Order dictated by:

Sh.S.S. Panesar, President.

1        Ravi Kumar complainant has brought the instant complaint under section 12  & 13 of  the Consumer Protection Act, 1986  on the allegations that complainant is a sole proprietor of Talin Remedies carrying on marketing and sale of medicines under the name and style of Talin Remedies at Amritsar for his livelihood. Opposite party is a company, who gets the trade marks registered for complainant and his service may be affected through Shittal Darjee, Manager/Owner/Director. The complainant is manufacturing medicines since  August 2006 and from the beginning complainant has maintained a quality of his products . Some of the popular medicines marketed and sold by the complainant in the market are as follows:-

(i)      Restin Olibe                                      Antiphyscotric

(ii)     Get (2) Contral                        Antienxity

(iii)    Restilo                                     Depression

The complainant is selling his products and medicines under different brand names as mentioned above. These brand names have become popular with the doctors as well as the patients and the doctors prescribe these medicines and the public also buy these brand names. The medical community and the patients identify these products bearing the abovesaid brand names that have been manufactured by the complainant alone so they assured of the quality of the products. The complainant is the original adopter, originator of these brands names for his products . The complainant in order to watch his interest in the business and to avoid unnecessary complications  from manufacturers of suspicious drugs sought to get these brand names registered as trade mark with the controller of trade marks in his own names . For the purpose of getting the trade mark registered the complainant hired the services of the opposite party.  The complainant supplied all the necessary information to the opposite party and supplied all the documents  besides the fee paid  all the charges including government fee for the registration of the trade mark. This information was given by the complainant to the opposite party on 7^th October 2009. The complainant from time to time has been enquiring from the opposite party about the fate of his applications regarding registration of trade mark and every time complainant was replied that all the applications have been filed in the office of Controller of  Trade marks . The opposite party received the intimation/notice from the Registrar  of Trade marks that the processing of applications submitted by the opposite party on behalf of the complainant have been stopped and these applications have been treated as cancelled with the directions not to proceed further in the matter. But the same was not conveyed to the complainant for the reasons best known to the opposite party. The complainant had paid  Rs. 78000/- in cash and a cheque bearing No. 029242 for Rs. 30000/- on account of government fee for 12 applications @ Rs.2500/- per application which was encashed in the account of the opposite party and receipt was issued by the opposite party dated 19.11.2009 . Further the opposite party deposited the aforesaid registration charges vide cheque to the Registrar which cheque has been returned unpaid for want of “insufficient funds” of opposite party.  The complainant in all gave 18 products to be registered for which 18 applications were filed out of which 7 applications were cancelled, 6 were objected to and 5 were opposed. Subsequently opportunity granted by the trade mark Registrar to the opposite party for payment of free was not availed by the opposite party thus resulting into cancellation of applications. The applications for the following products of the complainant were cancelled :

1. Talipox
2. Taliquel
3. Levitalin
4. Talipod
5. Naturolin
6. EPICARB XR
7. ZOLNITE 10

Due to cancellation of these applications, the complainant has suffered  in the matter of registration of trade mark for his above products and due to delay in registration process,  there is likelihood of  other competitors in the business of complainant selling their products similar and identical trade mark cannot be ruled out. Due to the aforesaid act of the opposite party the complainant has suffered damages to his business . the complainant has sought for the following reliefs vide instant complaint:-

1. Opposite party be directed to pay Rs. 1,08,00/- paid on account of professional services for getting trade mark registered .
2. Opposite party be also directed to pay Rs. 63000/- on account of expenses to get the needful fone.
3. Government fee paid to the opposite party i.e. Rs. 45000/- be also refunded to the complainant.
4. Fee paid to the opposite party on account of profession service i.e. Rs. 63000/- be also refunded.
5. Compensation to the tune of Rs. 5,00,000/-  may also be awarded to the complainant.

2.       Upon notice, opposite party did not put in appearance despite service, as such it was ordered to be proceeded against ex-parte.

3.       In her bid to prove the case Smt.Neena Kapoor,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to  Ex.C-26 and closed the evidence on behalf of the complainant .

4.       We have heard the ld.counsel for the complainant and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of the complainant.

5.       Ld.counsel for the complainant has vehemently contended that the complainant has been selling its products and medicines under different brand names. The complainant during the years, besides maintaining quality and purity of his products, has spent a quite amount for popularizing the brand names. The complainant in order to watch his interest in the business and to avoid unnecessary complications from manufacturers of suspicious similar brands sought to get these brand names registered as trade mark with the controller of trade mark in his own name through Asian Trade Mark Company by hiring the services of the opposite party . The complainant supplied all the necessary documents , information besides the fee paid all the charges including government fee  for the registration of the trade mark  as demanded by him.  Information was given by the complainant to opposite party on October 7, 2009 vide documents Ex.C-3 to Ex.C-8. The complainant from time to time has been enquiring from the opposite party about the fate of his applications regarding registration of his trade marks and every time complainant was given to understand that all the applications have been filed in the Indian Trade Mark Registry and those will be updated soon on the Govt. Website. Opposite party responded through e-mails Ex.C-1 to Ex.C-15 and telephone. Even  application  number of all trademarks have been allotted to the complainant. The complainant came to know while exploring on govt.website that intimation/notice has been issued to opposite party from the Registrar of Trade mark that the processing of applications submitted by the opposite party, on behalf of the complainant,  have been stopped & cancelled because of cheque  deposited by Asian Trade mark returned unpaid for want of “insufficient funds” of opposite party. Although the complainant had deposited cash amount of Rs. 78000/- and a cheque bearing No. 029242 for Rs. 30,000/- amounting to Rs. 30000/- and six applications at the rate of Rs. 2500/- amounting to Rs. 15000/- including Rs. 78000/- and receipt was issued by the opposite party dated 19.11.2009 vide invoice No. 95 Ex.C-2. Out of those applications, 7 applications have been cancelled, 6 were objected  while 5 were opposed. Subsequently, opportunity was granted by Trade Mark Registrar to the opposite party. But the opposite party neither responded to Registrar nor deposited the pending amount resulting into cancellation of application  Ex.C-26. Reminders were sent vide letters Ex.C-16 to Ex.C-19. In consequence of the cancellation of those applications, complainant has suffered in the matter of registration  of trade mark for the above products and due to delay  in registration process, there is likelihood of other competitors  in the business of complainant selling their products similar and identical trade mark, cannot be ruled out which will affect the sale of the products of the complainant. The exact loss on this account at the moment is difficult  but the complainant has to engage some other attorney through whom the registrations of aforesaid trade mark were again applied for . The complainant legitimately claims the damage on account of deficiency of service and negligence on the part of opposite party for  which opposite party has no justification whatsoever to deny the complainant the said amount  as the opposite party  is totally negligent  and unconcerned for the job of complainant even otherwise also  it is a professional misconduct of higher order. It is deficiency in service  and great negligence on the part of the opposite party. As such complainant is entitled to refund of Rs. 1,08,000/- as amount for professional services for getting the trade mark registered and amount given  in account of expenses to get the needful done Rs. 63000/-, Government fee paid to the opposite party, which was not deposited amounting to Rs. 45000/- and fee paid to opposite party on account of professional services Rs. 63000/- besides damages to the tune of Rs. 5 lacs.

