KABUSHIKI KAISHA TOSHIBA vs TOSIBA APPLIANCES CO.

2024-08-16 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 15th May, 2024
Pronounced on: 16th August, 2024
+ CS(OS) 55/2006 & I.A. 784/2023

KABUSHIKI KAISHA TOSHIBA ….. Plaintiff
Through: Mr. Pravin Anand, Ms. Vaishali R. Mittal, Ms. Madhu Rewari, Mr. Siddhant Chamola and Ms. Gitanjali Sharma, Advocates.
versus

TOSIBA APPLIANCES CO. ….. Defendant
Through: Mr. Vivek Sood, Senior Advocate with Mr. Sanjib Kumar Mohanty, Mr. Awanish Sinha, Mr. Subesh Kumar Sahoo and Ms. Anushka Jakhodia, Advocates.

CORAM:
HONBLE MR. JUSTICE SANJEEV NARULA

J U D G M E N T
CONTENTS

THE CONTROVERSY 4

PLAINTIFFS CASE IN BRIEF 5

OVERVIEW OF THE DEFENCE TO THE SUIT 11

PROCEDURAL HISTORY OF THE SUIT 14
I. CASE MANAGEMENT PROCEEDINGS..…. 14
II. ISSUES..15
III. THE CONDUCT OF TRIAL… 16

SHIFT IN DYNAMICS OF PARTIES TRADEMARK RIGHTS DURING THE SUIT PROCEEDINGS 22
I. RECTIFICATION PETITIONS FILED AGAINST THE PLAINTIFF’S REGISTRATIONS . 23
I.I. TRADEMARKS NO. 160442 AND 160443 ..23
I.II. TRADEMARK NO. 273760… 25
I.III. TRADEMARK NO. 273759.. 27
I.IV. TRADEMARK NO. 273758….. 28
I.V. CURRENT STATUS OF PLAINTIFF’S REGISTRATIONS 29

II. TRADEMARK OPPOSITIONS TO DEFENDANT’S APPLICATIONS. 32
II.I. TRADEMARK APPLICATION NO. 509863. 32
II.II. TRADEMARK APPLICATION NO. 509862 33

ISSUE-WISE ANALYSIS AND FINDINGS 33

ISSUE NO. 4: WHETHER THE SUIT HAS BEEN SIGNED, VERIFIED BY A DULY AUTHORISED AND INSTITUTED BY A COMPETENT PERSON? 34

ISSUE NO. 1: WHETHER THE PLAINTIFF IS THE REGISTERED PROPRIETOR OF THE TRADE MARK TOSHIBA? 41

ISSUE NO. 2: WHETHER THE DEFENDANTS USE OF THE MARK TOSIBA AMOUNTS TO INFRINGEMENT OF THE PLAINTIFFS REGISTERED TRADE MARK? 42
ISSUE NO. 8: WHAT IS THE EFFECT OF THE RECTIFICATION OF THE PLAINTIFFS REGISTRATION AND APPEALS PENDING BEFORE THE CALCUTTA HIGH COURT? 42
I. COMPREHENSIVE ANALYSIS OF TRADEMARK INFRINGEMENT UNDER SECTION 29(1) OF THE TRADE MARKS ACT 1958 43
I.I. ANALYSIS OF THE SIMILARITY OF THE MARKS UNDER TRADEMARK LAW 45
I.I.I. VISUAL OR STRUCTURAL SIMILARITY 45
I.I.II. AURAL SIMILARITY.. 46

I.II. USE IN THE COURSE OF TRADE AND IN A TRADEMARK SENSE.. 48
I.III. WHETHER “TOSIBA” IS USED IN RELATION TO GOODS FOR WHICH
“TOSHIBA” IS REGISTERED… 49

II. EFFECT OF RECTIFICATION OF THE PLAINTIFF’S REGISTRATIONS. 52
III. APPRAISAL OF THE DEFENDANT’S POSITION OF HONEST ADOPTION AND PRIOR USER.. 54
III.I. WHETHER DEFENDANT’S ADOPTION WAS HONEST AND IN GOOD
FAITH 55
III.II. WHO IS THE PRIOR USER OF THE TWO DECEPTIVELY SIMILAR TRADEMARKS?……………………………………………………………………… 58
III.II.I. PLAINTIFF’S HISTORICAL ADOPTION AND REGISTRATION OF
THE TRADEMARK “TOSHIBA” 59
III.II.II. DATE OF ADOPTION AND USE “TOSIBA” BY THE
DEFENDANT. 60
III.II.III. DETERMINATION OF THE SENIOR USER 61

FINDINGS ON ISSUE NO. 2 AND 8 63

ISSUE NO. 3: WHETHER THE DEFENDANTS USE OF THE MARK TOSIBA WOULD RESULT IN CONFUSION AND DECEPTION AMOUNTING TO PASSING OFF? 63
I. PLAINTIFF’S REPUTATION IN INDIA PRIOR TO DEFENDANT’S ADOPTION..65

ISSUE NO. 5: WHETHER THE SUIT SUFFERS FROM DELAY, LACHES AND ACQUIESCENCE? 79

ISSUE NO. 7: WHETHER THE SUIT IS LIKELY TO BE DISMISSED ON ACCOUNT OF FALSE STATEMENT AND CONCEALMENT OF FACTS? 82

RELIEF 82

SANJEEV NARULA, J.

1. This judgment aims to conclude a prolonged legal saga that has spanned over three decades, involving a trademark dispute between Kabushiki Kaisha Toshiba, a globally recognized conglomerate, and Tosiba Appliances Co., a domestic competitor. The dispute centres the alleged infringement of the TOSHIBA trademark by a nearly identical TOSIBA trademark utilised by the Defendant. Despite the phonetic and visual similarities between the trademarks, Tosiba Appliances Co. contends they independently created their mark before Kabushiki Kaisha Toshibas foray into the Indian market and have since built considerable brand recognition. This protracted battle, now drawing to its conclusion, encapsulates the intricate challenges of protecting brand identity in a fiercely competitive marketplace.
THE CONTROVERSY
2. The Plaintiff, through this lawsuit, has invoked the provisions of Trade and Merchandise Marks Act, 19581 to prevent unlawful use of their trademark TOSHIBA by the Defendant. They contend that this brand, now a house mark, is an invented word, meriting the highest level of protection. The Plaintiff asserts their rights in India in the mark TOSHIBA w.e.f. their first registration in 1953 on a proposed-to-be-used basis, before the introduction of their products in the Indian market. They also claim that at the time when Defendant adopted the impugned mark, their trademarks transborder reputation had spilled over into the Indian territory, thus warranting relief under the common law doctrine of passing off. Conversely, Defendant argues that their trademark TOSIBA was created independently and adopted in good faith, unfamiliar and unconnected with the Plaintiffs operations. They claim preferential rights of a prior user recognized under the statute, asserting that their use predates Plaintiffs entrance into the Indian market.
3. This judgment will thus analyse the elements of trademark infringement, explore the doctrine of honest and concurrent use, and consider the broader implications of maintaining established brand identities.
PLAINTIFFS CASE IN BRIEF
4. The facts and contentions presented by the Plaintiff are as follows:
4.1. Plaintiff-company is a manufacturer and seller of a wide range of electronic and electrical goods under the trademark TOSHIBA. In 1939, Shibaura Engineering Works Company Limited and Tokyo Electric Company merged to form Tokyo Shibaura Electric Co. Limited. The trademark TOSHIBA was conceived by the Plaintiff. The letters TO were lent from the word Tokyo while the letters SHIBA were derived from Shibaura, both appearing in the name of the emergent company. Ever since their origin in 1939, the Plaintiff has been using the mark TOSHIBA for varied electrical goods and appliances manufactured by them. In 1978, Tokyo Shibaura Electric Co. Limited modified its name to Tokyo Shibaura Denki Kabushiki Kaisha trading as Toshiba Corporation. In 1984, the company again underwent reorganization, resulting in a change of name to Kabushiki Kaisha Toshiba trading as Toshiba.
4.2. In India, the Plaintiff is the registered proprietor of the following trademarks:
Trademark and No.
Date
Class and Goods

