Delhi District Court
M/S Anand Kumar Deepak Kumar vs Sh Ashok Kumar Aggarwal on 15 January, 2016
Anand Kr Deepak Kr v Haldiram Bhujiawala
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL DISTRICT JUDGE 06: CENTRAL : DELHI.
IN THE MATTER OF M - 63/11/99 (OLD No. CCP 82/99)
IN SUIT NO. TM 02/11/92
1. M/s Anand Kumar Deepak Kumar
also Trading as
M/s Haldiram (India) Private Limited
1454/2 Chandni Chowk,
Delhi - 110006.
2. Sh Shiv Kishan Aggarwal,
2034, Katra Lachhu Singh
Chandni Chowk, Delhi.
3. M/s Haldiram (India) Pvt. Limited,
B1/H8 Mohan Cooperative Industrial Estate Ltd.
Mathura Road, New Delhi - 110044
Through
Shri Manohar Lal Aggarwal
Sh Shiv Kishan Aggarwal
Sh Shiv Ratan Aggarwal
Sh Madhusudan Aggarwal
as its Directors .... Petitioners
Result: Petition allowed Page 1 of 176
Anand Kr Deepak Kr v Haldiram Bhujiawala
VERSUS
Sh Ashok Kumar Aggarwal
C/o HALDIRAM BHUJIAWALA
2284 Arya Samaj Road, Karol Bagh,
New Delhi - 110005. ....Respondent.
Unique case I.D No.
:
02401C5043842004
Date of Institution : 09.07.1990
Date of Reserving Order : 04.12.2015.
Date of Order : 15.01.2016.
IN THE MATTER OF M - 64/11/99 (OLD No. CCP 114/99)
IN SUIT NO. TM 02/11/92
1. M/s Anand Kumar Deepak Kumar
also Trading as
M/s Haldiram (India) Private Limited
1454/2 Chandni Chowk,
Delhi - 110006.
2. Sh Shiv Kishan Aggarwal,
2034, Katra Lachhu Singh
Chandni Chowk, Delhi.
3. M/s Haldiram (India) Pvt. Limited,
B1/H8 Mohan Cooperative Industrial Estate Ltd.
Result: Petition allowed Page 2 of 176
Anand Kr Deepak Kr v Haldiram Bhujiawala
Mathura Road, New Delhi - 110044
Through
Shri Manohar Lal Aggarwal
Sh Shiv Kishan Aggarwal
Sh Shiv Ratan Aggarwal
Sh Madhusudan Aggarwal
as its Directors .... Petitioners
VERSUS
Sh Ashok Kumar Aggarwal
C/o HALDIRAM BHUJIAWALA
2284 Arya Samaj Road, Karol Bagh,
New Delhi - 110005. ....Respondent.
Unique case I.D No.
:
02401C5043842004
Date of Institution : 20.09.1999
Date of Reserving Order : 04.12.2015.
Date of Order : 15.01.2016.
IN THE MATTER OF M - 62/11/99 (OLD No. CCP 55/00)
IN SUIT NO. TM 02/11/92
1. M/s Anand Kumar Deepak Kumar
also Trading as
M/s Haldiram (India) Private Limited
Result: Petition allowed Page 3 of 176
Anand Kr Deepak Kr v Haldiram Bhujiawala
1454/2 Chandni Chowk,
Delhi - 110006.
2. Sh Shiv Kishan Aggarwal,
2034, Katra Lachhu Singh
Chandni Chowk, Delhi. .... Plaintiffs/Petitioners
VERSUS
1. M/s Haldiram Bhujiawala,
2284 Arya Samaj Road, Karol Bagh,
New Delhi
2. Sh Ashok Kumar Aggarwal,
S/o Late Sh Rameshwar Lal Aggarwal,
2284 Arya Samaj Road, Karol Bagh,
New Delhi
ALSO AT
3A, Brojodulal Street,
Calcutta 700 006.
3. Prabhu Shankar Aggarwal,
S/o Late Sh Rameshwar Lal Aggarwal,
7, Jagmohan Mullick Lane,
Calcutta 700 007.
4. Mahesh Kumar Aggarwal,
Result: Petition allowed Page 4 of 176
Anand Kr Deepak Kr v Haldiram Bhujiawala
S/o Late Sh Rameshwar Lal Aggarwal,
58, Chowringhee Road,
Calcutta 700 071
5. Smt Kamla Devi Aggarwal,
3A, Brojodulal Street,
Calcutta 700006.
6. Sharad Aggarwal,
Minor son of late Sh Ravi Shankar Aggarwal,
Through His Guardian,
Smt. Shobha Aggarwal (Mother),
W/o Late Sh Ravi Shankar Aggarwal,
P20, CIT Road, Scheme VIIth
Calcutta 700 054.
7. M/s Pratik Marketing,
LL33, Ist floor, Ambar Tower,
S.C Road, Jaipur. ....Respondent/Contemnors.
Unique case I.D No.
:
02401C5043842004
Date of Institution : 08.05.2000
Date of Reserving Order : 04.12.2015.
Date of Order : 15.01.2016.
Result: Petition allowed Page 5 of 176
Anand Kr Deepak Kr v Haldiram Bhujiawala
IN THE MATTER OF M - 40/13
1. M/s Anand Kumar Deepak Kumar
1454/2 Chandni Chowk,
Delhi - 110006.
2. Sh Shiv Kishan Aggarwal,
2034, Katra Lachhu Singh
Chandni Chowk, Delhi.
3. M/s Haldiram India Pvt. Ltd.
B1/H3, Mohan Cooperative Industrial Estate,
Main Mathura Road,
New Delhi. .... Petitioners/Plaintiffs
VERSUS
1. M/s Haldiram Bhujiawala,
2284 Arya Samaj Road, Karol Bagh,
New Delhi 110 005.
2. Sh Ashok Kumar Aggarwal,
C/o M/s Haldiram Bhujiawala
2284 Arya Samaj Road, Karol Bagh,
New Delhi - 110005. ....Contemnors/Defendants
Also at:
(i) A7 NDSE, South Extension Part I
Result: Petition allowed Page 6 of 176
Anand Kr Deepak Kr v Haldiram Bhujiawala
Main Road, New Delhi.
(ii) A94/4, Wazirpur Industrial Area, Delhi.
Unique case I.D No.
:
02401C5043842004
Date of Institution : 29.04.2013
Date of Reserving Order : 04.12.2015.
Date of Order : 15.01.2016.
ORDER
BRIEF HISTORY OF CASES
1. This order shall be a common order for purposes of the above miscellaneous Contempt petitions. The first three petitions are constituting largely of pleadings that are of similar implications but for the fact that multiple respondents are arrayed as proposed contemnors in the third. The facts leading to filing of forth petition are also more or less same as arising out of the main suit no. TM 02/11/99 wherein the applicants herein are plaintiffs and the respondents no. 1 & 2 in the first two above petitions are the defendants. The respondents no. 3 to 7 in the third petition were not arrayed as defendants in the main suit. Since the third petition pleads involvement of additional respondents, special reference to the same shall be made in this order. Further, qua the forth petition, special reference shall also be made as it pleads a continuing disobedience and consequent infringement of Trade Mark/Trade Name. 1.1. At the same time, this order will also be simultaneously disposing of an application of the defendants/respondents in M 40/13 which was moved by them in the midst of the arguments on Result: Petition allowed Page 7 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala the said petition on 1.12.2012 under Section 151 CPC for appropriate directions in the nature of framing of issues and directions to the parties to adduce evidence in support thereof. On the same date, this Court noted that it is not soliciting any reply to the same as it is otherwise only for directions in view of its earlier noting dated 24.11.15 wherein the Court had kept the aspect of settlement of issues for determination of the points involved open for order. It was also noted that the circumstances indicated in the application shall be considered once the Court is at the stage of disposing of the petition and/or the points for determination in accordance of its order dated 23.11.15. As a matter of fact, on 23.11.15, the Court had heard part arguments on the petition also with a view as to whether it requires to settle the issues for determination of the points involved. The applicants counsel pleaded that entire material before the Court in the form of pleadings and documents is exhaustive, based on legal principles and thus there is no necessity for calling evidence. Prayer was made for disposal of petition with directions for appointment of local commissioner in accordance of prayer clause. Needless to say, the other side has been also heard on the aspect during arguments which stood concluded finally on 4.12.2015. As I have considered all aspects minutely and threadbare, I state here itself that no issues are required to be cast for determination of M 40/13. Detailed reasons shall follow in this order itself.
2. TM 02/11 is not the only litigation. It was initially instituted on 10 th December, 1990 in the Court of Ld. District Judge, Delhi claiming the relief of Injunction against defendants etc from infringing trade mark no. 285062 and from using the trade mark/trade name "Haldiram Bhujiawala". On the same date, Ld. ADJ passed exparte order restraining the defendants. Later, plaintiffs sought amendment by incorporating claim for recovery of damages to the tune of Rs.6 lacs which was allowed and plaint was returned for its presentation in Court having pecuniary jurisdiction. It was thus presented on original side of Hon'ble High Court of Delhi on 17.2.1992.
Result: Petition allowed Page 8 of 176Anand Kr Deepak Kr v Haldiram Bhujiawala Subsequently, Smt. Kamla Devi Aggarwal, proposed contemnor no. 4 in the third petition above instituted her own suit bearing no. TM 03/11 on the original side of the Hon'ble Delhi High Court against six defendants which are the main applicants in the petitions above on 12.7.2001.
3. The amended plaint in TM 02/11 is primarily a suit for Permanent Injunction restraining the defendants, their partners, servants, agents, dealers, representatives, legal heirs and all others acting for and on behalf of the defendants from infringing the Trade Mark No. 285062 and from using the Trade Mark/Trade Name HALDIRAM BHUJIAWALA and or deceptively similar to the plaintiffs' Trade Mark/Trade Name HALDIRAM BHUJIAWALA and from doing any act as is likely to cause confusion and deception amounting to passing off. Further, damages are prayed for illegal user. Further more, destruction of the infringing material etc is prayed.
4. TM 03/11 is suit for Declaration that Deed of Dissolution dated 16.11.1974 is a manufactured document and thus be cancelled. Further, Declaration that assignment of the Trade Mark HALDIRAM BHUJIA WALA, Registration No. 285062 in favour of defendant no. 5 granted by defendants no. 1 to 4 is illegal and unenforceable. Perpetual Injunction is prayed against defendants from giving further effect to the Deed of Dissolution. Injunction against fifth defendant from using Trade Mark No. 285062. Injunction of like nature against defendants no. 1 to 6 is also prayed besides Rendition of Accounts for profits.
5. During the course of proceedings, the application of applicants herein/plaintiffs under Order 39 Rules 1 & 2 CPC was disposed off as allowed by the Hon'ble Single Judge of Hon'ble Delhi High Court on 12.5.1999 (by which time the plaintiff no. 3 was yet to be impleaded in the suit as it was done vide order dated 27.8.2001). The relevant part of order dated 12.5.1999 is extracted below viz;
".....This application is accordingly allowed and it is hereby ordered as under: Result: Petition allowed Page 9 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala
1. Defendants, their agents/representatives/servants or successors in interest are hereby restrained by means of interim injunction from using the tradename and/or trade mark "Haldiram Bhujiawala" with or without the logo, as registered vide registration No. 285062 or any other trade mark identical or deceptively similar thereto, in India except the State of West Bengal:
2. The defendants shall submit within two months, statement of accounts showing the details of the sales made by them in Delhi since 10.12.1991 using this tradename and/or trade mark verifying its correctness on affidavit:
3. The defendants shall make discovery on affidavit within one month of all the documents, account books, papers etc relating to such business since 10.12.1991 and shall file an undertaking that they shall not destroy or part with such documents till further orders of this Court; and
4. They shall make available for inspection by the plaintiffs all such documents, account books, papers, etc pertaining to the said business, if so required."
6. Above order was challenged in the Hon'ble Division Bench of the Hon'ble Delhi High Court in FAO (OS) 155/1999 disposed of on 3.6.2010 to the following effect viz;
"32. We, therefore, set aside the impugned order dated 12 th May, 1999 and remand back the application i.e IA No. 1675/1992 for hearing by the learned Trial Court, who after hearing the parties, shall pass appropriate orders thereon".
7. Subsequently, the Ld Predecessor of this Court took up and decided the application of the plaintiffs/applicants herein under Order 39 Rules 1 & 2 CPC by his order dated 27.9.2012 to the following Result: Petition allowed Page 10 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala effect, viz;
"43)......
1)(a). The defendants their representatives, agents, assignees etc, are hereby restrained from using the plaintiff's trade name/mark Haldiram Bhujiawala HRB with 'V' logo in any form whatsoever, wholly or in parts, except as provided in para (b) mentioned herein under, till the finalization of rectification/cancellation proceedings (ORA14/2004/TM/KOL) by the Intellectual Property Appellate Board (IPAB) or till the disposal of present suit or unless this order is varied.
b). The defendants may however use the trade name "Haldiram Bhujiawala" alongwith 'V' logo as reflected in trade mark 330375, with or without its disclaimed portion. It is specifically clarified that whenever the defendants use the trade name, they shall use the full trade name "Haldiram Bhujiawala" together (without bifurcating the two words) in analogus font, equal size and alongwith 'V' logo distinctively displayed with it.
2). The defendants shall change all his display boards, wrappers, packets, boxes, packaging/sale material or any other visual form of advertisement in accordance with this order within two months from the date of this order.
3). The defendants shall maintain an account of sales made by using the aforesaid trade name, trade mark or logo, duly audited in accordance with law, till final disposal of the present suit and shall file the same before the Court as and when called upon to do so."
8. The above order was sought to be reviewed however, the review petition was also dismissed by an order dated 21.1.2013.
9. The above order was challenged by the plaintiffs/applicants herein in Result: Petition allowed Page 11 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala the Hon'ble Delhi High Court in FAO 470/2012 and CM(M) No. 19688689/12, 2377/13 and 7822/13.
10. Another FAO No. 496/12 was also preferred by the plaintiffs in respect of Clause 43(1)(a) & (b).
11. The defendants herein also filed a CM(M) No. 532/2013 against order of this Court dated 21.1.2013.
12. These petitions were disposed of by the Hon'ble Delhi High Court vide order dated 19.10.2015. The CM(M) No. 532/2013 was dismissed. The FAO No. 496/2012 was dismissed as infructuous on account of subsequent development as the plaintiffs had filed a Cancellation petition of defendants' Trade Mark no. 330375. This FAO challenged the part of order dated 27.9.2012 to the extent it granted liberty to the defendants to use the Trade Mark Haldiram Bhujiawala alongwith 'V' Logo as reflected in TM No. 330375 till decision of rectification in para 43 (1) (b) of the said order. During pendency of appeal, the Cancellation petition was decided in favour of the plaintiffs by IPAB and the aforesaid trade mark in name of Mr. Rameshwar Lal and Mr. Prabhu Shankar Aggarwal stood cancelled vide order dated 26.4.2013. A writ was also filed in the Hon'ble High Court of Calcutta by the defendants in TM 02/11 against order of IPAB but no stay was granted. It was thus observed that the defendants can not use the Trade Mark even for that limited purpose any more as permitted by this Court in clause 43(1)(a) & (b). Hence the appeal became infructuous.
13. FAO No. 470/12 was disposed of in the following terms, viz;
"93. In view of the above, the appeal against the impugned order dated 27.9.2012 passed by the learned ADJ stands dismissed and the restraint order against the defendants, their representatives, agents, assignees etc from using the trade name/mark Haldiram Bhujiawala HRB with 'V' logo in any form whatsoever, wholly or in parts forthwith , till the final disposal of the suit, as ordered by the trial Court, stands Result: Petition allowed Page 12 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala affirmed except that para 43(1) (a) & (b), which permitted the defendant to use the trade name on certain contingency, stands deleted. Further, clause 43(1) (c) stands modified to the extent that now instead of the defendant, the plaintiff shall maintain an account of sales made by them using the aforesaid trade name/mark or logo, duly audited in accordance with law, till final disposal of the suit and shall file the same before the Court as and when called upon to do so."
14. The order of Hon'ble High Court of Delhi above was also challenged by the defendants in TM 02/11 in the Hon'ble Supreme Court of India in SLP No. 3082425/2015. Same was disposed of on 20.11.2015. The relevant part is as under:
"We request the learned trail Judge to ensure that the trial (s) of the suit
(s) in question are expedited and completed within a period of Four Months from today. We also request the Ld. Trial Judge to forward a copy of such final order/Judgment, as may be passed to the Registry of this Court........
We direct that the SLP petitioner be allowed to carry on the business in terms of the directions contained in paragraph 43(1) (B) of the order dated 27.9.2012 passed by the learned Additional District Judge, Tis Hazari Courts, Delhi in TM 02/11. It has been brought to our notice by the ld counsel for the respondents that the aforesaid directions have been flouted by the petitioners and contempt petition pending in this regard. It has also been brought to our notice on the basis of photographs claimed to have taken yesterday i.e 19th November, 2015 that business contrary to the said directions has been continuing. The aforesaid position is disputed by the learned counsel for petitioners.
Be that as it may, we direct the competent court/learned trial court to look into the aforesaid aspect of the matter, if raised and if any violation of the aforesaid directions contained in paragraph 43(1)(b) of the order dated 27 th September, 2012 passed by the learned Additional District Judge, Tis Hazari Courts, Delhi in T.M. No. 02/11 is to be found and recorded the interim relief in terms of the present order will cease to operate. The aforesaid direction is being passed in the special circumstances of the case.
Result: Petition allowed Page 13 of 176Anand Kr Deepak Kr v Haldiram Bhujiawala Naturally, any consideration of the said issue, if raised, will have to be made by the learned trial Court parallely with the adjudication of the Suit/Suits."
BRIEF HISTORY OF FILING OF CONTEMPT PETITIONS.
15. The M 63/11/99 was filed on the original side of Hon'ble Delhi High Court on 9.7.1999 initially under Order 39 Rule 2A read with Section 151 CPC and Section 12 of the Contempt of Courts Act, 1971 against Sh Ashok Kumar only. Pleadings were completed. This petition is in respect of the respondent flouting the order dated 12.5.1999, for which content, attachment of properties and detention in civil prison is prayed for.
16. The M 64/11/99 was filed on the original side of Hon'ble Delhi High Court on 20.9.1999 initially under Order 39 Rule 2A read with Section 151 CPC and Section 12 of the Contempt of Courts Act, 1971 against Sh Ashok Kumar only. Pleadings were completed. This petition is in respect of the respondent flouting the orders dated 12.5.1999 and 16.7.1999, for which contempt, attachment of properties and detention in civil prison is prayed for.
16.1. As a matter of fact, after notice in M 63/11/99, the respondent Sh Ashok Kumar Aggarwal appeared in person and gave an undertaking as recorded in the order sheet dated 16.7.1999 which is as under, viz;
"16.07.1999.
Present: .........Result: Petition allowed Page 14 of 176
Anand Kr Deepak Kr v Haldiram Bhujiawala CCP 82/99 Learned counsel for the respondent states that the use of the trade mark Haldiram Bhujiawala is not being used by the respondent since 1271999 and till further order he will not use the same. He further states that by now the containers/cartons have also been changed to Rameshwaram and they will also not display any board at the shop, that the boards will be removed wheresoever they may be available in Delhi and if any of the agents of the defendant are using this board they will immediately inform them not to use the same".
17. The M 62/11/99 was filed on the original side of Hon'ble Delhi High Court on 8.5.2000 initially under Order 39 Rule 2A read with Section 151 CPC and Section 12 of the Contempt of Courts Act, 1971 against the respondents no. 1 to 7 as described in the Memo of Parties above.
Pleadings were completed. This petition is in respect of the respondents flouting the orders dated 12.5.1999, 25.5.1999 and 16.7.1999 alongwith other incidental prayers and mainly for which contempts, attachment of properties and detention in civil prison is prayed for. The said order (25.5.99) is in respect of dismissal of stay application by the Division Bench for stay of operation of order in FAO 155/99.
17.1. The above three contempt petitions were challenged on their maintainability as a preliminary objection was raised by the respondents on the ground that a contempt petition under the Contempt of Courts Act does not lie and the only remedy is an application under Order 39 Rule 2A CPC. These petitions were said to be filed essentially under Section 10 & 12 of contempt of Courts Act and Result: Petition allowed Page 15 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala under Article 215 of Constitution of India. On 5.12.2007, the above noted three petitions were dismissed being not maintainable under the Contempt of Courts Act with liberty to petitioners/plaintiffs herein to file appropriate applications under Order 39 Rule 2A CPC in the trial Court which, by then, was this Court.
18. The plaintiffs/applicants herein, feeling aggrieved, filed FAO's(os) Nos. 3132 and 33/2008 before the Division Bench of Hon'ble Delhi High Court. The same were disposed of on 20.1.2009 with directions that the above petitions be considered only under Order 39 Rule 2A read with Section 151 CPC. The petitions were transferred to this Court with directions that this Court to decide the applications in CCP Nos. 82/99 (New number M 63/11) and 1141/99 (New number M 64/11) on the basis of available evidence already recorded. Directions were given that this Court will proceed on the basis of existing pleadings in respect of CCP No. 55/2000 (New number M 62/11) and record the evidence in respect thereof, if any. Directions for giving priority were also passed.
19. In M 62/11 (Old No. CCP 55/2000), following orders were passed on 8.5.2000;
"08.5.2000 Present: Ms. Kamaldeep for the applicants. Mr. Mahinder Rana for the respondent.CCP 55/2000 in S. 635/92
Issue notice returnable on 12th July, 2000. Counsel for the petitioner has submitted that this is the second contempt petition which the petitioners have been constrained to file. Despite undertakings given by the alleged contemners 1 & 2, those undertakings are being violated. Since Result: Petition allowed Page 16 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala defendants 3 to 7 were not parties in the previous proceedings, I am satisfied that in the interest they should be injuncted, violating the rights of the plaintiffs, which has now been firmly established. Learned counsel for the petitioners submits that the petition filed by defendant 1 & 2 has also been dismissed by order dated 20th February, 2000.
Accordingly, till the next date of hearing the defendants are restrained from carrying on any business of salted preparation like Bhujia, Papar and sweets under the trade name of 'HALDIRAM BHUJIAWALA' in any territory in India except in the territory of West Bengal."
20. The Hon'ble Division Bench stayed the operation of this order so far as it pertain to Sh Prabhu Shanker Aggarwal, Smt Kamla Devi Aggarwal, Sh Mahesh Kumar Aggarwal and Sh Sharad Aggarwal, minor son of Sh Ravi Shanker Aggarwal, on 22.5.2000.
21. The FAOs Nos. 142, 143 and 153 of 2000 were finally disposed off on 21.9.2001 by allowing the same thereby setting aside the order dated 8.5.2000 so far as it granted exparte order of injunction with directions to dispose of the application on merits after allowing the appellants to file their reply.
22. The Hon'ble DB also noted that the Ld. Single Judge shall decide the application on merit on the basis of the above highlighted issue. Besides the same, some other issues have been also raised before me.
23. The Hon'ble DB was also presented with the argument that respondents no. 3 to 6 are also deemed parties to the suit which argument, of course, defendants/respondents herein Result: Petition allowed Page 17 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala have denied. The following was stated by the Hon'ble DB on the issue.
"....However, in order to be fair to learned counsel for the parties in brief we will putforth the points raised by them before us.
Learned counsel for the plaintiffs/respondent urged that the issues arising before the Court were:
(i)Whether the suit against the firm Haldiram Bhujiawala, defendant no. 1 is really a suit against all the partners who were its partners at the time of accrual of the cause of action i.e 1.12.91 and/or against members of the Joint Hindu Family constituted by Joint Venture Agreement dated 10.12.1991 and the injunction order dated 10.12.1991 confirmed on 12.5.1999 binds the other partners of the firm and or members of the Joint Hindu Family, though not visually or ostensibly parties to the suit ?
(ii) Whether a partner is an agent of firm and of the other partners by virtue of Section 4 and 18 of the Partnership Act.
(iii) Whether the third parties strangers to the suit can be bound by the injunction order dated 12.5.1999.
(iv) Powers under Articles 215, 225 of the Constitution of India are also available to High Court to undo the wrong besides remedy provided under Rule 2A of Order XXXIX for violating/disobedience of its injunction orders.
(v) Whether there is any power/jurisdiction in High Court to compel implementation of the order by Result: Petition allowed Page 18 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala issuance of an interim injunction under its inherent powers.
(vi) Whether the Courts have jurisdiction to issue injunction order dated 8.5.2000 in an application under Order 39 Rule 2A CPC.
(vii) Whether the appellants are aiders and abettors in the willful disobedience of the injunction order dated 12.5.1999."
24. In the same order, the Hon'ble Division Bench had taken up the issue of the legality and validity of the order impugned but not on merits. Still, the points raised that were not touching the merits were highlighted and the same are primarily to be considered by this Court in the first above three contempt petitions. The following is the relevant portion of the order;
"....In case the version of the plaintiffs, as stated in the application under Order 39 Rule 2A C.P.C is taken at its face value that the order passed on 12.5.1999 and the undertaking given by defendants 1 and 2 on 16.7.1999 is binding on the appellants, who are not parties to the suit, question immediately arises. What was the urgent need or necessity for the plaintiffs to have sought reenforcement of the same order of injunction against the appellants by making similar prayer in CCP NO. 55/2000 ? Question would also arise that when the learned Single Judge without any notice to them, who even to his knowledge were not parties to the suit, proceeded to pass an ex parte order of injunction ? Either the appellants are bound by the order or they are not bound by the order. In case they are bound by the order, there was no need to have passed any separate order. In case they were Result: Petition allowed Page 19 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala not bound by the order, the question whether such an order could be passed against them ought to have been considered and examined by learned Single Judge and his mind ought to have been disclosed in the impugned order by stating some ground or reason that why such an order of restraint was necessary and what was the urgency of passing ex parte order, which could not have waited even service of a show cause notice on them...."
FEW OBSERVATIONS BY HON'BLE APEX COURT & HIGH COURT.
25. As the cases above are unprecedentedly contentious even to the interpretation of a single word deployed in pleadings or uttered during arguments, of course, by the counsels representing the parties for which they are duty bound to do so, not only this Court, its Predecessors but also other Hon'ble Superior Courts have had an occasion or other to note this unparalleled factor in their orders. Why I am saying this at this juncture is to make it clear that though the Court has permitted, which it otherwise also has, for extra ordinarily long lengthy arguments on each contitious issue including the ones under consideration, the same does not imply that every proposition made is worth consideration in its minutest detail. Being a Court of first instance, it is duty bond to return cohesive and well reasoned verdict and has thus to charter a course that does not lead it away from the principle of brevity. I have been hearing arguments on the contempt petitions since 27.9.2014 onwards, as previously occupied in disposal of other contentious Applications in connected matters and thereafter continuously since 3.10.2015 and further on day to day basis from 21.11.2015 till their conclusion. I am to state that the arguments have been manifold consuming Result: Petition allowed Page 20 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala most of the Court working hours. Having said so, I shall aim at brevity without leaving the material points unanswered. But before that, I incorporate some extracts on subject in caption as to elucidate the need for it. (EXTRACTS) A. Order of Hon'ble Apex Court dated 1.10.2008 viz;
"......In this case, we find that members of a family are fighting with each other from 1991. Interim applications are increasing by the day. To put an end to all this controversy, we direct the trial Court to hear and dispose of Suit No. 188/2003 as early as possible and preferably within six months from today......"
B. DB order of Hon'ble High Court of Delhi dated 3.6.2010 viz;
"...... At the outset we may note that we had heard the learned counsels for the parties at length for number of days and the judgment was reserved on 29th April, 2010. The matter was thereafter mentioned on 4th May, 2010 by learned counsel for the Respondents that he would like to make further submissions......"
C. Even the Hon'ble High Court of Delhi has taken special note of observations of Ld Predecessor Judge with concurrence while extracting the observations in order dated 21.2.2009 while rendering its verdict in CM(M) No. 231/2009 and CM No. 3959/09 dated 8.4.2009 viz;
"..... The suit had been instituted in the year 1991. Since then both the parties have been filing one application or the other. All the applications filed by each other are being contested very hotly. The Result: Petition allowed Page 21 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala parties have even gone to the Hon'ble High Court and also to the Hon'ble Supreme Court twice/thrice. There is a neck and neck fight between the parties. They are litigating with each other diligently, vigorously and without any deterence......"
