Bombay High Court
Hindustan Petroleum Corporation Ltd vs H.P.Oil Corporation Ltd on 10 March, 2011
Author: R.Y.Ganoo
Bench: R.Y.Ganoo
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pps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Contempt Petition No.114 of 2004
in
Notice of Motion No. 3714 of 2003
in
Suit No. 3940 of 2003
Hindustan Petroleum Corporation Ltd.
A Government of India Enterprise,
having its Registered Office at
17, Jamshedji Tata Road,
Mumbai 400 020 .. Petitioner
(Original
Plaintiff)
v/s.
1. H.P.Oil Corporation Ltd.
A Company incorporated under the
Companies Act, 1958 having its
registered office at 704 Krishna Tower,
15/63, Civil Lines,
Kanpur 208 001 ..Respondent No.1
(Original Defendant)
2. Dinesh Chand Katiyar
Director of H.P. Oil Corporation Ltd.
having its office at 704 Krishna Tower,
15/63, Civil Lines,
Kanpur 208 001
3. Anil Kumar Katiyar
Director of H.P. Oil Corporation Ltd.
having its office at 704 Krishna Tower,
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15/63, Civil Lines,
Kanpur 208 001 Respondent Nos.2 and 3
Mr. Salil Shah with Mr.Gajria i/b/ Gajria & Co. for the Petitioner.
Mr. Pranav Sampat i/b. Thakore Jariwala & Associates for the
Respondents
CORAM : R.Y.GANOO, J.
DATED : 9th March, 2011
&
th
10 March, 2011
ORAL JUDGMENT :
1. The petitioners herein is a Public Corporation namely Hindustan Petroleum Corporation Limited. The respondent No.1 is a limited company incorporated under the Companies Act, 1956. The respondent no.2 and 3 are the Directors of respondent no.1.
According to the petitioners, the respondent no.1 committed certain acts which resulted in violation of the trade mark held by the petitioners in regard to their products. In order to injunct the respondent no.1 from violating the trade marks held by the petitioners, the petitioners instituted Suit No.3940 of 2003 in this Court against the respondent No.1 company under the Trade Mark Act, 1999. The petitioners sought substantive relief in the nature of injunction to protect their marks. Interim reliefs were sought in ::: Downloaded on - 09/06/2013 17:04:46 ::: 3 conp114-04 jud.sxw the said suit.
2. The petitioners had taken out Notice of Motion No.3714 of 2003 in the aforesaid Suit No.3940 of 2003 and had asked for following reliefs:
a) That pending the hearing and final disposal of the Suit, the Defendants, their servants and agents be restrained by an order and injunction of this Honourable from in any manner manufacturing, marketing selling, advertising or using in any manner in relation to Liquified Petroleum Gas, Petroleum, industrial oil and grease, lubricants, dust laying and absorbing compositions, fuels, illuminants candles, tapes, night lights, wicks or any other goods in Class 4 of the Fourth Schedule of Trade Marks Act, 1999 and Rules thereunder, the mark and logo described in Exhibit E to the plaint or any other mark/logo or device indentical or deceptively similar to the plaintiffs registered trade mark nos.330304, 350757 & 410320 in class 4 so as to infringe the same;
b) That pending the hearing and final disposal of this suit, the defendants, their servants and agents be restrained by an order and injunction of this Honourable Court from in ::: Downloaded on - 09/06/2013 17:04:46 ::: 4 conp114-04 jud.sxw any manner manufacturing, packaging, using, selling or suffering for sale of Liquified Petroleum Gas or any other goods containing the letters "HP" or the logo described in Exhibit-E to the plaint or any part thereof or any other mark or logo to words deceptively similar to the plaintiffs marks or logos or its corporate name so as to pass of its products or business as and for that of the plaintiff.
c) That pending the hearing and final disposal of this Suit, the Defendants, their servants and agents be restrained by an order and injunction of this Honourable Court from in any manner using its Corporate name "Hindustan Petroleum Oil Corporation Ltd." or the letters "H.P." or words "Hindustan Petroleum", or any other letters or words deceptively similar to the plaintiffs name or marks, as part of its trading style.