No.: 160442
05.09.1953
Class 9

scientific, nautical, survaying and electrical apparatus and instruments (including wireless), photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments, coin or counter-freed apparatus, talking machines, cash registers, calculating machines, fire-extinguishing apparatus.

No.: 160443
05.09.1953
Class 11

Installations for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes.
TOSHIBA

No.:273758
26.07.1971
Class 7

Current generators, induction motors (electric), electric washing machine, etc. compressors (machinery), and electric tool set consisting of electric drills (machines), spin dryers and can openers being electrically operated tools, all being goods included in class 7.
TOSHIBA

No.:273759
26.07.1971
Class 9

electric phase modifiers, rotery converters (electric), rectifiers, transformers, switch boards, electric relays, electric resistances, condensers, lightning arresters, switches (electric) of all kinds, electric connectors, fuses, electric wires and cables, drycells, diodes, integrated electric circuites, electron tubes, cathode ray tubes, x-ray tubes, x-ray image tubes, transistors, telephone receivers, telegraph apparatus and instruments, facsimile transmission and receiving apparatus (electric), radio and television transmission and receiving apparatus, sound recording and reproducing apparatus, tape recorders, electric phonographs, telecommunication apparatus, amplifier and magnetic tapes, cartridge and cassettes included in class 9, electric optical mark and character readers, vacuum cleaning apparatus (electric), measuring and magnetic measuring apparatus and instruments included in class 9, meters included in class 9, oscillographs, computors, electronic calculators, radar apparatus, magnetic detectors, telemeters, electric control apparatus included in class 9, cash registers, dynamometers, records included in class 9, stereophonic records, experimental glass apparatus (laboratory) and flash lamps for photographic purposes, electrically operated apparatus for killing mosquitos, hair dyers (electric), cyclotrons (electric), electric circuit brakes
TOSHIBA

No.: 273760
26.07.1971
Class 11

4.3. The trademark TOSHIBA is a well-known mark recognized in India as well as internationally, and possesses the distinctive characteristics of an invented word. The reputation of the trademark can be attributed to various factors, particularly its extensive and long-standing use in India. This commercial use commenced in November 1951, when Plaintiff rendered technical assistance with respect to watt-hour meters to an Indian concern. Plaintiff also exported several of their products, such as assembly kits for the use of Indian companies between 1984 to 1989. Besides their supply operations, Plaintiff also executed trademark license agreements with Toshiba Anand Batteries Ltd. and Punjab Anand Batteries Limited for commercial dealings in fluorescent lamps, batteries, and incandescent lamps. The Plaintiffs presence has permeated into trade and commerce in India. Their annual reports commencing from the year 1963 till 1989 demonstrate largescale commercial operations of electronics communication systems, heavy electrical apparatus, end-use consumer products, such as electric fans, ovens, toasters, stoves, electric irons etc. within the Indian territory. Furthermore, the Plaintiff has established authorized service centres all across India to offer repair and maintenance services to the consumers. The above trade activities and collaborations are a testament to Plaintiffs extensive business presence in India.
4.4. The trademark TOSHIBA has garnered immense reputation and goodwill in India through a variety of channels, such as spillover advertising and tourist travel. The unauthorized use of the TOSHIBA trademark by any third party without the Plaintiffs consent, permission, or license would cause significant confusion and deception among the purchasing public and within the trade. Such unauthorized use could potentially dilute the trademarks distinctive character and harm the Plaintiffs established goodwill.
4.5. In February, 1989, through a newspaper advertisement, Plaintiff discovered the Defendants use of the trademark TOSIBA and the trade name Tosiba Appliances Co. in relation to electric appliances, including electric flat irons. As per the Plaintiffs investigations, the Defendants products are not available openly in the market, and their sale is confined to the Army Canteen Stores. Plaintiff then addressed a legal notice on 24th April, 1989, informing the Defendant that the trademark TOSHIBA is well-known worldwide, and the use of a phonetically similar trademark TOSIBA by them, both as a trademark and as an essential feature of their trading style, amounts to an infringement of the Plaintiffs registered trademarks, including registrations No. 160443 and 273760. Accordingly, the Defendant was called upon to cease using the trademark TOSIBA in relation to electrical goods, including electric irons, and to confirm compliance within 21 days from the date of the notice. In response, by letter dated 13th May, 1989, the Defendant expressed interest in amicable discussions through their senior partner, Mr. N. K. Suri, who was in Bombay at the time. On the 30th May, 1989, Mr. N. K. Suri, after deliberations with the Plaintiffs attorney, agreed to change the trademark and trade name to DOSIBA. However, the Plaintiff did not agree to the proposed change, which was communicated to the Defendant by letter dated 06th July, 1989. Thereafter, the Defendant failed to honour the next scheduled meeting with the Plaintiffs attorneys on 28th June, 1989, prompting the Plaintiff to inquire whether the Defendant was still interested in resolving the matter. In the meantime, the Plaintiff was served with copies of caveats filed by the Defendant, who did not respond to the Plaintiffs letter dated 06th July, 1989. 4.6. The Plaintiff has since learnt that the Defendant continues to use the trademark TOSIBA for electric irons and various other electrical goods, such as, immersion rods, toasters, fans, table lamps, baking ovens, and stoves. The Defendants adoption and use of the trademark TOSIBA is manifestly dishonest and in bad faith. The Plaintiffs trademark TOSHIBA is not only an invented mark, but a globally acknowledged trademark. Consequently, the Defendants usage of a phonetically similar mark is inherently deceptive. Consequently, they have initiated the present proceedings, contending that the use of the trademark TOSIBA in relation to these goods constitutes a clear infringement of the Plaintiffs registered trademarks.
4.7. The Defendant has chosen the trademark TOSIBA, which bears a striking resemblance to the Plaintiffs internationally celebrated trademark TOSHIBA. This usage extends to goods that are not only encompassed within the Plaintiffs trademark registrations, but are also related and akin in nature. These goods are distributed through identical sale channels and sold at the same retail locations as the Plaintiffs products, amplifying the potential for consumer confusion and dilution of the Plaintiffs brand equity. The inclusion of TOSIBA in Defendants trade name also violates the Plaintiffs trademark rights, protected under the statute.
4.8. The Plaintiffs business includes selling in India, either directly or through its joint venture companies or licensees, a range of electronic and electrical goods under the trademark TOSHIBA. This class of goods is clearly defined, and in the minds of the public, or a section of the public in India, the Plaintiff is identified as the origin of these goods. Due to this reputation, there is significant goodwill attached to the name TOSHIBA of the Plaintiff. The phonetic similarity of TOSIBA to TOSHIBA attaches the Plaintiffs goodwill to the Defendants goods, further compounding the damage. The Plaintiff has suffered and is likely to continue suffering substantial damage to their goodwill due to the Defendants sale of goods falsely described by the trademark or trade name TOSIBA.
OVERVIEW OF THE DEFENCE TO THE SUIT
5. The Defendant presented the following facts and contentions, controverting the Plaintiffs version:
5.1. The Defendant, Tosiba Appliances Co. was founded as a partnership firm of Mr. N.K. Suri and Mr. D.P. Suri in 1974 for trading in various household appliances. Gradually, the firm was transformed into a private limited company Tosiba Appliances Co. Pvt. Ltd. The trademark TOSIBA was devised by Defendants founders out of reverence for their mother, affectionately referred as Toshi Bai by her family members. This mark was invented independently by the Defendant, and has been extensively and openly used for various electric appliances since 1975.
5.2. The Defendant filed applications for registrations of the trademark TOSIBA in classes 09 and 11 claiming use since February, 1975, which stood pending on the date of institution of the instant lawsuit. The specifics of the Defendants trademark applications are detailed below:
Trademark and No.
Date
Class and Goods

