Bombay High Court
Cargill India Pvt. Ltd vs M M Oil Enterprises on 16 May, 2019
Author: S.J.Kathawalla
Bench: S.J. Kathawalla
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
NOTICE OF MOTION NO. 1107 OF 2019
IN
COMIP SUIT NO. 425 OF 2017
Cargil India Private Limited )... Applicant
IN THE MATTER BETWEEN :
Cargil India Private Limited )
A company incorporated under the laws of India and )
having its office at No. 1005, Ambience Court Plot No.2, )
Sector 19-D, Vashi, Navi Mumbai - 400 703, Maharashtra )
and having its registered office at Y-65, Ground Floor, Hauz )
Khas, New Delhi - 110016 )... Plaintif
Versus
M/s.M.M.Oil Enterprises, )
having its office at Gala No. 962, Plot No. K-4, Village Pimpri)
Mumbai-Pune Highway, District : Pune - 400 612 )
Maharashtra )... Defendant
Mr.Rohan Kadam a/w. Ms.Chaitrika Patki i/b. Anand and Anand and Khimani for the
Applicant / Plaintif.
Mr.Pol i/b. Pol Legal Juris for the Defendant.
Mr.Aslam Noor Mohammad Siddiqui - Proprietor of the Defendant, present in
person.
CORAM : S.J. KATHAWALLA, J.
DATED : 16TH MAY,2019
(IN CHAMBERS)
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JUDGMENT :
1. The above Notice of Motion is taken out by the Plaintif - Cargil India Private Limited under Order 39, Rule 2-A of the Code of Civil Procedure, 1908.
2. The facts which have led to the filing of the above Notice of Motion, are briefly set out hereunder :
2.1. The Plaintif is a wholly owned subsidiary of Cargil Inc., a US multinational corporation, and is doing business in India since 1987. The Plaintif was incorporated under the Companies Act, 1956 in the year 1996. The Plaintif is inter alia engaged in the business of manufacturing, trading, sale and supply of edible oils. The Defendant is a proprietary concern of one Aslam Noor Mohammad Siddiqui, and is engaged in the business of production and supply of edible oils.
2.2. On 15th March, 2017, the above Suit was filed by the Plaintif against the Defendant for copyright infringement and passing of. This action was instituted by the Plaintif on the grievance that the Defendant had committed passing of by adopting a deceptively similar trademark "GENUINE-Refined Sunflower Oil" vis-à-
vis the Plaintif's reputed "GEMINI-Refined Sunflower Oil". It is also the Plaintif's case that the Defendant's adoption of its deceptively similar trade dress, infringed its copyrights in its "GEMINI-Refined Sunflower Oil" product packaging. The pictorial comparison of both the products is reproduced below : ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 :::
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PLAINTIFF'S PACKAGING DEFENDANT'S IMPUGNED
PACKAGING
2.3. Pursuant to the filing of the above Suit, the Plaintif filed Notice of Motion No.968 of 2017 for interim reliefs.
2.4. By an Order dated 23rd March, 2017, this Court granted ex-parte ad-interim reliefs in terms of prayer Clauses (a) to (c) of Notice of Motion No. 968 of 2017, which prayers are reproduced hereunder :
"(a) pending the disposal of the Suit, restrain the Defendant, its proprietors or partners, as the case may be, its officers, servants, agents, distributors, stockists and representatives from infringing the Plaintif's copyright in its various artwork used as its packaging and trade dress and as contained in Exhibit E.
(b) pending the disposal of the Suit, restrain the Defendant, its partners or proprietors, as the case may be, its ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 4 / 30 NMCDL-908-2019-Final.doc officers, servants, agents, distributors stockists and representatives from using, manufacturing, selling and/or ofering for sale, advertising, exporting, importing, directly or indirectly in any manner dealing in edible oils and other goods and/or services under their "GENUINE" mark / label or using such packaging / artwork / label / trade dress in any other manner whatsoever that is identical or deceptively similar to that of the Plaintif and thereby passing of its goods and services as that of the Plaintif.
(c) pending the disposal of this suit appoint the Court Receiver, High Court, Bombay as Court Commissioner(s) to visit the premises of the Defendant and to search the premises of the Defendant for impugned packaging and other material used by the Defendant in respect of its products that are identical or deceptively similar to the Plaintif's mark / label / trade dress or packaging and to seize and take possession of the same.
9. The Court Receiver, at this stage, is to make an inventory of the infringing goods with the ofending mark, packets and labels bearing the ofending packaging / trade dress and seal them in the premises of the Defendant (which includes any person claiming by, through or under it). For this purpose, the Court Receiver will be at liberty to the assistance of the Local Police Authorities, who will act on production of an authenticated copy of this order."
