3. Through this appeal the appellant has impugned order dated 8-3-2005 passed on an application under Order =X, rules 1 and 2, C.P.C. (C.M.A. No.496 of 2005) by the learned Single Judge of this Court, whereby the said application was allowed and the appellant was restrained from using Trade and Service Mark "DAYS - INN" with "SUN-BURST LOGO"' till final adjudication of the suit. Briefly stated the facts giving rise to the present appeal are that the respondent filed a suit for declaration and permanent injunction against the Appellant with an application under Order =IX, rules 1 and 2, C.P.C. (C.M.A. No.496 of 2005) seeking restraint order against the appellant from using its trade and service mark i.e. DAYS - INN and SUN BURST LOCO (hereinafter referred to as the said Trade & Service Mark). It was claimed in the plaint that the respondents are the registered owners of the said Trade & Service Mark and are carrying a wide and reputable business from United States of America and other places of establishing and operating Hotels, Motels and Resorts under the said Trade and Service Mark. It was the case of the respondent that it is a part of Cendent Hotels Group and its parent Company Cendant Corporation New Jersey USA who directly or through its licensees, affiliates subsidiaries and franchises, operates and supervises, Hotels, Motels and Resorts operation with over 6400 Hotels out of which around 1900 properties world-wide are operated under the said Trade and Service Mark. It was asserted that though the Respondent is the absolute owner of the said Trade and Service Mark but Cend ant through an inter-corporate arrangement is authorized to negotiate and grant franchise and/or licenses for the use of the respondent's said trade and service mark. It was further asserted that the appellant approached Cendant Corporation for the master Franchises Agreement in Karachi ' Pakistan and after a chain of correspondence the respondent was offered master franchise for a consideration of US dollars 2,25,000 with a condition that a sum of US dollars 10,000 should be remitted in advance to get a copy of Franchise Agreement. It was further stated in the plaint that one Abdul Hafeez Shaikh of ACF Trading International Karachi Pakistan had also approached Cendant Corporation for obtaining a Master Franchise License Agreement for Pakistan and some other countries for the use of plaintiffs said trade and service mark and was under an obligation to pay a sum of US dollars-1,00,000 on account of application/development fee in addition to other amounts but Mr. Shaikh made payment of US dollars 39,999 to Cendant and failed to pay the balance therefore, no master franchise license Agreement was granted. It was further the case of the respondent that on 27-1-2004 a notice was received by Cendant Corporation from the appellants claiming that they have paid a sum of US dollars 45,000 to them, through the aforesaid Hafeez Shaikh and now they intend to deal directly.
1. However, neither the respondent nor Messrs Cendant Corporation (authorized to grant Franchise/License for the use of said Service and Trade Mark) ever granted any permission or license either to said Mr. Shaikh or to appellant despite the Appellant was found using the said service and trade mark which led to the initiation of present proceedings. The learned Single Judge after hearing the parties taking into consideration admission in counter-affidavit came to the conclusion that since there was no concluded contract between the parties allowing the appellant to use the said service/trademark granted the application as prayed, however, subject to deposit of US $ 45,000.00 with the Nazir of this. Court.
2. Mr. Agha Faqir Muhammad learned counsel for the appellant has contended that the suit was incompetently filed as Power of Attorney executed in favour of Mr. Naveed Afzal Qari to sign the plaint and file the suit is defective and not accompanied by any authenticated documents, even the bye-laws now produced, do not authorize the President to sign the Power of Attorney consequently, the delegation of power by the President upon the Vice-President who executed the Power of Attorney on behalf of the respondent is of no consequence in support of his contention learned counsel has placed reliance on the case of Muhammad Siddique Umer v Australasia Bank Limited PLD 1966 SC 684.
3. It was further contended that the bye-laws now produced by the respondents are of Messrs Days- inn Acquisition Corporation and not of Messrs Days-inn Worldwide Corporation i.e. The respondent/plaintiff as such cannot be advantageously referred to support the delegation of powers by the President upon the Executants of Power of Attorney.
