1. C.M.A. No.496 of 2005 MUSHIR ALAM, J.---In this suit for Declaration and Permanent Injunction plaintiff has filed a CMA No.496 of 2005 under Order XXXIX, rules 1 and 2, C.P.C. Seeking restraining order against the defendants from using plaintiffs Trade and A Service Marks "Days Inn" and 'Sun Burst' Logo. It is inter alia contended that the plaintiff are the owners of the said mark and carrying on similar business worldwide under the same mark and Logo. It is also case of the plaintiff that they are part of Cendant Hotel group and its parent company Cendant Corporation, New Jersey USA. It is further detailed in the plaint, the manner in which the plaintiff is carrying on and regulating its business operation worldwide. Cendant through inter corporate arrangement is authorized to "negotiate and grant franchise and or licences for the use of the plaintiffs trademark, service mark and the company's name 'Days Inn' as a trade mark and service mark and/or trademark, service mark 'Sun Burst' logo".
2. It is the case of the plaintiff that, defendant approached Cendant for the master Franchise agreement in Karachi Pakistan. It however, appears that, the claim of the plaintiff was also intercepted by one Abdul Hafeez Shaikh, against whom the plaintiff has filed another Suit No.155 of 2005. There appears to be some dispute between the defendants in both the suits both the defendant's claim that the advance franchise amount in the sum of US $ 45,000 was paid by them.
3. As the defendant in the instant Suit Messrs Hotel Galaxy (Pvt.) Ltd. Claimed that the advance of the Franchise was paid on their behalf whereas said Abdul Hafeez Sheikh claimed the amount in his own rights. It is the case of the plaintiff that since the deal could not be materialized on account of ensuing dispute between the two claimants, franchise agreement was not executed. And the defendant, in the instant suit without any permission or authorization is using the plaintiffs service mark, is exploiting plaintiffs goodwill for their own benefit and thus causing infringement and or passing off. Mr. Agha Faquir Muhammad, learned counsel appearing for the defendant contends that, the defendant Galaxy Hotel (Pvt.) Ltd. Had no dealing with the plaintiff and if at all, it was Cendant Corporation with whom they had entered into negotiation and under their authority was using the mark. It is also stated that amount was paid to the Cendant Corporation and not to the plaintiff. It is further contended that since advance franchise amount was paid to the Cendant Corporation and defendant are prepared to pay the balance amount they are entitled for use of the subject mark.
4. Mr. Agha Faquir Muhammad learned counsel placing reliance on Muhammad Siddiq Muhammad Umer v..Australaisa Bank Ltd. PLD 1966 SC 684 followed in Taurus Securities Limited v. Arif Sagiol and others 2002 CLD 1665, contends that, suit has not been properly instituted and is liable to be dismissed. He contends that the plaintiff has not placed on record any Article and memorandum of Association, to show showing as to who executed Power of Attorney on behalf of the plaintiff.
5. Responding to the objections as to authority of the attorney of the plaintiff, with reference to cases referred by the plaintiffs counsel, it was contended that, power of attorney is already on record, the Article and Memorandum Association can always be placed on record. He placing reliance on the case of Muhammad Hanif v. Kissan Dost (Pvt.) Ltd. 2003 CLD 224 contends that suit has been properly instituted by the duly constituted attorney of the plaintiff. The case of Muhammad Siddiq Muhammad Umer v. Australaisa Bank Ltd. PLD 1966 SC 684 case was decided on merits. In my opinion the plaintiff at this stage cannot be non-suited merely for not filing Article and Memorandum of Association. Even the defendant in its counter Affidavit had not raised such objection, therefore, there was no occasion for the plaintiff to meet such challenge at the time of argument on interlocutory application. In case the plaintiff fails to produce the Article and Memorandum at trial and fail to establish that the attorney has been appropriately authorized and appointed under the valid authorization and documents then perhaps suit may call for dismissal and no before. Therefore, the opposition on such context cannot be sustained. On merits, Mr. Moin Qamar, learned counsel for the plaintiff has drawn my attention to para.25 of the counter affidavit filed by the defendant No.1, which reads follows:-- "25. That the contents of the para.21.4 is admitted, I say that plaintiff received the fee of US $ 45,000 and did not provide any service and avoided to sign any agreement. The defendant No.1 is rightly entitled for issuance of master licence agreement or the return of the amount of US $ 45,000 with mark-up thereon."
6. He therefore, contends that, without prejudice to their right and interest, plaintiff is prepared to deposit the amount of US $ 45,000 with the Nazir of this Court. He contends that plaintiff believe in fair dealing, they do not wish to entangle in any litigation or dispute between two rival claimants of the amount. Mr. Moin further submits that since two rival parties claim the amount of US $ 45,000, refund of the amount to any party may be further cause of litigation. He therefore, contends that the plaintiff is prepared to deposit the amount in Court. The amount may be claimed by any party who is successful in establishing its right before this Court, and that the plaintiff do not wish to be embroiled in the controversy between the two defendants in two suits. As regard the contention of the learned counsel for the defendant that the plaintiff has no locus standi as the contract was negotiated if at all between the defendant and Cendant Corporation. Such plea is without force, the plaintiff in paragraph 3 of the plaint has set down the manner, in which it carries out its operation through inter-corporate arrangement, which practice is but very common in commercial operations. In counter affidavit, the plaintiff has taken no exception to such corporate dispensation of varied commercial operation. More particularly, in view of the stance adopted by the defendant in paragraph 25 of the counter affidavit, as reproduced above, that "The defendant No.1 is rightly entitled for issuance of master licence agreement or the return of the amount of US $ 45,000 with mark-up thereon.". Since the defendant itself claimed that in event franchise is not granted they are entitle to the refund of the amount. As discussed above, the controversy as to which of the defendant in two suit paid the advance of the franchise amount, is yet to be resolved.
7. Looking at both the suits, it appears that suits together are more in the nature of inter-pleader suit therefore, it would not be safe to direct the refund of the amount to the defendant herein at this interlocutry stage. Admittedly plaintiffs are the owner and proprietor of the subject trade and service marks. Admittedly there is no concluded contract between the parties. Under facts and circumstances, application is allowed, however, subject to deposit by the plaintiff a sum US $ 45,000 (Forty five thousand) with the Nazir of this Court within 15 days from hereof. On deposit of the amount, Nazir is directed to invest the same in some profit- bearing scheme, till the controversy and claim of both the defendants as to entitlement to such amount in two suits stand resolved. When the above order was dictated, learned counsel for the defendant No.1, stated that since the defendant have invested substantial amount, defendant would avail the remedy of appeal. In this view of the matter, operation of this order will remain suspended for 30 days from today to enable the defendant to seek remedy by way of appeal, if so permissible under the law.