2.5. On 24th March, 2017, this Court directed the Court Receiver to carry out a ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 5 / 30 NMCDL-908-2019-Final.doc search, take an inventory and seal of the impugned products / packaging material found at the Defendant's other premises at Thane.
2.6. The Receiver thereafter carried out a search of the Defendant's premises at Thane on 6th April, 2017. On that day and as documented in his Report, the Receiver found the following quantities of the impugned packaging and products in the Defendant's premises :
"i. Finished goods of Genuine Refined Sunflower Oil Sr.Nos. Description Quantity 1 15 Litre Cans 142 Cartons (1 Can per carton) 2 1 Litre Pouches (15 Pouches per carton) X 330 Cartons 3 5 Litre Cans (4 Cans per Carton ) X 125 Cartons) ii. Packing material of Genuine Refined Sunflower Oil 1 Empty 1 Litre Pouch 14.345 kg roll 2 Empty 5 Litre Carton 15 pcs."
2.7. The Receiver in his Report dated 6 th April 2017, has recorded that the Defendant was not only served by the Plaintif with the Order, Plaint and Notice of Motion, but the purpose of the Receiver's visit and the purport of the Order was also explained by him to the Defendant. The Defendant signed the report, and also executed an Undertaking / Indemnity Bond by which he undertook, inter alia, to ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 6 / 30 NMCDL-908-2019-Final.doc preserve the material that had been sealed by the Receiver. 2.8. Notice of Motion No. 968 of 2017 was thereafter taken up for final hearing and by an Order dated 12th April, 2017, this Court made the same absolute, and held as follows :
"1. Copies of the Notice of Motion and Plaint are served. None appears for the Defendants despite service. An Affidavit of Service is filed.
2. For the reasons set out in the ad-interim order dated 23 rd March 2017, it is confirmed as the final order on this Notice of Motion. In addition, there will be an interim order in terms of prayer clause (b) of the Notice of Motion in respect of the relief in passing of.
3. The Notice of Motion is made absolute in these terms with costs. In addition, the Plaintifs will be entitled to recover the actual costs of this Notice of Motion at the final hearing of the Suit.
4. It is noted that the Court Receiver appointed under the ad- interim order has made an inventory and sealed curtain goods with the ofending mark."
2.9. Thus, the Plaintif's Notice of Motion No. 968 of 2017 was made absolute with Receivership of the sealed goods, continuing till disposal of the Suit. Furthermore, the Court noticed that the Defendant had been served. 2.10. The Defendant thereafter also entered appearance through an Advocate and ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 7 / 30 NMCDL-908-2019-Final.doc through him filed the Written Statement notarized on 18th May, 2017. The Defendant had therefore sought, and was under legal advice.
2.11. In or around January 2019, the Plaintif learnt from market sources that the Defendant in breach of the Order dated 12th April, 2017, had recommenced manufacturing, packaging and selling of the impugned products i.e. "GENUINE- Refined Sunflower Oil".
2.12. The Plaintif thereafter carried out a market search through its sales team. Through this search, the Plaintif learnt that the Defendant had recommenced its manufacture, production and sale of the impugned products. The Plaintif's sales team also purchased the impugned products from a retailer viz. M/s. Shri Krishna Store located at R.R. Thakur Road, Jogeshwari (East), Mumbai - 400 060. 2.13. The factum of the Defendant having recommenced his exploitation of the impugned trade dress and mark, is borne out from photographs annexed at Exhibit "B" to the Additional Affidavit of the Plaintif dated 3 rd April 2019. The pouch that has been photographed (at Page 38 of the Notice of Motion record ) bears an embossed manufacturing date of December 2018, well after the Court made the Notice of Motion No.968 of 2017 absolute on 17th April 2017. The said photographs of the impugned product are reproduced hereunder:
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FRONT BACK
2.14. It is in the backdrop given above that the Plaintif filed the above Notice of Motion under Order 39, Rule 2A of the Code of Civil Procedure, 1908, seeking the following reliefs :
"(a) An order of this Hon'ble Court appointing the Court Receiver, High Court, Bombay with all powers under the Code of Civil Procedure, 1908, to visit the premises of the Defendant at 1) Gala No.962, Plot No.K-4, Village Pimpri, Mumbai Pune Highway, District Pune - 400 612, Maharashtra; and (2) Near Mangalmurti Petrol Pump / Ekta Weighbridge, Dahisar Mori, Shil Phata, Dist. Thane - 400 612 and to search the premises of the Defendant for impugned products, impugned packaging as depicted at ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 9 / 30 NMCDL-908-2019-Final.doc Exhibit "F" and other material used by the Defendant in respect of its products that are identical or deceptively similar to the Plaintif's mark / label / trade dress or packaging and to seize, take possession and to destroy the impugned packaging as depicted at Exhibit - "F".
