Calcutta High Court
Pic Departmentals Pvt. Ltd vs Sreeleathers Ltd on 9 October, 2018
Equivalent citations: AIRONLINE 2018 CAL 1592
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
OD-11
ORDER SHEET
GA 2932 OF 2018
WITH
CS 549 OF 1999
GA 2427 OF 2017
GA 693 OF 2017
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
PIC DEPARTMENTALS PVT. LTD.
Versus
SREELEATHERS LTD.
BEFORE:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
Date : 9th October, 2018.
Appearance:
Mr. Surajit Nath Mitra, Sr. Adv.
Mr. Sankashan Sarkar, Adv.
Mr. Nirmalya Dasgupta, Adv.
...for the plaintiff
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Sarvapriya Mukherjee, Adv.
Mr. Sumanta Biswas, Adv.
Mr. Arnab Sardar, Adv.
Mr. Binash Shaw, Adv.
...for the defendant.
The Court : This is an application filed by the defendant for vacating
an order passed by this Court on 7th June, 2018. The prayer for such is framed
in the following manner :
2
"The order dated 7th June 2018 passed by the Hon'ble Justice
Moushumi Bhattacharya in G.A. No.2427 of 2018 in Civil Suit 549 of 1999
be vacated and in the alternative, the applicant's counsel be discharged of
the assurance as recorded in the said order."
The prayer is required to be set out since the order dated 7th June,
2018 recorded the submission made by counsel appearing for the defendant that
the construction, which is the subject matter of dispute, will remain in the same
position until the matter is heard out.
The instant matter comprises of two adjoining shops on Lindsey
Street, opposite to the New Market. The plaintiff's shop is "Sumangal"; the
defendant's shop is "Sreeleathers". The dispute appears to be a case of jostling
for space and visibility by reason of a narrow lane separating the porticos of the
two shops. Besides displaying its shop name, Sumangal, the plaintiff displays
additional boards consisting of the brands of apparel which the plaintiff
presumably sells. From the pictures shown to the Court, the display boards are
of US Polo Assn., Louis Philippe and Peter England. The last board of Peter
England is the centre of the present controversy.
For a clearer understanding, it is necessary to go back to 1999 when
the plaintiff filed the suit praying for, inter alia, a declaration that the plaintiff is
exclusively entitled to put up and maintain signboards on all the three sides of
the portico in front of its shop on Lindsay Street and for a decree of perpetual
3
injunction restraining the defendant from interfering with the right of the plaintiff
to the use and enjoyment of the outer walls of the portico in front of the plaintiff's
shop. By an order dated 1st October, 1999, passed in a connected application for
interim relief, the defendant was restrained from interfering with the repair and
renovation of the signboards of the plaintiff on the portico in front of the
plaintiff's shop.
A second application was filed by the plaintiff sometime in 2017
being GA 2427 of 2017 for restraining the defendant from putting up any
signboard or signage at the outer wall of the defendant's shop room by blocking
any portion of the signboards of the plaintiff. Prayer (a) of the application is
required to be set out for putting the present dispute in context.
"a) An order of injunction be passed restraining the
respondent, its men, servants, agents, aides and/assigns from in any way
putting up any signboard/signage at the outer wall of its shop room by blocking any portion of the signboards of the petitioner and/or encroaching upon any part of the western outer wall and/or portico of the petitioner's shop room and without leaving sufficient gap in between such signboard and the existing signboards of the petitioner on the western outer wall and/or portico of the petitioner's shop in any manner whatsoever;"
It is the western outer wall of the portico in front of the plaintiff's shop "Sumangal" which displays the board containing Peter England. The display 4 board of Peter England is a pattern of squares in bright red and green with a rectangular navy-blue containing the words 'Peter England' together with a surrounding area of light blue bordered by red which is the totality of the display board, which is presently being used by the plaintiff on the western outer wall of its portico.
By an order dated 10th August, 2017 on the second application the Hon'ble Justice Sahidullah Munshi was pleased to appoint a Special Officer to ascertain whether there has been any encroachment upon the plaintiff/petitioner's existing signboard by the defendant/respondent's display board containing the word "Sreeleathers". The Special Officer appointed was directed to take inspection of the existing signboard of the petitioner and the proposed steel frame structure fixed on the outer wall of the respondent and to take photographs to ascertain the exact gap between the signboard of the petitioner and the proposed steel frame of the respondent. It appears that the second application of the plaintiff was necessitated by reason of a display board proposed to be put up on the steel structure by the defendant and the perceived obstruction it would cause to the plaintiff's display board of Peter England. The Special Officer filed a report on 31st August, 2017 with his observations and photographs showing the state of affairs as of August, 2017. This application has not been disposed of.
A few of the photographs taken by the Special Officer would show the basis of the apprehension of the plaintiff vis-a-vis the proposed steel frame of the 5 defendant in restricting the visibility of the plaintiff's display board 'Peter England' taken in its totality. It must be mentioned that the photographs taken by the Special Officer shows a bamboo structure superimposing the steel frame and extending much beyond the steel frame both sideways as well as in front.