d) That pending the hearing and final disposal of this suit, this Honourable Court be pleased to appoint the Court Receiver, High Court, Bombay with all powers under Order XL, of the Code of Civil Procedure 1908, including the power to enter and search at any time and palce (even after sunset) including on holidays without notice, to seize, destroy, erase and or store the impugned products, labels, cartons, packets materials, boards, goods, wrappers, papers, ::: Downloaded on - 09/06/2013 17:04:46 ::: 5 conp114-04 jud.sxw books, dies and things bearing the impugned trade marks or logo to letter "H.P" wherever situate and to take police assistance when deemed fit.
3. The said motion was taken up for ad-interim hearing and by order dated 4.3.2004 an ad-interim order of injunction was passed against the respondent no.1 in terms of prayer clauses (a), (b), (c) and (d) so that the respondent no.1 would not indulge in infringement of the registered trade mark. It is to be noted that ad-interim order in terms of prayer clause (d) was suspended for a period of four weeks from 4.3.2004.
4. The respondent no.1 filed Appeal No.352 of 2004 before the Division Bench of this Court so as to challenge the ad-interim order dated 4.3.2004. That appeal was dismissed by the Division Bench by its order dated 16.6.2004. Against the said Order dated 16.4.2004, the respondent no.1 filed Special Leave Petition (L) No.19378 of 2004 and it is a common ground that the said Special Leave Petition has been dismissed. On account of dismissal of appeal on 16.6.2004 the limited stay granted to prayer clause (d) ::: Downloaded on - 09/06/2013 17:04:46 ::: 6 conp114-04 jud.sxw also came to an end on 16.6.2004.
5. The aforesaid developments will clearly go to show that respondent no.1 was injuncted in terms of prayer clauses (a), (b) and (c). It is to be noted that the Notice of Motion No.3714 of 2003 is pending.
6. After the order dated 4.3.2004 the employees of the petitioner in the company of the representative of the Court Receiver visited the premises of the respondent no.1 on 15.9.2004. The Court Receiver found that the respondent no.1's office was working and there were several employees present. He also found several items namely Rubber Stamp, Pamphlets containing HP Logo, copy of advertisement in vernacular language, bunch of copies of confirmation of territory for appointment of distributors/dealers/sub-dealers, bunch of proposal forms for H.P. Oil Corporation Ltd. for dealers and letterheads of H.P. Oil Corporation Ltd., bunch of envelopes containing HP Logo and blank agreement file. The Receiver's Representative took ::: Downloaded on - 09/06/2013 17:04:46 ::: 7 conp114-04 jud.sxw possession of all these articles. All this material which was found in the office of the respondent no.1 shall hereinafter be referred to as the said 'material'.
7. It is also the case of the petitioners that the order of injunction in terms of prayer clause (a), (b) and (c) is running against the respondent No.1 even today. The petitioners came across in all four advertisements said to be published by respondent no.1 calling for applications from various persons to appoint them as agents in the State of Maharashtra for distribution of their LPG Gas as also supply of complete set (cylinder, burner stove, regulator with pipe). These advertisements were found in the following newspapers with respective dates, (1) Time of India -
Bombay Edition dated 24.10.2004, (2) Indian Express - Bombay Edition dated 24.10.2004, (3) Economic Times- Bombay Edition dated 24.10.2004, (4) Mid Day -Bombay Edition dated 28.10.2004. The four advertisements as they appeared in news papers are annexed to the petition at Exhibit D-1 to D-4. It is to be noted that the name of the Company shown in the ::: Downloaded on - 09/06/2013 17:04:46 ::: 8 conp114-04 jud.sxw advertisement is H.P. Oil Corporation Limited. As per the advertisements the applications were to be submitted at the following address:-
H.P.Oil Corporation Ltd.
Marketing Division, 704 Krishna Tower, 1563, Civil Lines, Kanpur 1.
It is to be noted that the aforesaid address tallies with the address of the respondent no.1.
