly and severally, to the plaintiffs, jointly and severally, by way of damages.
(vi) A decree of delivery up of all boards, barrels, letterheads, publicity materials and all and every other object or material, printed and/or other material bearing the word baker or any other word deceptively similar thereto.
(vii) Costs be awarded in favour of the plaintiffs.
(viii) Such other and/or further reliefs be granted as the Hon'ble Court may deem fit and proper in the circumstances of the case.”
3. The High Court after holding the suit to be not maintainable, however, has remanded the same to the learned trial court so as to give a fresh opportunity to the plaintiffs to cure the “technical defect” of not placing before the court a duly valid powers of attorney authorising the attorney to sign the plaint and institute the suit in question.
4. A reading of the order of the High Court would go to show that on perusal of the learned trial court's record, a conclusion was reached that the original powers of attorney were not produced or filed by the plaintiffs. Though there is some amount of doubt on the aforesaid score in view of the categorical finding in this regard by the learned trial court, even if we are to proceed on the basis of the High Court's order, what we find is that the photocopies of the powers of attorney were placed on record and marked as Exts. PW-2/3 and PW-2/4. The High Court, on examination of the aforesaid powers of attorney, concluded that insofar as Ext. PW-2/3 is concerned,
“the same does not appear to be carrying a proper seal of the notary public although it does carry certification and authentication from the notary public”. (Baker Hughes Ltd. case 2011 SCC OnLine Del 2567, SCC OnLine Del para 32)
Insofar as the powers of attorney marked Ext. PW-2/4 is concerned, the High Court concluded that: (Baker Hughes Ltd. case 2011 SCC OnLine Del 2567, SCC OnLine Del para 32)
“32. … the same does carry the seal of the notary public and a notarial certificate certifying the execution and authentication of the said attorney by the notary public.”
5. Notwithstanding the above findings, the High Court concluded that insofar as the powers of attorney i.e Ext. PW-2/3 is concerned, as the same does not carry the seal of the notary, the said document cannot be held to be authorising the attorney to file the suits in question. So far as Ext. PW-2/4 is concerned, the finding of the High Court is that the resolution of the Board authorising the execution of the powers of attorney has not been filed and, therefore, the same, similarly, ought not to be held to be authorising the filing of the suit.
6. Shri T.R Andhyarujina, learned Senior Counsel appearing for the appellants, in the course of his arguments, has placed before this Court the photocopy of the notarisations insofar as Ext. PW-2/3 and Ext. PW-2/4 is concerned along with the copies of the powers of attorney. A perusal of the said documents would clearly go to show that the execution of the powers of attorney, Ext. PW-2/3, has been duly notarised and the notarisation does carry the seal of the notary public. Similar is the position with regard to Ext. PW-2/4.
7. Having considered the notarisations which are duly sealed and certified, we are of the view that the High Court was not justified in coming to the conclusion that the said documents do not authorise the filing of the suits in question so as to render the said suits not maintainable in law. In fact, the High Court itself in para 32 of its order has recorded that so far as the powers of attorney Ext. PW-2/3 is concerned, the same does carry due certification and authentication from the notary public. Similarly, the High Court itself has held that so far as the powers of attorney Ext. PW-2/4 is concerned, the same does carry the seal of the notary public along with the notarial certificate. On the basis of the findings recorded by the High Court itself, the eventual conclusions reached does not appear to be tenable.
8. Shri P.P Malhotra, learned Senior Counsel appearing for the respondents, has urged that the High Court has framed Question 3 with regard to the issue of dual capacity of a power-of-attorney holder, who was also a counsel, to file the suit. The finding on the said question of the High Court is against the present respondents. Shri Malhotra submits that the said finding is patently unacceptable.
9. In the absence of any challenge to the aforesaid finding of the High Court, we are of the view that the aforesaid issue should not detain us any further. If the respondents were, in any way, aggrieved by any of the findings recorded in the High Court's order, the respondents ought to have challenged the same by filing a separate petition for special leave to appeal against the said findings. The same not having been done, we are not inclined to go into the above question as raised.
10. In the result, we allow the appeals; set aside the orders of the High Court; and remit the matter to the High Court for consideration of the appeal(s) on merits. Having regard to the long period of time that has elapsed, we request the High Court to expedite the hearing of the appeal(s) so that the same can be brought to an early conclusion which reasonably ought to be within a period of six months from the date of receipt of a copy of this order.
11. The appeals are allowed in the above terms with no order as to costs.