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Application for rectification of the trade mark “KELUR” registered under No.1123243 in Class 5 under the provisions of the Trade Marks Act, 1999. Ans:- Allowed = M/s. Sun Pharmaceuticals Industries Limited, Having office at ACME PLAZA, Andheri – Kurla Road, Chakala, Andheri (East) MUMBAI- 400 059 …Applicant (Represented by Shri Sachin Gupta ) Vs. 1. M/s. Optica Pharmaceuticals, 394-A/6, Sawanpuri Extension, Jagadhari – 135 001 Yamuna Nagar. 2. Registrar of Trade Marks, Baudhik Sampada Bhavan, Near Anntop Hill Head Post Office, S.M.Road, Mumbai-400 037 … Respondents (Represented by None) published in http://www.ipab.tn.nic.in/208-2013.htm

Application for rectification of the trade mark “KELUR” registered under No.1123243 in Class 5 under the provisions of the Trade Marks Act, 1999.   2    The application for rectification was filed on various grounds. The applicant’s main averment was that they had been using the trade mark “KELUR” prior to that of the respondents, who … Continue reading

Section 26 of Specific Relief Act, 1963: Section 26 of the Special Relief Act 1963 (hereinafter referred to as ‘Act’) provides for rectification of instruments, where through fraud or a mutual mistake of the parties, an instrument in writing does not express the real intention, then the parties may apply for rectification. However, clause 4 thereof, provides that such a relief cannot be granted by the court, unless it is specifically claimed. -Undue influence – Section 16 of Contract Act, 1872: Section 16 of the Contract Act provides that a contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other, and uses that position to obtain an unfair advantage over the other. “The doctrine of ‘undue influence’ under the common law was evolved by the Courts in England for granting protection against transactions procured by the exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another. The Indian enactment is founded substantially on the rules of English common law. The first sub-section of S.16 lays down the principle in general terms. By sub-section (2) a presumption arises that a person shall be deemed to be in a position to dominate the will of another if the conditions set out therein are fulfilled. Sub-section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence. The reason for the rule in the third sub-section is that a person who has obtained an advantage over another by dominating his will may also remain in a position to suppress the requisite evidence in support of the plea of undue influence.”- when fraud, mis-representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence.- it is crystal clear that even though the document may be admissible, still its contents have to be proved and in the instant case, as the appellant did not examine either the attesting witnesses of the document, nor proved its contents, no fault can be found with the judgment impugned before us. Section 26 of the Act, provides for rectification of a document if the parties feel that they have committed any mistake. Also, it was only, the father of the parties who could have sought rectification of the deed. Mere rectification by parties herein does not take the case within the ambit of Section 26 of the Act. Taking note of the statutory provisions of Section 16 of the Contract Act and the parameters laid down by this Court for application of doctrine on undue influence, the High Court has reached a correct conclusion. In view of the above, we reached the following inescapable conclusions: i) Neither of the party has examined the attesting witness to document Ex.A-3. As such a witness could have explained the conduct of the parties and deposed as to who had prepared the document Ex.A-3. ii) It is evident from the language of the deed (Ex.A-3) that it has been prepared either by a lawyer or a deed writer. iii) The said document (Ex.A-3) does not bear either the signature, or the address of the scribe. The appellant has also not examined the scribe, nor has he disclosed who such person was. This would have revealed the correct position with respect to whether the respondent no.1 had signed blank papers, or whether she had come to him for the execution of the document with the attesting witnesses and appellant. Additionally, the scribe could have explained who had bought the non judicial stamp paper for the document Ex. A-3. iv) The consideration for executing document (Ex.A-3) seems to be the redemption of the property mortgaged jointly by both the parties, to one Advocate Krishnaswamy, with whom the deeds of title Ex.A1 and Ex.A2 had been kept as security. The said mortgagee has not been examined by the appellant to show as to whether the respondent No.1 22Page 23 was also a party to the mortgage and who had placed the title deed of her property with him. v) In his examination-in-chief, the appellant had made a false statement that he was not made aware of the settlement deed Ex.A-1 till 26th June of 1982, as it was given to him by his mother on that date before her death. Such a statement stands completely falsified, as the document Ex.A-1 reveals, that he had been put in possession by his father, with the permission of respondent No.1 , as the property in Door No.23 had been given to her and it was made clear that the respondent No .1 had absolute right of enjoyment to the said property. vi) Document Ex. B3 dated 29th July 1983 is subsequent to document Ex.A-6, wherein settlor Mr. Sandy had written to respondent No.1 that he had given Door No.23 to her. Thus, the settlor never intended otherwise. vii) The document Ex.A3 shows that the mistake was discovered in the last week of May 1982. So it was agreed to rectify the error, therefore the parties undertook the same as a rectification under Section 26 of the Act. In the written statement filed by the appellant, in the suit filed by the respondent No.1 , Paragraph no. 7 & 9 refers to the mistake and also, the rectification. Thus, the document Ex.A-3 cannot be read as an “agreement to exchange.” It can be read only as a 23Page 24 rectification deed, which could have been done only by the settlor and not by the contesting parties. viii) Considering the respective area of the properties bearing nos.22 and 23, the contract can definitely be held “unconscionable”. In view of the above, we are of the considered opinion that appeals are devoid of any merit. The same are accordingly dismissed. No costs. CIVIL APPEAL NOs. 2184-2185 OF 2004 These appeals are squarely covered by the aforesaid decision in the main matters i.e. C.A No. 2178-2179 of 2004. The same are, accordingly, dismissed.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 2178-2179 OF 2004 Joseph John Peter Sandy …Appellant Versus Veronica Thomas Rajkumar & Anr. …Respondents With CIVIL APPEAL NOs. 2184-2185 OF 2004 J U D G M E N T Dr. B. S. CHAUHAN, J. 1. These appeals have been preferred … Continue reading

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