8. According to the petitioners finding of the said material in the office of the respondent no.1 coupled with publication of the advertisements at Exhibits D-1 to D-4 resulted in violation of the order of injunction dated 4.3.2004. (Hereinafter referred to as said Order') According to the petitioners, respondent nos.2 and 3 have in their capacity as Directors of Respondent No.1have violated said order. According to the petitioners violation of said order by Respondent Nos.1 to 3 has resulted in contempt of the court. The Petitioners have prayed for action against Respondent Nos.1 to 3. in accordance with the provisions of Contempt of ::: Downloaded on - 09/06/2013 17:04:46 ::: 9 conp114-04 jud.sxw Court Act, 1971.
9. After the service of contempt petition upon the respondents, respondent no.2 has filed in all three affidavits, namely affidavit dated 12.4.2005, 8.7.2005 and 2311.2007. The respondent no.3 has filed affidavit dated 25.2.2011 when hearing of the contempt petition commenced.
10.According to the Petitioners finding of said material in the office of respondent no.1 shows that the respondent nos.1 and its Directors have been carrying on the business in the name of H.P. Oil Corporation Ltd. and the such carrying on business in the name of H.P. Oil Corporation Limited amounts to violating the terms of the said order. It is also the stand of the petitioners that the advertisements published at Exhibit D-1 to D-4 clearly indicated that the respondent no.1 and its Directors namely the respondent Nos.2 and 3 wanted to give an impression to the members of the public at large that there is an organization by name H.P. Oil Corporation Ltd., and the said organization is ::: Downloaded on - 09/06/2013 17:04:46 ::: 10 conp114-04 jud.sxw receiving the applications for appointment of agents. The advertisements at Exhibit D-1 to D-4 are in complete violation of the order of injunction in terms of prayer clauses (a), (b) and (c).
It is also the stand of the petitioners that after the order of injunction, it was wrong on the part of the petitioners to continue to use the name of the Company as H.P.Oil Corporation Ltd.
11.With the above allegations of contempt, I have heard learned counsels on both sides. It would be convenient at this juncture itself to deal with the stand taken by the respondent nos.1 to 3 in terms of their affidavits. In the said reply dated 12.4.2005 the stand was taken by the respondent no.2 that Mr.Raj Kishore Katiyar and Mr. Manoj Katiyar are not the Directors of the respondent no.1. It appears that on account of this stand, names of Rajkishore Katiyar and Anilkumar Katiyar were deleted and Dinesh Chand Katiyar and Anil Kumar Katiyar were brought on record as respondent nos.2 and 3 respectively. It is required to be stated that the respondent no.1 does not dispute this change.
Dinesh Katiyar and Anil Katiyar have admitted that they are ::: Downloaded on - 09/06/2013 17:04:46 ::: 11 conp114-04 jud.sxw Directors of respondent no.1. It is in this circumstances, one will have to consider whether respondent nos.2 and 3 have violated said order and committed contempt.
12.The affidavit in reply dated 12.4.2005 filed by the respondent no.
2 suggests that the application for change of name of the Company was made on 12.4.2005 and change of logo was sought to be made by 4.12.2004. By the next affidavit dated 8.7.2005 the allegations are denied. According to the respondents there is no willful default. It is pertinent to note that in affidavit in reply dated 8.7.2005 the respondent no.2 has admitted the visit of the Court Receiver. He has also admitted finding of letterheads, rubber stamp, etc. However, according to him all that material was printed prior to the injunction order. The respondent no.2 in the said affidavit has denied the advertisement having been issued by respondent no.1. Respondent No.2 has reiterated his stand about taking steps to change the name of the company and logo.
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13.In the third affidavit dated 23.11.2007 it is sought to be contended that the order of injunction is complied with and new name is secured by the Company namely Bharat Oil & Gas Corporation.
In paragraph 5 it is specifically mentioned that non compliance of any order of this court , if any, is unintentional, not deliberate and on behalf of the respondents apology is tendered. In paragraph 6 following sentence is noted with reference to the apology.