D. Order in FAO (OS) No. 143/2000 dated 21.9.2001 viz;
".......When the appeals were taken up for hearing, we clearly informed learned counsel for the parties that they should confine their arguments only to the limited extent to enable us to examine the legality and validity of the impugned order passed ex parte on 8.5.2000 and not on merits. Despite that learned counsel for the parties have putforth their submissions as if we were hearing the appeals on merits of the application filed by the plaintiffs and on various other allied questions....."
26. The above four observations are not the end. There are other such observations also. However, this demonstrates the need for brevity as well as speedy disposal in view of directions of Hon'ble Supreme Court passed from time to time and the latest directions of Hon'ble Apex Court in order dated 20.11.2015 which prescribes period of four months only w.e.f said date for trial of these cases.
27. The purport of the order of Hon'ble Apex Court with respect to disposal of suit(s) and in particular the contempt petitions needs to be extracted again. Same is as under, viz;
".....Be that as it may, we direct the competent Court/learned trial Court to look into the aforesaid aspect of the matter, if raised and if any violation of Result: Petition allowed Page 22 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala the aforesaid directions contained in paragraph 43(1)(b) of the order dated 27th September, 2012 passed by the learned Additional District Judge, Tis Hazari Courts, Delhi in T.M. No. 02/11 is to be found and recorded the interim relief interms of the present order will cease to operate. The aforesaid direction is being passed in the special circumstances of the case. Naturally, any consideration of the said issue, if raised, will have to be made by the learned trial Court parallely with the adjudication of the suit/suits....."
28. The factum of passing of said order was informed to this Court on 21.11.2015 by the counsels for parties at Bar. The matter was adjourned on day to day basis. It was on 26.11.2015 when true copy of aforesaid order was filed. The Court noted the following viz;
"......There is no such occasion now to formally inquire from the applicants/plaintiffs as to whether they are raising the issue in the contempt petitions as this Court had been already hearing ld counsel for parties present in the contempt petitions prior to this order. The Court therefore, continuous to hear further on the contempt petitions...... "....As a matter of fact, the trial in the present petition, connected contempt petition TM 02/11 as well as in other suit bearing TM 03/11 are already in expeditious disposal mode. It is quite apparent that the Hon'ble Apex Court has referred to the trial of suit(s). This would imply that time frame directions also apply to the trial of suit no. TM 03/11....."
29. The directions of Hon'ble Apex Court for considering the aspect of the respondents flouting directions contained in Result: Petition allowed Page 23 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala Para 43 (1) (b) of order dated 27.9.2012 is subject to the parties raising the same and such consideration of the issue will have to be made by this Court parallely with the adjudication of the suit/suits. Further, if such violation is to be found and recorded, the interim relief in terms of said order will cease to operate.
30. As stated earlier, evidence has been led in two of the contempt petitions i.e M 63/11 & M 64/11. In M 62/11, it is contained in order sheet dated 20.4.2006 that the parties did not intend to lead evidence. Since arguments were already being heard on the issue of contempt of various orders, it was therefore, observed earlier that occasion of formally raising the issue of contempt of order dated 27.9.2012 did not arise. The same was without any demur from any of the counsels. These contempt petitions are therefore, ripe for orders and if there is any deliberate violation of these orders, finding has to be accordingly recorded. The same adjudication has been made parallely to the suits. The suits are at various stages of trial. Hence, the orders now necessitated on these petitions, the same are being accordingly passed.
PLEADINGS IN M 63/11/99 (Old No. CCP82/99 in brief).
31. The plaintiffs submit in this petition to be the registered and subsequent proprietor of trade mark "Haldiram Bhujiawala" from 1995 then renewed upto 29.12.2000. Their suit is for Injunction against the defendants from using their trade mark/trade name "HALDIRAM BHUJIAWALA"HRB. In TM 02/11, order dated 12.5.99 was passed, the operating part of which stands extracted earlier. It is averred that the defendants are continuing to flout and disobey the injunction order contumaciously and contemptuously and are still indulging in fraudulent and Result: Petition allowed Page 24 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala contemptuous infringement and passing of the goods under the plaintiff's registered trade mark/trade name "HALDIRAM BHUJIAWALA" with HRB logo. It is averred that the trade name/trade mark is used in Delhi and specifically at Karol Bagh, Shalimar Bagh and Wazirpur Industrial Area. It is averred that none of the directions in order dated 12.5.99 have been complied with.
32. The affidavit was filed by the defendants through defendant no. 2/respondent no. 2 herein as one of the partners of M/s Haldiram Bhujiawala at 2284, Arya Samaj Road, New Delhi . The plaintiff's case is denied stating that the defendants filed an appeal FAO No. 155/1999 against the order dated 12.5.99 but stay of operation of the order was not granted. An application under Section 151 CPC was moved in appeal for suspension of the order for time to move the Hon'ble Apex Court. It is averred that during hearing of the aforesaid, Sh Abhishek Manu Singhvi, Senior Advocate for plaintiff herein made an oral statement before Hon'ble DB that plaintiff would not take any action for contempt and the defendants could move to Hon'ble Apex Court. On this assurance, ld counsel for defendant requested the Hon'ble DB not to pass any order regarding stay suspension. Thus, no such order was passed. The Hon'ble Apex Court was closed on 11.7.99 and legal advise was to the effect of contacting the Advocate in second week of July, 1999 after reopening of the Hon'ble Apex Court. During this period, the defendant learnt from his mother/plaintiff in TM 03/11 that Dissolution Deed dated 16.11.1974 is a forged document. They moved Hon'ble DB of Hon'ble Delhi High Court accordingly. However, on 6.8.1999 it was observed that fresh material in possession of the defendants in respect of their plea qua Dissolution Deed being forged be moved Result: Petition allowed Page 25 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala before the Ld. Single Judge of Hon'ble High Court of Delhi. Thus, an application under Order 39 Rule 4 CPC was filed.
33. It is averred that despite pendency of these proceedings and despite assurances qua non filing of contempt proceedings, the respondents stopped using the trade mark on and from 12.7.1999. It is averred that contempt petition is filed with malafide intention.
34. In reply, it is submitted that on 16.7.99, the defendant Sh Ashok Kumar appeared in person for hearing and made a categorical statement on the said date itself. The undertaking as contained in the said order has been already extracted above in para 16.1. It is claimed that the defendants are not using the trade name/trade mark at any of their business places in Delhi. Reference of another contempt petition i.e M 64/11 (Old No. CCP 114/99) is also made. It is submitted that M/s Haldiram's Ruchi Sweets is not the dealer of the defendant. Details of sales made were filed and an undertaking was given not to destroy the account books of the relevant period. PLEADINGS IN M 64/11/99 (Old No. CCP 114/99 in brief).
35. This is a petition in respect of averment that defendants are flouting the injunction orders dated 12.5.99 and 16.7.99. The averments in this petition are similar to the previous one. It is averred that defendants have failed to submit the statement of account since 10.12.91 within a month as per directions and have not filed any affidavit as per directions. They have also failed to file an undertaking to not to destroy or part with documents without permission of the Court. It is averred that they have not made available for inspection to the plaintiffs all documents, accounts books and papers pertaining to their Result: Petition allowed Page 26 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala business despite reminders. Reliance is placed on undertaking in order dated 16.7.99 further averring that same has not been honoured and defendants have failed to inform their agents immediately to not to use the trade mark/trade name of the plaintiff. One such name of agent i.e Haldiram's Ruchi Sweets, Parsvnath Plaza Complex, Muradabad, U.P is provided.
36. So far as reply is concerned, the same could not be found on record. However, there is an application of respondents under Section 151 CPC dated 14.7.99 for directions to the plaintiff to withdraw the contempt petition filed by them on 9.7.99 i.e M 63/11 (CCP 82/99). It was filed in FAO(OS) 155/99 as CM No. 2410/99.
37. In M 63/11, following issues were framed on 22.5.2000 which are as under, viz;
1. Whether the respondent had violated order date 12th May, 1999 ? If so to what extent and to what effect ?
2. Relief.
38. In M 64/11, following issues were framed on 22.5.2000 which are as under, viz;
1. Whether the respondents have violated order date 12th May, 1999 and the undertaking given by the respondent in Court on 16th July, 1999 ?
2. Relief.
39. The plaintiffs in support of their case in above two CCPs have examined Sh. S.K Jain, Asstt. Manager (Administration & Liaison, M/s Haldiram India Pvt Ltd) as CW 1 whereas the defendants in the above petitions have examined Sh Ashok Kumar Aggarwal as RW 1. No further witnesses were examined.
40. Common evidence was recorded in both the above Result: Petition allowed Page 27 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala petitions i.e in M 63/11 (Old No. CCP 82/99) and M 64/11 (Old No. CCP 114/99).
41. So far as CCP 55/00 is concerned, no evidence has been recorded as per order dated 20.4.2006 on submissions of counsel for parties that it can be disposed off because its trial is not necessary.
PLEADINGS IN M 62/11/99 (Old No. CCP 55/00 in brief).
42. The pleadings in this petition are in detail and exhaustive. There are seven respondents out of whom respondent no. 7 is exparte. Remaining respondents have filed separate replies except the reply by respondents no. 1 & 2 and 3 & 6 which are joint replies.
43. In this petition, the petitioners have pleaded that the respondents are guilty of willful disobedience and contempt of orders dated 12.5.99, 25.5.99 and the undertaking/order dated 16.7.99. It is averred that the respondents, in contemptuous, contumacious and willful disobedience/breach of the orders and undertaking have appointed super distributor i.e Prateek Marketing (respondent no. 7) by inserting an advertisement in newspapers 'Rajasthan Patrika', Jaipur Edition and 'Rajasthan Dainik Bhasker' Jaipur edition, both dated 20.10.99. Same is issued for and on behalf of Haldiram Bhujiawala Pvt. Ltd. (Calcutta). Reference to a Joint Venture Agreement purportedly executed on 10.12.1991 is made which is pertaining to registered TM No. 330375 in Class 30 by Sh Prabhu Shanker Aggarwal (respondent no.
3), Mahesh Kumar Aggarwal (respondent no. 4), Ashok Kumar Aggarwal (respondent no. 2) and Sharad Aggarwal (minor son of late Sh Ravi Shanker Aggarwal) (respondent no. 6) some of whom are shown to be resident of 3A, Brojodulal Street, Calcutta. Interestingly, in this petition, Result: Petition allowed Page 28 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala the second defendant's alternate address besides his Delhi address is also shown as that of the Calcutta address above described. The J.V agreement relates to ownership/use of TM no. 330375 according to which the above four respondents became coowner of the same. The advertisement is said to have been infact issued by Sh Ashok Kumar Aggarwal as alleged coowner of above trade mark by inserting his Calcutta address. It is Haldiram Bhujiawala Pvt Ltd (Calcutta). It is submitted that not only the defendants in TM 02/11 but also the other respondents no. 2 to 7 here have been restrained by order dated 12.5.99 and thus have no right to issue public advertisement for appointment of a super distributor. Sh Ashok Kumar Aggarwal being alleged coowner of said trade mark is said to have bound himself and other co owners of trade mark Haldiram Bhujiawala namely Prabhu Shanker, Mahesh Kumar and minor son Sharad Aggarwal by his undertaking dated 16.7.99. It is averred that the respondents are in process of appointing agents, distributors, super distributors and other third parties outside the territory of West Bengal in violation of the Court orders. It is averred that all respondents have knowledge of interim orders as well as other orders passed by the Courts and otherwise also the said fact were incorporated in the pleadings of the litigation pending in Calcutta. Copies of injunction orders were filed by the petitioners in a suit no. 362/92 titled Prabhu Shanker Aggarwal v Shivdeep Food Products and also in suit no. 386/99 titled Kamla Devi Aggarwal v Shiv Kishan Aggarwal pending in Hon'ble High Court of Calcutta. In addition to the above, it is averred that respondents had aided and abetted in commission of violation of orders despite due notice of the same. It is prayed that the Result: Petition allowed Page 29 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala respondents should not be allowed to reap the benefits of their own wrongs and such wrong doers can be subjected to the inherent jurisdiction of this Court of punishment for civil contempt. Restitution of status quo as on 12.5.99 is prayed, besides directions to the respondents to comply with all directions as per order dated 12.5.99.
44. In response, respondents no. 1 & 2 claimed that they forthwith discontinued using the trade mark/trade name "Haldiram Bhujiawala" and also promptly conveyed the gist of injunction order to and advised their agents etc to not to use the same either on their sign boards or packing for marketing the goods and at the same time filed FAO No. 155/99. They have provided the history of litigation thereafter which has been already set out (briefly) in earlier parts of this order.
45. Additionally, it is pleaded that these respondents (1 & 2) adopted the trade name Rameshwar's for their products. It is not denied that an undertaking was given that these respondents will not use the above trade mark till the outcome of the suit. A preliminary objection is raised that this petition is bad for misjoinder of parties. On merits, it is claimed that these respondents have nothing to do with the business of the other respondents herein. It is claimed that these respondents are neither the partners nor the Director in M/s Haldiram Bhujiawala Pvt Ltd., Calcutta and none of the directors and partners of said Calcutta firm is a partner with these respondents in their firm M/s Haldiram Bhujiawala, Karol Bagh. As per averment in TM No. 02/11, the said firm is stated to be a new establishment and constitution of which is not known to the plaintiffs and for which they reserve their rights in the original suit to implead other partners/representatives.
46. Joint Venture Agreement is not denied but it is stated that Result: Petition allowed Page 30 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala as per the same the parties to it are at liberty to do their independent business and none would be bound by the acts of others. It is specified that all the parties alleged to be the coowners of trade mark no. 330375 though related to each other are independent in their business. On strength of the same, it is denied that Sh Ashok Kumar Aggarwal could bind the other respondents by his undertaking. The averment of respondents as aider and abettors is also denied. It is reiterated that these respondents had discontinued the use of trade mark above and shall continue to do so till disposal of the suit.
47. Rejoinder to this reply is practically a renarration of pleadings in TM No. 02/11. To put it briefly, the plaintiffs' stand in complete denial and in doing so, they have considered it necessary to go in detailed submissions by incorporating the contents of plaint in TM No. 02/11 in this rejoinder. Their main thrust is that the respondents, their agents, distributors, dealers, franchises, family members, joint family business partners, family companies and directors have flagrantly, bluntly and willfully disobeyed the injunction orders. The respondents' showroom at Karol Bagh was photographed on 29.5.99 depicting such breach. Similar exercise was done regarding other two showrooms at Shalimar Bagh and Wazirpur Industrial Area on 23.6.99. Similar averments qua agents of respondents namely Haldiram's Ruchi Sweets are again made besides averments that such distributors have been also appointed in Jaipur and Bangalore. It is again pointed out that Hon'ble DB of Hon'ble High Court of Delhi dismissed their said application on 25.5.99 for stay of operation of the judgment in FAO No. 155/99. Further, their application under Section 151 CPC i.e CM No. 2410/99 for Result: Petition allowed Page 31 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala directions to the petitioners to withdraw other two contempt petitions were dismissed by the Hon'ble DB on 6.8.99. Despite the above, the respondents filed other two applications for recall of dismissal of their stay application on the basis of additional documents which was disposed of on 6.8.99 by the Hon'ble DB directing the respondents to move said applications before Ld Single Judge. These respondents also moved an application for suspension of injunction order for atleast 30 days to enable them to move Hon'ble Apex Court which was also dismissed by the Hon'ble DB on 28.5.99. It is categorically denied that in course of such hearings, Senior Advocate for petitioners made oral submission as alleged. It is also highlighted that in CM No. 2410/99, dismissed on 6.8.99, averments of oral submission of Senior Advocate were also raised but in view of the dismissal of the same, respondents are now estopped from raising the same issue. Pleadings in respect of the Dissolution Deed dated 16.11.1974 were also made. However, this Court shall not be referring to them as vide the order dated 21.2.2006 Hon'ble High Court of Delhi has already directed that forgery of Dissolution Deed is not germane to the issue in these contempts and thus even the deposition of RW 1 in the other two contempt petitions was expunged. Respondents' user of trade name Ruchi Sweets is also reasserted.
48. In the preliminary submissions, the petitioners have set out the pleadings in Suit No. TM 02/11. To summarize the same, said suit was filed averring the true constitution of defendants was not known. An exparte interim injunction was granted on 10.12.91. Written statement was filed by the defendants claiming Sh Rameshwar Lal Aggarwal as their Predecessor in title who was original inventor and user of trade mark from 1958 through whom the Result: Petition allowed Page 32 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala defendants claimed user. It is further claimed that the first defendant Haldiram Bhujiawala is an old established firm and second defendant Sh Ashok Kumar Aggarwal is one of the legal heir of Sh Rameshwar Lal Aggarwal including rights in Trade Mark No. 330375 with other heirs who carried business as a Joint Family Operation. By virtue of Order 30 Rule 1 CPC, it is submitted that as Sh Ashok Kumar Aggarwal signed the written statement and as he is one of the partners and members of HUF, the said pleadings shall be taken to be sufficiently signed and verified by all the members of HUF firm and thus any person carrying business in the name other than his own or HUF carrying a business under any name may be sued under such name or style as if it was the firm's name. On this basis, it is claimed that upon disclosure of the defendants about their true constituent being an old and established HUF firm or a J.V firm of LRs of deceased Sh Rameshwar Lal, it was not necessary or even required to implead partners or members of the family or of the group of persons or associates by their name as parties to the suit as all such persons would be deemed to be party under law. For the aforesaid reason, the service effected upon the original defendants would be deemed to be effected upon all legal heirs of deceased Sh Rameshwar Lal and in view of the WS of defendant no. 2 which also binds the other LRs, they shall be bound by order dated 12.5.99.
49. With respect to denial regarding M/s Haldiram (India) Pvt. Ltd, Calcutta, the second defendant is stated to have filed Form TM - 5 i.e notice of opposition in the plaintiff's application on 26.12.2000 in para 2 of which he claimed to be one of the partners of Haldiram Bhujiawala, 7, Jagmohan Mullick Lane, Calcutta which is registered proprietor of trade mark Haldiram Bhujiawala registered Result: Petition allowed Page 33 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala under TM No. 330375 for all territories of India and that under a MoU between all partners of Haldiram Bhujiawala, he opened the shop under the name and style of Haldiram Bhujiawala at Delhi.
50. The Joint Venture Agreement makes the respondents no. 2 to 6 coowners of said trade mark upon death of Sh Rameshwar Lal. It being so, the restraint order dated 12.5.99 against the first defendant which is primarily a HUF trading firm is binding on them. The use of term "Partnership/Joint Family Firm" is said to be just a compendious name for the partners/firm members constituting it which can be sued under Order 30 CPC.
51. In nutshell, the plaintiffs are claiming that since they did not know the constitution of the newly established concern/defendant no. 1 and since they now know after disclosure that the same is in effect a Joint Hindu Family trading firm (old) of respondents, being coowners of trade mark/trade name above, they are bound by the actions of each other. In this respect, the plaintiffs have gone further during the life time of Sh Rameshwar Lal stating that he filed a suit No. 1540/73 in the capacity of a partner of M/s Haldiram Bhujiawala, a firm registered under the partnership Act praying that Sh Kishan Gopal and Sh. Madan Lal Aggarwal and others be permanently restrained from committing offence of passing of action etc in City Civil Courts at Calcutta on or before 1.12.1973 and in said suit, Haldiram @ Ganga Bishan was a proforma defendant. On demise of Sh Rameshwar Lal, his son Sh Ashok Kumar Aggarwal/defendant no. 2 filed impleadment application alleging him to be a partner of M/s Haldiram Bhujiawala as his late father was also a partner thereof, he be impleaded /substituted as a partner in place of his deceased father. In said suit, Sh Prabhu Result: Petition allowed Page 34 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala Shankar/respondent no. 3 as plaintiff's witness on 19.4.93 stated that he was partner of M/s Haldiram Bhujiawala, Calcutta and Sh Ashok Aggarwal/defendant no. 2 was also a partner further claiming that the firm was started by his father which has other agents in the said trade mark in many places in Calcutta and surroundings. The above is said to be sufficient to specifically engulf both of them as well as other respondents in the clout of the interim order. REPLY OF RESPONDENTS NO. 3 & 6.
52. The respondent no. 3 and respondent no. 6 (then minor), have not stated their response to be in contradiction with response to the other respondents. Same is primarily on the lines as that of the other respondents. This petition is said to be an attempt to drag the respondents in the main suit. Additionally, it is submitted that third respondent is M.D and the sixth respondent is the share holder of a limited company known as Haldiram Bhujiawala Pvt. Ltd.
Calcutta. They came to learn about that the plaintiff obtained injunction order dated 8.5.2000 (read 12.5.99) by suppressing the material facts from the Court. It is submitted therein that father of respondent no. 3 started his business under the trade mark Haldiram Bhujiawala independently in the year 1958 and after his death, the respondents are continuing with the same. The trade name under typical design of the full name in Devnagri script and a monogram bearing the full name in English and the English abbreviation "HRB" was registered on 2.11.1977 as TM No. 330375, which is recorded user since 1958 after the father of respondent no. 3. Subsequently, it was transferred in the name of respondents. It is further claimed that these respondents are doing separate and independent business having nothing in common with other respondents and thus any order passed against Result: Petition allowed Page 35 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala respondent no. 1 does not bind these respondents as they are neither the agents, representatives and servants or successor in interest of respondent no. 1. It is specifically pointed out that as per order dated 12.5.99 and on reading of the plaint, it is clear that the injunction order related to respondent no. 2 and his newly constituted firm at Karol Bagh, New Delhi. It is averred that the said order did not relate to the old firm of Haldiram Bhujiawala at Calcutta of which respondent no. 3 was a partner. It is claimed that respondent no. 3 had been carrying business not only in Calcutta but also all over India for last 44 years (on the date of filing of reply) under trade mark Haldiram Bhujiawala. It is thus raised as a crucial question as to which firm was sued by the plaintiff. According to these respondents (R3 & R6), the same was the newly constituted firm i.e Haldiram Bhujiawala, Karol Bagh, New Delhi of which respondent no. 1 was the sole proprietor. It is further averred that a HUF can not be created by a Joint Venture Agreement. Reference to the order dated 22.7.92 in appeal no. 563/1992 in the Hon'ble Calcutta High Court is made which, according to these respondents, entitled the joint proprietors of trade mark No. 330375 to use it throughout India. It is averred that Order 39 Rule 2A CPC can only be invoked against the parties to the suit, their servants and agents and a person not party therein can not be held for contempt even if he had knowledge of injunction. Rest of the contents of the reply are in respect of the main litigation about which the requisite details are already provided in this order. The reply is supported by the affidavit of one Sh Pramod Kumar, Manager of M/s Haldiram Bhujiawala Limited, Calcutta who is said to be power of attorney holder on behalf of respondents no. 3 & 6.
Result: Petition allowed Page 36 of 176Anand Kr Deepak Kr v Haldiram Bhujiawala
53. Rejoinder to the above is also on the lines of the rejoinder already filed on record and mentioned here to above. It is denied that the plaintiff has made an attempt to drag these respondents in the suit. They are reasserted to be the joint registered owners of Trade Mark No. 330375 and being member of HUF business, already a party to the suit. It is reasserted that all these respondents have full knowledge of the present proceedings. The averments with respect to Haldiram Bhujiawala Pvt. Ltd, Calcutta are reasserted. These respondents are said to be the joint proprietors and coowners of trade mark Haldiram Bhujiawala pursuant to the Joint Venture Agreement and could use the same jointly as joint proprietors for and on behalf of each of the persons named as joint proprietor and hence injunction order is against all of them. It was asserted that as per Clause 2 of the Deed of Partnership dated 8.4.91, the respondent no. 1 and respondent no. 3 agreed to carry the business under the name of M/s Haldiram Bhujiawala at 7, Jagmohan Mullick Lane, Calcutta and with its factory at 3, Brojodulal Street and shops at 10A, Jackson Lane and P41, CTI Road and they may open or establish any business and the head office may be shifted to any place as decided. It is claimed that on the basis of the partnership business and/or HUF firm a shop was sought to be opened at Karol Bagh on 12.12.91 and hence the suit was filed and exparte injunction was granted. It is averred that even if these respondents are presumed to be not parties to the suit, but they being agents and members of HUF are bound by the injunction order. It is further claimed that out of the own admission of these respondents as contained in Rectification no. Cal629 as well as C.O. 4/92 filed in Hon'ble High Court of Delhi, respondent no. 3 admitted to be partner of respondent no. 1 in joint family business of Result: Petition allowed Page 37 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala Haldiram Bhujiawala and thus bound by the such admissions. These admissions are also said to be present in form TM5 as well as Cal629.
54. Circumstances are disclosed in which, according to the plaintiff, the registration of trade mark of defendants is result of fraud and thus not immune from challenge under Section 32(A) of the T.M.M. Act 1958.
REPLY OF RESPONDENT NO. 455. The respondent no. 4 in his reply has again taken similar plea as taken by the other respondents. He affirms to be the proprietor of M/s Prateek Food Products, Calcutta. The reply is sworn by his own affidavit. In addition to what is already on record, it is averred that respondent no. 4 opened a shop in the name of M/s Prateek Food Products in the year 1991 and thereafter doing the business using trade mark Haldiram Bhujiawala independently in all parts of the country as per Joint Venture Agreement. He claims to have come to knowledge of the injunction order from some of his acquaintances. He states to have filed the appeal in Hon'ble Delhi High Court, reference of which has been already made earlier. He also claims that the said order does not bind this respondent for the reasons as stated by the other respondents.
56. Rejoinder to the same is nothing different to the ones that are already on record. The complicity of this respondent is also claimed being bound by the interim orders as member of HUF business/partnership. He is also said to be an aider and abettor. This respondent has also filed notice of opposition in form TM 5 and in the notice of opposition, he is stated to have admitted to be one of the partners of Haldiram Bhujiawala. It has been denied that this respondent opened M/s Prateek Food Product in the year Result: Petition allowed Page 38 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala 1991 or that he is continuously using trade mark Haldiram Bhujiawala.
REPLY OF RESPONDENT NO. 5.
57. Even the present respondent Smt. Kamla Devi has nothing in material to depart from the plea taken by the other respondents. She has also presented an appeal against the interim order, reference of which has been already made. She refers to the business of her father in law Sh Ganga Bishan as started by him. Their partnership firm is claimed to have been reconstituted from time to time of which this respondent claim to be a partner in terms of the Reconstitution Deed dated 31.10.69 with other partners i.e Ganga Bishan, Mool Chand and Shiv Kishan to the extent of 25% share each. On 29.12.72, registration of trade mark was applied for and opposed by one Haldiram Madan Lal. The trade name was registered however restricted to territories in India other than the state of West Bengal. On death of Sh Mool Chand as well as Ganga Bishan, their heirs, except this respondent did not show any interest in becoming partners of said firm. The said firm is said to have never dissolved. This respondent shifted to Calcutta and ceased to be involved in day to day affairs of said firm but still had due control over it. It is claimed that when respondent no. 1 fell sick in July, 1999 he was called to Calcutta where he told respondent no.3 about the injunction order obtained on the basis of the Dissolution Deed purportedly also signed by this respondent which news is said to be a surprise to her as she never signed on the same. The reply is primarily based on the pleadings in the suit of respondent no. 5 which is TM 03/11. She claims to have been wrongfully joined as corespondent and further claims that she is not bound by the injunction order not being a party to TM 02/11.
Result: Petition allowed Page 39 of 176Anand Kr Deepak Kr v Haldiram Bhujiawala
58. Rejoinder to this reply was also filed, contents of which are as per the written statement of the plaintiff herein filed by them in Suit No. TM 03/11. The contents of rejoinder are also as per the other rejoinders on record. It is specifically denied that the old firm was never dissolved as averred. This respondent is said to have been a partner in the reconstituted firm M/s Chand Mal Ganga Bishan from which she retired on 16.11.74 vide Dissolution Deed dated 16.11.1974.
59. Respondent no. 7 is exparte and no reply was filed.
60. As said earlier vide order dated 20.4.2006 it has been recorded that this petition can be disposed of without evidence.
BRIEF FACTS IN M40/13.