6.       Since the opposite party has proceeded ex-parte despite due service therefore, case of the complainant has been impliedly admitted by the opposite party and it is contended that  the complaint filed by the complainant may be allowed accordingly.

7.       But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant has failed to prove its case. It is the case of the complainant that it was running /carrying out its business of marketing and sale of medicines under the name and style of  Talin Remedies at Amritsar for livelihood. But, however, the complainant has not furnished  annual turnover, income tax returns nor the number of employees working with it have been disclosed. It appears that the complainant firm is a big business concern. In such a situation, the complainant cannot be termed to be a consumer because the business run for earning profit, does not fall under the term consumer , within the meaning of section 2 of the Consumer Protection Act. Simply saying that the complainant has been running the business for earning livelihood, does not bring the complainant within the ambit of ‘consumer’, particularly, when, he is guilty of withholding the record of the business.

8.       Not only that Consumer Forum at Amritsar has got no jurisdiction to  entertain and try the present complaint. The opposite party is running its business at Ahmedabad Gujarat and does not have any branch office at Amritsar. No part of cause of action has arisen at Amritsar . As per section 11 of Consumer Protection Act, a complaint is maintainable at a particular District Forum wherein the head office/branch office of the opposite party  was located.  Section 11 of the  Consumer Protection Act reads as under:-

“Section 11. Jurisdiction of the District Forum: (1) Subject to the other provisions of this Act, the  District Forum shall have jurisdiction to entertain complaints wherein the value of the goods or services and the compensation, if any, claimed (does not exceed rupees twenty lakhs).

(2) A complaint shall be instituted in a District  forum within the local limits of whose jurisdiction:-

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or (carries on business or has a branch office or) personally works for gain, or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or ( carries on business or has a branch office) , or personally works for gain, provided that in such case either the permission of the  District Forum  is given, or the opposite parties who do not reside, or (carry on business or have a branch office) or personally work for gain, as the case may be, acquiesce in such institution ; or

(c)      the cause of action, wholly or in part, arises.

9.       But in the case in hand both these conditions are not met with. Further fact that cause of action should arise within the territorial jurisdiction  of a particular Forum has also not been proved by the complainant for the reasons best known to it. In such a situation  to contend that  District Forum at Amritsar has the jurisdiction to entertain and try the present complaint, is not tenable.

10.     Moreover, intricate questions of law and fact are involved in the matter and voluminous evidence is required to be led in the case in hand in order to prove the case of the  complainant and this Forum being summary in nature, cannot delve deep into the matter nor voluminous evidence can be allowed to be led in  summary proceedings . Proper Forum for the complainant would be to approach Civil Court for  getting the matter adjudicated in a trial.  Reliance in this regard is placed upon Oriental Insurance Company Ltd. Vs. Munimahesh Patel 2006(IV) CPJ page 1, wherein the Hon'ble Supreme Court has held that :-

“Proceedings before the commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.”

Their lordships have further held that :-

“The nature of the proceedings before the commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate court of Law and not by the Commission.”

11.     The nature of the dispute, in the present complaint, is squarely covered by the law laid down by their lordships of the Hon'ble Supreme Court in the judgement supra. A similar view has been taken by the Hon'ble National Consumer Disputes Redressal Commission in 1(2004) CPJ page 101 wherein it has been held by the Hon'ble National Commission in a revision petition titled as R.D. Papers Ltd. Vs. New India Assurance Co. Ltd. & Ors. in para No.7 of the judgement which reads as under:-

“After going through the complaint and the written version, it appears to us that the complaint raises complicated questions of facts which cannot be decided by us in our summary jurisdiction. It may be though the amount in this case is in few lacs and when we are receiving complaints involving crores of rupees, but then enormous evidence would be required in the present case especially in respect of allegation of forgery made by the complainant and denied by the Insurance Company.”

12.     On the basis of the aforesaid discussion, it transpires that the complainant has failed to prove his case. Even otherwise also  the matter pertain to  complicated questions of law and fact which is beyond the jurisdiction of this forum. As such the instant complaint is not maintainable before this forum and the same is ordered to be dismissed ex-parte accordingly. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated :01.09.2016

/R/