"I once again reiterate and apologize for any conduct of myself and by my co-respondents that may be considered as contemptuous"
It is to be noted that till 25.2.2011 respondent no.3 had not filed any affidavit in reply. Ultimately the respondent no.3 has filed an affidavit in reply dated 25th February 2011. By this affidavit the respondent no.3 has taken the stand that throughout the duration of the matter (possibly respondent no.3 wants to suggest that throughout the proceeding instituted by the plaintiff for order and injunction etc upto the hearing of the contempt petition) he was not incharge of day to day affairs of the company. He states that his Cousin brother and respondent no.2 were incharge of the ::: Downloaded on - 09/06/2013 17:04:46 ::: 13 conp114-04 jud.sxw affairs of the company. He further staes that very recently when the warrant was issued he started interacting with his Advocates.
He submitted that he is not guilty of Contempt. He has tendered his unconditional apology.
14.With the aforesaid affidavits in reply, I am now required to decide whether the petitioners have been able to make out a case as put up in the contempt petition.
ig The order of injunction dated 4.3.2004 is very clear and it had the effect of protecting the trade mark of the petitioners with reference to the logo as well as the name of the company as Hindustan Petroleum Corporation. I have already indicated that during the visit of the Receiver for the purpose of compliance of prayer clause (d) the Receiver inspected the premises of the Respondent no.1 at Kanpur on 15.9.2004 and said material was found. It is pertinent to note that the said visit of the Receiver is accepted by the respondent no.2 in affidavit dated 8.7.2005. Even in the said affidavit the presence of the said material in the premises of the respondent no.1 is admitted. The respondent no.2 has come out with explanation ::: Downloaded on - 09/06/2013 17:04:47 ::: 14 conp114-04 jud.sxw that the said material was printed prior to the order of injunction.
In my view the presence of the said material in the premises of the respondent no.1 after passing of the order of injunction itself is sufficient to come to the conclusion that the respondent no.1 and the directors intended to use the said material for the purpose of using the name of the company as H.P. Oil Corporation. In the normal course, after the issuance of the order of injunction it was necessary for the respondent no.1 and its Directors to destroy the said material or surrender it to the Receiver. The very fact that the respondent no.1 and its Directors continued to retain the said material in the premises of the respondent no.1 after the order of injunction clearly indicates that they intended to use the said material whenever it was required to be used.
15.The respondent no.2 has come out with the case that the application to change the logo of the company was made sometime in December 2004 and the application for change in the name of company was made in April 2005. This indicates that the respondent no.1 and the Directors continued to use the name of ::: Downloaded on - 09/06/2013 17:04:47 ::: 15 conp114-04 jud.sxw the respondent no.1 in the manner and style in which it was prevented by the order of injunction till April 2005. This will mean that the finding of the said material in the premises of the respondent no.1 was not without any meaning and that the said material was not lying in the premises of the respondent no.1 as idle or waste material. In my view, the presence of the said material in the premises of the company has the effect of violating the order dated 4.3.2004.
16. A specific stand has been taken that steps were taken to change name of the Company in April 2005 and for the change in logo was made in December 2004. These steps are taken after 6 months from the dismissal of the appeal. This clearly shows that the respondent no.1 and its Directors were using the name of the company despite the order of injunction. To that extent the respondents have clearly committed Contempt of this Court.
17.I now come to the question whether the advertisements at Exhibit D-1 to D-4 amount to violation of order of injunction. The ::: Downloaded on - 09/06/2013 17:04:47 ::: 16 conp114-04 jud.sxw perusal of cuttings which are annexed at Exhibit D-1 to D-4 go to show that the said advertisement is published by the company whose name is just the same as the respondent no.1. The address for communication appearing in the said cutting is just same as respondent no.1. The logo of H.P. appearing in the said advertisement as well as the name of the company "H.P.Oil Corporation Limited' is in complete violation of the order of injunction dated 4.3.2004.
ig The question is whether these advertisements have been published at the instance of the respondent no.1 and whether respondent nos.2 and 3 could be held responsible for that.
18.When the advertisement is published in a news paper the members of the public would labour under impression that the said advertisement is published by the company for whose benefit the said advertisement is published. In very exceptional case, a person would arrange to publish the advertisement at his cost in the name of some other company.