(b) Appropriate Orders of this Hon'ble Court for punishing the Defendant for disobeying the Court's Order of 12 th April 2017 (at Exhibit - "E") passed in Notice of Motion No.968 of 2017 by:
(i) Ordering detention of the Defendant in civil prison.
(ii) Ordering attachment of the Defendant's premises and all machinery, plants and/or fixtures found therein at the address described at Exhibit - "G".
(iii) Directing the Defendant to disclose on oath and by Affidavit, his assets (both immovable and movable including cash, bank accounts, fixed deposits, shares, etc.) and upon such disclosure to thereafter pass necessary Orders of attachment in respect thereof.
(c) An order directing the Defendant to file an Affidavit of Disclosure and disclose on oath, the exact quantum of sale proceeds, revenue and profits generated by sale of the impugned products (depicted at Exhibit - "F") that has been carried out in breach of the Court's Order dated 12 th April 2017 (at Exhibit- "E") and to further disclose the identity of wholesalers / retailers / agents / distributors / servants to whom and through whom the said products have / are being sold."::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 :::
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3. On 1st April, 2019, this Court was moved in the above Notice of Motion, when it was pointed out to this Court by the Advocate for the Plaintif, that in breach of the earlier Order passed by this Court, the Defendant had recommenced its manufacturing, packaging and sale of the impugned product i.e. "GENUINE-Refined Sunflower Oil". This Court after expressing its prima facie satisfaction that a case for appointment of a Court Receiver has been made out, passed an Order in terms of prayer Clause (a) of the above Notice of Motion, which prayer is reproduced hereinabove.
4. Pursuant to this Order, the Receiver carried out searches at the Defendants' addresses at Pune and Thane. The Receiver has since filed his Reports both dated 4 th April 2019 with the Court
5. In respect of his visit to the Defendant's premises near Mangalmurti Petrol Pump / Ekta Weighbridge, Dahisar Mori, Shil Phata, Dist. Thane - 400 612, the Receiver recorded the following facts :
"3....We then contacted Mr. Aslam Noor Mohd. Sidhique, Proprietor of Defendant. I showed him my identity card and explained the purpose of our visit to him by showing aforesaid Court's Order and requested him to allow us to take search of the factory premises.
After knowing the purpose of our visit he allowed us to take search of aforesaid factory premises three floors. We then ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 11 / 30 NMCDL-908-2019-Final.doc along with representative of Plaintif and in the presence of Police took search / inspection of factory premises and I found "genuine" refined sunflower oil identical or deceptively similar to Plaintif product which was confirmed by the representative of Plaintif.
4. We then, in the presence of representatives of Plaintif, police assistance, Owner of Shop No.4 Office No.6 prepared the inventory of the goods, which is as under:
Sr. Name of Product Quantity
No.
1. 5 ltr "genuine" refined sunflower 90 Jar
oil empty.
2. 1 ltr 15 pouch X 30 carton Pouch
"genuine" refined sunflower oil 450
Carton
Finished goods
30
3. 15 ltr delux Jar X 3 carton Carton 30
Jar 30
"genuine" refined sunflower oil,
Finished goods
4. Stickers "genuine" refined 50
sunflower oil
Sr. Nos. 2 & 3 have been emptied of product oil despite request not to empty.
5. After completion of inventory work the proprietor of Defendant provided the place to keep the said material and by consent of present persons the said material shifted there and covered with tarpoline. We then affixed one possession board ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 12 / 30 NMCDL-908-2019-Final.doc and took possession of the said impugned product indicating the possession of Court Receiver, High Court, Bombay and seal the said goods. The proprietor of Defendant stated that no invoice or any other record with him. I obtained usual undertaking for safeguarding the impugned goods from proprietor of Defendant.
6.I also took inspection of previous Inventory in Notice of Motion (L) No.633 of 2017 prepared on 6 th April 2017 by this office representative, the said sealed impugned product was not found at the same location."
6. Thus, the Receiver's Report clearly discloses three glaring facts namely:
(i) that the finished goods with the impugned trade dress and mark were found on the premises;
(ii) that the Defendant without the Court's leave removed the oil from the pouches as well as the cans; and
(iii) the products seized and sealed by the Receiver pursuant to the Order passed by this Court dated 6th April, 2017 in Notice of Motion No. 968 of 2017, were disposed of by the Defendant, despite him having given a written undertaking to safeguard / preserve the said products which were custodia legis.
