Karnataka High Court
Mr.Shoaib Haroon vs Mr.Mohammed Hassan on 3 November, 2017
Author: Raghvendra S.Chauhan
Bench: Raghvendra S. Chauhan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN
MFA No.6734/2014 (I.P.R.)
BETWEEN:
MR. SHOAIB HAROON
S/O. LATE HAROON SULAIMAN SAIT,
AGED ABOUT 53 YEARS,
FLAT NO.2, PRESTIGE WINSTON APARTMENTS,
MEG OFFICER COLONY,
BANASWADI ROAD,
BANGALORE-560003. ... APPELLANT
(BY MR. ARUN SRI KUMAR, ADV.)
AND:
MR. MOHAMMED HASSAN
S/O. LATE M. YUSUFF SAIT,
AGED ABOUT 58-59 YEARS,
NO.102, REGENCY DAVIS,
NO.13, DAVIS ROAD
BANGALORE-560084. ... RESPONDENT
(BY MR. T. V. VIJAY RAGHAVAN, ADV.)
THIS MFA IS FILED UNDER ORDER 43, RULE 1(r) OF
CPC, PRAYING TO SET ASIDE THE ORDER DATED 15.7.2014
(ANNEXURE 'A') PASSED BY THE XXXI ADDITIONAL CITY
2
CIVIL AND SESSIONS JUDGE (CCH No.14), BANGALORE
CITY IN O. S. No.5456/2013 AND ETC.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 26.10.2017, AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Aggrieved by the order dated 15.07.2015, passed by the XXXI Additional City Civil and Sessions Judge, Bengaluru City, whereby the learned Judge has dismissed the appellant's application under Order 39, Rules 1 and 2 CPC, the appellant has approached this Court.
2. According to the appellant, his father, Mr. Haroon Sulaiman Sait had coined the name " The Only Place ". About fifty years ago, using the said name, his father had started a restaurant located at Brigade Road, Bengaluru. Since the restaurant, "The Only Place" used to serve mainly Western food, it acquired a goodwill in Bangalore. But as the appellant's father was getting old, and since Mota Arcade 3 had been constructed, his father closed down the said restaurant.
3. The appellant and the respondent are related to each other. Since the respondent was unemployed, he and the appellant decided to constitute a partnership firm in the name and style of "M/s Aaaminah Steak & Pasta Company". Therefore, on 22.10.2003, they entered into a partnership at will. Further, according to the appellant his father permitted the appellant, and the respondent to put the board of " The Only Place " at the premises of " Aaaminah Steak & Pasta Company", located at No.13, Museum Road, Bangalore. Since the father agreed to permit the use of the name "The Only Place ", the partnership firm agreed to pay him certain amount. However, the unregistered Trademark "The Only Place" was not brought into the partnership as a property of the partnership firm. The partnership used the name "The Only Place" to run a restaurant of its own.
4. The partnership firm functioned from 22.10.2003 to 30.04.2013. On 30.04.2013, the respondent sent a notice to the appellant clearly indicating his resolve to dissolve the 4 partnership firm. Since the partnership was at will, the firm stood dissolved with effect from 30.04.2013.
5. Furthermore, the premises, from where the restaurant "The Only Place" was being run by the partnership firm, the lease of the said premise came to an end on 31.03.2013. Therefore, the respondent entered into a new lease with the landlord. Moreover, the respondent continued to run the restaurant in the name and styled of "The Only Place" at the said premises even after the partnership firm was dissolved on 30.04.2013.
6. According to the respondent, even after the dissolution of the partnership firm, the appellant continued to interfere with the running of the restaurant, "The Only Place ". Therefore, the respondent instituted a civil suit for dissolution of the firm, for permanent injunction against the appellant, and for a decree for accounting of partnership business for the Accounting Year 2012 - 2013. Along with the plaint, the respondent also filed a temporary injunction application under Order 39 Rules 1 & 2 of the CPC. 5
7. In turn, the appellant filed a counter-claim for declaration and permanent and injunction against the respondent.
8. During the course of the proceedings, while the respondent filed I.A. No. I, under Order 39 Rules 1 & 2 of the CPC, he also filed I.A. No. VI under Order VI Rule 17 r/w Section 151 of CPC, for amending his plaint. Meanwhile, the appellant filed I. A. No. III under Order 39 Rules 1 & 2 of the CPC, for restraining the respondent from carrying on his business under the name and style of "M/s. Aaaminah Steak & Pasta Company". The defendant also filed I. A. No. IV under Order 39 Rules 1 and 2 CPC, for restraining the respondent from carrying on the business in the name and style of "The Only Place". The appellant also filed I. A. No. V under Order XL, Rule 1 of CPC, r/w Section 44 of the Indian Partnership Act, for an appointment of Receiver. By a common order dated 15.07.2014, the learned Judge has decided all the interim applications. As mentioned above, the learned Judge has dismissed the appellant's Interim Application No. IV, under Order 39, Rules 1 and 2 CPC, for 6 restraining the respondent from running his restaurant in the name and style of " The Only Place". Hence, this appeal before this Court.