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19.In the present case, the respondents have merely denied the publication of advertisement at their instance. This mere denial is not sufficient defence. Respondents were served with the copy of the contempt petition along with its exhibits. Hence it can be observed that on receipt of the copy of the contempt petition it was brought to their knowledge that a company having name similar to the name of the respondent no.1 has published advertisement and prima facie those advertisements are in violation of the order of injunction. On perusal of these advertisements and the relief granted in favour of the plaintiffs, it is clear that these advertisements have violated the order of injunction.
20.The next question is whether the case put up by the respondents that they had not published the advertisements should be accepted. After these advertisements were brought to the notice of the respondent, it was possible for the respondents to approach the respective news papers and try to get information from them as to who had placed order to publish the ::: Downloaded on - 09/06/2013 17:04:47 ::: 18 conp114-04 jud.sxw advertisements. Surely, these advertisements have not been published by these newspapers on their own. The respondents have not specifically stated that these advertisements do not pertain to their company.
21.As mentioned earlier, it is was possible for the respondents to collect the necessary data from the concerned news papers and produce it before the court show that the advertisements were published at the instance of some other person and not at the instance of the respondent no.1 or its Directors. No such steps have been taken by the respondents. In the absence of such data, I am inclined to draw adverse inference against the respondents.
The very fact that the respondent no.1 took steps to change the logo in December 2004 and to change the name of the company in April 2005, clearly indicated that respondent no.1 intended to use the objectionable name even in the month of October 2004 i.e. the period when the order was running against the respondents. For the aforesaid reasons, I am inclined to observe that these advertisements have been published by the respondents. In a ::: Downloaded on - 09/06/2013 17:04:47 ::: 19 conp114-04 jud.sxw peculiar matter like this mere denial by the respondents was not sufficient.
22.For the reasons mentioned aforesaid, I hold that the petitioners have made out a case that the respondent no.1 has committed contempt of court.
23. Respondent Nos.2 and 3 are Directors of Respondent No.1 The Directors work for the benefit of the company and therefore the Directors of the Limited company are responsible for the acts which are committed for and on behalf of the company. The respondents in their capacity as Directors participated in the affairs of the company and they were responsible for retaining the said material in the premises of the respondent no.1. They were also responsible for publishing advertisements at Exhibit D-1 to D-4. The respondent nos.1 and 2 did not take steps to suspend the use of the company's name and logo immediately on passing of said order. It took steps for changing the logo and the name of the company only in December 2004 and April 2005 respectively i.e. ::: Downloaded on - 09/06/2013 17:04:47 ::: 20 conp114-04 jud.sxw much after the order of dismissal of the appeal. All this will clearly go to show that the conduct of the respondent nos.2 and 3 as directors of respondent no.1 was not innocent. The respondents nos.2 and 3 fully knew the consequences of their acts.
They are responsible for all acts which led to violation of order of injunction.
24.For the reasons mentioned aforesaid, I hold that the petitioners have been able to make out a case that the respondent nos. 2 and 3 have committed contempt of this court by violating the order of injunction dated 4.3.2004.
(Judgment part dictated. Adjourned to 10.3.2011) [R.Y.GANOO, J.] (Judgment continued on 10.3.2011)
25.The next question is whether the apology tendered by the respondent nos.2 and 3 through affidavits should be accepted and ::: Downloaded on - 09/06/2013 17:04:47 ::: 21 conp114-04 jud.sxw the case be treated as closed. The respondents have in all filed four affidavits, three of them are filed by respondent no.2 and one is filed by respondent no.3. In the affidavit in reply dated 12.4.2005 and 8.7.2005 filed, respondent No.2 has not tendered apology. In the third affidavit dated 23.11.2007 filed by the respondent no.2 in very sketchy manner respondent has tendered apology. The relevant sentence is as under:
" I once again reiterate and apologize for any conduct of myself and of my co-respondents that may be considered as contemptuous"
In my view, this sentence quoted aforesaid cannot be considered as an apology. The said statement is not couched with a view to place before the Court an apology. It has been made in a casual manner. Hence the so called apology tendered by the respondent no.2 vide affidavit dated 23.11.2007 cannot be accepted. Then comes the affidavit filed by respondent no.3 dated 25.2.2011. It is only when in the course of hearing it was noticed that the respondent no.3 has not filed any affidavit in reply, the said fact was indicated to the Advocate appearing for the respondents. It ::: Downloaded on - 09/06/2013 17:04:47 ::: 22 conp114-04 jud.sxw appears that the respondent no.3 took hint from the said suggestion and proceeded to file affidavit in reply dated 25.2.2011. In this affidavit, the respondent no.3 has stated in paragraph 2 that he is tendering unconditional apology.