7. On 4th April, 2019, the Proprietor of the Defendant was personally present in Court and was also represented by his present Advocates. On this day, the Court enquired from the Defendant, through his Advocate, where the impugned products ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 13 / 30 NMCDL-908-2019-Final.doc seized and sealed by the Receiver pursuant to the Order passed by the Court dated 6th April, 2019 and left with the Defendant on an undertaking to preserve the same, were stored. The Defendant through his Advocate brazenly stated that the same were destroyed / eaten away by rats. When this Court enquired from the Advocate for the Defendant whether he believes the Defendant's submission that 142 cans of 15 liters each, containing a total of 2,130 liters of oil, 4,950 pouches of 1 liter each, containing a total of 4,950 liters of oil, 500 cans of 5 liters each, containing a total of 2,500 litres of oil and huge quantity of unused pouches and packing material, is all eaten away and destroyed by rats, the Advocate for the Defendant fairly conceded that he has only conveyed what he was instructed by the Defendant to say, and he too is unable to accept the Defendant's submission.
8. On 4th April, 2019, the Defendant also expressed a grievance that his erstwhile advocate (Mr. Sagar Bhandare) had not kept track of the matter. To address his grievance, the Court directed the erstwhile Advocate to remain present on 5 th April 2019. The Court further recorded the Defendant's undertaking that he would make the disclosures on Affidavit, as set out in the said Order.
9. On 5th April, 2019, Mr. Sagar Bhandare, the erstwhile Advocate of the Defendant was present before this Court. As noted by this Court in its Order dated 5th April, 2019, he informed the Court that since the Defendant had not contacted him since the year 2017, he has neither received any instructions from him nor his ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 14 / 30 NMCDL-908-2019-Final.doc professional dues. It is pertinent to note at this juncture, that inspite of having filed two Affidavits, the Proprietor of the Defendant has not rebutted the statements of his erstwhile Advocate and has thus accepted the same.
10. On 5th April, 2019, the Proprietor of the Defendant, who was personally present in Court, made a categorical statement that he had not manufactured and/or sold products under the impugned mark since 2017. This statement is recorded in the Order of 5th April 2019. The Court also noted in its Order that this statement was false, since the pouches sealed by the Receiver had an endorsed packing/manufacturing date of December, 2018. The Court found support for this conclusion after posing a query on the packing/manufacturing date to the Defendant, who could not provide any answer. The Court also took cognizance of the Receiver's observation made in his Report dated 4 th April 2019, that the Defendant had removed the oil from the impugned pouches and labeled cans in order to make a false denial that he had not manufactured or sold the impugned products. In this backdrop, this Court recorded that the Defendant was in the habit of making false statements. The matter was then stood over to 11th April, 2019, when on that date and upon the Defendant's request, proceedings were adjourned to 15 th April 2019 and thereafter from time to time the above Notice of Motion was heard finally.
11. The Learned Advocate appearing for the Plaintif has submitted that the Defendant has willfully disobeyed the Court's Order dated 12th April, 2017 by selling ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 15 / 30 NMCDL-908-2019-Final.doc the goods under the impugned trade dress and mark. Again, after the Court's Order dated 12th April, 2017, the Proprietor of the Defendant has disposed of the goods that were sealed by the Receiver on 6th April, 2017 and were consequently custodia legis, as regards which the Defendant had given a written undertaking to preserve and safe- guard the same. The Defendant was certainly not entitled to and therefore restrained from selling / disposing of the property which is custodia legis.
12. I have gone through the Plaint, earlier Notice of Motion No.968 of 2017, Orders passed therein, the above Notice of Motion, Affidavits filed therein and the Reports filed by the Receiver from time to time.
13. This Court is conferred with the jurisdiction under Section 94 (c) read with Order 39, Rule 2A of the Code Civil Procedure, 1908, to pass necessary orders against an individual / entity, who has disobeyed the injunctions passed by the Court. These provisions read as under :
"94. Supplemental proceedings.-
...
(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;"
"Order 39.
...
2-A. Consequence of disobedience or breach of
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injunction.-- (1) in the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release;
(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto."
14. Thus, notwithstanding its inherent jurisdiction vested under Article 215 of the Constitution, the High Court in its capacity as a Civil Court and pursuant to S.94(c) and Order 39 Rule 2A, retains judicial power to commit persons to prison and / or attach their property for disobedience of its orders.