9. Mr. Arun Sri Kumar, the learned counsel for the appellant, has raised the following contentions before this Court:-
Firstly, the appellant had all the three ingredients for the grant of temporary injunction in his favour, namely the existence of a prima-facie case, balance of convenience, and irreparable loss which would be caused to him, if the temporary injunction were not granted in his favour. But despite the existence of these three ingredients in favour of the appellant, the learned Judge has dismissed the appellant's temporary injunction application. Thus, the learned Judge has caused grave injustice to the appellant.
Secondly, in his counter-claim, the appellant had clearly pleaded that the name "The Only Place", was coined by his father, was used by his father for running a restaurant. His father's restaurant, "The Only Place" had 7 earned a tremendous goodwill in Bangalore. For, the restaurant was well known for serving Western food. Therefore, the goodwill of the unregistered trade mark " The Only Place" belonged to his father.
Thirdly, when the appellant and the respondent created the partnership firm "M/s. Aaaminah Steak & Pasta Company", the appellant's father permitted the partnership firm the use of the unregistered trade mark "The Only Place"
for a consideration paid by the Firm. Thus, the unregistered trade mark "The Only Place" was not brought into the partnership firm as a property of the partnership. The said unregistered trade mark continued to be the property of the appellant's father.
Fourthly, with the demise of the appellant's father, the goodwill of "The Only Place" became part of his father's estate. Therefore, the goodwill devolved down to the appellant and his two sisters. Moreover, relying on Section 2 (zc) read with Section 39 of the Trade marks Act, 1999 ("the Act", for short), the learned counsel has pleaded that an unregistered trade mark may be assigned or transmitted 8 with, or without the goodwill of the business concerned. Furthermore, a transmission may be "by operation of law, devolution on the personal representation of the deceased person, and by any other mode of transfer, but not being an assignment". Thus, as the personal representative of his late father, the appellant is justified in claiming that the goodwill of the unregistered trade mark, "The Only Place" has been transmitted to him with the death of his father.
Fifthly, on 21.01.2010, the appellant, and his two sisters entered into a Family Settlement which was reduced into writing. According to the Family Settlement, the goodwill of "The Only Place", was to belong to the appellant. Therefore, the appellant has the exclusive right to use the name "The Only Place". Hence, the respondent did not have the right to use the unregistered trade mark "The Only Place", and to run his restaurant in the name and style of "The Only Place". Moreover, since the unregistered trade mark did not belong to the partnership, after the dissolution of the partnership firm, the unregistered trade mark could not be used by the respondent.9
Sixthly, since the unregistered trade mark belongs to the appellant, the balance of convenience is in his favour. Moreover, after the dissolution of the firm, the appellant has also started a restaurant using the name "The Only Place" in another part of the city. If the respondent were permitted to continue to use the unregistered trade mark, "The Only Place", it would cause irreparable loss to the appellant. Therefore, the appellant had succeeded in proving all the three essential ingredients for being granted a temporary injunction in his favour. However, still the learned Judge has dismissed his application for temporary injunction.
Lastly, the learned Judge has erred in observing that since the name "The Only Place" was an unregistered trade mark, the said name could be used by anyone and everyone. Thus, the respondent could continue to use the said name in order to run his restaurant. According to the learned counsel, the said observation made by the learned Judge ignores the common law, and the provisions of the Act, which prohibit passing off. Since the respondent is using the words "The Only Place", which is also used by the 10 appellant for his restaurant, clearly the respondent is violating the law against passing off. Therefore, the impugned order deserves to be interfered with.
10. On the other hand, Mr. T. V. Vijaya Raghavan, the learned counsel for the respondent, has raised the following counter-arguments:-
Firstly, the appellant has failed to establish a prima- facie case in his favour. Although he claimed that his father had permitted the partnership firm to use the name "The Only Place", for a consideration, he has failed to submit any evidence to support this plea.
Secondly, although he had claimed that the name and goodwill of the "The Only Place" devolved down to him, through a Family Settlement, yet he has not submitted a copy of the Family Settlement. Thus, he has failed to establish a prima-facie case in his favour.
Thirdly, the appellant has not approached the learned Trial Court with clean hands. For, according to the Family Settlement, a copy of which was submitted by the learned 11 counsel for the respondent before this Court, the name "The Only Place" were to belong to a new partnership firm to be known as "Haroon Sulaiman Sait Foundation". The said partnership firm was constituted between the appellant and his two sisters. Since the name belongs to the said Foundation, the appellant has intentionally hidden the Family Settlement Deed from the Trial Court.
Fourthly, even if it were accepted, for the sake of argument, that the goodwill of the name "The Only Place"
belonged to the appellant's father, even then, the goodwill would devolve down to all the legal heirs of Mr. Haroon Sulaiman Sait, including the appellant's two sisters. Therefore, the appellant is not justified in claiming that the goodwill of the name, the unregistered trade mark, would devolve only down to him. Hence, the appellant has failed to establish any prima-facie case in his favour.