Respondent no.3 has offered explanation about his role in the working of the company. He has stated that he was not concerned with the day to day affairs of the company and that is how he is trying to save himself. It is to be noted that the respondent no.1, a private limited company has only two Directors i.e. respondent no.2 and respondent no.3. In this peculiar situation it is difficult to conceive as to how the respondent no.3 will not have day to day connection with the affairs of the respondent no.1. Therefore the stand taken by the respondent no.3 in paragraph 2 just can't be accepted. In paragraph 3 he states that when he came to know about the issuance of warrant by the court, he started interacting with the Advocate and got the information. He further states that he is not guilty of the contempt however tendered apology in following words:
"In any event, I tender my unconditional apology to this ::: Downloaded on - 09/06/2013 17:04:47 ::: 23 conp114-04 jud.sxw Honourable Court". In my view this portion quoted above cannot be considered as an apology. It cannot be accepted and the respondent no.3 cannot be excused. Hence the submission made by the Counsel for the respondents that the apology tendered by the respondent nos.2 and 3 be accepted and the respondents be excused has to be rejected.
26.Having declined to accept the apology, the question is what punishment should be imposed upon the respondents for violating the orders of the court as stated earlier. Learned Counsel Mr. Shah appearing on behalf of the petitioners drew my attention to Section 12 of the Contempt of Court Act, 1971 and submitted that in accordance with the provisions of Sub Section 1 the Court has power to sentence the Contemnor for a simple imprisonment for a term which may extend to six months or fine of Rs.2000/- or with both. The learned Counsel appearing for the petitioners submitted that the act of the respondents is grave particularly because the act amounting to the Contempt have been committed by a company through its directors. The respondent no.1 and its ::: Downloaded on - 09/06/2013 17:04:47 ::: 24 conp114-04 jud.sxw Directors were aware of the order of injunction and despite that respondents proceeded to retain with them the said material and even accepted the presence of the said material when the Receiver's representative visited the premises of respondent no.1.
He further drew my attention to the fact that despite the order of injunction in terms of various prayers at (a), (b) and (c) the respondent no.1 and its Directors, i.e. respondent nos.2 and 3 ventured to call for application for preparing the list of agents to distribute the gas cylinders and other articles and the said advertisements were in clear violation of the order of injunction.
Learned Counsel appearing on behalf of the petitioners submitted that the act of the respondent no.1 along with the respondent nos.2 and 3 to publish the advertisement was definitely an intentional act and thus respondents wanted to score over the business of the petitioners and wanted to compete with the business of the petitioners in an unhealthy manner. He further submitted that on account of the advertisements at Exhibit D-1 to D-4 members of the public must have been subjected to deception and they may have applied to respondent no.1 thinking that they are applying ::: Downloaded on - 09/06/2013 17:04:47 ::: 25 conp114-04 jud.sxw for getting dealership which is managed by the petitioners, a reputed organization. Learned Counsel appearing on behalf of the petitioners submitted that this court should impose maximum punishment provided under law. In so far as the sentence to be imposed upon the respondent nos.2 and 3 he submitted that the court should impose a sentence of imprisonment as well as fine so that it would act as a deterant to persons similarly placed. He had also submitted that the courts should also take into consideration the conduct of the respondents in the matter of change of logo as well as change of name of the company. He submitted that the appeal filed by the respondents in this court was dismissed on 16.6.2004 and thereafter there was no stay of the order of injunction. The respondents did not take steps to change the logo or change the name of the company promptly after said order was passed. He pointed out that there is an admission on the part of the respondents that the application to change the name of the company was made in May 2005 i.e. practically after 10 months. Learned Counsel for the petitioner submitted that the respondents have not explained as to why such ::: Downloaded on - 09/06/2013 17:04:47 ::: 26 conp114-04 jud.sxw a long time was taken by them. He submitted that the advertisements published in four newspapers were also after four months after the dismissal of the appeal. He submitted that it is clear that the respondents have flouted the order of the court with specific design in their mind and therefore the respondents no.2 and 3 should be sentenced to imprisonment as well as fine.