TOSIBA

No.: 509862

04.05.1989
Class 9

Electrical apparatus and instruments, electric iron (flat) and electronic appliances included in class 9.
TOSIBA

No.: 509863
04.05.1989
Class 11

Installations for lighting, heating, cooking – auto non-auto ovens, toasters, coil stoves, table fans, electrical rods, table lamps, filters, heat convectors, room heaters and gas stoves.

5.3. Due to the uninterrupted and widespread use of mark TOSIBA for over 31 years, the Defendant has amassed substantial recognition in the market, evinced by several national level accolades in their name. The Defendant has invested significantly in the promotion of the trademark TOSIBA, spending lakhs of rupees on extensive advertising campaigns. This substantial investment has not only heightened consumer awareness, but has also firmly connected the trademark TOSIBA with the Defendant to the exclusion of any other entity.
5.4. In stark contrast, the Plaintiffs trademark TOSHIBA was registered merely on a proposed-to-be-used basis and has never been utilized in commerce since its registration in India. The Plaintiffs assertions of use of the TOSHIBA mark through distinct entities or licensees are unfounded. Absence of assignment deeds or registered user agreements conveying the user rights to third parties further undermines the Plaintiffs claims. The purported joint commercial ventures of the Plaintiff in India are contradicted by various extant government policies, precluding foreign entities from undertaking sale operations within India. The Defendants established and longstanding presence of the TOSIBA trademark, culminating in sales running in crores of rupees, outweighs the Plaintiffs prospective entry in the Indian market. Thus, the Defendant is the established prior user in the Indian market, disentitling the Plaintiff any of the reliefs sought. In support, reliance was placed upon the judgment of this Court in Bolt Technology OU v. Ujoy Technology Private Limited and Anr.2
5.5. The suit, predicated on five registered trademarks, lacks foundational documentation, specifically, the registration and Legal Proceeding Certificates which are essential for maintaining any legal action for trademark infringement. The Plaintiff has withheld critical information from the Court notably, all five of their registered trademarks were facing rectification proceedings at Defendants behest when the suit was initiated. This deliberate concealment alone debars the Plaintiff from securing an injunction against the Defendant. Furthermore, the suit is untenable as the alleged registrations are held not by the Plaintiff but by another entity named Tokyo Shibaura Electrical Company Limited, Japan. Given these discrepancies, the suit should be dismissed, as the Plaintiff lacks legitimate proprietary rights to the trademarks in question.
5.6. Additionally, the Plaintiff has deliberately and intentionally provided a misleading statement of cause of action, which supposedly emerged in 1989. In reality, the Plaintiff has been fully aware of the Defendants use of the trademark and their business activities since 1975, contradicting their presented claims. In the catalogues published by Canteen Stores, Army Headquarters, Ministry of Defence, Government of India and telephone directories published by MTNL in 1984, 1986 and 1988, the Defendants name finds mention below Toshiba Anand Batteries Limited, an affiliate of the Plaintiff. Therefore, the suit is fundamentally flawed and procedurally barred due to the limitations of delay, laches, and acquiescence. These actions suggest an attempt by the Plaintiff to manipulate the legal process through omission and inaccuracies.
5.7. Critical procedural deficiencies undermine the suit. The suit has neither been signed nor verified by a duly authorized or competent person, and no power of attorney has been filed in his favor. Furthermore, the plaint fails to meet legal standards for proper verification as required under the law, rendering it susceptible to rejection. These procedural lapses highlight significant flaws in the Plaintiffs approach to initiating this legal action.
5.8. The factors outlined above underscore the Defendants argument that their long-standing and public use of the trademark should be legally recognized and protected against the claims made by the Plaintiff.
PROCEDURAL HISTORY OF THE SUIT
I. Case management proceedings
6. Summons in the suit were issued on 21st May, 1990, whereafter the Defendant filed their written statement on 02nd June, 1990, contesting the Plaintiffs claims. A replication to the written statement was filed on 22nd October, 1990.
7. In the meantime, pending the completion of pleadings, the admission/ denial of parties documents was conducted on 03rd and 04th December, 1990. Defendant admitted the documents marked as Ex. P1 to P4. The Plaintiff admitted six documents of the Defendant, marked as Ex. D1 to D6.
8. The Defendant initiated rectification proceedings against Plaintiffs registrations No. 273758, 272759 and 273760 in classes 07, 09 and 11, respectively before the Deputy Registrar of Trademarks, Calcutta. Likewise, the Plaintiff protested the Defendants trademark applications No. 509862, 510312, and 509863. The decisions rendered in these proceedings were subsequently carried in appeal before the High Court of Calcutta. Considering the pendency of these appeals, on 14th September, 1993, Plaintiff withdrew their interim applications bearing No. 11020/1990, 11641/1990, 11018/1990, 4044/1990, 9258/1992, 8654/1992, and 7824/1993, with liberty to urge the issue after disposal of the appeals.
9. The appeals filed by the Plaintiff came to be finally decided by the Division Bench of High Court of Calcutta, which shall be discussed in a subsequent segment of the judgment. Consequently, the Plaintiff filed I.A. 1012/1994 seeking an interim injunction against the Defendant from using the trademark TOSIBA.
10. The Defendant filed I.A. 7476/1996 under Order VI Rule 17 of the Code of Civil Procedure, 1908,3 to bring on record the change of the name of the entity from Tosiba Appliances Company to Tosiba Appliances Company Pvt. Ltd., which was permitted on 19th August, 1996.
11. On 02nd September, 1997, directions were issued for conducting admission/ denial of documents filed after 04th December, 1990 by the parties. These directions were executed on 14th January, 1998, where no document was admitted by either party.
12. Another application [I.A. 1671/1994] was filed by the Plaintiff, seeking directions to implead one Suriba Appliances Pvt. Ltd. who they believed to be an affiliate of the Defendant, Tosiba Appliances Pvt. Ltd. due to the commonality of the firms partners. Notice was served on the proposed Defendant through publication in terms of order dated 11th November, 1999. Suriba Appliances Co. entered appearance on 08th August, 2000 and informed that they do not trade under the trademark TOSHIBA, and shall not undertake any other similar trademark. In view of this statement, with the consent of the Plaintiff, the application was disposed of.

