' MUNIB AHMAD KHAN, J.--- The plaintiff has filed this suit with the following prayer:--
(i) declare that the plaintiff is entitled to hold the International Textile, Garment and Leather Machinery and Accessories exhibition in the name and style of IGATEX PAKISTAN, 2008 at Karachi Expo Centre on 23rd-26th April, 2008;
(ii) permanent injunction restraining the defendants Nos.2 and 3 from permitting and the defendant No,1 from holding similar Textile Garments, Leather Machineries and Accessories exhibition in the name and style of MEGTAX PAKISTAN, 2008 at Karachi Expo Centre on 23rd - 26th April, 2008 or on any other date or in any other name similar or resembling the name of IGATEX.
PAKISTAN, 2008 and/or from claiming use of the website www.Igatexpakistan.Corn for its own benefit.
2. The factual position leading to the dispute and as stated by the plaintiff are that it is a Singaporian company engaged in organizing and managing exhibitions, conferences and other special events throughout Asia including Pakistan and in this way it organized some exhibitions in Pakistan in the past with the assistance of the defendant and for the purposes of upcoming 6th exhibition in April 2008, entered into an agreement with the defendant on 13-5-2005; and to get the event successful the plaintiff planned the future strategic working with its local partner and with its international participants to achieve desirable result. According to plaintiff, the defendant, under the agreement, was required to cater the local needs for the exhibition including official stand builders, electricity supply, and freight forwarders etc.
3. It has further been submitted that the plaintiff is a creator and owner of trade mark IGATEX and the exhibitions are organized under the same trade name, while detail about exhibition is available on the website under the said trade name which has also been applied for registration in Pakistan.
It has been averred that the plaintiff, keeping in view past performance of the defendant required it to be more careful in future event to be held in April 2008 for which booking had already been made by the defendant as per instructions of the plaintiff under its trade name IGATEX. Since the defendant was apprehending that after April 2008 exhibition the plaintiff may not go with the defendant for future exhibitions, therefore it adopted arrogant attitude on the advice of the plaintiff for future work for the exhibition 2008 and without any reason sent a notice of termination dated 27-7-2007 thereby agreement dated 13-5-2005 was terminated. The grievance of the plaintiff, as asserted, is that although there was no reason for termination, but even after the termination the plaintiff was required to perform its obligation which were outcome of the agreement, but after correspondence no amicable settlement resulted.
4. In these circumstances the plaintiff felt it necessary to inquire and came to know that the defendant changed the booking of plaintiff's exhibition i.e. IGATEX exhibition 2002 to its won name MEGATEX exhibition and all the dates and place reserved for IGATEX was converted to MEGATEX.
Besides it was also noted that website www.Igatexpakistan.Com when accessed then linked to www.Megatexpakistan.Com. The grievance of the plaintiff is that it announced the IGATEX 2008 immediately after completion of IGATEX Pakistan, 2006 and got the booking from April 23-26; 2008, through defendant No,1 and since then it started approaching its foreign would be participants and carried out all arrangements and incurred huge expenses in this respect and since the ITGATEX 2008 Pakistan was a sole affairs for plaintiff, therefore, defendant neither was 'authorized nor is competent to hijack the trade mark and dates of exhibition of the plaintiff or to use the name MEGATEX which resemble plaintiff trade name IGATEX and if the plaintiff is not restrained and appropriate remedy is not provided then the plaintiff will suffer a lot as the plaintiff has already signed strategic partnership agreement with some foreign companies to have their participation in the IGATEX 2008 in Pakistan.