27.Learned Counsel Mr. Sampat appearing on behalf of the respondents submitted that the court should show leniency in the matter of imposing punishment, keeping in view the overall conduct of the respondents. He therefore submitted that the interest of justice would be met with if punishment of fine simplicitor is imposed. In addition to the aforesaid submission learned Counsel Mr. Pranav Sampat appearing on behalf of the respondents submitted that if the court is of the view that respondent nos.2 and 3 in their capacity as Directors are required to be subjected to sentence of imprisonment they be sent to Civil Prison. He drew my attention to the provisions of Section 12 (3) of the Contempt of Court Act, 1971. He also cited the judgment ::: Downloaded on - 09/06/2013 17:04:47 ::: 27 conp114-04 jud.sxw in the case of Smt. Pushpaben and Another v.s Narandas V. Badiani & Another reported in (1979) 2 SCC 394. By relying upon this judgment he submitted that the normal rule for sentencing is to impose the punishment of fine. He immediately submitted that if the court comes to the conclusion that the sentence of fine is not sufficient the court should give reasons and that if at all the sentence of imprisonment is required to be imposed, the court should direct that the person who is to be sentenced to the imprisonment should be detained in Civil Prison.
28. After having considered the submission of the learned Counsels on both sides, I am inclined to observe that so far as the respondent no.1 is concerned, the sentence of imprisonment cannot be passed and sentence of fine only can be imposed.
Looking to the facts and circumstances of the case, I am of the view that if the fine of Rs.1500/- is imposed upon the respondent no.1 being a private limited company, it would meet the ends of justice.
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29.So far as the respondent Nos.2 and 3 are concerned, I am of the view that punishment of fine alone would not be sufficient. The respondent nos.2 and 3 are the directors of the private limited company. The respondent Nos.2 and 3 have to shoulder the responsibility of the said company. The respondent nos.2 and 3 have been carrying on the business in the name of the respondent no.1 in the dealership of LPG Gas and other equipments which are used by the company. The respondent nos.2 and 3 were clever in naming its company is such a manner that a common man would develop an impression that the respondent no.1 company is nothing but the petitioner's company which has a reputation. It was alright till such time three was no injunction order running against the respondents. After having suffered the order of injunction the respondent nos.2 and 3 as directors ought to have taken prompt steps to change the logo and the name of the company. They did not do so for a substantial period as mentioned earlier. Not only that, they retained with them the said material mentioned above and it cannot be said that the said material was just retained by them and dumped in some corner of ::: Downloaded on - 09/06/2013 17:04:47 ::: 29 conp114-04 jud.sxw the respondent no.1. Naturally the said material must have been retained by them for using it because the name of the company as respondent no.1 was being used till December 2004 and some period thereafter. The said material was found in the premises of respondent no.1 in September 2004. The Advertisement was published in October 2004 which will mean that the respondent nos.2 and 3 for the benefit of respondent no.1 were treating as if there is no order of injunction running against them. The conduct of the respondent nos.2 and 3 as directors clearly indicates that they did not pay any heed to the order of injunction and proceeded to run the affairs of the respondent no.1 as if there is no injunction running against them. Considering the conduct of the respondent nos.2 and 3 as Directors, punishment of fine alone would not be sufficient. The respondent nos.2 and 3 will have to be sentenced to imprisonment as well as fine.