II. Issues
13. On 27th September, 2000, the following issues were framed:
1. Whether the Plaintiff is the registered proprietor of the trade mark TOSHIBA?
2. Whether the Defendants use of the mark TOSIBA amounts to infringement of the Plaintiffs registered trade mark?
3. Whether the Defendants use of the mark TOSIBA would result in confusion and deception amounting to passing off?
4. Whether the suit has been signed, verified by a duly authorised and instituted by a competent person?
5. Whether the suit suffers from delay, laches and acquiescence?
6. Whether the-suit is liable to be stayed under Section 111 of the Trade and Merchandise Marks Act, 1958?
7. Whether the suit is likely to be dismissed on account of false statement and concealment of facts?
8. What is the effect of the rectification of the Plaintiffs registrations and the appeals pending before the Calcutta High Court?
9. What is the effect of the Defendants registrations of the trade mark TOSIBA in class 5?
10. Is the Defendants trade mark TOSIBA registered under No.510314 in class 5 liable to be rectified on any of the grounds specified in Co. No.4/1999 filed by the Plaintiff?
11. Relief.

14. Issue No. 6 concerning the stay of suit proceedings till the resolution of question of invalidity of Plaintiffs registrations was not pressed by the Defendant, on the Plaintiffs assurance that they will not pursue I.A. 1012/1994 for an interim injunction. Consequently, issue No. 6 stood deleted, and I.A. 1012/1994 was dismissed on 27th September, 2000. Further, a Local Commissioner was appointed to record the evidence, with a direction to complete the exercise within three months from the date of aforesaid order.