5. On the other hand the defendant No,1 has filed detailed counter affidavit to which affidavit-in- rejoinder has been filed by the plaintiff while defendant Nos.2 and 3, official defendants, have filed written statement. The official defendant No,2 who is organizer of the exhibitions have admitted that the defendant No,1 on 11-4-2007 approached the defendant No,2 for space at Karachi Expo Centre for holding exhibition IGATEX 2008 on April 23-26, 2008, which was got booked and confirmed but subsequently the defendant No,1 by its letter dated 27-7-2007 requested the defendant No,2 (TDAP) for changing the name of event from IGATEX Pakistan 2008 to MEGATEX Pakistan 2008. It has further been admitted by the official defendant that in the past, exhibitions were held in the name and style of IGATEX Pakistan from the year 2002 to 2006 and these were organized by the defendant No,1 and the said dates of 23-26 April 2008 are still available, but in the name of MEGATEX which were got changed by the defendant No, 1 . At the time of hearing the Deputy Director of defendant No,2 Mr. Rizwan Khan submitted that except these dates no other dates are available nor any space in the Expo Center.
6. The defendant No,1, firstly has challenged the suit on the ground that it can not be entertained as specific performance of such type of agreement cannot be ordered. On merit it has not denied holding of IGATEX Pakistan exhibitions in the past by the plaintiff in association with the defendant No,1 and that all the success, which came to the name of IGATEX, was due to its efforts. It has further stated IGATEX is not a registered trade mark of the plaintiff, but the plaintiff has applied for it and as per letter of Registrar, Trade Marks, advertisement in this respect was made and that the basis of dispute was that the plaintiff wanted to show up itself only and to minimize on the defendant No,1 appearance with sole intention to get more kickback and profit and that it was the plaintiff who breached the terms of the agreement and undertook to obtain the dates for its exhibition from defendant No,2 and it was the plaintiff who wanted to organize its own exhibition without assistance of the defendant No,1, while defendant No,1 wanted to go by the agreement. It has further been stated that the plaintiff was aware that after cancellation of agreement it has to obtain the date and therefore, it applied to the defendant No,2 for the date which were not available and that the date from April 23-26, 2008 are booked for MEGATEX on which date the exhibition is to be organized by the defendant No,1 and that there is class difference between the word IGATEX and MEGATEX, hence there cannot be any confusion while the word "Tex" is used generally and nobody can claim exclusive right to this word and that the plaintiff being a local has every right to avail the opportunity in its own country, therefore, there may not be any restriction.
7. Both the learned counsel on 21-9-2007 submitted that since the contention of the parties is dependent on undenied documents/annexures which needs interpretation therefore, no evidence will be required, so the entire matter can be sorted out in arguments. Accordingly learned counsel of both the parties were heard on 26-9-2007. Mr. Arshad Tayebaly, learned counsel for the plaintiff argued that the agreement, dated 13-5-2005 is an admitted document and same contains following clause:-- "2-B CEMS is the creator and developer of a garments and textiles trade exhibition by the name "IGATEX" which name and the goodwill attached thereto is owned by CEMS."
' He further referred clause 10.a to show that the defendant No,1 has no right to the IGATEX while other clauses have been referred to show past performances of the plaintiff while duties of the defendant No,1 are mentioned in clauses 4.1 to 4.13 of the said agreement. He referred letter, dated 23-5-2006 and 18-7-2007 and stated that these letters do not contain any intention of the plaintiff for cancellation of the agreement, but only the instructions for the purposes of successful organization of the event IGATEX Pakistan 2008 and it was expected from the defendant No,1 that certain fall out in the past exhibitions will be taken care in future.
8. He argued that there was nothing for the breach of agreement and even the defendant No,1 itself could not pointed out any default on the part of the plaintiff and the termination letter, dated 27-7- 2007 was sent by the defendant No,1 unilaterally while the clauses of the agreement specially clauses 4.2 and 4.3 are in respect to the obligation upon the defendant No,1 which has wrongly been attributed towards the plaintiff and were taken as cogent reason in terms of clause 11.2 of the agreement, hence the agreement was not cancelled and even if the agreement to be considered as cancelled then the plaintiff has every right to organize its exhibition on the dates on which booking was made for IGATEX Pakistan 2008 with the defendant and since it was for the plaintiff and as per its instructions, therefore, it could not be changed as such situation was clarified by the plaintiff by its letter, dated 6-8-2007.