15. In the present case, the Defendant is guilty of disobedience on two counts:
(i) The Defendant has admittedly sold goods under the impugned trade dress ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 17 / 30 NMCDL-908-2019-Final.doc and mark after the Court's Order of 12th April 2017, and
(ii) the Defendant has disposed of goods that were sealed by the Receiver on 6 th April, 2017, and which were consequently custodia legis.
16. In so far as the first count is concerned viz. breach of the Court's prohibitory injunctions, the same is clearly borne out by the photographs annexed to the Plaintif's Additional Affidavit dated 3rd April 2019 (which has not been disputed), the Receiver's Report dated 4th April 2019 (which has not been challenged) and the Defendant's own admissions in his Affidavits dated 11th April, 2019 and 18th April, 2019.
17. In his Affidavit dated 11th April, 2019, the Defendant has made the following admissions with respect to sale of the impugned products:
"5. I say that from all above said brands, as per the Books of Accounts, total turn-over of my company for the years 2016-17, 2017-18 and 2018-19 are 23,00,90,238/-, Rs.33,00,32,482/- and Rs.30,60,26,841/- respectively including the sale of "genuine" brand. Whereas, the sale of "genuine" brand as per the Books of Accounts of my company for the years 2016-17, 2017-18 and 2018-19 are Rs.1,05,56,887/-, Rs.1,26,74,652/- and Rs.1,02,87,245/- respectively..."
"9. I say that after understanding the true meaning of the order dated 1.4.2019 passed by this Hon'ble Court and the consequences thereof, I have stopped the sale of "genuine" Label."::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 :::
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18. The Court made Notice of Motion No.968 of 2017 absolute on 12 th April, 2017. On his own showing, the Defendant has made sales of Rs.2,29,61,897/- in the period between Financial Years 2017-18 and 2018-19, whilst the Court's prohibitory orders were in force. The aforequoted paragraphs further establish that the Defendant has only now claimed to have stopped his illegal exploits, which naturally presupposes that his activity had continued uninhibited, inspite of the Court's Order dated 12 th April, 2017.
19. In so far as the second count is concerned, neither of the Affidavits filed by the Defendant, even attempt to justify the sale of the goods sealed by the Receiver on 6th April, 2017 and which were custodia legis.
20. In this backdrop, it is but evident that the Defendant has breached the Court's prohibitory Orders of 12th April, 2017 and has also breached his undertaking to take care of the goods sealed by the Receiver as custodia legis.
21. The Defendant has by his second Affidavit dated 18 th April, 2019, sought to explain his breaches as follows :
"3. I say that I have been explained the contents of the Orders dated 1st April 2019 and 5th April 2019 in vernacular language by my advocate. He has also explained to me the implications of the said Orders passed by this Hon'ble Court. I hereby tender my unconditional apology before this Hon'ble ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 19 / 30 NMCDL-908-2019-Final.doc Court for the default occurred on my part in disobeying the Orders passed by this Hon'ble Court. I further say that I have full respect and faith on the judiciary and that there was no deliberate attempt on my part to disobey the orders of this Hon'ble Court. I say that the default occurred on my part was unintentional and was caused purely on account of poor knowledge of the implications of said orders passed by this Hon'ble Court.
4. I say and submit that I have filed my Written Statement in the matter and that I have been served with copies of Orders dated 23rd March 2017, 24th March 2017 and 12th April 2017. I do admit that I have also signed the Sight Inspection Report. However, I repeat and reiterate that I could not understand the consequences of the said Orders passed by this Hon'ble Court as there was no proper communication between me and my advocate. I say that I had given instructions to Mr. Bajaj, an advocate to handle and appear in the case and filed the Written Statement. I further say that neither me or my advocate was able to remain present before this Hon'ble Court on the dates of hearing when this Hon'ble Court had passed the Orders dated 23 rd March 2017, 24th March 2017 and 12th April 2017, and as a result, I were not made aware of or explained the contents of the said Orders passed by this Hon'ble Court."
22. Thus, the Defendant has taken a plea that he did not understand the purport ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 20 / 30 NMCDL-908-2019-Final.doc and content of the Court's Orders. The reasons attributed to this alleged lack of understanding, are claims that he does not understand English very well and that there was no proper communication with his erstwhile advocates.
23. I am satisfied that these claims are wholly false, untenable and betrayed by the record, for the following reasons :
(a) First, the Defendant himself admits that he has been served with copies of the Orders dated 23rd March, 2017, 24th March, 2017 and 12th April, 2017. The Receiver's Report of 6th April, 2017, which was pursuant to the Court's Order dated 23rd March, 2017, clearly records the fact that the Defendant was informed of the purpose of the Receiver's visit and of the Court's Order. It also records the fact that the Plaintif had served the Plaint, Notice of Motion, Affidavit-in-Support and the Order of 23rd March, 2017 on the Defendant. Thus, the Defendant was educated about the Court's Order dated 23rd March, 2017. There is no challenge to the Receiver's Report dated 6th April, 2017, and thus he has accepted this account of facts.