61. As stated earlier, this petition under order 39 Rule 2 A read with section 151 CPC filed by the plaintiffs against the original defendants was preferred on 26.04.13 and the same pertains to averments regarding contempt of order of this court dated 27.09.2012. Reference is mainly made to orders of Hon'ble Delhi High Court dated 12.05.99 and the other three contempt petitions as above. After giving further reference to the operative part of the order dated 27.09.2012, it was stated that defendants were allowed to use the trade name HALDIRAM BHUJIA WALA along with "V" Logo as per TM No. 330375 with or without its disclaimed portion. Whenever the defendant were to use the trade name, they shall use the full name together (without bifurcating the two words) in analogus font, equal size and along with "V" Logo distinctively displayed with it till the decision in the rectification petition or decision in the suit. They were directed to change all display boards, wrappers, packets, boxes, packagings/sale material within two months from the date of order which was thus, to be Result: Petition allowed Page 40 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala complied with by 26.11.2012. It is claimed that the defendants had acted in willful breach and defiance of directions in para 43 (1) (b) and 43 (2) of the said order. In support of this contention, photographs of show rooms of defendants were taken on 2829/11/12, 03.12.12, 05.12.12, 08.02.13, 21.02.13, 23.02.13, 25.02.13, 05.03.13, 19.03.13, 29.03.13 and 20.04.2013 along with the original purchase receipts, few packaging/boxes/wrappers/sale material purchased on the above dates were also filed. Original newspapers of the above dates too, were filed to establish that the photographs were taken as on said dates.
62. It is further stated that defendants preferred FAO no. 470/2012 and on 14.12.12, the Hon'ble Delhi High Court was pleased to extend the time granted by para 43.2 of order dated 27.09.2012 upto 27.01.2013. In the meantime, review petition with respect to order dated 27.09.2012 was permitted to continue in the trial court.
63. On 01.02.2013, the time for compliance of para 43.2 was further extended upto 08.02.2013.
64. It is averred that on 06.02.2013, the time was not extended any further beyond 08.02.2013. The FAO came up for further hearings on as many as 14 more occasions, however, the time for compliance was not extended even to the knowledge of the defendants. The breach by using again the trade name as well as trade mark allegedly continued. It is pleaded that the contemnors cannot be permitted to enjoy the fruits of their contempt and the court has powers for rectification of acts done in violation of order dated 27.09.2012.
65. It is pleaded that second defendant be detained in Civil Prison; properties of defendants at A7 NDSE, Part - I, Main Road, New Delhi and at A94/4, Wazir Pur, Result: Petition allowed Page 41 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala Industrial Area, Delhi be attached; A local Commissioner be appointed to prepare inventory of display boards, wrappers, packets, boxes, packagings/sale material or any other visual form of advertisements lying in the godowns/warehouses, showrooms of the defendants and seize the same for attachment and liberty as granted in para 43 (1) (b) of order dated 27.09.2012 be revoked.
66. In the joint reply of the defendants, it is pleaded that they have not committed any contempt and if there is found to be any willful breach, then the defendants render their unconditional apology.
67. A reference to the pendency of defendants FAO no. 770/12 and CM 19688/12 is made. Reference to the plaintiffs appeal and stay application i.e. FAO no. 496/12 and CM No. 20603/12 is also made.
68. It is averred that in view of pendency of appeal and application of stay, contempt proceedings do not lie. Specific reference is made to case titled Modern Food Industries (India Ltd.) Vs. Sachidanand Dass & Anr. 1995 Supp (4) SCC 465 and case titled State Bank of J & K Vs. Mohd. Yaqoob Khan and Ors. (1992) 4 SCC
167. The ratio of both the cases is that the stay application should be disposed of before the main petition/appeal.
69. It is also pleaded that in a case if a plea of stay is refused in the appeal, operation of an order having serious civil consequences should be suspended. On this point reference is made to the judgment in Mool Chand Yadav and Anr. Vs. Raza Buland Sugar Co. Ltd. (1982) 3 SCC 484.
70. Reference is also made to pendency of defendants' application for stay of these contempt proceedings. Further reference is made to order dated 07.03.2013 by which the Result: Petition allowed Page 42 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala Hon'ble High Court was pleased to hold that since the entire matter will have to be heard along with the documents supplied by the respective sides for consideration as to whether the stay should be extended or not, it will be just and proper that instead of hearing the application seeking extension of interim order, to hear the main appeal itself.
71. So far as the photographs are concerned, the defendants denied the genuinety or correctness of the same. Likewise, the receipts and the newspapers are disputed. They are said to be forged and fabricated.
72. The defendants are also denying that they were granted concession for use of only the trade name or that the only concession was as per para 43 (1) (b) to the use of trade name and not the trade mark. Dismissal of the contempt petition is thus prayed for.
73. Replication/Rejoinder has not been filed.
74. However, in order to substantiate their case the petitioners filed Annexure P1 at pages 18 to 61 of the paper book. The same comprises of :
A. Two photographs of defendants South Extension and Wazirpur outlets dated 28.11.2012 B. Two photographs of defendants South Extension and Wazirpur outlets dated 29.11.2012 C. Two photographs of defendants South Extension and Wazirpur outlets dated 3.12.2012 D. Two photographs of defendants South Extension and Wazirpur outlets dated 5.12.2012 E. Two photographs of defendants South Extension and Wazirpur outlets dated 8.2.2013 F. Two photographs of defendants South Extension and Wazirpur outlets dated 21.2.2013 G. Two photographs of defendants South Extension and Result: Petition allowed Page 43 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala Wazirpur outlets dated 23.2.2013 H. Two photographs of defendants South Extension and Wazirpur outlets dated 25.2.2013 I. Two photographs of defendants South Extension and Wazirpur outlets dated 5.3.2013 J. Two photographs of defendants South Extension and Wazirpur outlets dated 19.3.2013 K. Two photographs of defendants South Extension and Wazirpur outlets dated 29.3.2013 L. Two photographs of defendants South Extension and Wazirpur outlets dated 20.4.2013 M. 8 invoices issued by Sonia Photo Studio dated 9.2.2013, 21.2.2013, 23.2.2013, 25.2.2013, 6.3.2013, 20.3.2013, 30.3.2013 and 20.4.2013.
N. Various receipts of purchases of the infringing material purportedly made from the above outlets of the defendants on 28.11.2012, 29.11.2012, 3.12.2012, 5.12.2012, 8.2.2013, 21.21.2013, 23.2.2013, 25.2.2013, 5.3.2013, 19.3.2013, 29.3.2013 and 20.4.2013.
75. The petitioners also filed Annexure P2 which are stated to be the infringing packaging material in respect of purchases made vide the invoices above.
76. Annexure P 3 are the various newspapers of the respective dates purportedly shown in the photographs at points A to L above.
77. During the course of submissions on the petition, the petitioners sought to further strengthen their case of averment of continued violations by filing further documents on 23.11.2005.Thus, the petitioners filed the following viz;
A. Two photographs of defendants Wazirpur showroom dated 27.10.2015 B. Two photographs of defendants South Extension Result: Petition allowed Page 44 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala showroom dated 27.10.2015 C. Two invoices of purchases of the infringing material purportedly made from the above outlets of the defendants on 27.10.2015.
D. Original infringing packaging material in respect of purchases made vide the invoices above.
E. Two photographs of defendants South Extension showroom dated 28.10.2015 F. Two photographs of defendants Wazirpur showroom dated 28.10.2015 G. Two invoices of purchases of the infringing material purportedly made from the above outlets of the defendants on 28.10.2015.
H. Original infringing packaging material in respect of purchases made vide the invoices above.
I. Two photographs of defendants South Extension showroom dated 29.10.2015 J. Two photographs of defendants' Wazirpur showroom dated 29.10.2015 K. Original infringing packaging material in respect of purchases made vide the invoices above.
L. Two photographs of defendants' South Extension showroom dated 31.10.2015.
M. Two photographs of defendants' Wazirpur showroom dated 31.10.2015 N. Two invoices of purchases of the infringing material purportedly made from the above outlets of the defendants on 31.10.2015.
O. Original infringing packaging material in respect of purchases made vide the invoices above.
P. Annexure P 6 are the various newspapers of the respective dates purportedly shown in the photographs mentioned above.
Result: Petition allowed Page 45 of 176Anand Kr Deepak Kr v Haldiram Bhujiawala Q. Bill of photographer with respect to above photographs dated 2.11.2015.
R. Caution notices issued by the plaintiff in various newspapers regarding their trade name/trade mark S. One photograph of defendants' South Extension showroom dated 19.11.2015 T. One photograph of defendants' Wazirpur showroom dated 19.11.2015.
U. Newspaper dated 19.11.2015.
78. The petitioners also filed a third set of documents on 27.11.2015 to the following effect viz;
A. One photograph of defendants' South Extension showroom dated 19.11.2015.
B. One photograph of defendants' Wazirpur showroom dated 19.11.2015.
C. Copy of Trade mark Journal of TM No. 330375.
D. Copy of Logo of Trade Mark Registration No. 285062 and of Logo no. 330375.
E. Copy of Logo Haldiram's used by the plaintiffs. F. Original infringing packaging material in respect of purchases made vide the invoices above.
G. Two invoices of purchases of the infringing material purportedly made from the above outlets of the defendants on 22.11.2015.
H. Two photographs of defendants' South Extension showroom dated 21.11.2015.
I. Two photographs of defendants' Wazirpur showroom dated 21.11.2015.
J. Two invoices of purchases of the infringing material purportedly made from the above outlets of the defendants on 21.11.2015.
K. Original infringing packaging material in respect of purchases made vide the invoices above.
Result: Petition allowed Page 46 of 176Anand Kr Deepak Kr v Haldiram Bhujiawala L. Two photographs of defendants' South Extension showroom dated 22.11.2015.
M. Two photographs of defendants' Wazirpur showroom dated 22.11.2015.
N. Two invoices of purchases of the infringing material purportedly made from the above outlets of the defendants on 23.11.2015.
O. Original infringing packaging material in respect of purchases made vide the invoices above.
P. Bill of photographer with respect to above photographs dated 25.11.2015.
Q. Two photographs of defendants' Wazirpur showroom dated 23.11.2015.
R. Two photographs of defendants' South Extension showroom dated 23.11.2015.
S. Two invoices of purchases of the infringing material purportedly made from the above outlets of the defendants on 24.11.2015.
T. Original infringing packaging material in respect of purchases made vide the invoices above.
U. Two photographs of defendants' South Extension showroom dated 24.11.2015.
V. Two photographs of defendants' Wazirpur showroom dated 24.11.2015.
W. Two invoices of purchases of the infringing material purportedly made from the above outlets of the defendants on 25.11.2015.
X. Original infringing packaging material in respect of purchases made vide the invoices above.
Y. Two photographs of defendants' South Extension showroom dated 25.11.2015.
Z. Two photographs of defendants' Wazirpur showroom dated 25.11.2015.
Result: Petition allowed Page 47 of 176Anand Kr Deepak Kr v Haldiram Bhujiawala Z1. Original infringing packaging material in respect of purchases made vide the invoices above.
Z2. Various newspapers of the respective dates purportedly shown in the photographs mentioned above.
79. Further, on 28.11.2015 the plaintiff filed affidavit of two of its employees. The first affidavit is of one Sh Rajiv Arora while the second affidavit is of Sh Suresh Kumar. Sh Rajiv Arora is Manager (Admn. & Liesoning) in the plaintiff who deposed in the affidavit that on instructions of plaintiff's director Sh Manohar Lal Aggarwal, he engaged the services of a photographer for taking photographs of outlets of the defendants and purchased Namkeen packets/sweets from these outlets against purchase bills. He deposed that the material as highlighted in the preceding paragraph is correct and has been procured by him.
80. Likewise, Sh Suresh Kumar who is the photographer has also deposed in support of the photographs taken by him and he was accompanied by Sh Rajiv Arora to the outlets of the defendants.
81. In response to the above said two affidavits, the defendant Sh Ashok Kumar Aggarwal filed his counter affidavit to the affidavit of Sh Suresh Kumar as well as Sh Rajiv Arora on 30.11.2015. He deposed therein that he is representative of Haldiram Snacks Pvt Ltd who is otherwise not a party to the present proceedings. He denied veracities of all the documents filed by the plaintiffs which are said to be fabricated and statement of plaintiff's employees is said to be made under pressure and coercion. No contrary documents have been otherwise filed by the defendants.
82. Having set out the entire gamut of material before me for disposal of these petitions, I shall briefly set out the Result: Petition allowed Page 48 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala proposition of advocates. Same are, of course in the manner as referred to by the Hon'ble Supreme Court in its order dated 21.9.2001 at pages 15.(i) to (vii) and page 18
(i) to (v). Of course, some of them have already lost their force as already adjudicated from time to time. For example, power of Hon'ble Delhi High Court under Articles 215 and 225 of Constitution of India and Court's power to issue injunction in an application of contempt under Order 39 Rule 2A CPC. Nevertheless, the short submissions are as under viz;
83. It has been enunciated by ld counsel for plaintiffs that they filed their suit initially in the District Courts wherein an exparte injunction was passed on 10.12.1991. Subsequent to its amendment and representation in the Hon'ble Delhi High Court, the defendants filed their written statement. Essentially, as per the plaintiffs, the respondents in M 62/11 (old No. CCP 55/2000) are also in effect, the defendants in the suit are otherwise bound by the injunction orders passed from time to time being members of HUF joint property of trade mark in question and otherwise also, as aiders and abators in perpetuating the cause of contents. It is enunciated that the plaintiff was categoric in stating that defendant no. 1 is a newly constituted firm of defendants no. 2 & 3 but very careful in stating that the constitution of the firm was not known to them and thus they foresaw any necessity for pleading that they have impleaded the other directors/partners/ agents/members of HUF in the guise of their firm. It is with this objective that M 62/11 was filed. It was enunciated that even it is not the stand of the defendants no. 1 & 2 that they are a newly constituted firm of the second defendant in the manner averred by the plaintiff. It has been specifically pointed out that as per the own case Result: Petition allowed Page 49 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala of the defendants, they are an old established firm doing business since 1958 from Calcutta. It is averred that on 16.12.1991, they did not have defence of them being registered proprietors available to them as the registration of the trade mark was still in the name of deceased Sh Rameshwar Lal Aggarwal and thus on 18.12.91 they rushed to the Registrar Trade Mark, Calcutta to have the trade mark transferred in their names. This is said to be true of the other newly added respondents in M 62/11. The plaintiffs have argued on the aspect of devolution, succession and transmission of rights. It is therefore argued that the relinquishment of rights by the ladies of the house of defendants does not save them from implication of Section 24 of the Trade & Merchandise Act, 1958 which pertains to the effect of jointly owned trade marks. Reference to the Joint Venture Agreement is thus made in the above context, particularly para 7 thereof. They are further enunciating that any clause in the same authorizing the parties to the joint venture agreement to do their independent business without being bound by the act of others shall not be a plea available to them. Further documents pertaining to the opposition proceedings are shown to the Court to establish that defendant is an old and established firm. It has been demonstrated that the respondents Sh Ashok Kumar Aggarwal, Sh. Prabhu Shankar Aggarwal and even Sh Mahesh Kumar Aggarwal have shown to be the partners of Calcutta firm whereas Sh Mahesh Aggarwal has also claimed to be the proprietor of defendant no. 7 i.e M/s Prateek Marketing, Jaipur.
84. The entire arugments are therefore woven with a common thread that the defendant firm is claimed to be an old and established firm and thus, in the absence of specific denial to the averments of para 7 of the plaint, the above Result: Petition allowed Page 50 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala submission as made in corresponding para 7 of written statement tentamounts to an admission which even stood repeated in the subsequent written statement filed on 18.12.1991. Thus, on the basis of admitted position that Sh Rameshwar Lal Aggarwal who is also the husband of newly added respondent no. 5 namely Smt. Kamla Devi and who also happens to be the father of respondents no. 2 to 4, happens to be predecessor in title of the defendants and claims to be the original inventor, adopter and user of trade mark from 1958. His legal heirs are admittedly carrying on the business as a joint family business. Besides this, the respondents no. 2 to 4 and 6 have purportedly asserted that the defendant is an old established firm as evident from proceedings in C.O no. 4/92.
85. Even the respondent no. 2/defendant no. 2 is said to have specifically stated in form TM5 to be one of the partners of the defendant firm at Calcutta. The said TM5 is admittedly notice of opposition to application for registration of trade mark before the Registrar of trade marks at Delhi which was filed on 26.12.2000. In the same, M/s Haldiram Bhujiawala is said to be the registered proprietor of trade mark Haldiram Bhujiawala with monogram Haldiram Bhujiawala for the goods described in first para duly registered under TM no. 330375 in clause 30 purportedly registered for all territories in India. A reference to MoU is made that was entered amongst all partners of Haldiram Bhujiawala pursuant to which the second defendant opened a shop under the name and style of Haldiram Bhujiawala at Delhi.
85.1. This assertion is said to be roping in all the partners of said firm in this case. Not only this, it is claimed that respondent no. 2 Sh Ashok Kumar, respondent no. 3 Sh Prabhu Shanker, respondent no. 4 Sh Mahesh Aggarwal, Result: Petition allowed Page 51 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala respondent no. 5 Smt Kamla Devi and respondent no. 6 Sharad Aggarwal admittedly entered into a JV agreement purportedly shown to be executed on 10.12.1991(the date of exparte injunction) which relates to ownership and use of TM no. 330375 and pursuant to the same, these respondents became coowners of the said mark upon death of Sh Rameshwar Lal Aggarwal and their joint family trading firm is in effect arrayed as defendant no. 1 in TM 02/11 which has been specifically injuncted vide order dated 12.5.99 as also the subsequent orders from carrying on business under trade mark/trade name Haldiram Bhujiawala outside territory of West Bengal. 85.2. In suit of Sh Rameshwar Lal no. 1540/73, he showed himself as partner of M/s Haldiram Bhujiawala in which Sh Ganga Bishan was a proforma defendant no. 6. On demise of Sh Rameshwar Lal in 1991, R2/D2 sought impleadment in his place averring that he was a partner of M/s Haldiram Bhujiawala also. The third respondent appeared as plaintiff's witness and claimed on 19.4.93 to be also a partner of M/s Haldiram Bhujiawala, Calcutta. In pursuance to a partnership deed dated 1.4.1991, these partners stipulated that they may open branches anywhere and that the head office may also be shifted anywhere as per agreement. The constitution of this partnership has changed from time to time. The respondents no. 2 to 6 are claimed to be the agents/members of joint Hindu family which is trading as such and thus liable to the contempts committed by them despite knowing about the stay orders. 85.3. So far as R3 and R6 are concerned, they are stated to be liable likewise in accordance of the liability of respondents no. 1 & 2 as well as R4 and R6. In the written statement in TM 02/11 filed on 13.12.1991 execution of deed of dissolution dated 16.11.1974 was Result: Petition allowed Page 52 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala admitted whereby which R5 admitted the dissolution of firm M/s Chand Mal Ganga Bishan upon which she left without her share in trade mark. It is claimed that she inherited rights in TM no. 330375 as a coowner/joint proprietor alongwith other LRs of deceased Sh Rameshwar Lal and thus in the J.V agreement dated 10.12.1991 she and her daughters relinquished their rights in Haldiram Bhujiawala in favour of her sons and brothers and this change was also recorded in the Registrar of Trade Marks in December 1991. This document is said to be ante dated executed only after 30.12.1991 and thus not in existence on the date of injunction i.e 10.12.1991. Its execution is said to be with an intent to provide sham defence to the joint Hindu family business firm M/s Haldiram Bhujiawala against acts of infringement of plaintiff's trade mark. R5 is stated to be continuing as member of Joint Family business till changes in the records of Registrar Trade Mark even after 10.12.1991. 85.4. It is averred that with the above intention, the R5 swore an affidavit on 18.12.1991 (dated 10.12.1991) to save the other respondents only. On the strength of the above, it is averred that the act of Haldiram Bhujiawala, Calcutta in appointing respondent no. 7 as super distributor for the State of Rajasthan is indeed an act of defendant company herein as the Calcutta company managed and controlled by the joint Hindu family of the LRs of late Sh Rameshwar Lal including the respondents herein is deliberate which act has been done despite knowledge of orders dated 12.5.99, 25.5.99 as well as 16.7.99.
85.5. Not only this, respondent no. 3 is said to be having due knowledge of the names of directors of the plaintiff entered in the office of Registrar, Trade Mark as Result: Petition allowed Page 53 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala subsequent proprietor of TM No. 285062 in 1987 on the basis of Dissolution Deed dated 16.11.1974. In the reply filed by respondent no. 3 in Cal. 629 as well as by the other respondents herein it was admittedly stated that after dissolution of the firm Sh Mool Chand did not use the trade mark which stood abandoned. It was admitted that the partnership amongst Sh Ganga Bishan, Sh Mool Chand, Sh Shiv Kishan and Smt. Kamla Devi was dissolved on 16.11.1974. It is also admitted there that respondent no. 6 is not carrying any business for the said trade mark/trade name after the dissolution of the firm and that the registered proprietors i.e Lrs of deceased Sh Rameshwar Lal have been brought on record as subsequent/joint proprietors of the trade mark. It is claimed that in C.O 04/92, respondents no. 2 & 5 are claiming that respondent no. 5 could not assert her right to the trade mark after dissolution of the firm and was fraudulently allowed to use it in the State of West Bengal where its registration does not extend.
85.6. It is thus claimed that Deed of Dissolution has been in knowledge of the respondents through out since the day of its execution. In the above context, the plaintiffs have also argued upon the conduct of counsel for defendants namely Sh R.N Prabhakar, Advocate. It is already on record during the evidence that facts pertaining to Dissolution Deed are not necessary for disposal of contempt petitions. Same is the position with respect to the averments qua the acts of Sh R.N Prabhakar, Advocate. Nevertheless, the plaintiffs have left no efforts to establish that all the respondents have due knowledge of the said orders passed from time to time and which are the subject matter of these contempt petitions.
85.7. The plaintiffs have deployed same reasoning for Result: Petition allowed Page 54 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala complicity of respondent no. 4 also. He too, filed notice of opposition in form TM5 with Registrar Trade Mark, New Delhi on 26.12.2000 wherein he claims to be one of the partners of Haldiram Bhujiawala alongwith defendant no.
2. He is otherwise said to be the member of joint Hindu trading firm of defendants. He is also admittedly proprietor of defendant no. 7. It is averred that the defendants have obtained the trade mark fraudulently and there can not be any two similar registered trade marks operating simultaneously in respect of same goods and thus R4 can not take any advantage of fraud of his predecessor or of his own. The act of defendants in appointing as its distributor is said to be willful disobedience and breach of injunction order dated 12.5.99. This respondent is also imputed with the knowledge of previous trade mark of plaintiff as well as due knowledge of the injunction order.
85.8. Qua respondent no. 5, it is specifically argued that her case no. TM 03/11 is a false and she being member of joint Hindu family business carried under the name and style of M/s Haldiram Bhujiawala on the relevant date is party to the suit who have due knowledge of injunction order. Arguments with respect to Dissolution Deed and its implication are pressed upon. The defendants including newly added respondents except respondent no. 3 have altogether denied that they are in contempt in the manner alleged.
85.9. The entire history of the litigation has been provided during arguments. It is pointed out that plaintiff no. 3 was added only on 27.8.2001 on which date the injunction order dated 27.5.99 was already in operation. By way of assignment of the latest plaintiff no. 1 in plaintiff no. 3, the first plaintiff can not take benefit of the subsequent Result: Petition allowed Page 55 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala assignment and thus the petition on its behalf is not maintainable.
85.10. The main thrust of averment of ld counsel for plaintiffs has been to the effect as to where a contempt petition would lie in respect of order that has been later set aside. It is submitted that the order of injunction dated 12.5.99 has been subsequently set aside by the order of the Hon'ble Division Bench of Hon'ble Delhi High Court dated 3.6.2010. It is averred that the documents referred by the plaintiff during the arguments are for the period preceding the year 1999 and the later judicial pronouncements have changed the scenario. It is thus urged that it is important for the Court to state as to which yardstick it shall have to follow while deciding these contempt petitions. Ld counsel read out the order of Hon'ble Division Bench specifically para 3 read with paras 11 & 12. Para 19 read with para 23 &25 has been also read in this context. Sh C. Mukund, Advocate has pointed out that two of his stay applications were pending disposal when the Hon'ble Appellate Court had extended the time for operation of condition in para 43.2 of the judgment dated 27.9.12 in FAO No. 470/12 on 14.12.12. This time was further extended on 1.2.2013 where after which the matter was listed on 13.2.2013 and 7.3.2013 besides other dates till the appeal was finally disposed of. Special reference is made to the order dated 7.3.2013 wherein the Hon'ble Delhi High Court in the appeal observed that since the entire matter will have to be heard alongwith the documents supplied by respective sides for consideration as to whether the stay may be extended or not, it will be just and proper that instead of hearing the application seeking extension of interim order, the main appeal itself be heard. The Hon'ble Court had preponed the hearing of Result: Petition allowed Page 56 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala the main appeal. It is in this context that the respondents counsel has placed case law that when the rights of a party are to be affected substantially by passing of an interim order pending appeal then a stay ought not to be granted in order to frustrate the said right. Conversely, it has been vehemently set out that by virtue of absence of any further order for extension of time period for compliance of clause 43 (2) of the order dated 27.9.12, it does not lie with the defendants to urge that the time granted as on 14.12.12 stood automatically extended. Thereafter judgments on this aspect are also relied upon. Both the parties have also argued on the applicability of Order 30 CPC. Judgments have been placed accordingly. The evidence of parties has been also read in the Court. Both the parties have sought to differentiate the judgments cited by them in support of their arguments. It is additionally argued that the Joint Venture Agreement would disclose that the parties had business independent to each other and thus respondents are not bound by the conduct of the original defendants. It is submitted that respondent no. 6 Sharad Aggarwal being minor at the relevant time can not be accused of contempt. In this context, law of fiduciary relationship is discussed. However, it is also correct that during the arguments, it was informed that Sharad Aggarwal/respondent no. 6 had attained majority by the time the injunction order dated 12.5.99 was passed. However, the birth certificate of respondent no. 6 has been never produced in this Court to settle the above argument. Arguments are also addressed on the role of the respondents as aiders and abettors in perpetuation of the contempt which have been accordingly rebutted. Case laws have been also relied. The parties have also argued on the aspect of power of the Court under Section 151 CPC vis a vis punishment for contempt Result: Petition allowed Page 57 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala independent of its powers under Order 39 Rule 2A CPC. Arguments are also addressed on the point that this Court is not powerless to order status quo ante in exercise of its inherent powers as well as under Order 39 Rule 2A CPC. The plaintiff's counsel has also sought to demonstrate from the cross examination of second respondent/defendant no. 2 as to how his conduct is not warranting any apology and has sought to apply the same analogy to the remaining of the respondents. Appropriate case laws have been referred to. I shall also take up those in the succeeding paragraphs. JUDGMENTS BY PETITIONERS.
86. On the aspect of why, in circumstances of this case, the apology tendered in the reply itself should not be accepted, the petitioner relies on following judgments;
APOLOGY
1.Patel Rajnikant Dhulabhai & Anr v Patel Chandrakant Dhulabhai & Ors (2008) 14 SCC 561:
Apology tendered by respondentcontemnors, held, was a tactful move to ward off the Court. Acceptance of such an apology would be allowing contemnors to go away with impunity.
It is further held, "It has been argued by on behalf of the contemnors that according to Explanation to Section 12 (1) of the Contempt of Courts Act, 1971, no apology can be rejected merely on the ground that it is qualified or conditional. Apology is neither a weapon of defence to purge guilty of their offence, nor intended to operate as a universal pannacea, it is evidence of real contriteness.
The Supreme Court is convinced that socalled apology in the Result: Petition allowed Page 58 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala present case is not an act of penitence, contrition or regret. It has been tendered as a "tactful move" when the contemnors are in the tight corner and with a view to ward off the Court. Acceptance of such apology in the case on hand would be allowing the contemnors to go away with impunity after committing gross contempt of court.
Considering the facts and circumstances in their entirety, ends of justice would be served by holding respondentcontemnors guilty under Section 12 of the Contempt of Courts Act, 1971, read with Section 94 (c) and Rule 2A of Order 39 CPC and Article 129 of the Constitution."
2.Metropol India (P) Ltd v Parveen Industries India 2009 (40) PTC 600 (Del.) "As regards the contempt proceedings, this Court is not persuaded by either of the unconditional apologies offered by the JD. Even in the last unconditional apology filed by the JD today, it is not clear whether the JD has undertaken not to continue to be in breach of the decree. In any event as already recorded in the order dated 13th March 2009, the JD is guilty of filing a false reply and then giving explanation to the false statements made on oath......."