III. The conduct of trial
15. Post framing of issues, the parties were instructed to file their list of witnesses within four weeks from 27th September, 2000. However, both parties defaulted in adhering to the stipulated timeline. When the matter was placed before the Joint Registrar on 03rd November, 2000, the parties request for extension of time to file the list of witnesses was declined in view of Rule 3(38) of Chapter II of Delhi High Court (Original Side) Rules, 1967 and the judgment in Ravi Sharma v. Delhi Development Authority,4 which precluded the Joint Registrar from enlarging timelines fixed by the Court. Accordingly, in terms of the ruling of the Supreme Court in Mange Ram v. Brij Mohan that furnishing of a detailed list of witnesses is not mandatory, unless the party producing the witness requires courts assistance in summoning them,5 the Joint Registrar permitted the parties to proceed with the trial by deposing their witnesses.
16. Later, the Plaintiff moved I.A. 12532/2000 requesting for permission to file a list of witnesses, as the witness intended to be produced before Court was principally based in Japan. Since there was no protest by the Defendant, the application was allowed on 11th December, 2000 and the Plaintiff was permitted to examine the Japanese witnesses. Further, as requested, they were allowed to be accompanied with an interpreter due to linguistic impediments.
17. On 30th January, 2001, given the urgency expressed by the Plaintiff regarding examination of a witness who had arrived from Japan incurring substantial expenses, the Court directed recording of his statement on 31st January, 2001. Consequently, deposition of PW-1, Mr. Hideaki Togawa, was recorded on 31st January and 01st February, 2001.
18. The Plaintiff thereafter filed an application [I.A. 6366/2001] under Order XIII Rule 2 of the CPC for producing the following additional documents relevant to the controversy: (a) extracts from the Japanese Commercial Code, (b) extracts from the Commercial Register, (c) Ratification Resolution, (d) opinion of a legal expert, (e) certified copy of order dated 11th June, 2001 passed by the Deputy Registrar of Trademarks, Mumbai in opposition No. BOM 10198, and (f) legal proceedings certificates for the Plaintiffs registered trademarks. This application was allowed on 20th September, 2001, subject to payment of costs of Rs. 5,000/-. Parties were relegated to admission/ denial in respect of the documents taken on record. In the meantime, fresh directions for filing of lists of witnesses were also passed. On 12th March, 2003, the Defendant denied all the additional documents filed by the Plaintiff.
19. Endeavouring to expedite the trial, through I.A. 6933/2003, the Plaintiff sought permission to tender the remaining evidence of PW-1, Mr. Hideaki Togawa, by way of an affidavit. This application was allowed on 09th July, 2003.
20. In the midst of the trial, due to an increase in the pecuniary jurisdiction of this Court to Rs. 20 lakhs through the Delhi High Court (Amendment) Act, 2003, on 23rd January, 2004, the suit record was transferred to the concerned District Court for further proceedings.
21. Later, the Plaintiff filed an application under Order VI Rule 17 of the CPC before the District Court for reappraisal of the relief sought in the plaint. It was argued that the suit had been filed in 1990 seeking rendition of accounts on the Plaintiffs rational assessment of the profits earned by Defendant from the impugned activities as Rs. 5,00,000/-. However, given the continued use of the impugned mark TOSIBA by the Defendant even during the continuance of the suit proceedings, the Plaintiff sought to recover Rs. 10,00,000/- as profits unlawfully earned and an additional Rs. 10,00,000/- for the loss of goodwill. This request faced strong opposition from the Defendant, who asserted that the amendment application was dilatory tactic, intended to oust the District Courts jurisdiction. On 21st September, 2004, Defendants opposition was rejected in light of the judgment of the Supreme Court in Lakha Ram Sharma v. Balar Marketing Pvt. Ltd.,6 holding that an application for amendment cannot be rejected solely because it would exceed a courts pecuniary jurisdiction. Consequently, given the enhancement of suit value, exercising the authority endowed by Order VII Rule 10A of the CPC, the plaint was returned, relegating the parties to this Court for adjudication of their claims.
22. Dissatisfied with the decision, the Defendant filed a review, which was rejected on 01st November, 2004 by the District Judge. The Defendant assailed this rejection before this Court in FAO 364/2024. Parallelly, the Plaintiff moved an application before this Court for transfer of proceedings, aiming to prevent a de novo trial. In FAO 364/2024, this Court ordered a stay on the suit proceedings on 13th December, 2004. Subsequently, the Plaintiffs application for transfer was allowed by this Court on 29th May, 2005, whereafter the trial commenced again before this Court.
23. Following the permission granted on 06th February, 2006, the Defendant filed an amended written statement to the amended plaint.
24. The Plaintiffs first witness, Mr. Hideaki Togawa, retired from the Plaintiff-company. Through I.A. 6930/2006, the Plaintiff then applied for the said witness to be substituted and presented an amended list of witnesses for examination. As the Defendant assented, this request was allowed on 07th August, 2006, allowing the Plaintiff eight weeks time to file the affidavits by way of evidence (examination-in-chief). The Plaintiff thereafter presented Mr. Akio Ito as PW-1, along with affidavit of evidence filed on 13th December, 2006 and supplementary affidavit dated 14th December, 2006. The affidavit dated 13th December, 2006 was accompanied with certain documents in Japanese language. The Defendant objected to submission of new documents by the Plaintiffs without the Courts approval through necessary application. Consequently, through I.A. 1635/2007, the Plaintiff sought to produce the documents under Order VII Rule 14 of the CPC. This application met with opposition from the Defendant, who highlighted the significant delay in producing these documents that too, sans the translated versions. As these documents were judicial orders, the Plaintiffs application was allowed by this Court on 24th September, 2007, with the imposition of cost of Rs. 10,000/-. Additionally, they were directed to file the translated versions.
25. Through order dated 11th March, 2008, the affidavit of evidence and documents tendered by Plaintiffs erstwhile witness, Mr. Hideaki Togawa, were annulled. After marking of exhibits, the evidence of PW-1, Mr. Akio Ito commenced on 18th September, 2008. On 30th April, 2009, the Plaintiff conveyed to the Court that they did not wish to examine the two witnesses mentioned at serial numbers 2 and 3 of the list of witnesses.
26. Later, to accelerate the proceedings, Plaintiff preferred I.A. 8658/2009, requesting for appointment of a Local Commissioner to record parties evidence. The Court, through order dated 04th November, 2009, accepted the Plaintiffs request and appointed a Local Commissioner.
27. The Plaintiff then applied to the Court through I.A. 4204/2010 for authorization to present in evidence the original of a License Agreement dated 28th December, 1976 executed between the Plaintiff and Toshiba Anand Batteries, denoted by Mark X-23 due Plaintiffs inability to produce its original. On 27th January, 2011, in terms of the parties agreement, the Plaintiff was permitted to depose one Mr. Prashant Jha as PW-2, whose testimony was to be confined to proving Mark X-23.
28. The Local Commissioner was discharged on 13th September, 2019, whereafter, the matter was placed before the Joint Registrar for completion of Defendants evidence. In view of the constraints prevailing due to the COVID-19 pandemic, two applications were filed before the Court seeking appropriate directions for recording of evidence through video conferencing mechanism [I.A. 11833/2021 and 12554/2021]. These applications were allowed on 27th September, 2021, appointing a Remote Point Coordinator for conducting trial through online mode, in terms of the High Court of Delhi Rules of Video Conferencing for Courts, 2020. The modalities to avail this process were settled on 26th October, 2021, and examination of DW-1 was resumed. His cross-examination was concluded on 19th February, 2022.
29. The Plaintiff filed I.A. 4539/2022 requesting a direction to close the Defendants right to lead further evidence, asserting that the Defendant is obstructing expeditious disposal of the suit by purposely delaying presenting of evidence and recording of statements. While this application was pending consideration, the Defendant applied to the Court seeking to depose a new witness Mr. Jayadev Samal, General Manager of Defendant. This request faced staunch opposition by the Plaintiff. Given the advanced stage of the proceedings, these applications were rejected on 04th August, 2022. The Court reprimanded the manner of prosecuting the suit by both parties, and issued directions for prompt conclusion of the trial.
30. Subsequently, the evidence of DW-2 to DW-4 was completed on 17th September, 2022. Mr. Sushil Kumar, who had to be examined as Defendants witness, could not present himself on the said date. In view of the order dated 04th August, 2022, the request for adjournment was disallowed and the Defendants evidence was closed, without affording an opportunity to examine Mr. Sushil Kumar.
31. The trial was concluded on 17th September, 2022, with the Plaintiff deposing PW-1, Mr. Akio Ito and PW-2, Mr. Prashant Jha, to prove Mark X-23. Defendant presented four witnesses, namely, Mr. N.K. Suri [DW-1], Mr. Ashok Kumar Dhingra [DW-2], Mr. Jasmil Singh [DW-3], and Mr. Ramesh Kumar Sarin [DW-5].
SHIFT IN DYNAMICS OF PARTIES TRADEMARK RIGHTS DURING THE SUIT PROCEEDINGS

32. The Plaintiffs assertions of trademark infringement against the Defendant are predicated on five registrations for the trademark TOSHIBA and its variants (detailed in paragraph No. 4.2. of the judgment), that precede the professed date of adoption of TOSIBA by the Defendant. Before the initiation of this action, the Defendant applied to the Trademarks Registry to annul the exclusive rights derived by Plaintiff from their registrations. In contrast, Plaintiff launched oppositions to trademark applications No. 509862 and 509863 of Defendant, which had been accepted and advertised by the Registrar of Trademarks. While the proceedings in the present suit progressed, these parallel legal actions were conclusively adjudicated by the concerned fora. As these decisions directly impact the parties standing in the current suit, it is essential to note them before embarking on a thorough analysis of the arguments and evidence presented.