(b) Second, the falsity in the Defendant's claims of want of understanding of the Court's Order, is even otherwise betrayed by false statements before the Court on 5th April, 2019 and recorded by it in its Order of the same date. As already submitted above (See para 21 (c) supra), the Defendant had made a false statement that he had not been exploiting the impugned trade dress and mark since 2017. There is no question of making this statement had the Defendant been unaware of the Court's ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 21 / 30 NMCDL-908-2019-Final.doc Orders of 23rd March, 2017 and 12th April, 2017. By dint of making this statement, the Defendant betrayed his awareness that he had been restrained under the Court's Orders, since there was no reason to contend otherwise. The Court further observed that this statement was false in its Order of 5 th April, 2019. The Defendant has since contradicted his own stand that he has not exploited the impugned mark and trade-
dress since he has now admitted on Affidavit to making sales of Rs.2.2 Crores after the Court's Order.
(c) Third, the Defendant's claim of "lack of understanding" is even otherwise untenable since he had entered appearance through Advocates and has filed a written statement defending his cause. This written statement has been affirmed by the Defendant before a Notary and has been signed by him in English. It is thus frivolous to implicitly suggest that these pleadings have been filed without taking stock of and understanding the Court's Orders of 23rd March, 2017 and 12th April, 2017. Even in the present proceedings, the Defendant has filed affidavits in English and which have been signed by him in English.
(d) Fourth, the Defendant on his own showing enjoys the turnover of approximately Rs.25 to 30 crores. Thus, far from the charade of ignorance now sought to be played, the Defendant is in fact a commercially savvy businessman.
(e) Fifth, the Defendant's dishonest conduct is even otherwise apparent from the Receiver's Report dated 4th April, 2019. Inspite of the Receiver's request, the ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 22 / 30 NMCDL-908-2019-Final.doc Defendant without leave of this Court emptied out the cans and pouches of the impugned goods. Plainly, the Defendant has no qualms with disobeying orders or acting illegally.
(f ) Sixth, the Court's Order of 12th April, 2017 is clear, express and unambiguous. The Defendant was also served with the Plaint, the Affidavit-in- Support and the Notice of Motion. The said Order is not open to any other interpretation. The Defendant's claim of lack of understanding is not a permissible legal defense.
(g) In these premises, the Defendant's claims of lack of understanding are frivolous and lack merit.
24. The Defendant has since sought to tender an apology by way of his final Affidavit dated 18th April, 2019. The Defendant has pleaded thus :
"5. Without prejudice to the above, I hereby tender my sincere and unconditional apology before this Hon'ble Court for the inconvenience caused or wasting the valuable time of this Hon'ble Court by non-compliance of the Orders passed by this Hon'ble Court on 23 rd March 2017,24 th March 2017 and 12 th April 2017. I repeat and reiterate that I have the highest regard and respect for this Hon'ble Court and never intends to show any disrespect or disregard to the orders of this Hon'ble Court and always try my level best to comply with the order of the Court of law as early as possible. I humbly submit that lapses occurred on ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 23 / 30 NMCDL-908-2019-Final.doc my part in the present case is purely unintentional and were occurred on account of my poor understanding of the manner and/or the language in which the said Orders have been passed. I do admit the mistake on my part of not getting the same understood from my advocate. I say that there was no deliberate attempt on my part to disobey the orders of this Hon'ble Court. I, therefore, pray that this Hon'ble Court be pleased to consider my above humble submissions and give me a chance to rectify my mistake by showing some leniency and pardon me for the said lapses occurred on my part which has inconvenienced this Hon'ble Court. I beg to submit this Hon'ble Court with folded hands that I hereby tender my sincere and unconditional apology for the same and this Hon'ble Court may pardon me."
25. Although an attempt has been made to couch his apology as an 'unconditional' one, the Defendant has even now sought to justify his breach on the same claim that he was unaware of this Order and that he made mistakes " of not getting the same understood from my advocate". This claim has since been demonstrably proven to be false. Thus the apology rendered is neither unconditional nor sincere. In these premises, the Defendant's apology is wholly lacking in contrition to be accepted at law.
26. The timing of this apology too betrays the factum of it being a false statement of remorse. The Defendant has only now sought to apologize after his ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 24 / 30 NMCDL-908-2019-Final.doc conduct of making false statements was noticed in the Order of 5 th April, 2019. It has come only at a juncture, when the Court has decided to hear the matter and pass necessary Orders.