3. Priya Gupta & Anr v Addl. Secy Ministry of Health & Family Welfare & Ors. JT 2013 (1) SC 27 :
"The directions of the Court which are to provide transparency in action and adherence to basic law and fair play must be enforced and obeyed by Result: Petition allowed Page 59 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala all concerned...
...The directions are binding and must be obeyed by the parties and all concerned stricto sensu .....
...Tendering of apology even otherwise is not satisfactory way of resolving contempt proceedings...
...A person who attempts to salvage himself by showing ignorance of the Court's order of which he quite clearly had the knowledge, would again be an attempt on his part to circumvent the process of law. Tendering a justification would be inconsistent with the concept of an apology. An apology which is neither sincere nor satisfactory and is not made at the appropriate stage may not provide sufficient grounds to the Court for the acceptance of the same. It is further held that, tendering an apology is not a satisfactory way of resolving contempt proceedings. An apology tendered at the very initial stage of the proceedings being bona fide and preferably unconditional would normally persuade the Court to accept such apology, if this would not leave a serious scar on the dignity/authority of the Court and interfere with the administration of justice under the orders of the Court."
4. Maninderjit Singh Bitta v Union of India & Ors (2012) 1 SCC 273:
Contempt of Court - Object - Generally - Rationale behind doctrine of contempt of Court is protecting dignity and authority of Court.
5. All Bengal Excise Licencees Association v Raghbendra Singh & Ors Result: Petition allowed Page 60 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala (2007) 11 SCC 374.
Contempt of Courts Act, 1971 - Sec. 12(1) proviso and 12(b) - Unconditional apology - Effect of - Held, it is not a complete answer to violations and infractions of orders of High Court or of Supreme Court - In the present case, such apology although accepted, conduct of the contemnor government servants, censured - Constitution of India. Arts. 215 and 129. The mantra of unconditional apology is not a complete answer to violations and infractions of the orders of the High Court or of or the Supreme Court.
87. On the aspect of aiding and abetting, the petitioner relies on following judgments AIDING & ABETTING
1. Vidya Charan Shukla v Tamil Nadu Olympic Association & Anr. AIR 1991 Madras 323 :
"Para 2. It can not be said that for a breach of the injunction by a party or a stranger for aiding or abetting the breach alone, the Court's inherent power can be exercised and not in a case of a third party, who had the knowledge of the order, but decided to violate it. No person can obstruct the path of justice. No one can escape by committing a gross and violent obstruction to the implementation of the order direction of the Court.
Para 46. We can see thus clearly that the Courts in India invariably accepted the law applied in England and found (1) a party to the Result: Petition allowed Page 61 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala suit if he had notice or knowledge of the order of the Court and (2) a third party or a stranger, if he had aided or abetted the violation with notice or knowledge of the order of injunction guilty of civil contempt and otherwise found a third party guilty of criminal contempt if he has been found knowingly obstructing implementation of its order of direction, if it is found in the instant suit that Sri Shukla was directly or indirectly a party defendant in the suit and the order of the learned single Judge was directed to his conduct also and he violated the order after notice or knowledge, he shall be guilty of civil contempt. He can still be found guilty of civil contempt if he is found to have aided and abetted the violation of the order of the Court."
2. Komal Nagpal & Ors v Kamal Nagpal & Ors 206 (2014) DLT 745 :
Contempt of Court - Principle of third party liability - Person who is not a party to proceedings is not bound by any orders passed therein - But if that person has abetted/aided violation of any order with notice/knowledge of order, he will be guilty of contempt.
3. Acrow (Automation) Ltd v Rex Chainbelt Inc & Anr. (1971) 3 ALL ER: Relied on aiding and abetting breach of injunction.
88. On the aspect of contimucaious conduct, the plaintiff has relied on following judgments;
CONTUMACY
1. Raj Prakash v M/s Choudhry Plastic Works & Anr. ILR (1981) II Result: Petition allowed Page 62 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala Delhi.
"Para 5: Civil contempt, however, bore a twofold character where there has been willful disobedience to an order of the Court and there is a measure of contumacy on the part of the defendants. As between the parties to the proceedings, it is merely a right to exercise and a liability to submit to a form of civil execution, a penal or disciplinary jurisdiction to be exercised by the Court in the public interest."
WILLFUL CONTUMACY
2. Kuldip Rastogi & Anr v Vishva Nath Khanna AIR 1979 Delhi 202 - Wilful has the same meaning in the law of contempt as in other branches of the law - No need to prove contumacity It is synonymous with willfulness.
89. On the aspect of judgments on the point of vacation/modification of injunction order, the plaintiff relies on following judgments;
1. Samee Khan v Bindu Khan (1998) 7 SCC 59.
"No doubt the wording as framed in Order 21 Rule 32(1) would indicate that in enforcement of the decree for injunction a judgmentdebtor can either be put in civil prison or his property can be attached or both the said courses can be resorted to. But once the decree is enforced, the judgmentdebtor is free from the tentacles of Rule 32. The whole operation is for enforcement of the decree. If the injunction or direction was subsequently set aside or if it is satisfied, the utility of Rule 22 gets Result: Petition allowed Page 63 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala dissolved. But the position under Rule 2A of Order 39 is different. Even if the injunction order was subsequently set aside, the disobedience does not get erased. It may be a different matter that the rigour of such disobedience may be toned down if the order is subsequently set aside."
2. Narain Singh v S. Hardayal Singh Harika AIR 1958 Punjab 180 (Vol. 45, C.50)(1):
"So long as the injunction order has not been vacated or modified by the Court granting it, or has not been reversed on appeal, no matter how unreasonable and unjust the injunction may be, the order must be obeyed.....
..The Court, in contempt proceedings, will not inquire into the merits of the case in which the injunction was issued......"
3. Prithawi Nath Ram v State of Jharkhand (2004) 7 SCC 261 - B. Contempt of Courts Act, 1971 - Ss.2(b),11 and 15 - Disobedience of interim order - Impermissibility - Even if interim order is subsequently vacated or relief refused to a party in the main proceedings, held, it can not justify disobedience of such interim order by the other party....
4. Patel Rajnikant Dhulabhai & Anr v Patel Chandrakant Dhulabhai & Ors (2008) 14 SCC 561:
"A subsequent decision that the Court had no jurisdiction to entertain the suit did not render interim orders passed earlier non est or without jurisdiction. A party committing breach of such orders could not Result: Petition allowed Page 64 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala escape the consequences of such disobedience and violation thereof."
90. On defiant attitude and conduct, the plaintiff relies on following judgments;
1. Pritam Pal v High Court of Madhya Pradesh 1993 Supp (1) SCC 529: "The appellant had adopted a defiant attitude and tried to justify the aspersions made by him even without thinking it necessary to apologise. ...... His present conduct has aggravated rather than mitigated his offence."
2. Balram Singh v Bhikam Chand Jain & Ors AIR 1985 SC 1726 "We must take serious view of the conduct of the contemnors in committing a breach of the undertaking in view of the growing tendency to triffle with the Court's orders based on undertakings with impunity".
3. Rama Narang v Ramesh Narang AIR 2007 SC 2029 - Actions of respondents absolutely contrary to letter and spirit of undertaking given by parties to Court - Respondents guilty of deliberately flouting undertaking given to Court.
91. On the aspect of inherent power of the Court for restoring status quo ante, the plaintiff's counsel has relied on following judgments viz;
1. Arjan Singh v Punit Ahluwalia & Ors (2008) 8 SCC 348 :
"The consequences of violating the order of injunction must be kept confined only to Order 39 Rule 2A CPC. On the other hand, it must also be kept in mind that a Court in exercise of its inherent jurisdiction under Section 151 CPC, in the event of coming to the conclusion that a breach to Result: Petition allowed Page 65 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala an order of restraint had taken place,may bring back the parties to the same position as if the order of injunction has not been violated."
2. Delhi Development Authority v Skipper Construction Co. (P) Ltd & Anr. AIR 1996 SC 2005 - Held that, "the object of Rule 2A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law. It is further held that, where an act is done in violation of an order of stay or injunction, it is the duty of the Court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The principle that a contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt is well settled. Undergoing the punishment for contempt does not mean that the Court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its orders. The inherent power of the Court is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice....."
3. Sujit Pal v Prabir Kumar Sun & Ors AIR 1986 Calcutta 220 -
"Inherent power can be invoked to grant temporary mandatory injunction by directing police to restore possession."
4. Manohar Lal Chopra v Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527 - "The inherent power has not been conferred upon the Court, it is a power inherent in the Court by virtue of its duty to do justice between the Result: Petition allowed Page 66 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala parties before it....."
5. Rathindra Nath Bose v Jyoti Bikash Ghosh & Ors AIR 1975 Calcutta 377 Held that although the circumstances contemplated in Order 39, Rules 1 & 2 did not exist in the case so as to warrant the issue of injunction under Section 94(C) read with Order 39, the trial Court had jurisdiction to issue such injunction in exercise of its powers under Section 151, Civil P.C even apart from the provisions of Order 39 of the Code, and, therefore, the order for injunction must be taken to be made under Section 151 of the Code. AIR 1962 SC 527 Applied.
6. Allahabad Bank v R.S.A Singh AIR 1976 Allahabad 447 - The Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order 39, CPC if the Court is of opinion that the interests of justice require the issue of such interim injunction. The mere fact that there are certain provisions as regards the issue of injunction in Order 39, CPC does not debar the Court from passing orders of temporary injunction for doing justice in the exercise of its inherent power under Section 151 of the Code, though the discretion has to be exercised with the extreme caution and applied only in very clear cases.
7. Century Flour Mills Ltd v S. Suppiah & Ors AIR 1975 Madras 270 - Order XXXIX CPC should not be considered as placing any limit on the scope of the inherent power under Section 151.
8. Dr. Prashanta Padmanabha Amin v R.N Sheetalwad 130 (2006) DLT Result: Petition allowed Page 67 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala 410 - Para 93. "In 1995 Crl. Law Journal 2179 (at page 2183, 2184) Sunil Kumar Ghose v State of West Bengal,it was held that in a contempt application, the Court was competent to issue necessary, further and consequential directions for enforcing its orders. In this case, the Court directed the contemnor to comply with the directions given in the judgment of the Supreme Court within three weeks from the date of passing of the order."
9. C. Elumalai & Ors v A.G.L Irudayaraj & Anr. (2009) 4 SCC 213 It is clear that punishing a person for contempt of Court is indeed a drastic step and normally such action should not be taken. At the same time, however, it is not only the power but the duty of the Court to uphold and maintain the dignity of Courts and majesty of law which may call for such extreme step. If for proper administration of justice and to ensure due compliance with the orders passed by a Court, it is required to take strict view under the Act, it should not hesitate in wielding the potent weapon of contempt.
STATUS QUO UNDERTAKING
10. Murli Projects Pvt Ltd v Shree Naurang Godavari Entertainment Ltd & Ors. 201 (2013) DLT 153 "If defendants are discharged, then they would succeed in getting premium for their acts of breach of solemn undertakings and assurances given to this Court and the plaintiff, in the process, will be left with unfulfilled promises of the defendants only and the Result: Petition allowed Page 68 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala money payable to it shall remain in the bank accounts of the defendants. That merciful and benevolent decision, if taken by this Court, would convey to the public at large that the Courts can not ensure enforcement of the undertakings given to them by the litigants."
92. On the aspect that plea of mistake of undertaking and on the aspect of flouting of undertakings, the plaintiff relies on following judgments viz;
1. All Bengal Excise Licensees Association v Raghabendra Singh & Ors (2007) 11 SCC 374 :
Contempt of Courts Act, 1971 - S.2(b) - Violation of Court's order by highly placed government officers - Whether, on facts, deliberate or due to mistake of understanding the order - Liquor licence - Highly placed government officers, in violation of interim order passed by High Court, issuing advertisement in newspapers for holding final selection of liquor shops on certain dates and thereafter holding the lottery for that purpose - The said interim order was within their knowledge and even when an opportunity was given by High Court to cancel the lottery, they refused to do so - In contempt proceedings they admitting that there was violation of the Court's order but pleading that the violation was not wilful but because they had wrongly understood the implications of that order - Such plea untenable since highly educated and highly placed officials had competent legal advisors to assist them - In the said circumstances of the case, contempt of High Court by the said officers, held, was deliberate and with Result: Petition allowed Page 69 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala mala fide intention - Plea of mistake of understanding the order, rejected.
2. Ram Niranjan Roy v State of Bihar & Ors JT 2014 (4) SC 477 : This case is also relied with intent to highlight conduct during Court proceedings.
".....The appellant is Deputy Superintendent of Police..... When they asked him whether the police headquarters had granted him any permission to argue his case in person and challenge transfer policy of the police department, he rudely stated that that was not the concern of the Court....."
3. K. Kutumba Rao v Venkata Subha Rao & Ors. AIR 1969 Andhra Pradesh 47 - Parties to the suit and who have notice of same will be liable for contempt of disobedience or for obstructing execution of the order - Whether order is valid or irregular unless it is vacated, it has got to be obeyed..... It is further observed that, Court issuing order under Order 39 Rule 7 Parties to the suit and who have notice of same will be liable for contempt of disobedience or for obstructing execution of the order.
4. Gulshan Kumar Arora Vs. Ashwani Shukla & Ors. 191 (2012) DLT 525 Wilful and deliberate violation of orders of this court by defendant no. 1 - defendant no. 1 was aware about interim order passed by Single Judge and Division Bench, but despite of that, still settled the matter with third party after passing of said orders and executed sale deeds - Proceedings initiated by him against applicant appear to be bogus and done in order to defeat and frustrate the orders passed by this court.
5. Central Bank of India v Current Transport Finance (P) Ltd ILR Result: Petition allowed Page 70 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala (1978) I Delhi 234 - HELD, further Disobedience of an undertaking is contempt. HELD, A breach of undertaking is also a breach of the injunction. The reason is that an undertaking amounts in substance to an injunction order. HELD, further, that a breach of an undertaking is also punishable under sub rule (3) of Order 39, Rule 2, Code of Civil Procedure. The Code permits attachment of the property of a contemner, if he is in continued disobedience.
93. On the aspect of avoidance of two interpretations, the ld. Counsel for plaintiffs relies on case titled, Yashaswi Aggarwal & Anr v Rakesh Aggarwal & Ors 213 (2014) DLT 783 :
When an order of Court is ambiguous and is reasonably capable of more than one interpretation, proceedings for contempt should not be entertained - In proceedings under Order 39 Rule 2A CPC, Court is simply to see whether there is disobedience of order passed by Court - It is not permissible for Court to examine correctness of earlier decision which is stated to be violated.
94. On the aspect of liability of third party, the following judgments are relied viz;
1. Kamlesh Sharma @ Kamlesh Kumari & Anr v Satya Devi & Ors 2013 (137) DRJ 340 :
In this case a third party was sold the property despite injunction. The said party was found to be necessary party. It was thus impleaded and Result: Petition allowed Page 71 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala injuncted.
2. S.N Banerjee & Anr v Kuchwar Lime and Stone Co. Ltd & Ors decided on 31.10.1938 1938 Law Suit (PC) 48. Relied on third party injunction and role of objector.
3. Z Ltd v A (Lord Denning MR) & Ors (1982) 1 ALL ER. This case is relied to the effect that if a Bank or third party has notice of Injunction, it is contempt of Court for it/him knowingly to assist in the disposal of the assets, whether or not the defendant has knowledge of the injunction.
4. Attorney General v Times Newspapers Ltd & Anr. (1991) 2 ALL ER Held that a person who knowingly impeded or interfered with the administration of justice by the Court in an action between two other parties was guilty of contempt of Court notwithstanding that he was neither named in any order of the Court nor had assisted a person against whom an order was made to breach it.
5. Satyabrata Biswas & Ors v Kalyan Kumar Kisku & Ors AIR 1994 SC 1837 - Status quo ordered in respect of property - Creation of sublease in such property - Illegal, even if it be by tenant who was not party to the interlocutory application for status quo.
6. National Highways Authority of India v You One Maharia (IV) & Ors. 169 (2010) DLT 222 it is held that even authorized representative can be held for contempt.
7. M v Home Office & Anr. (1993) 3 All ER. This is a Judgment of House Result: Petition allowed Page 72 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala of Lords where it was observed that for non compliance of its mandatory order and upon flouting of an undertaking made even the Secretary of State was liable for contempt.
95. On the aspect of Joint Hindu family trading business/firm and complicity of its agents etc, the plaintiff relied on following judgments;
1. Firm Nand GopalOm Prakash through Banarsi Das v Firm Mehnga MalKishori Lal 1940 Law Suit (Lah.) 83 which held that firm Nand GopalOm Prakash is a joint Hindu Family trading firm. The next question is whether a Joint Hindu family firm can sue in its firm name. It is provided in Rule 1 of Order 30, Civil P.C., that a firm may sue or be sued in its firm name. In 1909, the Chief Court, Punjab acting under its rulemaking power, added an "Explanation" to this rule making it applicable to a "joint Hindu family trading partnership." In the Punjab therefore a joint Hindu family firm can sue and be sued in its "firm name" like any other contractual partnership.
2. Purushottam & Co. v Manilal & Sons (Imam J.) AIR 1961 Supreme Court 325 (V.48 C.50) The introduction of Order 30 in the Code was an enabling one which permitted partners constituting a firm to sue or be sued in the name of the firm.
3. Mandalsa Devi v M. Ramnarain P. Ltd AIR 1965 SC 1718 A suit by or in the name of a firm is really a suit by or in the name of all its partners.
Result: Petition allowed Page 73 of 176Anand Kr Deepak Kr v Haldiram Bhujiawala
4. Gambhir Mal Pandiya v J.K. Jute Mills Co. Ltd Kanpur & Anr. AIR 1963 SC 243 Person admitting to be partner of the firm - He can not raise issues between himself and his other partners.
5. Punjab National Bank Ltd v M/s Raj Mal Pahar Chand & Ors. AIR 1959 Punjab 362 (V 46 C 110) -
Reading together the provisions of Order 30 Rule 1 as amended and the provisions of Order 21 Rule 50 (2) there can hardly be any doubt that a decree passed against a Joint Hindu Family firm can legally be executed in accordance with the provisions of Order 21 Rule 50 (2) in precisely the same way in which decrees against contractual partnership firm can be executed against its partners.
6. J.K Jute Mills Co. Ltd v Firm Birdhichand Sumermal AIR 1958 Allahabad 176 (V.45 C 51). A partnership firm is not a legal entity distinct from its members. Therefore, a decree obtained against a firm under Order 30 is a decree against each member composing the firm.
7. Thomas v George & Anr. AIR 1973 Kerala 94 (V 60 C 32) Order 30 Rule 1 - Rule is only permissive and it does not prevent a partner from suing or being sued in his individual name.
8. Firm Chandu Lal Ghanshyam Dass & Anr v Saraswati Sugar Syndicate Ltd. AIR 1938 Lahore 823 - In cases of suits by or against firms properly represented the addition of the names of individual partners is not obligatory and the suit can proceed even in the absence of the Result: Petition allowed Page 74 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala partners' names.
9. M.S Chockalingam v Vimala & Co. & Anr AIR (36) 1949 Madras 628 Notice served on one partner. All partners to be deemed as defendants as partner as defendant under Order 5 A Rule 8
10. Bhimji Naik v Commissioner of Income tax AIR (32) 1945 Bombay 271 In the case of a partnership, while each partner is the agent of the firm in respect to its business he occupies a dual capacity. He is an owner himself, and to the extent he is acting for his partners he is their agent.
11. Mohd. Hafeez Khan v State Transport Appellate Tribunal, Gwalior & Ors. AIR 1978 Madhya Pradesh 116 - A partnership contains three elements, viz an agreement entered into by all the persons concerned, the agreement must be to share the profits of a business, and the business must be carried on by all or any of the persons concerned acting for all. The last element shows that the persons of the group who conduct the business do so as agents for all the persons in the group and are, therefore, liable to account to all.
12. State of Bihar v Rani Sonabati Kumari AIR 1961 SC 221 (v. 48 C
35) The expression "person" as in Order 39 Rule 2 (3) been employed merely compendiously to designate every one in the group "Defendant, his agents, servants and workmen".......
13. M/s Shankar Housing Corporation v Smt. Mohan Devi & Ors AIR 1978 Delhi 255 -
Result: Petition allowed Page 75 of 176Anand Kr Deepak Kr v Haldiram Bhujiawala A "firm" is not a legal entity but is only a collective or compendious name for all the partners. So if a suit to enforce a right arising from a contract is to be instituted "by a firm" against a third party, the firm would be the plaintiff. If the suit is to be instituted "on behalf" of a firm, the partner or partners, who wants or want to institute the suit on behalf of (i.e for the benefit of) the firm would be the plaintiff. But, in both the cases the suit would in effect be by or on behalf of all the partners of the firm. AGENT
14. Ram Prasad Singh v Subodh Prasad Singh & Ors. AIR 1983 Patna 278 - Agent of the defendant can be proceeded against even if he was not personally a party to a suit.
15. Chandan Lal Joura v M/s Amin Chand Mohan Lal AIR 1960 Punjab 500 - Every partner is an agent of the firm, and his other partners for the purpose of the business of the partnership.
97. On the power for committal for contempt even if injunction order has seized to operate, the plaintiff relies on the following judgments viz;
1. Jennison v Baker (1972) 1 ALL ER - Power of country court to commit for contempt even though injunction no longer effective - Country Courts Act 1959. S.74 Held - The High Court had jurisdiction to commit for contempt for breach of an injunction even though the injunction had ceased to have effect:
Result: Petition allowed Page 76 of 176Anand Kr Deepak Kr v Haldiram Bhujiawala
2. Arjan Singh v Punit Ahluwalia & Ors (2008) 8 SCC 348 : If the order of injunction was operative up to a particular date, technically the order of injunction shall not remain operative thereafter.
98. On the aspect of punishment and sentencing also, the plaintiff relies on following judgments viz;
1. Balram Singh v Bhikam Chand Jain & Ors AIR 1985 SC 1726 It would be a travesty of justice if the Court were to allow gross contempt of Court to go unpunished, without an adequate sentence.
2. Sneh Lata v V.K Mittal & Ors 29 (1986) DLT 298 - Contempt of Court means wilful disobedience of the order of the Court, if he intentionally disobeys the order of the Court, he causes contempt of Court for which he is liable to be punished or fined or both.
3. Tayabbhai M. Bagasarwalla & Anr v Hind Rubber Industries Pvt. Ltd Etc. AIR 1997 SC 1240 - Civil Court found to have no jurisdiction to entertain the suit - Even then defendants can be punished for violation of said interim orders.
4. Samee Khan v Bindu Khan AIR 1998 SC 2765 - Order 39 Rule 2A - Breach of injunction - Power of Court - may either order detention of disobeying party or attach his property - Both steps can be resorted to or one of them alone need be chosen depending on facts in each case.
5. Raj Prakash v M/s Choudhry Plastic Works & Anr. ILR (1981) II Delhi. In this case of civil contempt, the question inter alia, for decision Result: Petition allowed Page 77 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala was, to what extent a High Court can punish a contemner under Article 215 visavis, the limitations imposed by Section 12 of the Contempt of Courts Act, 1971. Allowing the contempt application.
99. On the point of user of trade name/mark by its joint proprietors, reliance is placed on judgment titled, M/s. Power Control Appliances & Ors. Vs. M/s. Sumeet Machines P. Ltd. JT 1994 (2) S.C. 70 "It is a settled principle of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Where, therefore, the first defendant respondent has proclaimed himself as a rival of the plaintiffs and as joint owner it is impermissible in law. Even then, the joint proprietors must use the trade mark jointly for the benefit of all. It cannot be used in rivalry and in competition with each other."
100. The respondent no. 3 through Sh Sudershan Bansal, Advocate argues that contempt proceedings are proceedings in personem and not rem. It is submitted that power under Order 39 Rule 2A CPC emanates only from Order 39 Rule 1 & 2 CPC and thus a party not injuncted can not be held for contempt of Court as the meaning of the term contempt is very restrictive. He further submits that the nature of such proceedings are quasi criminal and guilt is to be established beyond reasonable doubts. He submits that the language of injunction is to be applied strictu sensu. It is submitted that respondent no. 3 has not given any undertaking and that he is not the agent of the other respondents/first defendant. He claims to be a coowner only Result: Petition allowed Page 78 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala and urges that the contempt petitions should be tried. He relies on following judgments viz;
1. State of Maharashtra v Pandurang K. Pangare & Ors. Decided on 13.02.1995 AIR 1995 SC 1202. This judgment is on the aspect of a person not having knowledge of order of stay of Court. In this case, the person raising construction was not aware of the stay of Court and it was held that contempt petition is liable to be dismissed.
2. JCB India Limited v Action Construction Equipment Ltd & Anr. 2006 VI AD (Delhi) 826. This judgment is to highlight that there is no willful misconduct on the part of the third respondent. It was held, "The gravamen of the charge of contempt is willful disobedience of an order of the Court ........... Whether the Court should take action for contempt or not must depend on the circumstances of each case and discretion is to be exercised by the Court ........Willful conduct is the primary and basic ingredient of the offence of contempt and is the sine qua non for bringing home the imputation of guilt. Contempt proceedings can not be permitted to be used as a legal thumb screw to serve an ulterior purpose. The jurisdiction should not be used for vindictiveness, malafides or a desire to harass the opponent."
3. Three Cheers Entertainment Pvt. Ltd and Ors v C.E.S.C Ltd. AIR 2009 SC 735. This judgment is on the need for trial. It was held that, "when the trial was incomplete, we fail to see any reason why the contempt Result: Petition allowed Page 79 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala proceeding was heard on affidavits......."
Regarding two interpretations, it was held that, "It may also be noticed at this juncture that mere disobedience of an order may not be sufficient to amount to a 'civil contempt' within the meaning of Section 2(b) of the Act of 1971 - the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act and lastly, in the event two interpretations are possible and the action of the alleged contemnor pertains to one such interpretation - the act or acts can not be ascribed to be otherwise contumacious in nature........"
4. Niaz Mohammad & Ors. Etc v State of Haryana & Ors decided on 20.09.1994 AIR 1995 SC 308. This judgment is on the point that contempt is to be established beyond reasonable doubt. "No contempt of Court can be established except when disobedience of Order is proved to be beyond reasonable doubt......
Nor is a person to be punished for Contempt of Court for disobeying an order of Court except when the disobedience is established beyond reasonable doubt, the standard of proof being similar, even if not the same, as in a criminal proceeding. ......"
5. Ashok Paper Kamgar Union & Ors v Dharam Godha & Ors Decided on 05.09.2003 (2003) 11 SCC 1. This judgment is on the explanation of term Willful disobedience. It was noted that, 'Wilful' means an act or omission which is done voluntarily and intentionally and with the specific Result: Petition allowed Page 80 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law.
101. The learned counsel for other respondents has submitted that a third party or an aider or abettor is not bound to an injunction order. In support he relies on Bimal Chandra Sen v Kamla Mathur & Anr. Criminal Contempt Appeal No. 2 of 1982, decided on 25.05.1982 1983 Cri.L.J
495. In this case, "A suit of permanent injunction was filed in the Court of subordinate judge, by the plaintiff seeking injunction, restraining the defendant, her servants and agents from carrying on any construction activities in the property. A temporary injunction was granted. Plaintiff moved an application in the High Court under Sections 10 and 12 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution. The respondent to the application are the defendant in the suit and her husband. The plaintiff complains that both wife and husband have flouted the order of injunction by going on with the construction. The allegations are that husband is aider and abettor of contempt."
Held that a person not a party to the suit can not be proceeded against for contempt for aiding and abetting the breach. It was further held that, "(14). ........But what about a person who is not a party to the suit and who is charged with aiding and abetting the breach of the injunction order. Does Rule 2A also include an aider and abettor who is not a party to Result: Petition allowed Page 81 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala the suit ? This is the question to be decided......
(20). From the above rulings two propositions emerge, Firstly, a person not a party to the suit can not be proceeded against for contempt for aiding and abetting the breach. Secondly, the jurisdiction to punish for disobedience of the injunction order vests in the Court which ranted the injunction.