Fifthly, according to the appellant himself, his father had closed his restaurant in the name of "The Only Place"
long time ago. Even when the appellant tried to get the name "The Only Place" registered as a trade mark, from the 12 Registrar of Trade marks, objections have been filed. Therefore, the balance of convenience does not lie in the appellant's favour.
Lastly, since the essential ingredients for grant of temporary injunction do not exist in favour of the appellant, the learned Judge was justified in dismissing his application for temporary injunction. Hence, the learned counsel has supported the impugned order.
11. In rejoinder, Mr. Arun Sri Kumar has pleaded that the Haroon Suliman Sait Foundation has not come into existence so far. Till the partnership firm established by the appellant and his two sisters comes into being, the goodwill of the name "The Only Place" belongs only to the appellant.
12. Heard the learned counsel for the parties and perused the impugned order.
13. Needless to say a litigant must approach the court with clean hands. The litigant has to establish the elements of prima-facie case, balance of convenience, irreparable loss, before a temporary injunction can be 13 granted in his favour. Therefore, it was imperative for the appellant to come to the court with clean hands, and to establish these three essential elements.
14. As mentioned above, the appellant claimed that his father had coined the name "The Only Place", and the name was permitted to be used by the partnership firm for a consideration. However, the appellant has not submitted any evidence to establish this plea even on a prima-facie basis.
15. The appellant had also claimed that the goodwill of the name "The Only Place" formed part of his father's estate. Therefore, the goodwill devolves to him at the demise of his father. However, this plea overlooks the Islamic Law of inheritance where the daughters have a share with the brothers in the property belonging to the father. Therefore, the appellant is not justified in claiming that the goodwill will devolve only to him, and not to his two sisters.
16. Although both before the learned Trial Court and before this court the appellant has harped on the Family 14 Settlement Deed, but he has failed to submit the same before both the Courts. Therefore, the appellant is intentionally hiding a document, in fact, a most relevant document, as his entire plea is based on it. Hence, the appellant has approached neither the learned Trial Court, nor this court with clean hands.
17. Since the Family Settlement Deed has been produced by the respondent, and since its genuineness has not been questioned by the appellant, this court has perused the said document. According to the Settlement Deed, the goodwill of the name "The Only Place" was to belong to the "Haroon Sulaiman Sait Foundation", a partnership firm created between the appellant and his two sisters. Interestingly, though the appellant relies on the said Deed, though according to the Deed, the goodwill belongs to the partnership firm, still the appellant persistently claims that the goodwill belongs only to him in his individual capacity. But the Settlement Deed belies the appellant's case. Thus, it is a small wonder that the appellant has hidden the Settlement Deed from both the trial court, and this court. 15 Since a material document has been withheld from both the courts, the appellant is disentitled from getting any relief from both the courts.
18. Although the learned counsel for the appellant has tried to feebly argue that since the Haroon Sulaiman Sait Foundation, as a partnership firm has not come into existence, so far, therefore, the goodwill of the name still belongs to him. Even the said plea is highly misplaced. Even if for the sake of argument, it were accepted that the goodwill belonged to the appellant's father prior to his demise, even then, under the Shariat Law, the goodwill would devolve not just to the appellant, but more so, to all the legal heirs, including his two sisters. Therefore, the appellant cannot claim to be the sole and exclusive inheritor of the goodwill.
19. A bare perusal of the counter-claim filed by the appellant clearly reveals that he has filed the counter-claim for declaration, that is to declare him as the owner of the name "The Only Place". Again, even if his plea were to be accepted for the sake of argument that his father did have 16 the goodwill of the said name, even then, a declaration of ownership cannot be granted to the appellant as both of his sisters have share in the goodwill. Since the main relief cannot be granted, obviously, the interim relief cannot be granted.
20. Though the learned counsel for the appellant has relied upon Section 2 (zc) read with Section 39 of the Act, but even the said provisions of law do not come to the appellant's rescue. For, as mentioned above, the goodwill of the name "The Only Place" would devolve down not only to the appellant, but even his two sisters in case the appellant's plea that the goodwill belonged to his father were to be accepted. Hence, the appellant has failed to establish a prima-facie case in his favour.
21. Since the first ingredient required for grant of temporary injunction is conspicuously missing, the learned Judge was justified in dismissing the appellant's application for temporary injunction. Moreover, since this appeal can be decided on the ground of non-existence of a prima-facie case in favour of the appellant, this court need not discuss the 17 other pleas raised by the appellant and countered by the respondent.
22. For the reasons stated above, this court does not find any merit in the present appeal. It is, hereby, dismissed.
23. However, it is clarified that the observations made in this order are merely preliminary. Therefore, they should not affect the final outcome of the suit. The learned Trial Court is expected to decide the suit, strictly in accordance with law.
Sd/-
JUDGE Np/-