I. Rectification petitions filed against the Plaintiffs registrations
I.I. Trademarks No. 160442 and 160443
33. Defendant filed two petitions before the Assistant Registrar of Trademarks, Chennai seeking cancellation of Plaintiffs trademark No. 160442 in class 09, and No. 160443 in class 11 for the trademark . These petitions were decided through a common order on 12th January, 2005 in favour of the Plaintiff [Mark X-50]. Before the Trademarks Registrar, Defendant alleged that the afore-noted trademark had not been used for a continuous period of five years and one month preceding the date of filing of cancellation petition, and was wrongly registered without cause. They asserted that they were the prior and renowned user of the trademark TOSIBA in respect of domestic electrical appliances, since 1975 and filed invoices, bills, excise gate pass, application for central excise license, factory license, promotional expenses etc. to demonstrate their use. The Petitioner submitted their response along with supporting evidence to the petitions. Defendant defaulted in pursuing the matter, and failed to join the hearing, resulting in an ex-parte disposal based on the presented material.
34. The Assistant Registrar noted that Defendant had failed to establish bona fide adoption of the trademark/ name TOSIBA, which was deceptively similar to Plaintiffs registered trademark, first registered in 1953. In absence of evidence to the contrary, it was concluded that the Defendants adoption was dishonest, disentitling them from claiming any relief. Further, Defendants petitions lacked material to prove non-use by the Plaintiff for over five years. The Assistant Registrar, after scrutinizing the material placed by Plaintiff, held that Plaintiff had sufficiently demonstrated continuous use of their mark. It was observed that use of a trademark is not confined to use on physical goods, and has been demonstrated through advertisements, joint ventures, technical collaborations and establishment of service centres by the registered proprietor. The intermittent use of Plaintiffs trademark on goods circulated within India was found attributable to special circumstances, being restrictions imposed by the Indian Government on imports. Consequently, acknowledging that the trademark TOSHIBA is an invented word, the rectifications were dismissed for deficient proof of allegations raised, and failure of Defendant to qualify as an person aggrieved.
35. The Defendant preferred review applications against the ex-parte order dated 12th January, 2005, alleging a breach of principles of natural justice. They explained that they did not receive the hearing notices in the rectification petitions, and therefore, could not join the proceedings. The applications for review were allowed on 01st December, 2006, with directions for fresh consideration [Mark X-51].
36. The Defendants aforesaid rectification petitions have not been decided till date. Consequently, the status of trademark registrations No. 160442 and 160443 remains unchanged.

I.II. Trademark No. 273760
37. Broadly, the grounds for cancellation of trademark TOSHIBA registered under No. 273760 in class 11 raised by the Defendant were as follows: (a) trademark was erroneously registered without sufficient cause, (b) Plaintiff committed fraud by suppressing relevant information to obtain registration, (c) non-use for a continuous period of five years, and (d) prior use. In response, the Plaintiff argued that a variety of goods, including those covered by their registration in class 11, were openly sold in the country and adduced several agreements for technology transfer, collaboration, and trademark license executed with Indian entities, in support. Any non-use of the goods in question was asserted to be caused by the special circumstance of governmental import limitations. The Plaintiffs submissions were rejected by the Assistant Registrar through order dated 12th May, 1992 [Mark X-47 (colly)] as the agreements filed by the Plaintiff did not pertain to manufacturing or trade of the goods falling under class 11, in respect whereof, the mark TOSHIBA was registered. Insofar as the question of setting up customer care centres was concerned, there was a conspicuous lack of material demonstrating that these centres conducted repairs of class 11 goods. The Registrar was also not convinced with the Plaintiffs explanation of non-use. It was observed that the Plaintiff opted to secure trademark registration for the concerned goods, conscious of the proscriptions prevalent before the date of application that precluded any sale within India. Given the significant intervals of non-use, Plaintiffs trademark TOSHIBA was considered to be a dead mark, having no association with the goods concerned for the Indian consumers. The purchase of TOSHIBA products by Indian consumers during their foreign travels was considered insignificant as the sale of such goods was effected outside the Indian territory and for personal use. The Registrar thus held that the trademark TOSHIBA was registered without bona fide intention of using the same in relation to the goods sold by them. The mark was found to be incorrectly registered, and had not been used for the goods in question.
38. In view of the intersection between Defendants prior use of goods falling within class 11, the Registrar ordered removal of the overlapping goods, namely Holders for electric lamp bulbs, fluorescent lamps, electric cooking ovens with microwave heating, lighting fixtures (not included in other classes), water coolers, water heaters, space heaters, warming blankets (not for surgical purposes or medical use), grilling apparatus, electric fans, ventilating fans, hot plates for cooking, ovens, automatic cookers, bread toasters, coffee percolators, egg cooking vessels, heaters (gas and kerosene) from the ambit of goods covered by the Plaintiffs trademark registration No. 273760 in class 11.
39. Dissatisfied with the order of the Registrar, the Plaintiff filed an appeal before the High Court of Calcutta [No. 530/1992], which was decided on 15th July, 1996 [Mark X-48 (colly)]. The High Court upheld the Registrars view of non-use of the trademark by Plaintiff. The Court disagreed with the contention that adoption of TOSIBA by Defendant aims to deceive the public by creating an unlawful association with the Plaintiff as there had been no use by the Plaintiff. Further, the Court observed that any probable confusion arising from Plaintiffs international repute would be insignificant due to Plaintiffs non-use in India. As regards the Registrars determination of Defendant as the prior user, it was held that there was insufficient evidence to demonstrate that Defendant was using their mark TOSIBA in respect of all the items that were rectified from Plaintiffs registration.
40. Consequently, trademark No. 27370 was rectified partially, with the omission of afore-noted goods from its scope.

I.III. Trademark No. 273759
41. The Defendants application for rectification of trademark registration No. 273759 for the mark TOSHIBA in class 09 was partially allowed by the Deputy Registrar of Trademarks on 12th May, 1992 on the ground of non-use for nearly 20 years [Mark X-47 (colly)]. The Registrar rejected the explanation that non-use was caused by governmental policies, which were operative even before the Plaintiffs registration. In view of the above, the goods electric relays, electric resistances, switches (electric) of all kinds, electric wires and cables, electrically operated apparatus for killing mosquitos, hair dryers (electric) were ordered to be deleted from the scope of Plaintiffs registration in class 09.
42. In appeal, in the order dated 06th May, 1994, the High Court of Calcutta opined that the intention of an applicant proposing to use the mark from a prospective date must be palpable and commercially sound [Mark X-48 (colly)]. It should not hinge on unreal or uncertain contingencies that may never materialize. In that light, given the prevailing restrictions, the Court determined that the Plaintiff did not intend to use the mark in the Indian market. After an examination of the record presented, the Court noticed that Plaintiff had demonstrated use, as understood in trademark law, in respect of all items rectified by the Registrar, except mosquito killers and hair dryers.
43. Therefore, the Plaintiff partially succeeded in their appeal, with only the goods electrically operated apparatus for killing mosquitos and electric hair driers being omitted from their registration No. 273759 in class 09.

