Calcutta High Court
Mukhtar Alam vs Yasmin Khalique & Ors on 15 November, 2018
Equivalent citations: AIR 2019 (NOC) 394 (CAL.)
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
OD-4
APO No.350 of 2018
GA No.3046 of 2018
In
AP No.282 of 2018
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
MUKHTAR ALAM
Versus
YASMIN KHALIQUE & ORS.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
The Hon'ble JUSTICE ABHIJIT GANGOPADHYAY
Date : 15th November, 2018.
Appearance:
Mr. Jishnu Saha, Sr. Adv.
Mr. Tarique Quasimuddin, Adv.
Ms. Zainab Tahur, Adv.
..for the appellant
Mr. Ajay Krishna Chatterjee, Sr. Adv.
Mr. Shyamal Sarkar, Sr. Adv.
Mr. Sohail Haque, Adv.
Mr. M. I. A. Lodhi, Adv.
..for the respondents
The Court : The appeal arises out of an order disposing of a petition under Section 9 of the Arbitration and Conciliation Act, 1996 pertaining to a partnership firm. By the order impugned, the appellant has been restrained from carrying on rival business as that of the partnership firm or using the marks of tobacco used by the partnership firm.
The respondents have not been called upon.
2To begin with, the submission on behalf of the appellant is that the order impugned is a narration of the pleadings with scarcely a paragraph or a page in support of the order. On a bare reading of the order impugned it does not appear that the contents of the order have been accurately summarised. The pleadings have been referred to; but sufficient reasons are indicated in support of the order and in dealing with the argument that may have been put forth on behalf of the appellant.
It is next emphasised on behalf of the appellant that the argument in respect of Section 11 of the Partnership Act, 1932 has not been noticed, acknowledged or dealt with in the order impugned. Section 11 of the said Act is in Chapter III thereof which is intituled "Relation of Partners to one another" and begins by detailing the general duties of partners in Section 9 thereof. Section 11 pertains to the mutual rights and duties of the partners of a firm that may be determined by a contract between the partners and also provides that such contract may be express or may be implied by a course of dealing. The point that the appellant seeks to make is that the course of conduct of the partnership firm allowing licences in favour of family members to deal with the Musa Ka Gul brand was evident and in view of such course of dealing over a considerable period of time, the use of the Musa Ka Gul brand by the appellant through an entity of which the appellant's wife is the proprietor, could not have been regarded as an aberration.
It is necessary to notice the essential facts before dealing with some of the fancied arguments of the appellant. The appellant is the 50% partner of a firm that carries on the business of sale of gul, a form of tobacco. Its primary brand is the Musa Ka Gul brand which is registered in favour of the firm. Such registration was obtained in 1999 and has been subsequently renewed. Prior to 2017, it is the admitted position that the Musa Ka Gul brand was licensed out in favour of entities owned or controlled by 3 the near relatives of the two other 25% partners of the firm. It is also not in dispute that such licences were granted against a promise of royalty to the extent of 0.5% of the sale of the product by the licencees. The case with which the respondents herein came to this Court was that they noticed that the Musa Ka Gul brand of tobacco was sought to be sold through a proprietorship business of the appellant's wife with the appellant really running the show.
It was the appellant's case before the Court of the first instance that the partnership firm had granted a licence in respect of the Musa Ka Gul brand in favour of his wife's proprietorship concern and that such concern, in turn, paid the princely amount of Rs.3677/- by way of royalty which entered the accounts of the firm on or about May 14, 2018. The only difficulty was that the document in support of the licence appears to have been executed by the appellant himself.
There is no material to demonstrate that the other partners of the firm were aware of such licence and the money trickled into the bank account of the firm after the petition under Section 9 of the said Act was already in Court.
Thus, it is evident that a 50% partner in a partnership firm had unilaterally licensed out the valuable brand of the firm without the knowledge of the other partners to the proprietorship concern of his wife and, subsequently, purported to carry on business through such concern as a rival to the original firm.
In the light of such conduct, the order impugned restraining the appellant herein from continuing in the same vein, does not appear to be unjustified in any manner or form.
As to the argument pertaining to Section 11 of the Act, the Court of the first instance referred to Section 9 of the Act and found that the conduct of the appellant herein was in breach of such provision and in bad faith. The order impugned dealt with 4 the cases cited by the appellant herein and found that the essential feature, that the appellant herein purported to filch the trade of the partnership firm by deceiving his partners, could not be dislodged by the lengthy argument and reference to law as indulged in by the appellant herein.
The appellant claims that since the partnership is at will, the order impugned can be undone by the mere act of the appellant dissolving the firm and claiming a right to use the brand which is an asset of the firm. There is no need to make an advance ruling upon apprehending what future course of action would be adopted by the appellant. Suffice it to say that on the basis of the conduct of the appellant as evident, the order impugned is perfectly in order.
For the reasons aforesaid, the order dated October 3, 2018 does not call for any interference.
APO No.350 of 2018 and GA No.3046 of 2018 are dismissed.
There will, however, be no order as to costs.
(SANJIB BANERJEE, J.) (ABHIJIT GANGOPADHYAY, J.) bp.