9. Learned counsel has further argued that keeping in view the forthcoming exhibition in 2008 the plaintiff took all necessary steps since 2006 and advertised the said exhibition and issued flyer, one of them is exhibited as Annexure "F" with the plaint and that the mala fide intention of the defendant No,1 is apparent that not only it got the booking with the defendant No,2 changed from the name of IGATEX to MEGATEX, but it also converted the website from IGATEX to MEGATEX and also issued similar flyer in the name of MEGATEX giving therein same date of exhibition i.e. April 23-26, 2008, while past performances of the exhibitions of the plaintiff was given in that flyer as of the defendant No,
1. He argued that the defendant No,2 is also in collusion with the defendant No,1, as notwithstanding the fact that it was aware that the plaintiff was holding exhibitions in the name of IGATEX, but without any reference to it the defendant No,2 changed the booking from IGATEX to MEGATEX and that some letters were written by the plaintiff to defendant No,2 not with the intention that the new space be allotted, but with the intention to inquire as to what happened to the booking which has already been made on its behalf through defendant No,1, but the defendant No,2 was not prompt in reply, and admittedly acted as per the instructions of the defendant No,l.
10. Mr. Arshad Tayebaly has further argued that even if the trade mark is not registered then there is a case of passing off. He cited 2001 SCM R 967 and 2002 CLD 706 in support thereof while towards objection of the defendant that specific performance of such contract cannot be ordered, he argued that relief can be granted under section 56 of the Specific Performance Act and that the plaintiff has not come to this Court for Specific Performance of the contract, but for the relief to get the benefit which have emerged after the booking for plaintiff's exhibition dates with the defendant No,2 though defendant No,1 and to these dates plaintiff has all the right notwithstanding the fact that the defendant No,1 may not assist the plaintiff in holding the exhibition.
11. Mr. Shaiq Usmani, learned counsel for the defendant No,1 has argued that the agreement dated 13-5-2005 was revocable and it cannot be specifically performed as it related to the services and that it was optional for both the parties to treat the agreement as cancelled if there was a breach.
He has pointed out sections 12, 54, and 56(F) of the Specific Relief Act and in support thereof referred PLD 1956 (W.P.) Lah. 900 and AIR 1971 Cal.129. He further argued that the trade mark of the plaintiff is not registered but pending, therefore, it cannot claim any right to the trade mark IGATEX.
He has pointed out letter of the plaintiff, dated 23-5-2006 and after its reading, submitted that the plaintiff has criticized the defendant No,1 which are cogent reason within the meaning of clause 11.2(a) of the agreement, therefore, defendant has rightly cancelled the agreement and after the breach of agreement by the defendant No,1 by its Advocate's letter dated 27-7-2007, it was free from any obligation and that the plaintiff could not seek performance of the agreement, but can make claim for damages only. He pointed out contents of the written statement of defendants Nos.2 and 3 to show that it was the defendant No,1 who got the booking of place in the exhibition to be held in April, 2008, to which booking the plaintiff has no right and the plaintiff may got any booking for its own.
12. After hearing the learned counsel as well as Deputy Director, TDAP Rizwan Khan, it appears that exhibition is going to be organized between April, 23 to 26, 2008 and no other date or space is available and that firstly it was booked in the name of IGATEX and thereafter changed to MEGATEX.
From the undisputed document it is admitted position that the plaintiff and defendant No,1, with the knowledge of defendant No,2, are holding exhibitions in the name of IGATEX since 2002 and the exhibition is to be held in April, 2008. The agreement, dated 13-5-2005 between the plaintiff and defendant No,1 has not been denied nor the participation of the parties in the past exhibitions, therefore, keeping in view the contention of the learned counsel it is to be seen as to whether the relief prayed for in the suit can be granted or not. First of all the prayer of the suit reproduced above is peculiar in which specific performance of the contract has not been asked for, but the prayer is only in respect to limited relief that the booking made in the name of IGATEX Pakistan 2008 for 23- 26 April, 2008 should remain in the said name which his trade mark of the plaintiff and it is to be held that plaintiff is entitled to hold exhibition on those dates while the prayer in respect to holding of exhibition by the defendant No,1 in the name and style of MEGATEX in Karachi Expo Centre on future dates has not been pressed as during the course of argument Mr. Arshad Tayebaly stated that the defendant may carry out exhibition on future dates, but not with the name of IGATEX.
