Calcutta High Court
Unilever Plc & Anr vs Anoy Paul & Ors on 14 September, 2018
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.2218 of 2018
With
CS No.167 of 2018
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
UNILEVER PLC & ANR.
VERSUS
ANOY PAUL & ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 14th September, 2018.
Appearance:
Mr. Tanmoy Chakravarty, Adv.
Mr. Subhradip Roy, Adv.
. . .for the plaintiff
Mr. Subhasis Sengupta, Adv.
Mr. Samrat Mukherjee, Adv.
. . .for In Essence Stores .
Ms. Baisali Sharma, Adv.
. . .for Bengal Essence Stores.
Ms. Rakhi Rani, Adv.
. . .for Prakash Refrigeration.
Ms. Sananda Mukhopadhayay, Adv.
. . .for Magnolia Foods.
Ms. Kumkum Mukherjee, Adv.
(Special Officer)
Mr. Uday Sankar Chattopadhyay, Adv.
Ms. Snigdha Saha, Adv.
. . .for the respondent no.7.
Mr. Biswadeb Ghosh, Adv.
Mr. Souvik Kundu, Adv.
. . .for the respondent no.15.
Mr. Somnath Ghoshal, Adv.
. . .for the respondent no.4.
The Court: The five Special Officers have filed their individual reports. Ms. Madhu Priya, Advocate who was appointed as Special Officer has visited the factory and godown of defendant nos. 1, 2, and 3 and have identified the infringing goods and have seized 2 the materials. The said materials have been kept in the godown of the said defendants at a place provided by the said defendants. The report also shows that the real identity of the defendant no.2 is Mr. Ashok Mullick and not Mr. Sanjay Mullick. Mr. Ashok Mullick has assured that he would not sell the infringing materials and he has given particulars of his supplier in Kolkata. The Special Officer has also seized the infringing materials found at Star Line Freeze and kept them in the garage of the said concern and sealed them with the padlock and has retained the keys. The Special Officer has also visited Shikha Traders, Deep Freezes, M/s. Ratan Chandra Das and have seized the infringing materials. The said materials are presently in the safe custody of the Special Officer.
Mr. Shubhasish Sengupta learned Counsel appearing on behalf of M/s. Ratan Chandra Das at Bartola has submitted that his client is prepared to give an undertaking not to sell such infringing materials. An affidavit of undertaking to that effect shall be filed on the adjourned date.
The second Special Officer, Mr. Ovik Sengupta has filed a report wherefrom it appears that he has visited the factories and godowns of the respondent nos.4, 5, 7, 14, 15 and 16. In the report, it is stated that all the aforesaid respondents excepting respondent no.16 are not presently dealing with the infringing materials but they have disclosed that they used to procure such materials from Bengal Essence Stores situated at 7, Ezra Street, Kolkata - 700 001. The respondent no.16 as it appears from the report has stopped manufacturing Ice Cream. The report reveals that 1000 pieces of lids, caps and slip cones bearing the name of the plaintiff company's trademark were found but they were not in usable condition. Bengal Essence Stores and In Essence Stores having their offices at 7 Ezra Street and 9 Ezra Street are represented by Ms. Baisali Sharma and Mr. Subasis Sengupta and they assure that they shall file an affidavit of undertaking not to use the said infringing materials in any manner whatsoever. 3
The third Special Officer, Mr. Siddhartha Chatterjee, has filed a report wherefrom it appears that on the basis of the instruction received from the petitioner that the outlet of the defendant no.13 at Odisha has been closed down, there was no visit to the site and no inventory was done.