27. In Mulk Raj v. State of Punjab 1, the Hon'ble Supreme Court laid down the following test for accepting an apology, when it held:
"9. Apology is an act of contrition. Unless apology is ofered at the earliest opportunity and in good grace apology is shorn of penitence. If apology is ofered at a time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and it becomes an act of a cringing coward. The High Court was right in not taking any notice of the appellant's expression of apology "without any further word". The High Court correctly said that acceptance of apology in the case would amount to allow the ofender to go away with impunity after having committed gross contempt.
28. In this context, in paragraph 18 the Hon'ble Supreme Court, in the case of T.N.Godavarman Thirumulpad through the Amicus Curiae Vs. Ashok Khot and Another2, held as under :
"18. The inevitable conclusion is that both the contemnors 1 and 2 deliberately flouted the orders of this Court in a brazen manner. It cannot be said by any stretch of imagination that 1 1972 3 SCC 839 2 AIR 2006 SC 2007 ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 25 / 30 NMCDL-908-2019-Final.doc there was no mens rea involved. The fact situation clearly shows to the contrary. Learned counsel appearing for contemnor No.1 and 2 stated that they have tendered unconditional apology which should be accepted. Apology is an act of contrition. Unless apology is ofered at the earliest opportunity and in good grace, the apology is shorn of penitence and hence it is liable to be rejected. If the apology is ofered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward. Apology is not a weapon of defence to purge the guilty of their ofence, nor is it intended to operate as universal panacea, but it is intended to be evidence of real contriteness. As was noted in L.D. Jaikwal v. State of Uttar Pradesh (AIR 1984 Cri.LJ 993) "We are sorry to say we cannot subscribe to the 'slap-say sorry-and forget' school of thought in administration of contempt jurisprudence. Saying 'sorry' does not make the slipper taken the slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology and expression of sorrow should come from the heart and not from the pen. For it is one thing to 'say' sorry- it is another to 'feel' sorry".
29. Similarly, in Patel Rajnikant Dhulabhai & Anr v. Patel Chandrakant Dhulabhai & Ors 3, the Hon'ble Supreme Court rejected a tactical and delayed 3 2008 14 SCC 561 ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 26 / 30 NMCDL-908-2019-Final.doc apology :
"74. In Hiren Bose, Re [AIR 1969 Cal 1: 72 Cal WN 82] the High Court of Calcutta stated: (AIR p. 3, para 13) "13. ... It is also not a matter of course that a Judge can be expected to accept any apology. Apology cannot be a weapon of defence forged always to purge the guilty. It is intended to be evidence of real contrition, the manly consciousness of a wrong done, of an injury inflicted and the earnest desire to make such reparation as lies in the wrong-doer's power. Only then is it of any avail in a court of justice. But before it can have that efect, it should be tendered at the earliest possible stage, not the latest. Even if wisdom dawns only at a later stage, the apology should be tendered unreservedly and unconditionally, before the Judge has indicated the trend of his mind. Unless that is done, not only is the tendered apology robbed of all grace but it ceases to be an apology. It ceases to be the full, frank and manly confession of a wrong done, which it is intended to be."
75. It is well settled that an apology is neither a weapon of defence to purge the guilty of their ofence, nor is it intended to operate as a universal panacea, it is intended to be evidence of real contriteness (vide M.Y. Shareef v. Hon'ble Judges of the High Court of Nagpur [AIR 1955 SC 19 : (1955) 1 SCR 757] ; M.B. Sanghi v. High Court of Punjab & Haryana [(1991) 3 SCC 600 : 1991 SCC (Cri) 897 : (1991) 3 SCR 312] ).
76. In T.N. Godavarman Thirumulpad (102) v. Ashok Khot ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 27 / 30 NMCDL-908-2019-Final.doc [(2006) 5 SCC 1] , a three-Judge Bench of this Court had an occasion to consider the question in the light of an "apology" as a weapon of defence by the contemnor with a prayer to drop the proceedings. The Court took note of the following observations of this Court in L.D. Jaikwal v. State of U.P. [(1984) 3 SCC 405 : 1984 SCC (Cri) 421] : (Ashok Khot case [(2006) 5 SCC 1] , SCC p. 17, para 32) "32. ... We are sorry to say we cannot subscribe to the 'slap'say sorry--and forget' school of thought in administration of contempt jurisprudence. Saying 'sorry' does not make the slapper taken the slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology and expression of sorrow should come from the heart and not from the pen. For it is one thing to 'say' sorry-- it is another to 'feel' sorry."