Mr. Abhrajit Mitra, Senior Counsel appearing for the defendant in support of the instant application primarily cites the order passed on 7th June, 2018 by which an assurance was given by him that the construction, which is the subject matter of the dispute, will remain in the same position until the matter is finally heard out. Mr. Mitra submits that the aforesaid assurance may come in the way of the defendant replacing the present plastic flexi signage sheet with a signboard made of Aluminum Composite Panel (ACP) in front of the defendant's shop. It is submitted that the ACP Board which the defendant now seeks to put up will have a thickness not exceeding six millimeters. The reason cited in the application for replacing the present plastic signage is the volume of sales during the festival season which would require a more stable signage/display board in front of the defendant's shop. Counsel relies on the report of the Special Officer and submits that the Special Officer found that as things were in August 2017, there was no encroachment of the plaintiff's signboard by the metal frame structure of the defendant. Counsel also raises the issue of the plaintiff's disputed title to the property in question and the fact that the trade mark Peter England only consists of the rectangular red, green and navy blue components of the display board without the outer grey area with the 6 red border. He submits that a permanent signage on the metal frame in front of the defendant's shop will not result in any encroachment on the plaintiff's signboards including that of the Peter England signboard.
Mr. Surajit Mitra, Senior Counsel appearing for the plaintiff opposes the instant application primarily on the ground that the second application filed by the plaintiff being GA No. 2427 of 2017 has not yet been disposed of and that no ground has been made out by the defendant for seeking further orders. Counsel expresses reservations on the report of the Special Officer as according to him the Special Officer went beyond the mandate of the order dated 10th August 2017. He also expresses concern in the event the defendant is permitted to put an ACP Board of the dimensions of the metal frame as that would result in substantial coverage of the plaintiff's Peter England signboard. His main opposition is grounded on the submission that if the defendant is permitted to put up a permanent signboard covering the area of the metal frame, then the second application will become infructuous. He urges that GA 2427 of 2017 (the plaintiff's second application) filed by the plaintiff should expeditiously be heard out.
I have considered the submissions of counsel for the parties and the photographs annexed to the Special Officer's report of 2017 as well as those annexed to the present application which are of September 2018.
The present controversy is no doubt a result of the cramped position of the two adjacent shops, namely, 'Sumangal' and 'Sreeleathers' and the right to 7 visibility of parts of their respective porticoes on which the signboards are displayed. A few of the photographs taken by the Special Officer show the actual state of affairs as was existing in September 2017. Of these, the photograph at page 32 of the Special Officer's report shows that the metal frame as it was in August, 2017 covers about a sixth of the plaintiff's Peter England display board taken in its totality. In fact the metal frame covers the right side and both the right corners of the Peter England board and leaves a fraction of the white border on the right hand area adjoining the green red and dark blue portion of the Peter England signage visible. This is of course disregarding the bamboo structure which Mr. Abhrajit Mitra assures would be brought down immediately after the steel framed structure is fixed for the purpose of the advertisement board of the respondent. This assurance had also been made and recorded in the order dated 10th August, 2017. The photographs at pages 63 and 65 of the instant application of the defendant gives an idea of the real possibility of a substantial part of the plaintiff's board being guarded from the view of an onlooker facing both the shops particularly from across the road. The present state of affairs i.e. as of September, 2018, is reflected in the photographs annexed to the instant application. The metal frame is covered by the bamboo structure in front of the defendant's shop and a blue and white plastic flexi sheet has been strung up outside the defendant's shop. The plastic signage has lesser dimensions compared to both the metal frame as well as the bamboo structure. It is evident from the photographs that the plastic flexi sheet is not attached to the metal 8 frame but has been independently attached and that there is a gap between the periphery of the plastic sheet and the metal frame. The plastic signage is smaller than the metal frame and there is a noticeable gap on the left side between the two.
What the defendant proposes to do now is to put up a more permanent signboard on the metal frame without resiling from the assurance given by counsel on 7th June, 2018. The limited scope of enquiry is whether allowing the defendant to increase the area coverage of the present plastic signage to fill the additional dimension of the metal frame would prejudice the right of the plaintiff as urged in the plaintiff's second application or make such application infructuous. As stated above, the second application has not been finally heard out as yet. It should be pointed out that apart from appointment of a Special Officer to ascertain the correct position in relation to the apprehended encroachment, no further orders were passed in the second application of the plaintiff. After the Special Officer was appointed, the matter was made returnable in August, 2017. On 7th June, 2018, there was a direction for affidavits in the plaintiff's second application and the assurance of Mr. Abhrajit Mitra was recorded. The question would then be; has there been any subsequent fact necessitating filing of the present application by the defendant?