4. It was lastly contended by Mr. Agha Faqeer Muhammad that the appellant had no dealing whatsoever with the respondent as such they had no right to file the present suit against them and if at all, the suit could have been filed by Messrs Cendant Corporation with whom the appellant had entered into negotiation and had paid a substantial amount for the grant of Master Franchise License Agreement.
5. In response, Mr. Moin Qamar learned counsel for the respondents has invited our attention to a notorial certificate dated 8-7-2004 reflecting that the power of attorney, in question, was signed by Joel R. Buckberg, Vice-President of the respondents and further a declaration from the President of the respondents confirming that the Power of Attorney executed by Mr. Bauckberg in favour of Mr. Naveed Afzal Qari, the signatory of the plaint was under his authority learned counsel has further invited our attention to section 6 of Article 4 of Bye-laws empowering the President of the Corporation to execute all other instruments of the corporation requiring a seal Mr. Moin further referred to Article 95, of Qanun-e-Shahadat Order, 1984 and pleaded that presumption of authenticity is attached to a Power of Attorney executed before the Consulate General of Pakistan and in the present case the Power of Attorney bears a certificate from Consulate General of Pakistan New York and therefore, authenticity of the Power of Attorney cannot be challenged. Learned counsel, in support of this proposition, has placed reliance on the cases of ANZ Grindlays Bank Limited v. Saadi Cement Company Limited and others PLD 2001 Karachi 143 and Aki Habara Electric Corporation (Private)
6. Limited v. Hyder Magnetic Industries (Private) Limited PLD 2003 Karachi 420 learned counsel further argued that the question as to whether the person signing the pleadings had the authority or not required evidence and a plaintiff could not be non-suited on this count at a preliminary stage specially when no such objection was taken in the counter-affidavit. Learned counsel in this respect has placed reliance on the case of N. V. Nutricia v. Messrs Nutricia Foods International (Private) Limited 2000 CLC 866.
7. To meet the next objection Mr. Moin referred to a duly notarized certificate issued by the Secretary of the Company reflecting that Days-Inn Worldwide Corporation, the present plaintiff, was formally known as days-Inn Acquisition Corporation. Such certificate is duly supported by a certificate of amendment. It was further argued that the incompetency of the suit now pleaded is after thought in fact, the respondents in paragraphs Nos. 1 to 18 of the affidavit filed in support of application under Order XXXIX, rules 1 and 2, C.P.C. Had given the entire details as to its status its nexus with the Cendant, execution of Power of Attorney and its claim of ownership in said service and trade mark and such claim of the respondents is admitted by the appellant in para.3 of the counter-affidavit by offering no comments. In the end Mr. Moin, while supporting the impugned order invited our attention to para.25 of the counter-affidavit filed by the appellant and contended that since the appellants themselves have claimed that they are entitled to Master Franchise Agreement of the refund of US dollar 45,000, therefore, the appellants have no reason to impugn the order of learned Single Judge which allowed the injunction application upon deposit of US dollars 45,000.
8. We have heard the learned counsel appearing for the respective parties at length and have considered the case-law, relied upon. Taking up the first controversy whereby the appellant has attacked the filing of the suit by challenging the authority of the Executants of the Power of Attorney etc., we find that no such objection was raised by the appellants in their counter-affidavit filed before the trial Court, consequently the respondent had no opportunity to meet such objection the respondents now have filed such documents along with a statement and a perusal of Power of Attorney reflects that it was duly notarized by the Consulate General of Pakistan, New York on October 4, 2004 three months before filing of this suit. The A respondent has further placed on record a notorial certificate to support the competency of Executants of Power of Attorney. Bye- laws of the respondent further reflect the competency of the President to execute instruments of the Corporation requiring a seal. After considering the documents placed on record, we had asked Mr. Agha to satisfy us as to whether such objection can be raised in appeal or during the course of arguments, specially when the competency of person signing the plaint was conceded in the counter-affidavit. Mr. Agha in response submitted that since it was a question of law, therefore, it could be raised at any stage. We are afraid that it is not so far the reason that the question as to whether the person who has signed the plaint was competent or not is a question of B fact and not purely a question of law. Similar view was taken by this. Court in the case of United Bank Limited v.