I.IV. Trademark No. 273758
44. Asserting themselves to be the prior users for domestic electrical appliances, the Defendant sought to annul Plaintiffs trademark TOSHIBA registered under No. 273758 in class 07 by arguing that the registration was obtained without sufficient cause, and for lack of actual use for the statutorily prescribed timeline of more than five years. Their challenge to Plaintiffs registration was decided by the Deputy Registrar on 12th May, 1992 [Mark X-47 (colly)]. As was the case with registrations No. 273759 and 273760, the contention of import limitations preventing the use of the mark was rejected and the Trademarks Register was rectified partially with deletion of goods electric washing machines and spin dryers from Plaintiffs registration.
45. The decision of the Registrar was assailed by the Plaintiff before the High Court of Calcutta, where they principally challenged Defendants locus to seek rectifications. According to Plaintiff, the Defendant did not qualify as a person aggrieved to maintain the trademark cancellation petitions, particularly since they did not trade in washing machines or spin dryers. In this regard, the Court acknowledged the similarity between the conflicting marks TOSHIBA and TOSIBA whose simultaneous existence entailed the prospects of public deception. In its order dated 27th September, 1993, the Court regarded the Plaintiffs overstress on the distinction in trademark classes under which the parties operated as misconceived. Noting that the classification of goods is a creation of statute, the Court found that washing machines (covered in class 7) and electric cooking oven (class 11) are broadly considered as goods which comprise household artefacts for modern living. Further, the existence of the mark TOSHIBA in respect of washing machines and spin dryers would preclude the Defendant from venturing into this arena. Accordingly, the Defendant was held to be a person aggrieved by the Plaintiffs registration of TOSHIBA in class 07. As regards the question of failure to use the mark, the Court agreed with the Registrars decision to omit goods from Plaintiffs registration.
46. A challenge to the afore-discussed order of the Single Judge was initiated by Plaintiff. The Division Bench of High Court of Calcutta dismissed Plaintiffs appeal on 08th December, 2005, finding no bona fide use of the mark by the Plaintiff in relation to the aforesaid goods [Mark X-49]. The matter travelled to the Supreme Court, where judgment of the Division Bench was set aside as Defendant could not demonstrate any harm or injury caused by continuance of Plaintiffs registration for washing machines or spin dryers.
47. As an outcome, the purview of goods covered by trademark registration No. 273758 in class 09 remains intact.

I.V. Current status of Plaintiffs registrations
48. For ease of reference and convenient reading, the outcome of the afore-noted rectification petitions is encapsulated in the following chart:7
Trademark and No.
Class and Goods

No.: 160442
Class 9

No.: 160443
Class 11

Installations for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes.
TOSHIBA

No.:273758
Class 7

No.:273759
Class 9

No.: 273760
Class 11

holders for electric lamp bulbs, incandescent lamps, dazzle lamps, lamps for projectors, fluorescent lamps, glow starters, xenon lamps being lamps for projectors, iodine lamps being incandescent electric lamps, sodium vapour lamps, mercury vapour lamps, including metallic vapour lamps (not for medical or surgical use), neonglow lamps for advertisement or display purposes and not included in class 9, electric cooking ovens with microwave heating lighting fixtures (not included in other classes), refrigerators, room air conditioners, water coolers, water heaters, space heaters, warming blankets (not for surgical purposes or medical use), grilling apparatus, electric fans, ventilating fans, air purifiers, electric drivers, freezer show cases, hot plates for cooking, ovens, automatic cookers, bread toasters, pots, coffee percolators, egg cooking vessels, coffee blenders (all the foregoing electrically operated), heaters (gas and kerosene) all being goods included in class 11
49. In addition to the afore-discussed registrations, the Plaintiff has presented in evidence orders delivered in proceedings concerning several other trademark applications/ registrations filed by the Plaintiff after 1975, which is the proclaimed date of adoption of the impugned mark. In view of the established principles of trademark law, the registrations subsisting on the date of conception of the mark TOSIBA would be germane to the present controversy. Therefore, it is deemed unnecessary to delineate the status of the subsequent registrations of the Plaintiff.

II. Trademark oppositions to Defendants applications

II.I. Trademark Application No. 509863
50. Defendant filed an application for registration of mark TOSIBA in class 11, which was accepted and advertised by the Trademarks Registry on 22nd August, 1994. Plaintiff filed an opposition on 19th October, 1984. However, on 21st September, 2001 this application was deemed to have been abandoned under Section 21(2) of the Trade Marks Act, 1958 owing to Defendants failure to file a counter-statement within the statutorily prescribed timeline [Ex. DW1/P2].

II.II. Trademark Application No. 509862
51. The Defendants trademark application No. 509862 in class 09 for electrical apparatus and instruments, electric iron (flat) and electrical appliances included in class 09 was rejected by the Assistant Registrar of Trademarks, Delhi on 21st September, 2001 [Mark X-56]. The application was accepted and advertised in the trademarks journal on 16th November, 1995, whereafter the Plaintiff submitted an opposition, challenging the Defendants proprietorship over the mark TOSIBA. They urged that their prior registration for TOSHIBA prohibits registering of any deceptively similar mark in the same class for goods of the same description. These objections were sustained by the Registrar, given the near resemblance between the contesting marks TOSHIBA and TOSIBA, which can possibly result in public confusion or deception. Further, there was an evident overlap between the goods mentioned in Defendants application and the Plaintiffs registration, leading to prospects of confusion as to the trade source. In absence of cogent explanation, the Registrar was unconvinced that adoption of TOSIBA by Defendant was honest. Consequently, it was held that significant and continued use of TOSIBA could not vest proprietary rights in the Defendant.
52. The appeal preferred against the Assistant Registrars order before the Intellectual Property Appellate Board was declared as abandoned under Rule 17(2) of the Intellectual Property Appellate Board (Procedure) Rules, 2003, in view of Defendants failure to participate in the proceedings.

ISSUE-WISE ANALYSIS AND FINDINGS
53. Pursuant to a mutual agreement reached between the parties, as documented in the court order dated 27th September, 2000, issue No. 6 concerning the stay of proceedings under Section 111 of the Trade Marks Act 1958 has been formally deleted from the case. This agreement was predicated on the condition that the Plaintiff would not proceed with the interim application for an injunction under Order XXXIX Rules 1 and 2 of the CPC, identified as I.A. 10112/1994. Consequently, this application was dismissed on the same date for lack of prosecution, effectively resolving this aspect of the dispute.
54. No further adjudication is necessary regarding issues No. 9 and 10 as the Defendants registration of the trademark TOSIBA in class 05 under No. 510314 has been expunged from the Register of Trademarks. This removal follows a successful rectification petition filed by the Plaintiff in a judgment dated 01st March, 2008, as recognized by this Court in order dated 10th January, 2020 in W.P.(C) 8382/2007. Consequently, there is no need to deliberate on the effects of the Defendants registration or the grounds for its rectification.
ISSUE NO. 4: WHETHER THE SUIT HAS BEEN SIGNED, VERIFIED BY A DULY AUTHORISED AND INSTITUTED BY A COMPETENT PERSON?