(21). The next question is: Can an 'aider and abettor' be proceeded against under the Act ? I think not. The only allegation against the husband is that he 'is aider and abettor of contempt" as he "is supervising the fresh illegal construction activities". This is an allegation more like an allegation against in agent than an abettor. The plaintiff has in effective alternative remedy against the principal party bound by the injunction and her agents and servants. We have not been shown any reported decision in India where the Court punished an aider and abettor."
102. On the same aspect, reliance was also placed on case titled, Mawazzam Ali Khan & Ors v Shebash Chandra Pakrashi & Anr. AIR 1927 Calcutta 598 - Order 39 Rule 2 (8). In this case it was held that Abettor of contempt of Court can not be punished. It was further held that Clause (3), R (2) is not intended to give the Court power to visit for contempt of Court people against whom no order is made or terms imposed and therefore abettors of contempt of Court can not be punished.
103. Reliance was also placed on the same issue on N.W. Ry.
Result: Petition allowed Page 82 of 176Anand Kr Deepak Kr v Haldiram Bhujiawala Administration v N.W. Ry Union, Lahore AIR 1933 Lahore 203 - Injunction - Injunction can be issued only against named person - Specific Relief Act (1877) S. 53. No injunction can issue except against a named person. Equity acts in personam and an injunction must be addressed to the defendant personally.
104. Reliance was also placed on case titled Sudhir Namasudra & Ors v Purnendu Kumar Das AIR 1980 Gauhati 1. In this case it was held that, "Be that as it may, in the instant case we are concerned with the question, as to whether persons not injuncted by an order of the Court can be punished for violating a restrictive injunction. An injunction is a judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing. It is, well known, that the former is called 'restrictive injunction', and the latter a 'mandatory injunction'. .......
In my opinion there can not be a violation of an order of injunction by a person unless he is pointedly injuncted not to do or to do certain things by a Court of law. ....."
105. It is argued that even if an appeal is maintainable though the appellant is yet to be found guilty of commission of contempt, an appeal is facially available. Reliance is placed on judgment in Raj Singh Gehlot v Pardlam Exports Pvt. Ltd 174 (2010) DLT 693 (DB) - Order 39 Rules 1, 2A - Contempt of Court - Appeal - Maintainability - Appeal is maintainable despite the fact that appellant has neither been found guilty of commission Result: Petition allowed Page 83 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala of contempt of Court nor punished for it - Grievance of appellant is that Single Judge has transgressed its jurisdiction by passing orders extraneous to alleged violation of Court orders - To this extent, an appeal is facially available, since impugned order has civil obligations also.
106. It is urged that if a party against whom relief is sought in a suit is not impleaded, the suit is to be dismissed. Reliance is placed on S.K Saldi v General Manager U.P State Sugar Corporation Ltd & Anr. (1997) 9 SCC 661 - Suit filed by appellant for reinstatement in service of M. Company, a subsidiary of J company, which had appointed him - But J company not impleaded as a party by appellant - Held, party against whom relief was sought having not been impleaded, suit was liable to be dismissed.
107. It was also urged that in the absence of proof of personal service, there should not be any order for attachment. Reliance was placed on case titled Redwing Limited v Redwing Forest Products, Limited Decided on 10 June 1947 Vol. LXIV, Reports of Patent, Design and Trade Mark Cases, Page 67 in which case motion for attachment of directors was not maintainable because order containing undertakings not served on them personally. The plaintiffs asked for leave to sue out a writ of sequestration against the defendant company, or alternatively to issue writs of attachment against its Directors, for contempt of Court by reason of the breach of certain undertakings, contained in an order of the Court. It was admitted by Result: Petition allowed Page 84 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala the plaintiffs that since the order had not been served personally on the Directors of the defendant company, the application for writs of attachment against them could not be entertained. It was held that, in the absence of proof of personal service of the order on the Directors there could be no order for attachment.
108. It is urged that when the Bailiff went away after giving possession, the opposite party which retook the possession but not a party to the proceedings, the question of contempt arose. This party was sub tenant of opposite party no. 1 against whom ejectment proceedings were taken. The opposite party no. 2 was not held liable. Reliance was placed on case titled P.K Kripalani v Mahabir Ram & Anr. AIR 1952 Calcutta 452 - Moreover, the opposite party 2, not being a party to the ejectment proceeding could not be held bound by any order passed therein. Such an order would be binding on him only in circumstances mentioned in Order 21 Rule 35 Civil P.C but not in such a case.
109. On the aspect of involvement of third party, the respondents relied upon judgment in Khushi Ram v Lal Man & Ors. AIR 1983 Delhi 78. In this case, it was observed that the questions involved in the suit would mean the questions concerning the parties to the suit and not with the questions concerning third party.
110. The ld counsel urged that scope of original petition should not be enlarged and relied on State of J & K v Sayeed Zaffar Mehdi (1997) 9 Result: Petition allowed Page 85 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala SCC 640 - It is necessary to impress upon the High Court that contempt being a quasicriminal matter, care should be taken to see that the scope of the original petition is not enlarged while making orders in contempt matters.
111. On the aspect of inherent powers under Section 151 CPC, judgment in Shipping Corporation of India Ltd v Machado Brothers & Ors (2004) 11 SCC 168. It was held that, "It is clear that if there is no specific provision which prohibits the grant of relief sought in an application filed under Section 151 of the Code, the Courts have all the necessary powers under Section 151 CPC to make a suitable order to prevent the abuse of the process of Court. Therefore, the Court exercising the power under Section 151 CPC first has to consider whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition then the Court will consider whether such power should be exercised or not on the basis of facts mentioned in the application.
This is a well established principle in law as could be seen from the judgment of this Court in Kavita Trehan v Balsara Hygiene Products Ltd (SCC P.391, para 23) wherein it is held:
"Upon dismissal of the suit, the interlocutory order stood set aside and that whatever was done to upset the status quo, was required to be undone to the extent possible."
Therefore, in our opinion, the Courts below erred in continuing an Result: Petition allowed Page 86 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala infructuous suit just to keep the interlocutory order alive which in a manner of speaking amounts to putting the cart before the dead horse."
112. It is thus urged that knowledge on service of contempt motion is essential without which no contempt motion can be brought. Reliance is placed on Leon Frenkel Limited v Orru decided on 14 July, 1967 - Contempt of Court - Injunction - Breach of - Defendant offering goods contrary to terms of injunction - Delay in drawing up and service of order - Withdrawal of offending goods before order served or contempt motion brought - No communication with defendant before motion brought - No order on motion No order for costs.
Held that although the sale of the goods by the defendant early in 1967 was an obvious breach of the terms of the injunction, since these goods had now been withdrawn from the market, no order for committal could lie.
113. On the aspect of grant of stay pending contempt petitions, the respondent has placed reliance on following judgments;
1. Modern Food Industries (India) Ltd. & Anr. Vs. Sachidanand Dass & Anr. 1995 Supp (4) SCC 465 - "....... Whereever the order whose disobedience is complained about is appealed against and stay of its operation is pending before the Court, it will be appropriate to take up for consideration the prayer for stay either earlier or at least simultaneously with the complaint for contempt. To keep the prayer for stay standby and to Result: Petition allowed Page 87 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala insist upon proceeding with the complaint for contempt might in many conceivable cases, as here, cause serious prejudice. In the present case the Petitioners are confronted with a position where their stay application is virtually rendered infructuous by the steps they had to take on thereat of contempt."
2. Mool Chand Yadav & Anr. Vs. Raza Buland Sugar Company Ltd. Rampur & Ors. - (1982) 3 Supreme Court Cases 484 - Order 41, Rule 5
- During pendency of appeal any order having serious civil consequences connected with the appeal must be stayed - Appeal against injunction restraining appellants from occupying the suit premises pending - But as a result of a contempt application filed during pendency of the appeal, appellant ordered to vacate the premises - Appeal against the later order admitted but High Court declining to grant stay thereof - Held, in the circumstances, operation of the Later order must be suspended till disposal of the first appeal - Injunctions.
3. N. A. Kumar & S. Paramadayalan Vs. Pankaj Kumar Jha 2011 (1) CTC 76. The Chief Executive Officer, The Pondicherry Khadi and Village Industries Board - Contempt of Court - Violation of order - Prayer sought by Petitioner to punish respondent for disobeyed order of Court - Held, in present case, under threat of proceedings of contempt, Appellants had to comply with order of court notwithstanding pendency of their appeal and application for stay - Petitioners were confronted with a position where Result: Petition allowed Page 88 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala their stay application was virtually rendered infructuous by steps they had to take on threat of contempt - In view of above legal position, present Court was not persuaded to pursue contempt - Hence, contempt petition stood closed - it was made clear that depending upon outcome of appeal, Petitioners could work out their remedy - Petition dismissed.
4. State Bank of J & K Vs. Mohd. Yaqoob Khan & Ors. (1992) 4 SCC
167. ".........So long the stay matter in the writ petition was not finally disposed of, the further proceeding in the contempt case was itself misconceived and no orders therein should have been passed. The scope of a contempt proceeding is very different from that of the pending main case yet to be heard and disposed of (in future). Besides, the Respondents in a pending case are at a disadvantage if they are called upon to meet the merits of the claim in a contempt proceeding at the risk of being punished. It is, therefore, not right to suggest that it should be assumed that the initial order of stay got confirmed by the subsequent orders passed in the contempt matter.
The High Court should have first taken up the stay matter without any threat to the Respondents in the writ case of being punished for contempt. Only after disposing it of, the other case should have been taken up. The respondents before the High Court were raising a serious objection disputing the claim of the writ petitioner. Thereafter, an order in the nature of mandatory direction could not have been justified unless the Court was Result: Petition allowed Page 89 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala in a position to consider the objections and record a finding prima facie in nature, in favour of the writ petitioner. Besides challenging the claim on merits, the respondent was entitled to raise a plea of nonmaintainability of a writ application filed for the purpose of executing a decree."
114. This Court has specified in para 23 of this order about the points that are essential for disposal of these petitions. Presently, only points (i), (ii),
(iii) and (vii) of para 23 are left with this Court to be decided. The arguments are primarily aimed towards elaboration of above points besides the points as set out by me in paras 82 to 85 of this order supplemented by the judgments referred to in paras 86 to 113 of this order. The order of Hon'ble Division Bench dated 21.9.2001 only considered the legality and validity of the order dated 8.5.2000 and not on merits. It has been set out above that in the first two contempt petitions i.e M 63/11 (Old No. CCP 82/99) and M 64/11 (Old No. CCP 114/99) only the second defendant Sh Ashok Kumar Aggarwal is made as respondent as C/o Haldiram Bhujiawala, 2284, Arya Samaj Road, Karol Bagh, New Delhi 5. This defendant is made as second respondent and shown also at 3A, Brojodulal Street, Calcutta 700006. The first defendant in TM 02/11 is shown as first respondent in this CCP. The gamut of pleadings in the said three CCPs engulf the first defendant in TM 02/11 also. Thus, in the first two CCPs above, even though the second defendant Sh Ashok Kumar Aggarwal is the sole respondent yet he is so roped in not only in his personal capacity but Result: Petition allowed Page 90 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala also as a representative of the first defendant. This anamoly is not present in the third CCP i.e CCP 55/2000 (M 62/11) in which the other respondents no. 3 to 6 are also roped in through the respondent no. 1 i.e M/s Haldiram Bhujiawala and also as agents of each other being members of Joint Hindu family trading/firm i.e first respondent who is, in effect, said to be an ancillary of Haldiram Bhujiawala, Calcutta. In this view of the matter, it is all the same important for this Court to first of all decide the issue and then proceed on the merits of these claims. As said earlier, there is common evidence in the first above two CCPs while the third CCP can be disposed of on the basis of material on record as evident from order dated 20.4.2006. The main issue regarding reliefs in contempt petitions against all these respondents including the ones not named in the main suit therefore arises only from M 62/11 and also therefore, engulfs, in its ambit, all the other contempt petitions. Thus, even before discussing the evidence in the first above two contempt petitions, I take up the issue aforestated which has been comprehensively worded by the Hon'ble Division Bench as set out in para 23 (i) of this order. The said, coupled with the observations of Hon'ble DB as recorded earlier in para 24 of this order assumes importance in a very specific manner and therefore, prompts the Court to state if the alleged contemnors/R3 to R6 are liable for the alleged contempt with independent respondent no. 7 even though not arrayed as defendants in main suit. I clarify at this juncture itself that the observations shall be meant only for Result: Petition allowed Page 91 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala these petitions and not for the main suit. Of course, the above shall also be distinct from and different to the observations regarding the averments of role of respondents as aiders and abettors. The following paragraphs of this order shall therefore, deal with the pleadings and documents on record of M 62/11 (CCP 55/2000) before any other aspect.
115. The parties to all these proceedings are from common ancestor. Their litigations span in various decades and various forums. The ancestral business stands split up amongst them. Neither of the branches are doing business any different to the ancestral business of manufacturing sweets and namkeen products. Going by the averments, the branch of Smt Kamla Devi is restricted to the territories of West Bengal while the other branch is not so restricted. The plaintiffs also operates from Delhi and trouble for them arose when the second defendant sought opening of a showroom at Karol Bagh through the first defendant. On coming to know this, TM 02/11 was filed on 10.12.1990. The plaint discloses that the defendant no. 1 is a newly constituted firm formed by second defendant and at the same time, it was pleaded that true constitution of the firm was not known to the plaintiff which reserved rights to implead the other partners and additional defendants as parties on discovery of correct constitution of defendants' firm. In response, it was submitted that the defendant no. 1/M/s Haldiram Bhujiawala is an old established concern since 1958 started by late Sh Rameshwar Lal. Sh Ashok Kumar is son of late Sh Rameshwar Lal and Result: Petition allowed Page 92 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala being heir and one of the successor of assets of his late father who has been recorded as joint owner/proprietor of the trade mark. It was disclosed that the parties to the suit follow line of inheritance through their fathers and not through mothers. Further in para 11A the defendants claim to be lawful owners and registered proprietors of the trade mark. Further in para 12, it is stated that Haldiram Bhujiawala is a firm functioning since 1958 at Calcutta. It is stated that defendant no. 2 being the joint owner of trade mark is entitled to open his shop anywhere in India.
116. What follows is that impliedly, the second defendant accepts the nomenclature given to the first defendant when he does not specifically deny that the name of defendant no. 1 as nomenclatured in the plaint is correct. The para 7 of the written statement denies content of para 7 of the plaint which thus involve denying the averment that defendant no. 1 is a newly constituted firm. Rather para 7 of written statement specifies that "defendant no. 1/M/s Haldiram Bhujiawala is an old established concern." It is claimed that defendant no. 2 is one of the successor of assets of late Sh Rameshwar Lal. Thus, the old firm is an asset of his late father to which defendant no. 2 is one of the successor. While referring to M/s Haldiram Bhujiawala, no specific reference is made by the defendants to Calcutta. However, since the petition makes reference of Delhi address, the defendants seem to be taking advantage of the same in the replies to the contempt petitions while stating that the plaintiffs have actually sued Result: Petition allowed Page 93 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala Haldiram Bhujiawala, Delhi and not Haldiram Bhujiawala, Calcutta. In the above given analysis of pleadings, it would be therefore not open to the defendants/respondents to allege that they are two different entities i.e one at Delhi and one at Calcutta. As a matter of fact, there are several documents on record which clarify the nexus of the respondents no. 2 to 6 in the contempt petition with defendant no. 1 in TM 02/11 which is also respondent no. 1 in the contempt petitions. I shall revert to them a little later. The above disclosure of constitution of first defendant involves only one name of successor of late Sh Rameshwar Lal i.e second defendant. Names of others have not been provided. This disclosure is obviously qua trade mark no. 330375. The plaintiffs state the above point in replication to para 7 of written statement further stating that the said trade mark stood registered in the name of a partnership firm of Rameshwar Lal Aggarwal and Prabhu Shanker Aggarwal. The other respondents are legal heirs of late Sh Rameshwar Lal and Sh Prabhu Shanker Aggarwal is already a respondent in M 62/11. The above also makes it apparent as to why alternate address of Brojodulal Street, Calcutta of the second defendant is shown in CCP 55/2000. It is a deliberate attempt by the plaintiffs as is apparent, so that his plea of setting up two different entities which is also adopted by the other respondents, is duly replied with in negative.
117. The pleadings in respect of the above are provided in paras 48 to 50 of this order. Submissions on this aspect are recorded in paras 83 to 85 of this Result: Petition allowed Page 94 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala order.
118. Plaintiffs stand is that trade mark Haldiram Bhujiawala was invented and adopted by Sh Ganga Bishan @ Haldiram for his business of manufacture and sale of sweets and salted articles at Bikaner and this name acquired popularity prompting Sh Ganga Bishan to expand his business. On 29.12.92 an application for registration of trade mark Haldiram Bhujiawala
- HRB logo was filed in the name of Sh Ganga Bishan, Sh Mool Chand, Sh Shiv Kishan and Smt. Kamla Devi trading as M/s Chand Mal Ganga Bishan i.e 285062. The documents are on record. Contention is with respect to the Dissolution Deed dated 16.11.1974 vide which M/s Chand Mal Ganga Bishan dissolved and Sh Mool Chand acquired right in the trade mark for whole India except West Bengal which went to the share of Smt. Kamla Devi. It is already ordered by Hon'ble Delhi High Court on 21.2.2006 that reference to the Deed of dissolution being forged is not material for the contempt proceedings and thus such reference was deemed to be expunged from the affidavit by way of evidence/reply affidavit filed by respondent no. 2 with clarification that it will be open to the respondent to raise the issue of genuineness of Deed of dissolution in the main suit. It was observed that so far as contempt petitions are concerned, the question of Deed of Dissolution being forged or genuine is not in issue at all. I shall not make reference to the same accordingly even though there are lot of pleadings of plaintiff to establish by way of circumstances and conduct of respondents as to why the Result: Petition allowed Page 95 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala Deed of Dissolution was genuinely acted upon by all concerned including Smt Kamla Devi and therefore, why the respondents including second defendant can not take advantage of the plea of alleged forgery.
119. As per documents, on 2.11.1977, application no. 330375 was filed by Sh Rameshwar Lal/R3 here for registration of another trade mark by same name. After demise of Sh Ganga Bishan on 27.2.1980, a letter of authority was signed by Sh Mool Chand, Sh Shiv Kishan and Smt. Kamla Devi as ex partners of M/s Chand Mal Ganga Bishan which was filed in High Court of Rajasthan in DB sales Tax case no. 35/1980 and writ petition no. 2411/86. Post demise of Sh Mool Chand, Sh Shiv Kishan, Sh Shiv Rattan, Sh Manohar Lal and Sh Madhu Sudan, on application no. TM24 were registered as subsequent proprietors of trade mark on 22.11.1985. Necessary changes were effected through Sh R.N Prabhakar Advocate.
120. The documents reveals that a Deed of Partnership was executed between respondent no. 2 and respondent no. 3, Sh Prabhu Shanker to carry business in the name of Haldiram Bhujiawala. It is now apparent that the Joint Venture Agreement (ExRW1/P1) is of the same date as the exparte injunction order i.e 10.12.1991. It is between Sh Ashok Kumar (R2), Sh Mahesh Kumar (R4) Sh Prabhu Shanker (R3) and Sh Sharad Aggarwal (R6) pursuant to which they admittedly applied for entering of their names in the trade mark registry records as subsequent proprietors of TM no. 330375 being the LRs of deceased Sh Rameshwar Lal. To facilitate this, Result: Petition allowed Page 96 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala Smt Kamla Devi (R5) relinquished her right in the trade mark that she acquired through succession in favour of her other sons. It is not disputed that changes were recorded only on 30.12.1991. The plaintiff alleges the document to be ante dated, however, the same is not relevant for decision on contempts.
121. The record reveals execution of Deed of Dissolution dated 16.11.1974 from the reply filed by these respondents as joint proprietor in Cal 629. Subsequently, the injunction order was passed leading to filing of appeals by the respondents and the contempt petitions by the petitioners as described above. It is again reasserted that as per the own case of the respondents, the family of Sh Ganga Bishan i.e father of Sh Mool Chand and Sh Rameshwar Lal carried business of selling sweets and snacks from Bikaner in partnership titled Chand Mal Ganga Bishan duly registered at Jaipur and was reconstituted from time to time. Respondent no. 5 claims to be the partner of this firm since 31.10.1969 till date through her husband upon reconstitution of the firm as per reconstitution deed of partnership dated 31.10.1969 and that the other partners of the firm Sh Ganga Bishan, Sh Mool Chand and Sh Shiv Kishan having 25 % share each. As the name acquired goodwill, the products were sold till around 1965 under the name of Haldiram Bhujiawala and thus its registration was applied for on 29.12.1972. It was also advertised on 16.9.1975 and the proceedings were opposed by Sh Madan Lal which were dismissed in 1980 resulting into Result: Petition allowed Page 97 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala registration of the trade mark on 27.1.1981 but restricted to territories in India other than West Bengal. It is their own case that on death of Sh Ganga Bishan and Sh Mool Chand, the partnership firm was to continue as per Deed dated 31.10.1969 by surviving parties stressing on the fact that firm itself was never dissolved. That is not the issue so far as the contempts are concerned. The R5 was not in active participation after that but was duly informed at Calcutta. Sh Mool Chand is said to be in control of the firm since thereafter in his life.
122. It is this very firm about which the second respondent has been speaking of. It is clear that Sh Rameshwar Lal Aggarwal is the predecessor in title of the respondents. This fact, coupled with the Joint Venture Agreement crystallizes the fact that the respondents are in a joint family business and call them a 'firm'.
123. Perusal of page 645 in Vol. VI of M 62/11 reveals that the admitted document ExD20 is a request to Registrar, Trade Mark, Calcutta on TM 24 in matter of registered TM no. 330375 in Clause 30 in the name of first defendant filed through Sh R.N Prabhakar dated 18.12.1991 i.e after filing of TM 02/11. It is for bringing on record the names of Sh Prabhu, Sh Mahesh, Sh Ashok and then Master Sharad as subsequent proprietors by virtue of Joint Venture Agreement dated 10.12.1991. Page 646 which is again an admitted document ExD21 is form No. 24 which is a declaration that the above persons are entitled to have the changes incorporated in the Result: Petition allowed Page 98 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala trade mark registry. The admitted document i.e Joint Venture Agreement is at pages 647 to 650 of Vol. VI. All facts narrated above are provided in this agreement. The married daughters of Sh Rameshwar Lal namely Smt. Bimla Devi and Smt. Manju Aggarwal had given their no objections besides R5 in favour of remaining sons of Sh Rameshwar Lal Aggarwal for transfer of trade mark in their favour. They decided to use the trade mark in respect of the goods as a 'Joint Venture'. They also decided to use it in their respective shops/firm duly settled as per family settlement and as per clause 8, the said persons were at liberty to use same at 'Calcutta and/or other such places where they may like'. They had equal share and rights as owner of trade mark which was to be used for betterment and development of the family business and none had right to sell etc. the trade mark or any right in it to an outsider. This establishes that Haldiram Bhujiawala is jointly owned by R2, R3, R4 and R6 who was minor at that time. Here, Section 24 of the T.M.M Act 1958 becomes important. Nothing authorizes the registration of two or more persons who used the trade mark independently as joint proprietors thereof. Thus, Clause 8 of the J.V agreement is not in sink with Clause 7. They have to use the trade mark jointly. Otherwise also, the joint proprietors must use the trade mark jointly for the benefit of all as evident from the law in M/s Power Control (Supra).
124. The description of the trade mark of plaintiff is provided at page 564 Result: Petition allowed Page 99 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala of Vol. VI which is copy of trade mark journal in respect of TM No. 285062. I have referred to proceedings in Cal629 in respect of TM No. 330375. In the same, a reply dated 28.2.1992 was filed in which Sh Prabhu Shanker, Sh Mahesh Kumar, Sh Ashok Kumar and Master Sharad Aggarwal referred to them as 'registered' proprietors trading as Haldiram Bhujiawala, 'Calcutta'. It is actually in this document that after dissolution of the firm, Sh Mool Chand never used the trade mark and abandoned it which lost distinctiveness and became publici juris however, the same is not in issue. Not only this, it is evident from document ExPW1/74 at page 578 of Vol. VI that R3 Sh Prabhu Shanker is one of the partners of M/s Haldiram Bhujiawala which is the registered proprietor of trade mark Haldiram Bhujiawala. It would be also apparent from ExPW1/75 at page 585 of Vol. VI that even the second respondent/D2 claims to be one of the partners of M/s Haldiram Bhujiawala. Likewise, Sh Mahesh Aggarwal i.e R4 also claims to be one of the partners of M/s Haldiram Bhujiawala from the document at page 560 of Vol. VI wherein he claims to be trading as Prateek Food Products, Calcutta. It is also apparent from admitted document i.e copy of 'interlocutory petition' filed on behalf of registered proprietors at page 802 of Vol. VI that these respondents claimed themselves in trading as Haldiram Bhujiawala. Similar is the position in the comments filed at page 798 by these respondents available in Vol. VI Result: Petition allowed Page 100 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala which is also an admitted document. At page 520 of Vol. VI is the copy of CO No. 4/92 filed by defendant no. 2 / R2 for cancellation of registration of TM No. 285062 wherein also it is claimed that M/s Haldiram Bhujiawala is an old and established business since 1958 which was 'originally registered in the names of Sh. Rameshwar Lal and Sh. Prabhu Shankar trading as Haldiram Bhujiawala'. It is reasserted that these four respondents became subsequent proprietors of the said trademark. Although, there is again a reference that the firm stood dissolved on 16.11.1974 made therein, however, the same shall not be necessary for these proceedings. Likewise, there is copy of an affidavit of D2 at page 533 of Vol. VI wherein he claims to be one of the joint proprietors of the trademark Haldiram Bhujiawala being legal heir of Sh. Rameshwar Lal. It is also apparent from copy of Deed of Partnership dated 01.04.1991 at page 535 of Vol. VI that R2 and R3 became partners of M/s Haldiram Bhujiawala.
125. It is also apparent from records that Sh. Rameshwar Lal Aggarwal had filed a suit against Sh. Krishna Gopal Aggarwal & Ors. in Calcutta being Suit No. 1540/93. It would be apparent from admitted document at page 482 of Vol. VI that R2 file an application under Order 22 Rule 3 CPC claiming that second plaintiff therein i.e. M/s Haldiram Bhujiawala is a registered partnership firm of which Sh. Rameshwar Lal was one of the Result: Petition allowed Page 101 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala partners. On the death of Sh. Rameshwar Lal, R2 sought impleadment and filed his affidavit. In the same suit, R3 Sh. Prabhu Shankar appeared as a witness and it would be apparent from his deposition at page 484 of Vol. VI given by him on 19.04.1993 that he also claimed to be partner of M/s Haldiram Bhujiawala wherein R2 was also a partner. He admitted to be running business in trade name of M/s Haldiram Bhujiawala. These facts, coupled with the Joint Venture Agreement duly established that the respondents are trading as a joint Hindu Family firm. The defence that a joint family is not constituted merely by a Joint Venture Agreement is, therefore, without any legs to stand upon in the wake of the above documents. In fact, it would be apparent from the application dated 22.12.1991 filed by Sh. R.N. Prabhakar before Trademark Registry, Calcutta which is Ex. D20 at page 645 of Vol. VI that these respondents are indeed subsequent proprietors. This application was filed during the pendency of suit no. TM02/11.
126. Establishing relations of M/s Haldiram Bhujiawala which is now established as joint family trading firm / concern of the respondents with the first defendant is also necessitated and would be also evident otherwise from perusal of form TM5 which is notice of opposition to the application for registration of the Trademark in Delhi filed by D2/R2 at page 585 of Vol. VI which is Ex. PW1/75 wherein it is stated, "besides, I am one of the partners of M/s Haldiram Bhujiawala, 7, Jagmohan Mallick Lane, Result: Petition allowed Page 102 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala Calcutta, 700007. The said M/s Haldiram Bhujiawala is registered proprietors of the trademark M/s Haldiram Bhujiawala with a monogram HRB for the aforesaid goods as given in para1 Regd. under trademark No. 330375 is Regd. for all territory of India. Under a Memorandum of Understanding between all partners of M/s Haldiram Bhujiawala I opened a shop under the name and style of Haldiram Bhujiawala at Delhi......"