The Court, therefore, rejected the prayer and stated: (SCC p. 17, para 31) "31. Apology is an act of contrition. Unless apology is ofered at the earliest opportunity and in good grace, the apology is shorn of penitence and hence it is liable to be rejected. If the apology is ofered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward."
Similar view was taken in other cases also by this Court.
77. We are also satisfied that the so-called apology 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 ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 28 / 30 NMCDL-908-2019-Final.doc and with a view to ward of 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. In our considered opinion, on the facts and in the circumstances of the case, imposition of fine in lieu of imprisonment will not meet the ends of justice."
30. In the present case, the Defendant's apology lacks "penitence" and rings hollow. His apology has neither been made at the earliest opportunity, nor in good grace. It has only been made at this late juncture to avoid punishment. Though couched as 'unconditional', it is qualified by a claim (now found to be false) that the Defendant lacked knowledge and awareness of the Court's Orders., It is a clear, cynical and desperate gambit by a litigant to escape penal liability for his willful and wanton disobedience of the Court's Order of 12 th April, 2017. For these reasons, the Defendant's apology fails to meet the law's requirement, that it be a bonafide act of contrition. Consequently, it must be rejected.
31. This Court has repeatedly noted and also recorded in some of its orders that an unhealthy trend seems to have set in amongst a section of litigants, who often brazenly and with impunity flout provisions of law and / or orders passed by Courts. At such times, the Court cannot be a mute spectator, but needs to step in and be proactive in stopping this unhealthy trend, which would otherwise corrode the faith of the common man in the Judiciary, as a means of redressing his grievances. ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 :::
Nitin 29 / 30 NMCDL-908-2019-Final.doc
32. The Defendant through his Advocate prayed for leniency. The Defendant has despite the Order of Injunction dated 12 th April, 2017, restraining him from manufacturing and selling the impugned goods, has brazenly breached the said Order as set out in paragraph 2.11, 2.12 & 2,13 hereinabove. The Proprietor of the Defendant has also disposed of / dealt with the impugned goods, which the Receiver had seized and sealed on 6th April, 2017 and had left the same with the Proprietor of the Defendant on an undertaking that he will keep the same in safe custody. The Proprietor of the Defendant at the initial stage went to the extent of making a false statement through his Advocate that the huge jars and pouches containing thousands of liters of edible oil have been eaten away by rats. Such a Defendant certainly cannot be shown any leniency in sentencing. The lenient sentence in this case would mean and send a message to society at large that the Court is itself not outraged by the flagrant disregard shown by the Proprietor of the Defendant and is adopting a 'forgive and forget' policy. In doing so, the Court would be doing grave injustice to the Plaintif, who for no fault of their own, have been put through a long and protracted round of litigation. It would further indicate that litigants can disobey the orders of the Court with impunity and still be shown mercy and forgiveness by the Court. Such a trend, in my opinion, would destroy the very principle of deterrence, which punishments are intended to serve.
33. When this Court indicated to the parties that the Court is proceeding to pass ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 ::: Nitin 30 / 30 NMCDL-908-2019-Final.doc an order sentencing the Proprietor of the Defendant to eight weeks simple imprisonment in a Civil Prison, the Proprietor of the Defendant along with his Advocate have come forward and informed the Court that the Proprietor of the Defendant accepts that he has breached the Orders passed by this Court and has also dealt with the material/goods, which was custodia legis, and that he accepts the punishment of eight weeks in Civil Prison, but in view of the holy month of Ramzan, he be allowed to surrender for undergoing the sentence of eight weeks on 14th June, 2019, at 10.00 a.m. before the Police Station or before this Court. The Proprietor of the Defendant has also given a written undertaking to that efect in his own hand writing. The same is taken on record and accepted as an undertaking given to this Court. In view thereof, the following Order is passed :
i. The Proprietor of the Defendant - Mr.Aslam Noor Mohammad Siddiqui is sentenced to undergo eight weeks simple imprisonment in Civil Prison. ii. Office to issue Warrant of Arrest against the Proprietor of the Defendant - Mr.Aslam Noor Mohammad Siddiqui, which shall be executed on 14th June, 2019 by the Sr.Inspector/Officer on Duty of Azad Maidan Police Station, Mumbai, when the Proprietor of the Defendant surrenders before him on 14th June, 2019 at 10.00 a.m. iii. The Plaintif shall deposit an amount of Rs.2,000/- towards diet charges. iv. The above Notice of Motion is accordingly disposed of.
( S.J.KATHAWALLA, J. ) ::: Uploaded on - 29/05/2019 ::: Downloaded on - 09/04/2020 20:57:59 :::