55. Given the foundational nature of issue No. 4 concerning the legality and propriety of the suits initiation, it is deemed appropriate to examine this matter at the outset.
56. The Plaintiff is a corporation established under the laws of Japan, with its registered office in Kanagawa-ken, Japan. The suit was initiated on their behalf by Mr. Kensuke Norichika, General Manager of the Intellectual Property Division of the Plaintiff. The Plaintiff asserts that Mr. Kensuke Norichika was duly authorized and competent to institute the present suit. In support of this claim, they have produced the following documents to establish the legal authority and competency of Mr. Kensuke Norichika to act on behalf of Plaintiff:
(a) Power of Attorney executed by Mr. Joichi Aoi dated 18th April, 1989 in favour of Mr. Kensuke Norichika [Mark X-21].
(b) Board Resolution dated 24th January, 2001 signed by Mr. Tadashi Okamura, President and Chief Executive Officer of Plaintiff, recognizing and ratifying Power of Attorney of 18th April, 1989, empowering Mr. Kensuke Norichika to initiate this lawsuit [Ex. PW1/40].
(c) Extracts from the Commercial Register of Registrar of Companies, Japan, indicating that Mr. Tadashi Okamura was nominated as the Representative Director in 2001 [Ex. PW1/41 and PW1/42].
(d) Board Resolution of 01st December, 2006 attested by Mr. Atsutoshi Nishida, President of Plaintiff at the time, endorsing Mr. Kensuke Norichikas authority to institute the suit [Ex. PW1/42A].
57. The Defendant raised significant challenges to the authorization and competence of Mr. Kensuke Norichika in instituting the suit, casting doubts on the procedural legitimacy of the Plaintiffs actions. These challenges are based on several key admissions and points raised during the cross-examination of Mr. Akio Ito [PW-1], which are summarised as follows:
(a) Mr. Akio Ito has admitted that there was no specific resolution from the Board of Directors of Plaintiff authorizing the filing of the present suit by Mr. Kensuke Norichika. This absence indicates a potential lack of formal corporate approval for the initiation of the suit.
(b) The copy of Power of Attorney marked as X-21, which purportedly authorized Mr. Kensuke Norichika to file and institute the suit, has not been properly authenticated as per legal requirements, and was thus, not admitted as an exhibit. Additionally, PW-1 conceded during his cross-examination on 29th April, 2004, that he did not witness the execution of the Power of Attorney, and was uncertain whether the photocopy submitted was directly copied from the original, or was a copy of a copy, casting further doubts on its legitimacy.
(c) The photocopy of the Power of Attorney is inadmissible in evidence because its authenticity and direct derivation from the original cannot be verified. PW-1s vague statement during his cross-examination that he had heard the original Power of Attorney had been lost lacks specificity and credibility. No conclusive evidence or legally acceptable testimony confirms the loss or substantiates the claim.
(d) During the cross-examination conducted on 30th April, 2009, PW-1 admitted that no Board Resolutions authorized the ratifications dated 24th January, 2001 [Ex. PW1/40] and 01st December, 2006 [Ex. PW1/42A]. This lack of formal authorization questions the validity of the actions taken under this supposed ratification.
(e) PW-1s admissions that certain critical documents, including extracts from Commercial Register and ratifications, were not prepared in his presence, and that he had not brought original documents to verify translations or the authenticity of photocopies, weaken the Plaintiffs position.
58. Basis the points noted above, Defendant challenged the procedural foundations of the present lawsuit, particularly focusing on the authenticity and procedural correctness of the documents and authorizations relied upon by the Plaintiff to initiate legal proceedings.
59. The Court has examined the documents and oral evidence. While no specific onus of proof was assigned to this issue, the burden typically falls on the Plaintiff to demonstrate that the suit was signed, verified, and instituted by an authorized and competent individual. It cannot be disputed that a company like the Plaintiff can sue and be sued in their own name. As a juristic entity, a company necessarily acts through individuals authorized to represent its legal interests. Order XXIX Rule 1 of the CPC stipulates that in cases involving a corporation, the Secretary, any Director, or any other Principal Officer who is knowledgeable about the facts of the case is empowered to sign and verify pleadings on behalf of the company. As per Order VI Rule 14, a pleading is required to be signed by the party and its pleader, if any. When these two provisions are read in conjunction, it becomes clear that even in the absence of a formal authorization, such as a Letter of Authority or Power of Attorney, the designated officers enumerated in Order XXIX Rule 1 possess inherent authority to act on behalf of the corporation. This provision ensures that the practical realities of a corporates operations are accommodated within legal procedures, allowing those who hold these offices to effectively represent the corporate entity in judicial processes. In addition thereto and de hors Order XXIX Rule 1 of the CPC, since a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf, and this would be regarded as sufficient compliance with the provisions of Order VI Rule 14. In the case of United Bank of India v. Naresh Kumar and Ors.,8 the Supreme Court held that beyond the stipulations of Order XXIX, a corporation may also specifically authorize any individual to sign pleadings and other legal documents. This can be achieved through explicit means such as a resolution passed by the Board of Directors or through the execution of a Power of Attorney. In situations where no explicit authorization is evident, and an officer of the corporation has signed the pleadings, the corporation has the ability to subsequently ratify these actions. Such ratification may be express, such as through formal corporate resolutions, or implied, discerned from the conduct and the context of the legal proceedings.
60. Before the Court, Plaintiff has relied on a series of documents to establish the authority of Mr. Kensuke Norichika to initiate legal action on behalf of Kabushiki Kaisha Toshiba. The foundational document is the Power of Attorney dated 18th April, 1989 [Mark X-21], which authorized Mr. Kensuke Norichika to sign and execute documents concerning industrial property rights, explicitly empowering him to institute legal actions for the company. However, because of the absence of the original document during the proceedings, the document could not be proved as per the Evidence Act, 1872. In response to the challenge of proving authorization, the Plaintiff produced two ratification resolutions. The first, dated 24th January, 2001 [Ex. PW1/40], which ratifies Mr. Kensuke Norichikas actions in signing, verifying, and instituting the suit. This resolution affirmed that the original Power of Attorney was deemed to confer upon Mr. Kensuke Norichika the authority necessary for handling the legal proceedings in this lawsuit. A second ratification occurred on 01st December, 2006 [Ex. PW1/42A], which also confirmed Mr. Kensuke Norichikas actions and reaffirmed the authority granted by the 1989 Power of Attorney. This was further substantiated by witness testimony of PW-1, who deposed that Mr. Kensuke Norichika, although no longer an employee, was properly authorized by then-President Mr. Tadashi Okamura, as indicated by the ratification and Power of Attorney of January 2001. Moreover, Mr. Atsutoshi Nishida, another President of the company, also ratified the institution of the suit through another document dated 01st December, 2006.
61. The legitimacy of the afore-noted authorizations is supported by records from the Commercial Register maintained by Registrar of Companies of Japan. Extracts of these records were presented in Japanese [Ex. PW1/41] and translated into English [Ex. PW1/42], indicating that Mr. Tadashi Okamura was the Representative Director at the relevant time, further