127. In the above statement, the R2 categorically states that under an MoU that has been executed amongst the family members, he opened a shop in Delhi. He derives right from Haldiram Bhujiawala and there is no specific distinction between the places where the firm is situated. On the contrary, he is one of the partners of the Calcutta firm which, pursuant to MOU and the Joint Venture Agreement dated 10.12.1991 opened a shop by the name of Haldiram Bhujiawala in Delhi. The above narration of the material on record is sufficient to highlight that the respondents gain nothing out of seeking to make distinction between 'Haldiram Bhujiawala, Delhi' and 'Haldiram Bhujiawala, Calcutta'. The documents established that the said firm is nothing but the members of Hindu family / firm trading under the name and style of Haldiram Bhujiawala. This is where the reference to Order 30 CPC becomes of importance.
128. As per Order 30 CPC, any two or more persons claiming or being Result: Petition allowed Page 103 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala liable as partners and carrying on business in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct. It also specifies that where persons sue or be sued as partners in the name of their firm it will suffice if any pleading or other document is signed, verified or certified by any one of such persons. It is also specified that when persons are sued as partners in the name of their firm, summons can be served upon anyone or more of the partners. It is also prescribed that if service is effected as per Order 30 Rule 3 CPC upon a firm then every person upon whom it is served shall be informed by written notice whether he is served as partner or not but in default of such notice, the person served shall be deemed to be served as a partner. It is in this context, that the plaintiff submits that service upon the first defendant and second defendant as its partner is sufficient and other partners need not be even sued in their personal capacity. Even if that be correct, it will apply only to R2, R3, R4 & R6 as R5 Smt. Kamla Devi is not a party to the Joint Venture Agreement. R7 is otherwise not a partner / member of the joint Hindu Family trading firm. Nevertheless, the submission has force in view of the observations made earlier in this order.
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129. Section 4 of the Partnership Act, 1932 defines 'partnership', 'partner', 'firm' and 'firm name'. 'Partnership' is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. The persons who have so entered into partnership are individually called 'partners' and collectively a 'firm'. The name under which the business is carried on is called the 'firm name'. It is settled law that a partner can bind the partnership firm and other partners in the course of business of the firm. Chapter IV of the Act provides the aspect of agency amongst partners. Every partner is agent of the firm for purpose of business of the firm. Such an act that binds a firm should be done by the partner or any other on behalf of the firm in the name of the firm or in any other manner expressing or an intention to bind the firm. Every partner has an implied authority to bind the firm as provided in Section 19 of the Partnership Act. It is another matter that partners in a firm may, by contract, extend or restrict the implied authority of any partner. Furthermore, an admission or representation made by a partner concerning the affairs of the firm is evidence against the firm if it is made in the ordinary course of business. It is for this reason that every partner is liable, jointly with all the other partners and also severally, for all the acts of the firm done while he is a partner. It is for this reason only that a firm is liable for wrongful acts of a partner. In fact, this is one of the points urged before this court and also incorporated by the Hon'ble DB of the Hon'ble Delhi Result: Petition allowed Page 105 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala High Court as extracted in para23 (iii) of this order.
130. I have specifically set out the reliance placed by the plaintiff on the above law pertaining to a joint Hindu Family trading firm and the law pertaining to agency in para95 of this order. It would be apparent that a joint Hindu Family firm can sue in its firm name and can also be sued in such name like any other contractual partnership as held in firm Nand Gopal (Supra).
130.1 Same is the ratio of the judgement in Purushottam & Co. (Supra). It is held in Mandalsa Devi (Supra) that a suit by or in the name of firm is really a suit by or in the name of all its partners. 130.2 The respondents are raising issues between themselves and other partners which are impermissible by virtue of ratio of judgement in Gambhir Mal Pandiya (Supra).
130.3 It will be also clear from cases of Punjab National Bank Ltd. (Supra) and J.K. Jute Mill (Supra) that even a decree against a joint Hindu Family firm can be legally executed against a firm as a partnership firm is not a legal entity distinct from its members. Even an individual partner can sue and be sued in his individual name is clear from the ratio of judgement in Thomas Vs. George (Supra). The plaintiff is correctly submitting that in suits against firms properly represented, addition of names of individual partners is not obligatory and suit can proceed even in the absence of names of the partners which is clear from the ratio of judgement in Firm Chandu Result: Petition allowed Page 106 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala Lal (Supra).
130.4 The plaintiff is also correct in asserting that a notice served on one of the partners can be treated as served on the others as all partners are deemed as defendants under Order 5 Rule 8A CPC as held in M.S. Chokalingam (Supra).
130.5 Regarding the aspect of agency, it is established that while each partner is agent of the firm, he occupies a dual capacity as owner himself and agent to the extent he is acting for his partners. The same has been held in Bhimji Naik's case (Supra). In the same context, it is held in case of Mohd. Hafeez Khan (Supra) that the third element of partnership to the effect that the partners share the profits of the business shows that persons of the group who conduct the business do so as agents for all the persons. It is established from documents in this case that the second defendant opened shop in Delhi pursuant of MoU between all the partners of Haldiram Bhujiawala. Reference may be had to form TM5 that has been discussed above.
130.6 The plaintiff's claim that the name Haldiram Bhujiawala is merely a compendious name for all the partners. They are correct as the expression 'person' as in Order 39 Rule 2 (3) CPC was employed merely compendiously to designate everyone in the group "defendant, his agents, servants and workmen" and not for excluding any defendant against whom the order of injunction has primarily been passed. The same is the ratio of Result: Petition allowed Page 107 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala judgment in State of Bihar Vs. Rani Sonabati (Supra). As a matter of fact SubRule (3) and SubRule (4) of Order 39 Rule 2 CPC stands omitted by Act 104 of 1976. However, it does establish that the term person was employed merely compendiously. Similar is the ratio of judgment in M/s Shankar Housing Corporation (Supra) which is rightly relied on the subject by the plaintiff. It is also correctly relied that an agent of defendant can be proceeded against even if he was not personally a party to the suit as held in Ram Prasad Singh (Supra). It is a plea of the plaintiffs that even if R3 to R6 are not personally party to the suit, they will be the agent of defendant no. 1 as well as agents amongst each other as trading as a joint Hindu Family firm. Reliance is also rightly placed on the ratio of judgment in Chandan Lal's case (Supra) to the effect that every partner is an agent of the firm and his other partners for purpose of business of the partnership. The respondents have not sought to rely on any contradicting judgment on the issue and were merely content by trying to differentiate the above rulings on facts. This court is concerned only with the law points and of the view that in the facts of this case, the law points raised and relied upon by the plaintiff are apt. I have already pointed out that the findings on these two issues shall not be qua the main suit but only qua the present contempt petitions and going by what has been set out above, the plaintiffs does make a case of existence of nexus between the respondents no. 2 to 4 and 6 with the respondent no. 1 firm. The respondent no. 6 is stated to be minor at the Result: Petition allowed Page 108 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala relevant time, which fact is also evident from the J.V. Agreement dated 10.12.1991 which is the date of filing of the suit. Although, proof of age of R6 is not filed, however, there is no challenge to the fact that he was minor as on the date of the suit and represented in the firm Haldiram Bhujiawala through her guardian Smt. Shobha Aggarwal. The respondent no. 7 is otherwise not a part of the joint Hindu trading firm. The nexus between the old and established firm and the defendant no. 1/respondent no.1 in the present contempt petitions is firmly established for the purpose of these contempt petitions resulting into return of findings on these two issues i.e. as incorporated in para23 (i) and (iii) of this order as in affirmative.
131. I shall now revert back to the contempt petitions in the order in which they are mentioned in the memo of parties i.e. M63/11, M64/11, M62/11 & M40/13. But same shall be a little later after I consider the averments with respect to the role of respondents as aiders and abettors and after ascertaining whether they have knowledge of orders passed from time to time and whether they acted in contumacious and willful defiance of said orders despite such knowledge.
132. Sh Ashok Kumar Aggarwal, in his cross examination dated 21.2.2002 admits that suit no. TM 02/11 was filed against the defendants therein on 10.12.1991 further admitting that the contempt petition arose from it. Here, it would be relevant to also point out that first cross examination of this witness was recorded on 21.2.2002 and by that time even the third contempt Result: Petition allowed Page 109 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala petition i.e M 62/11 (Old No. CCP no. 55/2000) stood filed on 8.5.2000. Replies by all the respondents were also filed by that time.
133. DW 1 admits that order dated 12.5.99 was passed whereby which he was restrained. It is an admitted position that the respondents used the trade mark uptil 12.7.1999. Thus, the defendants no. 1 & 2 had due knowledge of passing of order dated 12.5.99.
134. So far as order dated 25.5.1999 is concerned, it was passed in CM 1920/99 which itself was an application by R1 and R2 seeking stay of operation of the judgment under appeal. The R1 and R2 were duly represented by their advocates and therefore, there is no question of the defendants no. 1 & 2 not knowing about the passing of order dated 12.5.99. It has already been found that respondents no. 2 to 5 and respondent no. 6 are joint proprietors of trade mark 'Haldiram Bhujiawala' and are responsible for conduct of respondent no. 1. The respondent no. 5 herself is still claiming to be partner of undissolved firm which fact is to be tested on the merits of main suit but the fact that she filed a reply to M 62/11 ascertains that she had knowledge of the interim order. It is also a matter of fact that respondents no. 3 and 6 challenged the order dated 8.5.00 in FAO(OS) 142/2000. Respondent no. 4 also challenged the same in FAO (OS) 153/2000 and respondent no. 5 herself also challenged the said order in FAO 143/2000, all of which were disposed of by the Hon'ble Delhi High Court on 21.9.2000. Thus, there is no question left that they had no Result: Petition allowed Page 110 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala knowledge of passing of said order.
135. So far as the order dated 16.7.99 is concerned, the second defendant as RW 1 has stated in his cross examination dated 24.10.2005 that he did not recollect to have authorized his advocate to make statement before the Court on 16.7.99. He even did not recollect that if he was present before the court on 16.7.99 but also submits that if his presence is recorded in said order sheet then it might be correct. This testimony is evasive. It is so as in the very next line in this cross examination the witness submitted that he did not recollect if he was personally present in the Court on 12.5.99 when interim order was passed in this case. This is cross examination dated 24.10.2005 and some time ago, on 11.5.2004 itself, the witness had duly made a statement that he was present in the Court on 12.5.99. Infact, the witness has chosen to be evasive at most of the places in his cross examination and many a times not given any reply to the specific questions on one pretext or the other reflecting on his conduct. However, this can not be lost sight of that the witness claims to have changed his display name to Rameshwar's post the interim order dated 12.5.99 and 25.5.99 which therefore imputes him with the knowledge of order dated 16.7.99. The matter can be put at rest by observing that presence of this respondent is duly marked in the said order sheet. Nevertheless, he has filed reply to the M 63/11 & M 64/11. It is in M 64/11 as well as in M 62/11 that violation of undertaking in order dated 16.7.99 has been complained of. Reference to Result: Petition allowed Page 111 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala order dated 16.7.99 is made in para 6 of this petition. I have already pointed out in para 34 of this order that in reply D2 submitted that on 16.7.99 he appeared in person for hearing and made categorical statement on that date itself. It is a matter of record that reply to M 64/11 could not be found on record but there is an application of respondents under Section 151 CPC dated 14.7.99 for directions to the petitioners to withdraw their contempt petition M 63/11. These facts are reflected in para 36 of this order. Therefore, there is no question that respondent no. 2 did not have knowledge of order dated 16.7.99. The analogy with respect to other respondents also having knowledge of said order in the manner as described by me in the preceding paragraphs therefore applies to the other respondents also.
136. So far as the order dated 27.9.2012 is concerned, the same had been passed in full knowledge of the contesting parties who were, by then, not only contesting with litigations arising out of the main suit as well M 62/11, M 63/11 & M 64/11 but also the respondent no. 5 had filed her own suit bearing TM 03/11 on 12.7.2001.
137. Otherwise also, brief reference to the pleadings in CCP 55/2000 will make it clear by further reference regarding knowledge of these persons of passing of said order.
138. In the reply of respondents no. 1 & 2 they have categorically stated in the first preliminary submission itself that with due deference to the Result: Petition allowed Page 112 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala directions in order dated 12.5.99, they forthwith discontinued using the trade mark in question and promptly conveyed the gist of order to their agents etc and also filed a FAO NO. 155/99. In the same preliminary objections as well as para 7 of the reply on merits they have admitted to have given an undertaking recorded in order dated 16.7.99.
139. The respondents no. 3 & 6 have stated in para 2 of preliminary submissions that they came to learn that petitioners had obtained the injunction order dated 8.5.00. That they were aware of undertaking dated 16.7.99 is also apparent from para 3 (i) of the preliminary submissions. Regarding knowledge of order dated 12.5.99 they have themselves made submissions in para 3 (l) of the preliminary submissions. Infact in para 18 of their reply they have categorically stated that they had also come to know of the injunction order dated 8.5.00 on 15.5.00 which was passed in M 62/11.
140. The respondent no. 4 states in para 2 of the preliminary submissions to his reply that he had come to know of order dated 12.5.99. He was also aware of order dated 8.5.00 on 15.5.00 itself as evident from para 5(n) of the reply.
141. The respondent no. 5 states in para 8 of preliminary submissions to the reply that her son/D2 had fallen sick and came to Calcutta in first week of July, 1999 and told her about injunction order dated 12.5.99. The respondent no. 7 is already exparte.
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142. It is thus apparent now that the respondents had due knowledge of the injunction orders.
143. I shall now come to the point as to whether these respondents are aiders and/or abettors in establishment of and continuation of the shop at Karol Bagh and for that matter also at South Extension and Wazirpur Industrial Area, Delhi.
144. A person is said to abet the doing of a thing who either instigates any person to do that thing; or engages with one or more other person(s) in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or intentionally aids, by any act or illegal omission, the doing of that thing. This definition is provided in Section 107 of the Indian Penal Code, 1860.
145. The term "abet" is also defined in Section 3 (1) of the General Clauses Act, 1897 which is in terms of the definition provided in the IPC itself. As per sub section (1) "abet" with its grammatical variations and cognate expressions, shall have the same meaning as in the Indian Penal Code (45 of 1860).
146. The law with respect to aiders and abettors has been set out in para 87 of this order. The same is on behalf of the plaintiffs. So far as the respondents are concerned, the law cited by them is provided in paras 101 and 102 of this order.
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147. Infact, the parties have also argued for and above the proposition that whether a third party stranger to the suit can be bound by an injunction order. The law cited by the plaintiffs on this aspect is provided in para 94 of this order and the law cited by the respondent is set forth in paras 103 to 109 of this order. As per the ratio of law cited by the plaintiff on the aspect of aiding and abetting it is clear that no person can obstruct the path of justice and thus the Court can punish a party to the suit if he had notice or knowledge of the order of the Court and a third party or a stranger if he had aided of abetted the violation with notice or knowledge of the order of injunction. It is also apparent that a person not party to the proceedings is not bound by any orders passed therein but if that person has aided/abetted in violation of any order with notice/knowledge of order, he will be guilty of contempt as held in the latest case law of the year 2014 by our own Hon'ble High Court in Komal Nagpal's case (Supra). Infact, in the case of Attorney General v Times Newspapers (Supra) it has been held even to the extent that if a person who knowingly impeaded or interfered with the administration of justice by the Court in an action between two other parties would be guilty of contempt notwithstanding that he was neither named in any order of the Court nor had assisted a person against whom an order was made to breach it. Thus, mere knowledge and consequent impeadment or interference would be sufficient so far as contempt proceedings are concerned. This was also the view of the House of Lords in the year 1991. It Result: Petition allowed Page 115 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala would be apparent from the judgment in Vidhya Charan Shukla (Supra) that the Courts in India have invariably accepted the law applied in England.
148. In the judgment in NHAI's case (Supra) it is held that even authorized representative can be held for contempt. The plaintiff has thus cited law originating from England as well as the latest law on the subject.
149. In Bimal Chandra Sen's case (Supra) the Hon'ble High Court of Delhi in the year 1982 had held that a person not a party to the suit can not be proceeded against for contempt for aiding and abetting the breach. The Court had relied on the judgment of Mawazzam Ali's case (Supra) which is referred to in para 102 of this order. That is a judgment of 1927 relied in Bimal Chandra Sen's case (Supra). However, in this case, the allegations were found to be more like allegations against an agent than an abettor. It was thus observed that the plaintiff has an effective remedy against the principal party bound by the injunction and her agents/servants. Further, the Court observed that it had not been shown any reported decision in India where the Court punished an aider or abettor. The judgment in Vidhya Charan Shukla's case (Supra) by the plaintiff is later in point of time i.e of 1991. Even case of Komal Nagpal (Supra) cited by the plaintiff is later in point of time and of our own Hon'ble High Court of the year 2014 which shall therefore, prevail on the issue. Infact, this case also makes reference to the Vidhya Charan Shukla's case (Supra) and the case titled Steward v Result: Petition allowed Page 116 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala Peterson 189599 ALL ER 1127. On the same issue, the respondents have also placed reliance on case titled S.K. Salthi (Supra). This is a judgment of the Hon'ble Supreme Court of the year 1997, however, it is in context of 'suit' only and not in context of a contempt under Order 39 Rule 2A CPC. In this case, a suit was filed for reinstatement in service of one company which was subsidiary of another. However, the subsidiary company was not impleaded as a party. It was held that since party against whom the relief was sought was not impleaded, the suit was liable to be dismissed. The ratio of this case has no applicability to the facts of the present petitions.
150. The respondents also relied on case titled Red Wing Ltd. (Supra). This case dates back to 1947 and the judgement is by the High Court of Chancery. In this matter, a motion for attachment against directors was found not maintainable because the order containing undertakings was not served on them personally. Again, the case has no contextual application as it does not pertain to contempt and otherwise also as in the instant matter it has been found that the respondents had due notice of the orders of the court passed from time to time.
151. In another reliance of respondents placed on R.K. Kriplani's case (Supra), it was found that the defaulting party could not be held bound by any orders as it was not a party to ejectment proceedings. This case has again no factual bearing on the proceedings before me. It dates back to Result: Petition allowed Page 117 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala 1952 and does not pertain to contempt jurisdiction. Moreover, this case has been distinguished in AIR 1991 MAD 323 (FB).
152. Reliance was also placed on Khushi Ram's case (Supra) regarding the involvement of a third party. It was held in 1983 by the Hon'ble Delhi High Court that the questions involved in the suit would mean the questions concerning the parties to the suit and not with the questions concerning third party. Even this judgement will not be having any contextual bearing on facts of present contempt petitions as the same does not pertain to the violation of the injunction order and the directions are passed in reference of grant of an injunction order only.
153. The respondents also relied on the judgement of the High Court of Justice - Chancery Division i.e. Lord Frenkel Ltd. (Supra) wherein there was a withdrawal of offending goods before the injunction order could be served or contempt motion brought. Moreover, there was absence of any communication with defendant before the motion was brought. It was held that in these circumstances, no order for committal could lie. In the cases before me, the entire evidence/material on record does not set out conclusively that the offending goods, if any, have been withdrawn from the market. Otherwise also, this is not the case where there was no communication with defendant before contempt motion. It is a matter of record that the plaintiffs had issued caution notices from time to time. Further, the respondent herein had knowledge of the injunction orders.
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154. The third respondent has separately placed reliance on the case of Pandurang K. Pangare (Supra) which is the judgement of the Hon'ble Apex Court of the year 1995. There was stay of construction and the person who raised construction thereupon was not aware of the stay of the court and hence the contempt petition was liable to be dismissed. It was further found that the alleged violator was impleaded in October, 1994 while the prohibition order was of 1993. It was found that even though construction had been started by the offender company in July, 1993 and continued after the order of the court yet, the offender being not a party and the contempt notice having not been served either on the offender or his company before November, 1994, there was no option but to reject the contempt against the offender. Same is not the case here. It is true that respondents 3 to 7 were not made parties in the suit, however, it has been found that they are the agents of the first defendant being members of Hindu Family trading firm / D1. Moreover, they had due notice of the suit, contempt petitions as well as knowledge of the injunction orders.
155. The third respondent also relies on judgement in Three Cheers Entertainment Case (Supra), however, the same is also not applicable here as in the said case the order in question was never communicated to the concerned person.
156. In my considered view, therefore, out of all the judgements cited by the parties, the one that applies to these cases and has the most significant Result: Petition allowed Page 119 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala contextual application would be the case of Vidhya Charan Shukla (Supra) and Komal Nagpal (Supra). In the same context, I find that on the aspect of undertaking and deliberate flouting of the same, the plaintiffs have also relied on the ratio of judgement in K. Kutumba Rao (Supra) which has even gone to the extent of stating that the parties to the suit and who have notice of the same will be liable for contempt of disobedience or for obstructing execution of the order and whether the order is valid or irregular, unless it is vacated, it shall have to be obeyed. This is a judgment of the Hon'ble Andhra Pradesh High Court. No contrary judgment has been placed on record on the aspect as to whether a party will not be bound by an invalid or irregular order even though the respondents have been so arguing before many forums. As a matter of fact, the respondents have sought to impeach almost all the judgments cited by the plaintiffs on the ground that the same primarily pertain to jurisdiction of the Hon'ble Superior Courts under Articles 215 & 225 of the Constitution of India. However, in my considered view, the same does not make any difference as the question is pertaining to the law point and not facts. Moreover, most of the judgments are otherwise also involving Order 39 Rule 2A CPC. The respondents have tried to impeach the stay orders also as if this court is sitting in appeal over them. I have set out certain judgements in earlier part of this order, particularly in para113, which are essentially on the issue that a stay on operation of the interim order in question should have been passed by the Result: Petition allowed Page 120 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala courts. I shall revert to them while discussing this very submission as it arises in the context of M40/13 and at this juncture, suffice would be to say that the plaintiffs aptly counter reply the issue by their reliance on the judgement in the case of Yashaswi Aggarwal (Supra) wherein it is held that a court is simply to see whether there is disobedience of order passed by it and it is not permissible for the court to examine correctness of earlier decision which is stated to be violated. Resultantly, the act of respondents in appointing R7 would fit in indulging in an act akin to abetting as such appointment is made after suit no. TM 02/11, despite knowledge of injunction orders. This sums up the arguments in respect of the averments of the role of respondents being aiders / abettors and that of third party application of injunction orders even to the strangers who had due knowledge of such injunction order. The latter part above has been already established in view of the foregoing paragraphs of this order. So far as the former part is concerned, this court finds that in all the pleadings the plaintiffs have alleged the respondents to be aiders and abettors to the act of respondent 1 & 2 in respect of opening up of their showroom in violation of the registered trademark of the plaintiffs bearing no. 285062. As of now the defendant's trademark no. 330375 stands revoked and the Hon'ble High Court of Calcutta has not granted any stay upon the order of the IPAB. It has also come on record that the Karol Bagh shop in Delhi was opened pursuant to the Joint Venture Agreement that was acted upon in furtherance Result: Petition allowed Page 121 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala of the family settlement amongst defendant. However, the same has a direct reference to only the respondent no. 2 & respondent no. 3 herein. I have already referred to Form TM5 wherein the second respondent Sh. Ashok Aggarwal declared by way of statement of fact in para2 of the notice of opposition for registration of the plaintiff's trademark that he opened a shop under the name and Style of 'Haldiram Bhujiawala' at Delhi under MoU between all partners of the 'Haldiram Bhujiawala'. This document is not in dispute and it has come several times in the cross examination of RW1 that if he signed on his affidavit in evidence, then even if he did not recollect the contents thereof at the time of his deposition in the court then the contents of the affidavit might be a fact. Of course, this court finds the witness/RW2 to be evading giving answers to most of the questions in the cross examination and was, therefore, made to read his affidavit Ex.RW1/1 on several occasions. In any case, he has also admitted in his cross examination that if a document shows receipt of papers concerning the subject by his advocate, that might be a fact. Thus, there cannot be any dispute with respect to his statement made in the opposition proceedings in TM5. It is further in the cross examination of RW1 that the registered trademark 330375 is today in his name (cross examination dated 23.01.2006) and if it is in the name of any other person besides him, then he does not know. This statement is contrary to record. The reasons have been set out in details already. Further, the witness states that he is one of the proprietors of this Result: Petition allowed Page 122 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala trademark and that he did not know as to who else is a coproprietor. He even tried to dispute the Joint Venture Agreement but on extensive cross examination he admitted that if this document has been filed on his behalf then it might be a fact. Same is Ex.RW1/P1. Though RW1 did try to set up in his cross examination that only he and his wife are partners of M/s Haldiram Bhujiawala which otherwise is a proprietorship concern yet, no supporting records in the form of the partnership document have been produced. The statement, therefore, remains unsubstantiated. The letter of opposition is ExPW1/75 and its copy is at page 585 of Vol. VI. The shop was opened under an MoU between all partners of 'Haldiram Bhujiawala'. As per the J.V. Agreement such partners/registered proprietors are respondents 2, 3, 4 & 6. It is averred that these respondents have aided and abetted in the commission of violation of the orders of this court by inserting of publication of an advertisement through which R7 was appointed super distributors for the state of Rajasthan despite knowledge of injunction order dated 12.5.1999, 25.5.1999 and 16.7.1999 that appeared in newspapers Rajasthan Patrika, Jaipur Edition dated 20.10.1999 and Rajasthan Dainik Bhaskar, Jaipur Edition dated 20.10.1999 issued for and on behalf of 'Haldiram Bhujiawala Pvt. Ltd., Calcutta'. This averment is only in M62/11 which is to be decided without evidence as stated earlier. In none of the replies of respondent is any categorical, clear and unequivocal denial to the above averment. On the contrary a case has been Result: Petition allowed Page 123 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala settled that the plaintiffs have themselves averred that the advertisement was released by 'M/s Haldiram Bhujiawala, Calcutta'. On the contrary, R3 & 6 have responded that they have the business throughout India and thus advertised in the above well known newspapers. This is a clear admission on their behalf accordingly. Similar is the reply of respondent no. 4. The respondent no. 5 has not responded to the above averment and has given a general denial to the contents of para7 of the petition. However, the same shall not make any difference as she is not a party to the Joint Venture Agreement. However, the fact remains that this agreement is of the date of the exprate injunction order dated 10.12.1991. The preparation for opening of the showroom were made much before that as is evident from the record. The partners of 'Haldiram Bhujiawala' are found to be respondents 2 to 4 and 6. The respondent no. 6 was minor as on 10.12.1991 as evident from the Joint Venture Agreement. He might have attained majority post this date upto 12.5.1999, however, the same has not been established on record. Thus, so far as respondent no. 6 is concerned, he shall get the benefit of the above fact by virtue of his minority status as on date of suit and further for want of clarity on his age post date of injunction. In this context, on being asked, Sh. Mukund, Advocate had submitted that he had attained majority as on date of the injunction order, however, even he did not provide any age proof at that time or thereafter.
156.1 This now brings me to the factum of the respondents having Result: Petition allowed Page 124 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala knowledge of injunction order dated 12.5.1999, order dated 25.5.1999 as well as the order/undertaking 16.7.1999. No body has denied that the advertisements were inserted in the aforestated newspapers on 20.10.1999 i.e. after the above three dates. What, therefore, stands established is that the advertisements were inserted for appointment of super distributor despite due knowledge of aforestated order which would, therefore, tentamount to a deliberate, contumacious as well as willful disobedience. The relevant newspapers are on record as per list of documents dated 2.5.2000. This establishes the plaintiff's case but only with respect to the complicity of R2, R3 & R4. Reasons for noncomplicity of R5 & 6 have been already set out above.
157. This now brings me to the aspect of willful disobedience in the context of M 62/11, M 63/11 & M 64/11.
158. Having regard to the observations that have been made in respect of various aspects of these matters which have direct cumulative bearing on the part of involvement of the respondents as well as the knowledge that they had of the orders passed from the Hon'ble Courts from time to time, I shall now be taking up the issues as set up in the first two petitions above and the observations already made herein before shall be only in addition to the remaining observations on the issues viz;
M 63/111. Whether the respondent had violated order Result: Petition allowed Page 125 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala date 12th May, 1999 ? If so to what extent and to what effect ?
2. Relief.
M 64/111. Whether the respondents have violated order date 12th May, 1999 and the undertaking given by the respondent in Court on 16th July, 1999 ?