From the photographs annexed to the application compared with those annexed to the Special Officer's report spanning an intervening period of one year, it does not appear that there has been any change in terms of either 9 additional signboards being put up or a change of position of any of the existing signboards or even an additional structure/super structure being put up in front of the signboards which would merit an application being filed on behalf of either of the parties. The present application states that the highest volume of sales takes place between Mahalaya and Kalipuja and without a proper signage, the defendant will suffer substantial prejudice and loss of business. The application was filed in October, 2018 and the photographs annexed particularly those at pages 63 to 65 show that even without a more permanent signage, the defendant is enjoying considerable sales of its shoes in the season which matters to most traders. Second, the white and blue plastic sheet has been in place outside the defendant's shop from August, 2017 as reflected in the Special Officer's report and the photographs taken in September 2018. Hence, there does not appear to be any basis for the apprehension of the defendant that it would suffer loss of business on account of lack of proper signage. The defendant's shop Sreeleathers is very well known and has been located on Lindsay Street for more than three decades. Loss of business during peak sales season may result from shoppers not knowing the location of a shop or being confused whether an existing shop has moved elsewhere or where an existing shop does not have any indication at all to direct shoppers to it. The cause of any of the aforesaid can be lack of proper information available to purchasers or an absence of signages/display boards which would direct the shoppers to go to a certain store for buying the products which the buyers intend to purchase. In this case, the dimension of the 10 present signage of Sreeleathers is prominent enough to ensure that a person intending to buy shoes from Sreeleathers will know exactly where to go to. Hence, there does not appear to be any immediate urgency for filing the instant application.
The remaining issue is the prayer of Mr. Abhrajit Mitra that the defendant/applicant should not be prevented from replacing the existing signage on the metal frame above the entrance of the defendant's shop room with a new signage made of ACP Board. The photographs shown to me by counsel appearing for the parties shows an admitted difference of dimensions, particularly on the two sides between the existing plastic signage and the metal frame. The gap between the two would also be evident from pages 63 and 65 of the present application. Hence, if the defendant is allowed to put up an ACP signage on the metal frame of a thickness of 6mm, the resulting picture would be similar to the projection of the photograph at page 32 of the Learned Special Officer's report. In other words, it would result in substantial coverage of the plaintiff's existing Peter England signboard. In this context, paragraph 19(g) of the learned Special Officer's report should be mentioned where the Special Officer has found that if the larger rectangular advertisement board in grey with red border is taken to be the signboard, there would be an encroachment of about 15 inches if the metal frame structure of the respondent is put up. In the absence of any pleadings that the plaintiff's Peter England board only comprises of the red-green and blue component excluding the grey area and the red border outside the words Peter 11 England, it is not open to the Court to hold at this stage that substantial coverage of the grey area outside the words Peter England will not amount to encroachment of the plaintiff's right to its signboard on the western outer wall of the plaintiff's portico.
The above scenario assumes relevance since prayer (a) of the plaintiff's second application is specifically for an injunction restraining the defendant from blocking any portion of the plaintiff's signboard or encroaching upon any part of the western outer wall/portico of the plaintiff's shop-room without leaving sufficient gap in between. This Court could have disregarded the prayers made in the second application of the plaintiff had counsel shown any order refusing such prayer of the plaintiff or any other order by which the application could have been considered to have been disposed of. No such order has been placed. On the other hand, the order passed by Justice Munshi makes it clear that the matter had been made returnable for considering the issue of encroachment of the plaintiff's signboard on the wall relevant for the instant dispute.
For this reason, this Court is of the view that if the defendant is allowed to put up a new signboard having the dimensions of the existing steel frame, it would render the plaintiff's second application infructuous without giving the plaintiff an opportunity to argue its case. It is submitted by Mr. Surajit Mitra that an exception taken by the plaintiff to the Special Officer's report is also before this Court.12
Notwithstanding the above, this Court also does not see any reason why the defendant should not be permitted to put up a signboard of a more stable nature of the same dimensions as the plastic flexi sheet which is presently in front of the defendant's shop. It goes without saying that any signboard, be it ACP or otherwise, will have to have the exact dimensions of the present plastic signage so that the position as was existing from August 2017 is not altered. Having held that the defendant has not been able to satisfy the test of urgency for making alterations in the size and area coverage of the present signage, the defendant cannot be permitted to put up anything which would cover a larger surface area compared to the present signage. However, since the defendant has only asked for a signage equal to the propositions of the metal frame it is entirely upto the defendant to decide whether a smaller ACP signboard would attract a higher customer footfall.
Since no affidavits have been called for, the allegations made in the instant application are taken to have not been admitted by the plaintiff.
In view of the above reasons, GA No. 2932 of 2018 is dismissed. The second application filed by the plaintiff will be listed in the monthly list of November, 2018.
(MOUSHUMI BHATTACHARYA, J.) Sbghosh/sn/s.bag/RS/sp3/S.De