The fourth Special Officer Ms. Kumkum Mukherjee has filed a report. It appears from the report that the Special Officer has visited the godown of respondent nos.6, 8, 9, 10, 11 and 12 and two unknown defendants. The factory and/or godown of the named defendants have been visited by the Special Officer and she has seized the materials after making an inventory thereof. The infringing materials are presently in the custody of the Special Officer. Insofar as the two unknown defendants are concerned, one of the unknown defendants, namely, Prakash Refrigeration of Kokar at Ranchi is represented by Ms. Rakhi Rani, Advocate. It is submitted on behalf of the said vendor that Prakash Refrigeration in the course of its business has not infringed the mark of the plaintiff. The learned counsel has also assured that all access would be provided to the Special Officer to inventorise the materials and on such assurance the Special Officer shall revisit the factory and/or godown of Prakash Refrigeration on 16th September, 2018 and shall inventorise the materials in terms of the order passed earlier in presence of the parties. No further notice be served upon Prakash Refrigeration. The learned Counsel for the vendor has assured that Mr. Ram Prakash, proprietor of the said business shall render all assistance to the Special Officer in implementing this order. In the event any infringing materials are found the same shall be seized by the Special Officer and shall be kept at a place to be provided by the petitioner. Insofar as the second unknown defendant is concerned, it appears that Mr. Virendra Prasad has allowed inventory of the materials and during such inventory the Special Officer has found Cornetto Lid Cover of 2,70,000 (approx.), Cone Wrapper of 70,000 (approx.) and Frozen of 1000 (approx.). The Special Officer has seized the materials and kept it under her custody. Mr. Virendra Prasad is represented by Mr. Avirup Chakraborty, Advocate. Ms. Sananda 4 Mukhopadhyay being instructed by Mr. Avirup Chakraborty has submitted that the quantity mentioned may not be accurate and Virendra Prasad shall file an affidavit of undertaking in which the exact quantities shall be disclosed with supporting documents. If required a fresh inventory may take place in presence of Virendra Prasad and the representative of the plaintiff so as to ascertain the exact quantity of the infringing materials. On or before the adjourned date, the Special Officer shall visit the godown of Virendra Prasad and reverify the infringing materials in presence of the representative of the plaintiff and Virendra Prasad.
The fifth Special Officer Mr. Ratul Das has filed a report. The Special Officer has visited the godowns of respondent nos.18, 19 and 20 and has seized the infringing materials. The infringing materials are presently in the custody of the Special Officer and are kept at a place provided by the respondents in their respective godowns. It is further submitted on behalf of the petitioner that the said respondents had approached the petitioner for settlement. The two unknown defendants, namely, Kapil Traders and Jaiswal Brothers having their place of business at Hyderabad have been found to be dealing with the infringing materials and goods. The Special Officer has also seized such materials and kept the said materials at the godown of the said persons and/or entities. The Special Officer has stated that Kapil Traders and Jaiswal Brothers have assured that they would not deal with such infringing materials in future.
It appears from the report filed by the Special Officer that one Satnam Flexi-Pac having its office at B 133 Additional Ambernath, Anand Nagar, MIDC, Ambernath, District Thane and S.T. Alam Enterprise having its office at 3/H/5, Raja Direndra Street, Kolkata 700009 are apparently the manufacturers from which the infringing materials are being procured.
In view of the report filed by the Special Officers, it is necessary to add the Star Line Freeze, Shikha Traders, Deep Freezers, M/s. Ratan Chandra Das, Bengal Essence 5 Stores, In Essence Stores, Prakash Refrigeration, Kapil Traders, Jaiswal Brothers, Satnam Flexi-Pac and S.T. Alam Enterprise.
A copy of the plaint along with the duplicate copy of the writ of summons as well as the petition shall be served upon the added defendants within a week from date. On or before the adjourned date it would be open for the added defendants to file their affidavits. Most of the added defendants have submitted that they are not the manufacturer or supplier and are traders.
It appears from the report of the Special Officer that some of the unnamed defendants have now identified and it is now desirable that such persons are added as defendants in this suit. The plaintiff shall take appropriate steps for addition of the parties preferably within a week from date.
A copy of the petition shall be served upon the learned Advocates representing the parties who are not added as yet in this proceeding by Monday (17.09.2018).
Mr. Ratul Das shall visit the godown of Satnam Flexi-Pac and M/s. Vashdev & Sons within two weeks from date and shall file a report on the adjourned date. Similarly Mr. Ovik Sengupta shall visit the godown of S.T. Alam Enterprise within two weeks from date and shall file a report on the adjourned date.
In spite of notice the other defendants are not represented. In the event the defendants are not represented on the adjourned date, the matter shall be heard in absence of the said defendants.
The reports of the Special Officers are kept with the record. Each of the Special Officers shall be entitled to a further remuneration of 2000 GMs. to be paid by the plaintiff.
The matter stands adjourned till 1st October, 2018.
(SOUMEN SEN, J.) sp/b.pal.