2. Relief.
159.The evidence which has been led by the parties has been already set out above. The findings so far as on the facts in issue has been also set out above. So far, it has been established that the respondents no. 2 to 4 & 6 are responsible for and on behalf of respondent no. 1. It has been also established that respondents no. 2,3,4 & 6 are joint proprietors/partners/ members of HUF trading firm. It has been also set out by virtue of the discussion on the aspect of aiding and abetting that direct involvement of respondents no. 2,3 & 4 stands established. So far respondents no. 5 & 6 are concerned, the reasons have been already set out above. The respondent no. 7 is neither a member of undivided Hindu family trading firm nor joint proprietor of the first respondent. That exparte firm is merely a distributor of the first defendant whose relationship with 'Haldiram Bhujiawala, Calcutta' also stands established.
160. The onus of the main issues was on the petitioners. The respondents have set forth that if two interpretations of order are possible, then the proceedings of contempt should not be initiated. Reference may be had to Result: Petition allowed Page 126 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala the law as cited on the subject by them. In this context, I find that none of the orders are having any other interpretation than the one conveyed. The orders are direct, specific and clear. There is no question of any two interpretations possible and therefore, this Court is not in agreement with either of the counsels for the respondents. So far as the aspect of contumacious conduct is concerned, the petitioner establishes that in such like proceedings there is not even a need to prove the contumacity as it is synonymous with willfulness. Reference may be had to the ratio of judgment in Kuldip Rastogi's case (Supra). That the respondents have failed to set out in their evidence that there had been no compliance of the initial order dated 12.7.99 stands established from the undertaking dated 16.7.99 itself as the only implication that it can have is to the effect that the orders were flouted between the date of the said order i.e 12.5.99 upto 12.7.99. It is this period of 60 days for which period there is no explanation to the contrary by the respondents. There is no denial in the cross examination that the respondents did not continue the business in the name and style of 'M/s Haldiram Bhujiawala' that would be therefore, in direct conflict with the trade mark by the respondents as in trade mark no. 285062. The petition in M 63/11 was filed on 9.7.99 and admittedly, the order dated 12.5.99 was not complied with till 12.7.99. According to the petitioners same has been flouted even thereafter. The petition in M 64/11 was filed on 20.9.99 in respect of flouting of undertaking dated 16.7.99. Similar is the Result: Petition allowed Page 127 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala position in M 62/11 which was filed on 8.5.00.
161. In this context, it has been the submission of the respondents that the order dated 12.5.99 stood varied by subsequent judicial pronouncements and the said order did not exist as on 3.6.00. It was urged that in these circumstances, this Court will have to see as to which yardstick it adopts as most of the documents relied upon by the petitioners are for the period pertaining to 12.5.99. After having considered this submission, I am of the view that there is a great amount of measure of incorrectness involved in this submission. This argument has been very reasonably countered by the petitioners. It has been countered on the premise that even if an injunction order is subsequently vacated, modified or set aside and was not even maintainable at all, then also, it has binding effect during the period in which such an order remained in operation. Various case laws have been relied on the issue that have been already set out above and also discussed. Reference may be had to the ratio of judgments in Narayan's case (Supra), Patel Rajnikant Dhulla Bhai's case (Supra) as well as the case of Prithawi Nath Ram (Supra). In this context, the respondents reliance on case titled Arjan Singh (Supra) is misplaced. It only provides that if an order of injunction was operative up to a particular date, then, technically it shall not remain operative thereafter. In the instant case, there is no quarrel with the period during which the stay did not operate. Further, judgments relied on the cases of Modern Food Industries (Supra), State Bank of J Result: Petition allowed Page 128 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala & K v Mohd. Yaqoob Khan (Supra), Mool Chand Yadav (Supra) and N.A Kumar (Supra) are not pertaining to the point here as they pertain to the argument of respondents regarding the disadvantage caused to them as their stay applications remained pending in FAO 470/12 disposed of by the Hon'ble High Court of Delhi on 19.10.2015. This argument is subject matter of consideration in M 40/13.
162. As a matter of fact, the exparte injunction dated 10.12.1991 was confirmed on 12.5.99. The order dated 12.5.99 remained in full force till 3.6.00 when it was varied. There was no injunction in operation between 3.6.00 and 27.9.12. However, the Court can not loose sight of the fact that status quo as it existed till 2.6.2000 stood restored w.e.f order dated 27.9.12 but for a new liverage that was provided in para 43 (1) (b) of the said order. The same position continued in the interregnum and uptil the orders of the Hon'ble High Court of Delhi dated 19.10.2015 by which the liberty allowed in para 43(1) (b) of order dated 27.9.12 was revoked. The position as stood on this date further continued uptil the order of Hon'ble Supreme Court dated 20.11.2015 whereby which the liberty as granted in para 43(1) (b) has been permitted to be continued with rider that it will cease to operate if the business contrary to the said directions is found to be continued, of course, by virtue of these contempt petitions. This liberty therefore, continues till date. Thus, the only period for which ld counsel for respondents can take advantage of this argument is the period during 3.6.2010 uptil 27.9.12.
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163. In support of its case in first referred two contempt petitions above, the plaintiffs have also relied on certain photographs in addition to the oral deposition of RW 1. He has been suggested in the cross examination that after 12.5.99, the respondents started winding up of use of trade mark Haldiram Bhujiawala. This suggestion is not in tandem with the original defence of the defendants. It is so as it would be apparent from the undertaking in order dated 16.7.99 as it is categorically stated therein that the respondent has stopped using the trade mark Haldiram Bhujiawala since 12.7.99. There is no reference in the undertaking that they started the process of winding up of the use of said trade mark immediately after 12.5.99. The witness, therefore, denies that respondent had removed all his hoardings and had stopped making advertisement related to the said trade mark. Conversely, it is admitted in the reply that respondent no. 7 was sought to be appointed as super distributor for the state of Rajasthan by way of inserting advertisement in two local newspapers at Jaipur, Rajasthan. The same was done during the pendency of the suit and the question regarding knowledge of the said order has been already answered in affirmative by this Court. Conversely, the defendants have not placed on record any independent evidence in the form of documents to demolish the plaintiff's case or to even establish that after winding up they started the business in the name of Rameshwar's Food. During the appreciation of evidence, this Court has also considered the orders dated 5.4.06 as well as 17.4.06 passed Result: Petition allowed Page 130 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala by the Joint Registrar, Hon'ble High Court of Delhi which is available on record in respect of exhibition of documents.
163.1. In order to controvert DW 1, he was asked whether he filed any affidavit in terms of order dated 12.5.99 which was disallowed. The witness also admitted to the suggestion that respondent used the trade mark uptil 12.7.99 and volunteered that it was done on the basis of statement made by Sr. Advocate Sh Singhavi. However, this stand has not been established. There is no such oral submission referred to anywhere. Further more, this stand has been already taken up by the respondents in previous proceedings before Hon'ble High Court of Delhi and disallowed as evident from record. Admittedly, no such statement of senior Advocate was reduced into writing. There is no dispute with respect to ExRW1/10 to 1/12. The scope of ambit of these documents has been already dealt with. In further cross examination on 11.5.2004, RW1 is seen to be improving on his stand by stating that process of stopping the use of trade mark started on 12.5.99 and completed by 12.7.99. The witness was asked to give details of the steps, however, he simply stated that steps taken by him included destruction of boxes/packaging material/removal of hoardings and settling accounts with various parties. No such record is before this Court for verification. The witness was not aware about the number of boards set up by him. He states that there might have been 1012 boards in Delhi put up in Shalimar Bagh and Karol Bagh. He did not recollect the description of dates as regarding Result: Petition allowed Page 131 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala the process of destruction of material bearing the writing "Haldiram Bhujiawala', the witness submitted that such process was used to be done every day. No documentary evidence is before the Court and in any case, when the witness admits that the records pertaining to writing 'Haldiram Bhujiawala' was destroyed, there is an implied admission regarding actual user of such material by defendants in their business carried out under defendant no. 1 firm. The witness otherwise also did not know upto which period the destruction continued.
163.2. The witness could not give details of stock of packaging material in his possession on 12.5.99. There is no denial that witness has outlets at Shalimar Bagh, Karol Bagh and Wazirpur Industrial Area. The witness has evaded the answer to most of the questions stating that same are judicial record and thus answers to many relevant questions have not been provided. The witness was not even willing to give number of outlets bearing trade mark 'Haldiram Bhujiawala' as on 12.5.99 and this conduct is despite the fact that on previous occasion, the witness admitted to have issued instructions for destruction of the material showing user of trade name 'Haldiram Bhujiawala'.
164. He however, subsequently answered on 16.8.05 that there are three showrooms that existed on 12.5.99 using the trade mark 'Haldiram Bhujiawala'. He also provides their addresses. He denied the answer to the question as to whether he was selling goods under this trade mark from Result: Petition allowed Page 132 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala place other than the three showrooms by stating that he did not remember. He admitted to the fact that photograph shown to him on 24.8.05 is of the showroom at Wazirpur Industrial Area. He was shown photographs ExCW1/R1 and R2 and was asked whether he had put up the sign boards bearing trade name 'Rameshwar's' to which the witness submitted that he had not so put up the sign boards. This again is in contravention to his own stand. He has also identified the photograph of showroom at Shalimar Bagh from photographs ExCW1/R3 & R4 as well as of Karol Bagh from photographs ExCW1/R5 & R6. Interestingly, he could not recollect as to till when the sign boards appearing in the photographs ExCW1/R1 & R2 remained in existence. He seems to be speaking against the photographs and feigned ignorance as to whether the sign board Haldiram Bhujiawala appearing in photographs ExCW1/R1 & R2 existed in the month of June, 1999. He was not able to give even approximate time limit when this particular board was removed. Similar is the position with respect to the sign board shown in photographs ExCW1/R3 & R4. He has even feigned ignorance regarding the newspaper shown in these photographs. He however, admits that the boards were removed only after 12.5.99. He tried to dodge the question that he used these boards till 12.7.99 by stating that he did not recollect that he gave statement to that effect despite the fact that he admitted Sh R.K Aggarwal and Sh Mukul Rohtagi to be his Advocates. 164.1. Infact, if his ever tumbling testimony is to be believed then his Result: Petition allowed Page 133 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala affidavit in evidence will have to be discarded as he only identifies the signature on the affidavit without knowing the contents despite repetitive cross examination on the point. This Court shall not be doing this as the mind set of witness of being too conscious in giving his answers is reflected from the lengthy cross examination itself. If the evidence in chief itself is discarded, then it shall cause great prejudice to the case of the respondents. This is particularly so as at one point witness stated that the affidavit when drafted were under his instructions, although, he was unable to recollect as to whether he had gone through the same before he signed it.
165. The cross examining counsel was therefore, careful in confronting the witness with the contents of his affidavit ExRW1/1 regarding those points on which he denied answers on the ground of being unable to recollect and whenever so confronted the witness left it as a matter of record. At one point of time, he was asked to read the contents of his pleadings dated 28.9.99 and the witness was not willing to read the same or to say whether it contained true facts or not. He was again asked to read his affidavit in chief and despite reading it he submitted to be not recollecting anything on the point. It is as if the witness has become frustrated and is willing to give away his own case. This only explains as to why he would give up that answers contrary than the ones he had already asserted to be his correct answers.
166. Regarding the statement of accounts, he was again unable to recollect Result: Petition allowed Page 134 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala if the same were filed in compliance of order dated 12.5.99. He denied Ruchi Distributor to have been ever his distributor. At the same time, he was unable to recollect how many distributors he had and was unable to give name of any of the distributor. Same is the position when he was asked if he had franchises. He admitted that his affidavit stated that he had instructed his agents etc to stop carrying the business by the trade name of Haldiram Bhujiawala but did not recollect if said instructions were in writing. He could not recollect exactly but claims that instructions were given in the month of June/July 1999 and thus, post 12.5.99. He could not recollect as to how many agents/dealers such instructions were issued. He could not even provide the number. He could not even recollect the name of states in India where such distributors were located.
167. In his cross examination dated 23.1.2006, the witness has also feigned ignorance regarding knowledge that he was to submit the statement of account of his business w.e.f 10.12.1991. He however stated that he must have followed the same and if it is not, it might be a fact. It is pointed out then itself by the cross examining counsel that no such statement of account supported by the affidavit stood filed on record. The witness gave similar reply regarding directions of discovery of documents consisting sales and turn over as well as directions of not to destroy or dispose of any such document. He feigned ignorance to the directions regarding making available the accounts of the business to the plaintiff for inspection or that Result: Petition allowed Page 135 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala whether the same had been complied or not. Still, the witness denied that he committed a blatant contempt of the interim orders. 167.1. In his further cross examination recorded on 14.3.06, the witness was unable to recollect if the photographs filed by the plaintiff belonged to him or not. Similar was his answer regarding the sign boards showing 'Haldiram' appearing in the same. He merely submits to be denying the correctness of the photograph but does not provide any specific reason. He has denied that the showrooms depicted in the photographs belongs to him or not. This part of testimony as recorded in this cross examination is totally opposite to what he stated regarding the photographs of showroom in his previous cross examination. The reasons for denying that the showroom shown in the photographs pertains to the witness merely is the fact that he has disputed their correctness and authenticity. By merely disputing the same, the burden does not shift. The plaintiff discharged the onus while the defendant does not. Infact, as a respite to him, he was asked if he can file photographs of the showroom operating in Delhi but the witness submitted that he is not prepared to file the same. He finally admitted in his affidavit ExRW1/1 that there is no denial of correctness of the photographs. 167.2. The entire result is that none of the directions in the order dated 12.5.99 and 12.7.99 had been complied with even till the recording of cross examination was over i.e on 14.3.06. It would be another matter that order dated 12.5.99 was not in operation post 3.6.10. However, it can not be lost Result: Petition allowed Page 136 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala sight of that order came back in operation w.e.f 27.9.12. With these observations, this Court has no reservation in stating that the issues no. 1 in the first two contempt petitions above are in favour of the petitioners and against the respondents.
168. So far as the third contempt petition is concerned, no evidence is required for its appreciation. This Court has already given its findings on majority of issues including the complicity of respondents, the knowledge regarding passing of interim orders, averment of being aiders and abettors as well as the fact that the orders had been flouted. The only difference is that in this petition, other respondents i.e R3 and R7 have been also impleaded. This Court has already observed that the process of appointment of super distributor i.e respondent no. 7 was initiated after filing of the suit and during the period when the initial stay order was in operation. To this extent, there is nothing further that needs to be added to than what already has been in sufficient details.
169. The next aspect for consideration is the proof regarding the flouting of the orders under consideration. In this context, it has been pleaded that the petitioners got the showroom of respondent at Karol Bagh duly photographed on 29.5.99 and also got the other two showrooms of Shalimar Bagh and Wazirpur Industrial Area duly photographed on 23.6.99. Although, this petition has not been subjected to evidence on merits, still these photographs have found their way in the evidence in the first above Result: Petition allowed Page 137 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala two contempt petitions as all the petitions including the suit were under continuous trial and therefore, obviously with the pendency of these petitions/suits therefore, developments occuring during the proceedings were being incorporated by the parties in the pleadings, proceedings and in evidence wherever such requirement arose. This Court shall also have benefit of the same.
169.1. To begin with, it is in the affidavit ExCW1/1 as filed by Sh S.K Jain that Sh Samson, photographer was engaged by the company for taking photographs of Karol Bagh showroom. Sh Manohar Lal Aggarwal on behalf of the company, authorized this witness to engage the said photographer who took the photographs of the showroom at Karol Bagh on 29.5.99 in the presence of this witness as well as in the presence of Sh Rajeev Arora, another employee of the company. The negatives and cash memos of these photographs were also produced. As per PW 1, they depict Sh S.K. Jain holding the newspapers of the day in the photographs. These photographs shows that Karol Bagh showroom is having sign board of 'Haldiram Bhujiawala' and 'Haldirams' as on that date. Likewise, the same photographer was engaged again on 23.6.99 for obtaining the photographs of showroom at Shalimar Bagh and Wazirpur Industrial Area. These photographs have also been filed in similar fashion alongwith negatives and cash memos as stated. I have already referred to these photographs which are ExCW1/R1, R2, R3 & R4 and two photographs collectively Result: Petition allowed Page 138 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala ExCW1/R5. The objection was taken regarding the mode of proof of these photographs, however, in my considered view, same stands duly proved as CW 1 himself has sworn on affidavit to be present at the time when these photographs were taken. There is no cross examination. This Court has already pointed out as to how RW1 was challenging the veracity and correctness of these photographs during his cross examination and thus there is no need for repeating the same.
169.2. A bare perusal of these photographs would reveal that these showrooms had been displaying the board of 'Haldiram Bhujiawala' as well as 'Haldiram's'. The date when the photographs were taken is 29.5.99 and 23.6.99 respectively. The order in question is dated 12.5.99 and thereafter 25.5.99. These photographs are before the undertaking dated 16.7.99. However, so far as this undertaking is concerned, flouting of the same is the subject matter of the appointment of super distributor. The aforesaid therefore, proves that the defendants were still continuing with the using the trade name and trade mark pertaining to the plaintiff despite the stay order to that effect.
170. This brings the Court to the petition M 40/13 regarding which relevant details have been set out above in paras 61 to 81 of this order.
171. Specific reference to the same as well as the application of the defendants under Section 151 CPC is made in para 1.1 of this order. The sole prayer in the application is that the issues may be settled in this petition Result: Petition allowed Page 139 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala and evidence be lead before disposal of the application. Likewise, a similar plea had been raised by Sh Sudershan Bansal, ld counsel for respondent no. 3 that the evidence may be recorded in the instant petition. So far as R3 is concerned, they have placed strong reliance on two judgments on the issue. The first judgment is in case of Three Cheers Entertainment Pvt. Ltd (Supra). In this case it was observed that when the trial was incomplete, then the contempt proceedings should not have been heard on affidavits. The second judgment is of Niaz Mohammad's case (Supra) where it is held that no contempt of Court can be established except when disobedience of Order is proved to be beyond reasonable doubt. In the same judgment, it has been held that the reason for the above is that the standard of proof in such proceedings is similar even if not the same, as in a criminal proceedings. At this juncture, I may point out that the third respondent will not be benefitting too much from these judgments in as much as evidence has been already taken in the first above two contempt petitions whereas in the third petition, it is by the consent of the parties that the evidence was not required to be taken on the issues involved. So far as the forth petition is concerned, this respondent i.e respondent no. 3 has not been made as a named party/contemnor therein. Regardless of the same, since this point has been raised and there is an application of the other respondents on the same issue, it is the duty of the Court to address the same. 171.1. To understand the issue in correct perspective it shall have to be Result: Petition allowed Page 140 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala understood as to what is the scope and ambit of this petition. Although it makes a reference to the previous stay orders, however, in actual effect, this petition is in respect of averment of willful breach and disobedience of only one order i.e order dated 27.9.12. Its breach is projected on behalf of original defendants no. 1 & 2 only. There is no ingredient in the petition qua the complicity of other respondents as so made in M 62/11 (CCP 55/00). At the same time, there has been a sedentary period between 3.6.10 and 27.9.12 when there was no stay in operation. It was only post 27.9.12 that fresh reason for compliance arose and thus led to filing of this petition.
172. I have observed that this proceeding is primarily in respect of contempt of this very order i.e 27.9.12. But at the same time the fact also remains that there is a common 'element' between the contents of stay orders i.e stay order dated 12.7.99, stay order dated 27.9.12, the stay order passed by the Hon'ble High Court of Delhi on 19.10.2015 and the orders passed by the Hon'ble Apex Court on 20.11.2015. While the order dated 12.5.99 was a blanket stay order, the order dated 27.9.12 gave some liverage in the form of condition in para 43 (1) (b). Thus, it will not be incorrect in saying that the genus is the order dated 12.5.99 whereas the species of the same is the order dated 27.9.12. If it be so, then the observations while made in discussing the first above three contempt petitions so far they pertain to original suit in TM 02/11 shall have to be necessarily kept in mind while disposing of this petition. It is like this as a platform is already available to Result: Petition allowed Page 141 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala this Court in the form of these observations already on record coupled with the additional material which the plaintiffs now place on record to assert that the order dated 27.9.12 has been also flouted and was kept being flouted during the pendency of the petition.
173. This material is available in the form of affidavit of two of the employees and the photographs, packing material, invoices, cash bills of photographs, the relevant newspapers etc as described in paras 74 to 79 of this order. Counter affidavits of the second defendant are also available on record as set out in para 81 of this order. I have already stated that there is a mere denial in the counter affidavits that pertain to veracity and correctness of all material filed by the plaintiffs for ocular examination of this Court. Apart from the above, there is nothing more and nothing less. It is as if defendants claim it as a matter of right that there has to be evidence on each and every issue which is not a correct perspective. In the peculiar facts of this case that a platform is already available to me and the previous conduct, as now established on record, is hidden from none, then to unnecessarily prolong the proceedings by asking for directing the proof of the obvious shall not be serving the purpose of justice at all but merely lead to further protracting the litigation in main suits which is still to see the light of the day in the form of their final culmination on merits. Even if the Court ventured into the aspect as to whether it requires evidence or not, suffice would be to say that nothing had prevented the defendant no. 2 herein to Result: Petition allowed Page 142 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala either counter the photographs filed during evidence on the first above two contempt petitions, which have also lent credence to the third above contempt petition, by filing his own photographs but also, nothing prevented him again to file further photographs of three showrooms belonging to him in order to counter the photographs now being relied upon by the plaintiffs. It has not been done. The defendant is merely seeking advantage of the fact that the plaintiffs intend to establish the credence of the veracity and genuineness of the photographs filed by them from time to time on record of this case by filing supporting affidavits of the persons who were part of the proceedings of taking said photographs and thus relying on it by urging the Court that these persons be brought into the witness box to stand the test of cross examination. May I say at this juncture that to ask for it (evidence), its a duty also on part of the defendant to show to the Court such cogent material, perusal of which would, per se prompt the Court to further dig deep into the controversy and order independent evidence on the issue. This is not the case before me and thus I find myself duly equipped with sufficient material in the form of pleadings and documents to be able to decide the issue in this contempt.
174. So far as the law cited is concerned, it has been also held in Three Cheers Entertainment Pvt Ltd (Supra) that the issues had been already framed by Ld. Single Judge but the trial was incomplete when the contempt proceedings were heard on affidavits. This would be apparent from reading Result: Petition allowed Page 143 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala of the judgment and in particular para 31 of said judgment itself. The case before me is not that the Court had settled the issues (on this contempt) and was in the midst of taking evidence when it rather chose to decide the case itself merely on the affidavits. The facts are therefore, distinguishable from the case in hand.
175. So far as the judgment in Niaz Mohammad's case (Supra) is concerned, these observations were made on the basis of the case in Dushyant Somal v Sushma Somal 1981 Cr. L.J 719. It is correct that degree of standard of proof has been prescribed in the judgment but at the same time, it is also clarified as an observation, that where a person alleged to be in contempt is able to place before the Court sufficient material to conclude that it was simply not possible to comply with the order, the Court will not be justified in punishing the alleged contemnor.
176. In the case before me, as I have already stated the defendants have not even placed a single contradicting document to even propagate with commitment, that given a chance to lead evidence, they have cogent material to counter the opposite case. Therefore, these judgments shall not be of any assistance to the respondents. Nevertheless, these judgments are relied upon by respondent no. 3 and not by respondents no. 1 & 2. Having considered the above, my observation remain the same as set out above and thus I proceed on the other aspects of the petition.
177. The first and foremost objection of the respondents after having Result: Petition allowed Page 144 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala tendered an unconditional apology if the Court finds or concludes that there is a willful breach, is to the effect that this petition is not maintainable as an appeal FAO no. 470/12 and a stay application CM No. 19688/2012 are pending adjudication before the Hon'ble High Court of Delhi and against a portion of the order dated 27.9.12, the plaintiffs have also preferred an appeal and a stay application FAO No. 496/12 and CM No 20603/12 respectively.
178. The said objection is no more available to the respondents. It is so as FAO No. 470/12 as well as CM No. 19688/12 have been decided which orders have also become final as against the same, SLP No. 30824 825/2015 were preferred which also stands decided by the order dated 20.11.2015. So far as FAO No. 496/12 is concerned, even that has attained finality as it was found as infructuous in view of the decision of IPAB dated 26.4.2013.
179. It has been a contention throughout that the Courts ought to have decided the application of respondents seeking stay of operation of order dated 27.9.12 pending appeal no. 470/12. With the said objective, reliance was placed on Modern Food Industries (Supra), State Bank of J & K Vs. Mohd. Yaqoob Khan (Supra) and Mool Chand Yadav's case (Supra). The relevant part of these judgments have been already extracted in this order in para 113. The gist of the ratio in Modern Food Industries, State Bank of J & K and Mool Chand's cases has been provided therein.
Result: Petition allowed Page 145 of 176Anand Kr Deepak Kr v Haldiram Bhujiawala In sum and substance it is to the effect that serious prejudice may be caused to a party if the Court keeps prayer of stay on standby and insists upon proceeding with the complaint for contempt. In addition thereto, the case of N.A Kumar (Supra) was also relied upon to demonstrate that respondents therefore, have been confronted with a position where their stay application was virtually rendered infructuous by steps they had to take on threat of contempt. The counter to the aforesaid case law are the cases in Narain Singh's case (Supra), Prithawi Nath Ram's case (Supra) and Patel Rajnikant Dhulabhai's case (Supra). Further reliance was placed on ratio of judgments as set out in para 91 of this order in order to establish that it is primary duty of the Court to exercise its inherent power and restore a status quo in respect to the acts committed in pursuance of violation of an injunction order and therefore, any order of the Court may not result into a circumstance where the wrong doer gets to reap the benefit of his own wrong.
180. Having considered the law on the subject in the light of facts and circumstances of this case, I have no hesitation in stating that plea raised by the respondents herein is misfounded and not available to them. It should have been raised during the continuation of FAO 470/12 before the concerned Court. Infact, attention of the Court has been drawn to CM No. 7822/13 which is an application dated 1.5.13 under Section 151 CPC filed by the respondents in said FAO seeking stay of operation of order dated Result: Petition allowed Page 146 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala 27.9.12. Attention of the Court is also drawn to CM No. 2377/13 dated 6.2.13 which is an application of these respondents under Section 151 CPC praying for stay of operation of order dated 27.9.12 till disposal of the appeal. Infact, in this application, a prayer is also made for extending the interim order dated 14.12.12 beyond 8.2.13 till disposal of the appeal or to any other date. Same was the main prayer. The respondent is now being aggrieved before this Court that the above prayers were actually not granted to them before disposal of FAO 470/12 itself.
181. As a matter of fact, on hearing of FAO 470/12, the Hon'ble High Court of Delhi has been pleased to pass order dated 14.12.12 by which the time granted in para 43.2 of the judgment dated 27.9.12 was extended till 27.1.13. The time was further extended on 1.2.13 till 8.2.13. Subsequent thereto, there is no specific order regarding extension of said time, which according to the plaintiffs expired on 8.2.13 itself. As a matter of fact, the Hon'ble High Court of Delhi also held on 7.3.13 that since the entire matter will have to be heard alongwith documents supplied by the respective parties for consideration as to whether the stay should be extended or not, it will be just and proper that instead of hearing the application seeking extension of interim order, to hear the main appeal itself. Thus the hearing in the main appeal was preponed and it was finally disposed of on 19.10.2015. It is therefore, apparent that neither the Court was pleased to extend the time for compliance of directions in para 43.2 nor it was pleased Result: Petition allowed Page 147 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala to order stay on operation of the entire para 43 of the order dated 27.9.12. Infact, the Hon'ble High Court of Delhi was not even inclined to pass any order on the application seeking extension of interim order without hearing the entire matter, as is evident from order dated 7.3.13.
182. On the strength of the above, it was argued that the respondents have continued in willful breach of the terms of para 43 of the order dated 27.9.12. It is urged that despite the liverage with respect to compliance of conditions in para 43.2 granted to the respondents on 14.12.12 till 8.2.13 only, they failed to even comply with the same prior to 14.12.12 and post 8.2.13 till disposal of FAO. It is further urged that even after disposal of FAO, no compliance was made till the time the SLP in Hon'ble Apex Court was preferred and even immediately after its disposal on 20.11.2015
183. A cumulative sequence would established that;
A. Para 43 (1) (A) came into effect immediately w.e.f 27.9.12 prohibiting the defendants from using the trade mark/name 'Haldiram Bhujiawala HRB with V logo' in any form whatsoever.
B. That the defendants could only use trade name 'Haldiram Bhujiawala alongwith V logo as per trade mark no. 330375 with or without its disclaimed portion' and that too, to use both the words together without bifurcating in analogus font, equal size and alongwith 'V' logo only.