9. Shahyar Textile Mills Limited 1996 CLC 106 as well as in the case of ANZ Grindlyas Bank Limited (supra). It is equally important to observe that Article 95, of Qanun-e-Shahadat Order, 1984, relates to Power of Attorney and attaches a presumption to every document purporting to be a Power of Attorney if executed before, and authenticated by a Notary Public or any Court. Judge, Magistrate, Pakistan Consul or Vice Consul, or representative of Federal Government to have been sworn, executed and authenticated, unless shown otherwise. Whereas in the instant case the Power of Attorney has been duly notarized by the Consulate General of Pakistan New York and is further supported with a notorial certificate reflecting the satisfaction of the Notary Public as to the competency and authority of the Executants. The importance of such Notorial C Certificate was considered by this Court in the case of ANZ Grindlays Bank Limited (supra) and followed in the case of Aki Habara Electric Corporation (P.T.E.) Limited (supra) to the following effect:-- "The certificate referred above shows that Notary Public before the attestation and authentication of the Power of Attorney has satisfied himself that the persons who are executing he power of attorney are authorized officers of the company. There is also presumption of regularity of official acts particularly regarding execution and authentication of the Power of Attorney, which takes the same as valid and effective under the provisions of Article 95, of the Qanun-e-Shahadat Order Secondly, whether the person signing the plaint has the authority on behalf of the plaintiff is a question of fact, cannot be allowed to be raised unless pleaded and the other side has opportunity to meet such plea. Therefore, the submission is untenable."
10. Insofar as question of placing reliance by Mr. Agha on the case of Sadiq Muhammad Umer (supra) wherein the Hon'able Supreme Court had observed that in order to see whether a Director who executed the Power of Attorney in favour of the persons signing plaint was competent to delegate such power, a reference to Articles of Association was necessary with all due respect has no application at this stage for the reason that in the said case parties had already adduced evidence and an issue to that effect was framed and was answered by the trial Court whereas in the instant case, as already observed the appellants had not even taken such objection in their counter-affidavit. We therefore, find no reason D to disagree with the findings of the learned Single Judge that in case the respondent fails to establish during the trial that the Attorney has been appropriately authorized and appointed under valid authorization then perhaps suit may call for dismissal and not before. Coming to the objection raised by Mr. Agha Faquir Muhammad after the respondent had filed a copy of bye-laws before us that the bye-laws are of Messrs Days-Inn Acquisition Corporation and not of Messrs Days-Inn Worldwide Corporation i.e. The present plaintiff, if would be suffice to observe that the respondents have placed sufficient material to show that the respondent previously was known as Messrs Days-Inn Acquisition. Even otherwise, such objection is a question of fact and could be appropriately decided at the stage of trial.
11. As to the last contention of Mr. Agha regarding incompetency of the suit on the ground that the appellant had no dealing with the respondent is also misconceived as the respondent admittedly is the owner of the said Trade and Service Mark and has every right to sue any one who is found using its Trade and Service Mark without its authorization. The appellant may have been negotiation with the Cendant F Corporation for the grant of Franchise who admittedly are the parent organization and authorized agent of the respondents but it does not deprive the respondent from filing suit against the appellants for the unauthorized use of their Trade and Service Mark and in defence it was open for the appellant to show that such use is under the authority of the respondents or their authorized agent. We, therefore, had asked Mr. Agha Faquir Muhammad to show any documentary proof whereby either the Cendant Corporation had authorized the appellant to use such trade and service mark or any authority conferred by Messrs Cendant Corporation upon the aforesaid Abdul Hafeez Shaikh to grant such Franchise on their behalf with whom the appellants had earlier negotiated and allegedly paid US dollars 45,000 and in response Mr. Agha Faquir Muhammad has candidly conceded that there is none. Even the appellant has failed to produce any G documentary proof regarding payment of US dollars 45,000 to Messrs Cendant Corporation.
12. In the circumstance, no case for interference with the impugned order was made out we, therefore, had dismissed this appeal vide short order dated 2-11-2006 and further, at the request of Mr. Agha Faquir Muhammad, suspended its operation for a period of two weeks. These are the reasons for said short order.
13. 1, 2 and 4. In view of the order passed above, these applications have become infructuous and therefore are accordingly dismissed.