13. The written statement of defendants Nos.2 and 3 as well as other documents shows that plaintiff held exhibitions in the past and booking for IGATEX was made for 23-26 April, 2008, though defendant No,
1. It has also been observed that the defendant No,1 cancelled the agreement through its letter, dated 27-7-2007, but the reason given therein cannot be termed as cogent reason in terms of clause 11.2(a) of the agreement and even if the agreement is treated to be cancelled then it is to be seen that by the time of cancellation what has come out under that agreement and who is entitled for that. At the moment the position is that only booking has been made while defendant No,1 has not been put under obligation to carry out other work. The document Annexure "G" with the plaint also shows that website of IGATEX has been linked with new name MEGATEX which is sufficient to show that there was no justification for the defendant No,1 to convert the site as the same represent a lot and is reproduced as under:--- "Pegasus is proud to announce the launch of it's 6th International Garment and Textile Machinery Exhibition, by the name of MEGATEX Pakistan, to beheld at Karachi Expo Centre from April 23-26, 2008."
14.. The above heading shows that the defendant No,1 is claiming that the forthcoming exhibition would be its 6th exhibition, while there is none in the past by it except the exhibition by the plaintiff in the name of IGATEX in which plaintiff has provided assistance. In addition to the website the flyer of the defendant No,1 also shows that 5 past performances have been given in it, which data is totally not available to it, as the same belongs to the plaintiff which has been mentioned in its flyer Annexure "F" with the plaint. It can easily be judged that it was the plaintiff on whose instructions booking for the exhibition of 2008 was made by defendant No,1 in the trade name IGATEX of plaintiff which has already been applied for registration, therefore, plaintiff was entitled to that booking and the plaintiff cannot have any exception of that. It is further to be seen that ownership in respect of the IGATEX by the plaintiff and its utilization in the past years has been admitted by the defendant No,1 in the agreement, dated 13-5-2005 and in terms of the said agreement defendant No,1 acted and got the booking for plaintiff for specific dates which outcome can only be claimed for the plaintiff and none else, therefore, it is entitled to organize the event on 23-26, April, 2008, in the name of IGATEX Pakistan 2008 and the booking made for it and accepted by the defendant No,2 by its letter, dated 20-7-2007 (Annexure "B" with its written statement) should remain unchanged as its renaming by the defendant No,1 to MEGATEX was nothing but purely mala fide and at least amount to passing off which is not permitted by law. The part played by the defendant No,2 in ttis dispute is full of doubt for the reason that being an organizer of exhibition it cannot show its ignorance to the working of plaintiff who has already held 5 exhibitions in the past under its nose. It would not have allowed the defendant No,1 for renaming the show from IGATEX to MEGATEX without any inquiry from plaintiff or at least would have intimated it for the proposed change. This unprofessional attitude on the part of defendant No,2 is totally contrary to the policies of the Government towards bringing the country at par with other countries and to remove doubts in respect of transparency, which is being propagated by all the Government departments. Had the defendant No, 2 acted in good faith then neither this dispute would have erupted nor would have been brought to this Court.
15. In such a situation and considering the authorities cited by Mr. Usmani do not fit the situation, I decree the suit as per prayer but keeping in view the Concession by Mr. Arshad Tayebaly, Advocate and statement of Deputy Director of defendant No,2 regarding non-availability of dates prior to dates in question, with the exception that the defendant No,1 may hold its exhibition on dates other than 23-26 April, 2008, but not with the name of IGATEX. I also direct the defendant No,2 to be careful in future as its working can affect the status of the country in the eyes of foreignes and orders.