C. That the defendants had to change all display boards, wrappers, packets, boxes etc including any other visual form of advertisement within Result: Petition allowed Page 148 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala two months of 27.9.12.
D. That the defendants were to maintain an account of sales made by using the aforesaid trade name, trade mark or logo, duly audited till final disposal of the suit and to file the same as and when directed.
184. These directions remained in operation till the date of order of Hon'ble High Court of Delhi i.e 19.10.2015 and even thereafter as the order dated 27.9.12 was confirmed. Liberty in clause 43(1)(b) was recalled. Therefore, w.e.f 19.10.2015, the defendants could not even use the trade name Haldiram Bhujiawala in mark no. 330375 at all. Remaining conditions remained as it is except that instead of the defendants, the plaintiff had to maintain the accounts w.e.f the date of order dated 19.10.2015.
185. This position continues till the order of Hon'ble Supreme Court dated 20.11.2015. On this date, the respondents again got a liberty to carry on business in terms of para 43 (1) (b) of order dated 27.9.12 with further directions that if any violation of directions in 43(1)(b) are to be found and recorded, then even this interim relief will cease to operate.
186. Having extracted the sequence above, I revert to the issue regarding absence of any stay on operation of order dated 27.9.12 during the pendency of FAO 470/12 & its effect. I have herd that the judgments cited by the respondents shall not benefit them as the plea should have been raised at appropriate juncture which was infact raised and not specifically granted to the respondents. If the respondents are aggrieved that the scope of the Result: Petition allowed Page 149 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala original petition has been enlarged while making orders in the contempt petitions as observed in case titled State of J & K v Sayeed Zaffar (Supra), then this is not the proper forum for redressal of such a grievance. Further suffice would be to say that no prayer can be gathered by this Court from the reply on record to the effect that the respondents were seeking stay on the continuation of the contempt proceedings in view of pendency of FAO no. 470/12 that has been otherwise now finally disposed of or even otherwise.
187. I therefore, can not be in doubt that the defendants herein did not have knowledge of orders dated 27.9.12, 19.10.2015 and 20.11.2015. It is correct that previous to 27.9.12 i.e w.e.f 3.6.10 no stay order was in operation. At the same time, it is also correct that in the present petition, the plaintiffs are not complaining of any violation of order dated 27.9.12 during this period as they otherwise can not. Their plea that the previous orders dated 12.5.99, 25.5.99 and 16.7.99 were being flouted uptil 27.9.12 has been already dealt with. Nevertheless, merely because these respondents had challenged the order dated 27.9.12, it does not imply that they get a right to sit over the directions in the said order and thus flout the directions. If they are found to be flouting the directions as in order dated 27.9.12 till 19.10.2015 and also the directions as modified subsequently by subsequent orders dated 19.10.2015 and 20.11.2015, then, the said act is bound to be willful and deliberate. The respondents then can not be permitted to take shield of Result: Petition allowed Page 150 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala pendency of their appeal.
188. This shall now bring me to the appreciation of the material that has been produced in support of the petition vis a vis a fresh corelation with the specific dates complained of in further light of the operation of various orders of the court.
189. I have already pointed out that the plaintiffs have filed four sets of different photographs of the show rooms of respondents at Wazirpur Industrial Area and at South Extension, New Delhi. During the proceedings of the first above two petitions, the plaintiffs had also filed photographs of Karol Bagh showroom & Shalimar Bagh showroom (now closed). It has been already held that respondents have been found to be in contempt of orders dated 12.5.99, 25.5.99 and undertaking dated 16.7.99. Now, it is to be observed that the first set of photographs filed by the plaintiffs is for period between 28.11.12 to 20.4.13. Order dated 27.9.12 was in operation on 28.11.12 and till 19.10.2015. The only difference between order dated 27.9.12 and 19.10.2015 is that the defendants could not have used the trade name 'Haldiram Bhujiawala alongwith V logo' as per TM No. 330375 with or without its disclaimed portion and such user, if any, was to be by using both the words together without any bifurcation in analogus font in equal size and alongwith 'V' logo only. This user had to be immediately discontinued till the time of orders of the Hon'ble Apex Court i.e 20.11.2015. Post 20.11.2015, the defendants could use the said trade name Result: Petition allowed Page 151 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala in accordance of para 43 (1) (b) of order dated 27.9.12. As per records, the responsibility of maintenance of account stood shifted upon the plaintiffs herein by virtue of order dated 19.10.2015.
190. The second set of photographs is between the period from 27.10.2015 till 31.10.2015. During this period, the defendants were specifically prohibited from using the trade mark. The third set of photographs is very peculiarly dated 19.11.2015 on which date also no use of the trade mark aforesaid was permitted. The orders of Hon'ble Apex Court dated 20.11.2015 have also made reference to the photographs of this date.
191. The forth set of photographs is between the period from 21.11.2015 to 25.11.2015 which have been filed on daily basis. By this time, orders of Hon'ble Apex Court dated 20.11.2015 had been already passed and the defendants were again permitted to use the trade name 'Haldiram Bhujiawala' as per para 43(1) (b) of order dated 27.9.12.
192. Perusal of first set of photographs reveal that the defendants have been displaying the trade name 'Haldiram' on its showroom at Wazirpur Industrial Area. They are using the trade name 'Haldiram' on its South Extension showroom. The infringing material reveal that upon them also, the trade name Haldiram only is being used. On the reverse side of packaging material, the defendants have provided the 'V' logo but the trade name deployed therein is also only 'Haldiram'. The invoice of purchases would also reveal that it is in the name of 'Haldiram Bhujiawala' only.
Result: Petition allowed Page 152 of 176Anand Kr Deepak Kr v Haldiram Bhujiawala Therefore, there is an apparent flouting of terms in para 43 (1)(b) of order dated 27.9.12 during the period of first set of photographs which continued upto 20.4.13.
193. The second set of photographs is between 27.10.2015 to 31.10.2015 by which time the order dated 19.10.2015 had been passed. During this period, no user was permitted as per para 43 (1) (a) & (b) of order dated 27.9.12. Careful perusal of these photographs reveal that the situation is the same that is as described in the preceding paragraphs. Thus, despite Blanket Ban on using the trade name w.e.f 19.10.2015, the photographs of the period till 31.10.2015 shows violation. Similar is the position with respect to the packaging material. Some of the packaging material are even found to be showing trade name Haldiram's - Prabhuji. The position with respect to display of 'V' logo also remains same as described in previous paragraphs. The material is self explanatory.
194. The third set of photographs of 19.11.2015 also does not show any change in situation and the display pattern. On this date, the directions as in order dated 19.10.2015 were in operation.
195. Immediately on the next date i.e 20.11.2015, the Hon'ble Apex Court granted interim relief to the respondents by permitting them to use the trade name as per directions in para 43 (1) (b) of order dated 27.9.12. Thus, the third set of photographs w.e.f 19.11.2015 upto 25.11.2015 has been filed. A perusal of this set of photographs also reveal that there is improper Result: Petition allowed Page 153 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala compliance. In the photograph of the showroom of South Extension, the defendants have merely put up the banner depicting trade name 'Haldiram Bhujiawala' at two places and have separately displayed the 'V' logo.
196. In the photographs pertaining to showroom at Wazirpur Industrial Area, the defendants have put up the banner displaying trade name 'Haldiram Bhujiawala' with a separate display of 'V' logo also by putting up another banner. They are not using the disclaimed portion of the trade mark. They have tried to display the banner in analogus font and equal size. Even if it be taken as a compliance, although, it is not, then also the fact remains that the packaging material filed alongwith this set of photographs/ documents reveal clear contravention of the directions in para 43(1) (b) of order dated 27.9.12. The packaging material at pages 40, 41, 42 & 43 clearly reveal that the defendants have pasted a sticker displaying trade name Haldiram Bhujiawala on the said wrappers over and above the already printed material which is in the name of 'Haldiram's'. The display of 'V' logo is only on the reverse side of the packagings material with use of the trade name Haldiram instead of Haldiram Bhujiawala together in equal size and analogus font. The disclaimed portion has been again left. This tentamounts to breach of the terms of the directions in para 43(1) (b).
197. Further, the packaging material/wrappers at page 41 of documents filed on 27.11.2015 reveal that 'stickers' have been applied on it also and surprisingly V logo has not been displayed at all. The packaging material at Result: Petition allowed Page 154 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala page 42 reveals that the sticker applied thereupon is in two different colours and again, 'V' logo is at the reverse side with trade name 'Haldiram' only displayed upon it. In this packaging material, stickers showing 'V' logo have been separately pasted.
198. So far as the packaging material of page 43 of list of documents dated 27.11.2015 is concerned, again a sticker displaying name of 'Haldiram Bhujiawala' in two different colours has been pasted on the front and reverse side. There is no display of 'V' logo at all. The packaging material at page 46 of list of documents dated 27.11.2015 i.e carry bag reveals that it displays trade name 'Haldiram' only.
199. The above therefore, establishes that the order dated 27.9.12 particularly as in para 43 (1)(a) & (b) have been regularly flouted.
200. The defendants had no reason to not to comply with directions in para 43.2 within two months of order dated 27.9.12 which expired on 27.11.12. They have filed FAO 470/12 and the first relief regarding extension of this time period was granted to them only on 14.12.12 which continued only till 8.2.13. There is nothing on record that they have complied with the said directions between 27.9.12 to 27.11.12 or post 8.2.13 till today. There is further nothing on record that the defendants made account of sale made by them using the aforesaid trade name, mark or logo duly audited as per directions in para 43 (3) of order dated 27.9.12 w.e.f 10.12.91 further confirmed on 12.5.99 and uptil 3.6.10. Similar is the position for the period Result: Petition allowed Page 155 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala between 27.9.12 uptil the order of Hon'ble High Court of Delhi dated 19.10.2015.
RESULT.
201. Before stating it, I may also say that the plaintiffs have placed on record catena of judgments to show that the Court has inherent power under Section 151 CPC also to punish for contempt. The same have been also referred. Conversely, the respondents had tried to make up a case that while referring to Section 151 CPC, the Court exercising the power under Section 151 CPC first has to consider whether exercise of such power is expressly prohibited by any other provisions of the Code. If there is no such prohibition then the Court will consider whether such power should be exercised or not on the basis of facts. Reference may be had to the judgment in Shipping Corporation of India (Supra). I am to state that no such law has been cited conversely to the effect that the Court does not have independent power under Section 151 CPC to punish for contempt. The case law cited by the plaintiffs is therefore applicable to the facts and the issue before me. Reference may be had to the ratio in Rathindra Nath Bose (Supra) as well as case of Allahabad Bank v R.S.A Singh (Supra). Such reference may also be had to the case of Century Flour Mills Ltd (Supra).
202. Thus, in view of the detailed discussion above in M63/11, the respondent is found to be in deliberate and willful contempt of order of this Result: Petition allowed Page 156 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala Court dated 12.5.99.
202.1. The respondent in M 64/11 is also found to be in deliberate and willful disobedience in contempt of order dated 12.5.99 and 16.7.99. 202.2. The respondents no. 1 to 4 and respondent no. 7 only in M 62/11 are found to be in deliberate and willful disobedience of order dated 12.5.99, 25.5.99 and 16.7.99.
202.3. The respondents in M 40/13 are also found to be in deliberate and willful disobedience of order dated 12.7.99.
202.4. Accordingly, in terms of orders of Hon'ble Apex Court dated 20.11.2015 as violations in directions contained in para 43 (1) (b) of order dated 27.9.12 passed in TM 02/11 is found and also recorded, the interim relief will cease to operate in accordance of the directions in aforestated order of Hon'ble Apex Court dated 20.11.2015.
203. So far as the issues no. 2 pertaining to relief in first and second petition above which have been specifically framed and the aspect of 'Relief' in third and forth petition above are concerned, this Court has following observations to make qua status quo ante;
204. This also brings me to the plea of the plaintiffs in respect of directions to the respondents for restoration of status quo ante. In this context, heavy reliance has been placed upon the duty cast upon the Court to direct such restoration in the form of judgments that have been specifically pointed out. The ratio of judgments is that where a contempt is established, the Court is Result: Petition allowed Page 157 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala competent to issue necessary, further and consequential directions for enforcing its orders. In the case of Dr. Prashanta Padmanabha Amin (Supra), the Court had even directed the contemnor to comply with the directions given in the judgment of the Hon'ble Supreme Court within three weeks from the date of passing of the order. Likewise, in Balram Singh's case (Supra), it is held that it would be a travesty of justice if the Court were to allow gross contempt of Court to go unpunished, without an adequate sentence. Reliance has been also placed on ratio of judgment in Arjan Singh's case (Supra) wherein it was held that in the event of coming to the conclusion that a breach to an order of restraint had taken place, the Court may bring back the parties to the same position as if the order of injunction had not been violated. In the case of Sujit Pal (Supra) the Court has gone to the extent that the Court may invoke inherent powers to grant injunction by directing police to restore possession.
205. This is directly relatable to the plea of the plaintiffs wherein they have sought for appointment of Local Commissioner with directions to make an inventory of display boards, wrappers, packets, boxes, packagings/sale material or any other visual form of advertisements lying in the godowns/warehouses/showrooms of the defendants and seize the same for attachment.
206. The occasion for appointment of such local commissioner may have arisen earlier also if the Court was of the view that immediate appointment Result: Petition allowed Page 158 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala thereof is necessary. In such a scenario, the Court may have had exercised the powers under Order 26 Rule 9 CPC. Further, such L/C would have been subjected to examination of the Court if necessary. Such need now arises before the Court as ascertainment of exact number of material i.e in circulation/stored with the defendants in contravention of the stay orders is necessary for the Court to decide on the issue of awarding adequate deterrant punishment under Order 39 Rule 2A CPC. I may as well point out that in this context, the plaintiffs have already relied on a catena of judgments that pertain to the part of punishment which is inclusive of directions to attach the property of the defendants and also to award adequate imprisonment. As I have already stated that ascertainment of the same is required, I am of the considered view that prayer for appointment of Local Commissioner needs to be allowed forthwith to decide upon the quantum of punishment. At the same time, it is also imperative that the commission be also executed without wastage of any time so that quantum of such material is brought to the knowledge of the Court at the earliest. With these objectives in mind, this Court hereby appoints following advocates as Advocates/Local Commissioners in respect of the following premises of the respondents with under specified directions viz;
207. Premises No. A7 NDSE, South Extension Part I, Main Road, New Delhi.
207.1 PARTICULARS OF ADVOCATE/LOCAL COMMISSIONER Result: Petition allowed Page 159 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala Mr. Ramesh Chandra, Advocate C/o Mr. Sunil Kapoor & Associates, Advocates Enrol. No. D1122/1995 Address: Chamber no. 219, Western Wing, Tis Hazari Courts, Delhi. Mob. No. 9868789789
208. Premises No. A94/4, Wazirpur Industrial Area, Delhi. 208.1. PARTICULARS OF ADVOCATE/LOCAL COMMISSIONER Mr. Vaid Passi, Advocate Enrol. No. D2859/1999 Address: Chamber no. 208A, Western Wing, Tis Hazari Courts, Delhi. Mob. No. 9810185726
209. DIRECTIONS A. The Ld. Advocate Commissioner shall, after notice to the plaintiff and defendant or their representatives whosoever available at site, visit the above premises on 16.1.2016 and commence his proceedings on the spot at 11 a.m sharp.
B. The Ld. Advocate Commissioner shall be assisted by a still photographer as well as a video photographer whose entire expenses for commutation, still and video photography as well as developing and printing the still photographs and preparing and furnishing the DVDs/VCDs shall be borne by the plaintiffs. One set of originals of the above shall be handed over to the ld. Advocate/commissioner including that of the digital data card so used. The ld. L/C shall ensure that he is also provided with two extra sets to be furnished to the plaintiffs and four extra sets to be furnished Result: Petition allowed Page 160 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala to the respondents which shall be so furnished by the Court, if required, after receipt of report of Ld. L/C. Such photographer and videographer shall obtain still and video images of the proceedings of Ld. L/C as per his directions.
The Ld. L/C shall be at liberty, if required, to take assistance of any other one independent person in his work who may be from legal background. His additional fees, if so engaged for assistance, shall be fixed by the Court.
C. The Ld. Advocate/Commissioner shall be provided with a legible copy of the trade name/mark no. 330375 that pertained to the defendants and also of trade name/mark no. 285062 pertaining to the plaintiffs. This shall be provided to the Ld. L/C so that he shall be able to make out the difference between the two trade names/marks. The copy of such trade name/marks appearing in the Trade Mark Journal may be provided by the plaintiff.
D. A copy of the operating part of orders dated 10.12.91, 27.9.12, 19.10.2015 and 20.11.2015 shall also be provided to the Advocate/Commissioner for information.
E. The Ld L/C is directed to make a detailed inventory of the following in addition to obtaining still and video images viz;
1. Display boards as on display of the premises, their number, their contents, fonts used in print, colour scheme, if any.
Result: Petition allowed Page 161 of 176Anand Kr Deepak Kr v Haldiram Bhujiawala
2. Wrappers of all make identifying the products so packaged in the said wrappers, the trade name used thereupon, the trade mark used thereupon and such allied observations as the Ld. L/C may make. He shall specify the number of such wrappers so found by him which are not displaying the contents as per para 43 (1) (b) of order dated 27.9.12. The Ld. L/C shall also take into account any such wrappers which are found by him to be exhibiting the display in accordance of para 43 (1) (b).
3. Packets of all make identifying the products so packaged in the said packets, the trade name used thereupon, the trade mark used thereupon and such allied observations as the Ld. L/C may make. He shall specify the number of such packets so found by him which are not displaying the contents as per para 43 (1) (b) of order dated 27.9.12. The Ld. L/C shall also take into account any such packets which are found by him to be exhibiting the display in accordance of para 43 (1) (b).
4. Boxes of all make identifying the products so packaged in the said boxes, the trade name used thereupon, the trade mark used thereupon and such allied observations as the Ld. L/C may make. He shall specify the number of such boxes so found by him which are not displaying the contents as per para 43 (1) (b) of order dated 27.9.12. The Ld. L/C shall also take into account any such boxes which are Result: Petition allowed Page 162 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala found by him to be exhibiting the display in accordance of para 43 (1) (b).
5. Packagings/sale material of all make identifying the products so packaged in the said Packagings/sale material, the trade name used thereupon, the trade mark used thereupon and such allied observations as the Ld. L/C may make. He shall specify the number of such packagings/sale material so found by him which are not displaying the contents as per para 43 (1) (b) of order dated 27.9.12. The Ld. L/C shall also take into account any such packagings/sale material which are found by him to be exhibiting the display in accordance of para 43 (1) (b).
6. Any other visual form of advertisements of all kind pertaining to the trade name/mark of the plaintiff above, the nature of such visual advertisement, the trade name used thereupon, the trade mark used thereupon and such allied observations as the Ld. L/C may make. He shall specify the number of such visual form of advertisements so found by him which are not displaying the contents as per para 43 (1)
(b) of order dated 27.9.12. The Ld. L/C shall also take into account any such visual form of advertisement which are found by him to be exhibiting the display in accordance of para 43 (1) (b).
7. The Ld. L/C shall also randomly obtain from the cashier at the above premises duplicates of some of the cash memos/receipts etc that are Result: Petition allowed Page 163 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala generated by such cashier in respect of the sales made to the general public at the outlet and file them with his report.
8. These directions are in respect to the above described outlets and also such premises i.e adjoining godowns/warehouses of the defendants found, if any, that are pointed out by the plaintiffs which may be used for stocking the above described material. If no such adjoining premises are found, then the report of Ld. L/C shall pointedly specify the same.
9. Needless to say all above proceedings shall be photographed and pictographed as per directions of Ld. L/C. F. It is directed that the Ld. L/C shall prepare his legible and clear rough proceedings at the site with appropriate time details and shall obtain signatures of the plaintiffs/defendants and/or their representatives present there. The recognized advocates of the parties shall be at liberty to be present at the time of Ld. L/C proceedings. In case of refusal of any party to sign the proceedings, the report of Ld. L/C shall state so.
G. The Ld. L/C shall, after making inventory of such articles and having them bunched in the groups of the products for which they are meant and further having them photographed and pictographed, issue a certificate to the concerned person Incharge of such outlets/godown/warehouses/premises to the effect that such person Result: Petition allowed Page 164 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala shall keep them in safe custody to be produced before or at the behest of the order of this Court as and when directed upon and for such purposes, the Ld. L/C may execute documents in the nature of superdari proceedings and may use any Seal that he deems appropriate after obtaining its sample to be filed with the report. In case of refusal, the Ld. L/C shall obtain superdari of such articles from the plaintiff and/or their authorized representatives. Such superdari bonds, if any, shall be filed by the Ld. L/C with his report. H. The Ld. L/C shall demand for the records of the sales maintained at the outlet for the period from 10.12.91 having regard to the date when the outlet came into existence till the date of the orders of Hon'ble High Court of Delhi dated 19.10.2015 and from the defendants/their representative and in case of refusal, shall record the above.
I. The Ld. L/C shall file his report in quadruplicate and the expenses incurred by the Ld. L/C on the stenographer engaged by him and obtaining the print out of such reports shall be borne by the plaintiff and Ld. L/C shall file receipt of the same.
J. This Court is conscious of the fact that depending upon the quantum of material, the Ld. L/C may have to take decision regarding managing the time. Hence, this Court clarifies that the commission proceedings shall be stopped/concluded at 6 p.m if not Result: Petition allowed Page 165 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala concluded earlier. These directions are given for the convenience of the management and the customers, if any, at the outlets aforestated during the commission proceedings. If the Ld. L/C is of the view that the proceedings are to be resumed after 6 p.m then, such proceedings shall be started by him again at 11 a.m on the succeeding day i.e 17.1.2016. For the above, the fees of Ld. Advocate Commissioner is fixed at Rs.1,50,000/ (1.5 lacs) and that of his associates, if any, at Rs.25,000/ payable in advance for which fee certificate shall be filed by the Ld. L/C. If the proceedings are to be carried out on the next succeeding day also, then the total fee payable to the Ld. L/C and his associates, if any, shall remain the same. However, to be calculated as 50% of the amount payable for the first half day and remaining for second half of the day till 6 p.m or before the commission concludes. The Ld. L/C may declare a lunch break of 30 minutes after ensuring that there is no disruption of the proceedings or tempering with the material/records to be inspected by him. Such receipts shall also be filed by him with his report. It is clarified that if the Ld. L/C proceedings are not concluded even on 17.1.2016, then further directions in this regard shall be obtained from the Court. However, the Ld. L/C is requested to conclude his proceedings as expeditiously as possible and in any case within the time frame prescribed by this Court.
Result: Petition allowed Page 166 of 176Anand Kr Deepak Kr v Haldiram Bhujiawala K. The Ld. L/C shall be entitled to the assistance of local police for which Incharge, Station House officer concerned shall ensure compliance if the need arises.
L. The report of Ld. L/C shall be returnable on or before 21.1.2016.
210. In view of the above directions, these proceedings stand concluded. The orders regarding attachment of property of the persons found guilty of such disobedience and/or their period of detention, if any, in civil prison shall be announced post receipt of report of Ld. L/C. The application under Section 151 CPC of the defendants dated 1.12.12 stands dismissed. The contempt petitions are allowed in the manner above.
211. As this shall be a common order for the purpose of all these petitions, copy of this order shall be placed in file of M 40/13 which shall be referred for all purposes in other contempt petitions i.e M 62/11, M 63/11 & M 64/11.
212. Appropriate notice be directed to be issued to the Ld. Advocate Commissioner in accordance of last preceding paragraph no. 209.
213. This order has been signed today by me before the announcement itself and thus same may be made available to the parties for the purpose of inspection, if so applied for.
214. one copy of this order be placed for ready reference also in the file of M 62/11(old No. CCP 55/00). The Ahlmad of this Court is directed to maintain a separate file in miscellaneous category for further proceedings in Result: Petition allowed Page 167 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala respect of these petitions, which shall be arising out of the suit No. TM 02/11. One copy of the order be also kept in the said file alongwith copy of separate order sheets in all the four contempt petitions.
Announced in open Court. (Manish Yaduvanshi) Dated: 15.01.2016. ADJ06(Central)Delhi Result: Petition allowed Page 168 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala M 63/11/99 (OLD No. CCP 82/99) Anand Kumar Deepak Kumar V Haldiram Bhujiawala 15.01.2016 Present : Ld counsel for parties.
Vide separate detailed order announced in the open Court, this contempt petition stands allowed in terms of the operative part of the order itself whereby which the respondent herein has been found liable for contempt under Order 39 Rule 2A CPC. Advocate Commissioners have been appointed as per directions in paras 207 & 208.1.
In terms of the directions as given to the Ahlmad therein, a separate file shall be maintained and this file shall be consigned to record room after due compliance.
For reference of the order, records of M 40/13 shall be seen.
Miscellaneous file be put up on 21.1.2016 for report of Ld. Advocate Commissioners who have been separately appointed in the common order itself. The respondent is accordingly directed to appear in person on said date.
(Manish Yaduvanshi) Result: Petition allowed Page 169 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala ADJ-
06(Central)Delhi 15.01.2016 Result: Petition allowed Page 170 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala M 64/11/99 (OLD No. CCP 114/99) Anand Kumar Deepak Kumar V Haldiram Bhujiawala 15.01.2016 Present : Ld counsel for parties.
Vide separate detailed order announced in the open Court, this contempt petition stands allowed in terms of the operative part of the order itself whereby which the respondent herein has been found liable for contempt under Order 39 Rule 2A CPC. Advocate Commissioners have been appointed as per directions in paras 207 & 208.1.
In terms of the directions as given to the Ahlmad therein, a separate file shall be maintained and this file shall be consigned to record room after due compliance.
For reference of the order, records of M 40/13 shall be seen.
Miscellaneous file be put up on 21.1.2016 for report of Ld. Advocate Commissioners who have been separately appointed in the common order itself. The respondent is accordingly directed to appear in person on said date.
(Manish Yaduvanshi) Result: Petition allowed Page 171 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala ADJ-
06(Central)Delhi 15.01.2016 Result: Petition allowed Page 172 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala M 62/11 (OLD No. CCP 55/00) Anand Kumar Deepak Kumar V Haldiram Bhujiawala 15.01.2016 Present : Ld counsel for parties.
Vide separate detailed order announced in the open Court, this contempt petition stands allowed in terms of the operative part of the order itself whereby which the respondents no. 1, 2, 3, 4 & 7 have been found liable for contempt under Order 39 Rule 2A CPC. The proceedings against respondents no. 5 & 6 stands dropped for the reasons as detailed in the order itself. Advocate Commissioners have been appointed as per directions in paras 207 & 208.1.
In terms of the directions as given to the Ahlmad therein, a separate file shall be maintained and this file shall be consigned to record room.
One copy of the order has been also directed to be placed in this file for reference only.
Miscellaneous file be put up on 21.1.2016 for report of Ld. Local Commissioner who has been separately appointed in the common order itself. The respondents are accordingly directed to appear in person on said date.
Result: Petition allowed Page 173 of 176Anand Kr Deepak Kr v Haldiram Bhujiawala (Manish Yaduvanshi) ADJ-
06(Central)Delhi 15.01.2016 Result: Petition allowed Page 174 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala M 40/13 Anand Kumar Deepak Kumar V Haldiram Bhujiawala 15.01.2016 Present : Ld counsel for parties.
Vide separate detailed order announced in the open Court, this contempt petition stands allowed in terms of the operative part of the order itself whereby which the respondents herein have been found liable for contempt under Order 39 Rule 2A CPC. Advocate Commissioners have been appointed as per directions in paras 207 & 208.1.
In terms of the directions as given to the Ahlmad therein, a separate file shall be maintained and this file shall be consigned to record room.
Since respondent no.7 is exparte in this case, the plaintiff/applicant may obtain certified copy of this order and have it served on the said respondent for compliance and file service report.
In other petitions, for reference of the order, the original signed order shall be referred to from this file.
Miscellaneous file be put up on 21.1.2016 for report of Ld. Local Commissioner who has been separately Result: Petition allowed Page 175 of 176 Anand Kr Deepak Kr v Haldiram Bhujiawala appointed in the common order itself. The respondents are accordingly directed to appear in person on said date.
(Manish Yaduvanshi) ADJ-06(Central)Delhi 15.01.2016 Result: Petition allowed Page 176 of 176