30.For the reasons mentioned aforesaid, I am inclined to impose the punishment of imprisonment as well as fine upon the respondent nos.2 and 3. On the question of sentence after having considered ::: Downloaded on - 09/06/2013 17:04:47 ::: 30 conp114-04 jud.sxw all the facts and circumstances, I hold that it would be proper if the sentence of simple imprisonment for two months is imposed upon the respondent nos.2 and 3. Looking to the provisions of Section 12(3) of the Contempt of Court Act as well as the judgment in the case of Smt. Pushpaben & Anr. v. Narandas Badiani & Anr, this court will have to direct that for the purpose of execution of the sentence of imprisonment respondent nos.2 and 3 will have to detained in Civil Prison. Looking to the acts amounting to contempt and its gravity it is necessary to impose sentence of fine also. So far as the question of fine is concerned, I am of the view that if the fine of Rs.1500/- per person i.e. the respondent nos.2 and 3 respectively is imposed, that would meet the ends of justice.
31.For the reasons mentioned aforesaid the contempt petition is disposed of by passing the following order:
ORDER
i) The Contempt Petition is made absolute.::: Downloaded on - 09/06/2013 17:04:47 :::
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ii) The petitioners have been able to make out a case that respondent nos.1 to 3 have violated the order of injunction dated 4.3.2004 passed in Notice of Motion No.3174 of 2003 in Suit No. 3940 of 2003. The respondent nos.1 to 3 are liable for punishment in accordance with Section 12 of Contempt of Courts Act, 1971.
iii) It is hereby ordered that respondent no.1 is sentenced to pay fine of Rs.1500/- (Rupees One Thousand Five Hundred Only).
iv) Respondent No.2 is sentenced to suffer Simple Imprisonment for a period of two months. In addition to the sentence of simple imprisonment, respondent no.2 to pay fine of Rs.1500/-. (Rupees One Thousand Five Hundred Only). In default of payment of fine Respondent No.2 is sentenced to suffer simple imprisonment for 7 days.
v) Respondent no.3 is sentenced to suffer simple imprisonment for a period of two months. In addition to the sentence of simple ::: Downloaded on - 09/06/2013 17:04:47 ::: 32 conp114-04 jud.sxw imprisonment, respondent no.3 to pay fine of Rs.1500/-. (Rupees One Thousand Five Hundred Only). In default of payment of fine respondent no.3 is sentenced to suffer simple imprisonment for 7 days.
vi) In view of the provisions of Section 12(3) of Contempt of Courts Act, 1971 it is hereby ordered that for the purpose of undergoing the sentence of simple imprisonment the respondent nos.2 and 3 shall be detained in Civil Prison.
vii) It must be mentioned that during the course of hearing of this contempt petition though the respondent nos.2 and 3 were directed to remain present in the court, they remained absent.
Bailable warrants were issued. Showing leniency this Court had cancelled the said bailable warrants with an order that the respondent nos.2 and 3 would remain present in the court. I need not go into details, but on two occasions the respondent no.3 remained present and the respondent no.2 did not remain present on the ground that respondent no.2 is not well. Yesterday and ::: Downloaded on - 09/06/2013 17:04:47 ::: 33 conp114-04 jud.sxw today when this contempt petition was taken up for dictation, respondent nos.2 and 3 are absent. Learned Counsel Mr. Pranav Sampat appearing on behalf of the respondents across the bar stated that the respondent nos.2 and 3 are arrested in connection with some other case outside Maharashtra. He has not produced any document in support of this statement. With this back ground learned Counsel Mr. Pranav Sampat appearing on behalf of the respondent prayed that the operation of this order be stayed for sometime to enable his client to do the needful. Learned Counsel Mr. Shah appearing on behalf of the petitioners opposed the said reqeust. The respondent nos. 1 to 3 are sentenced to suffer imprisonment of fine and respondent nos.2 and 3 are sentenced to suffer simple imprisonment for a short period. In the interest of justice they must get some chance to go through the judgment and do the needful. Hence the operation of this order is stayed till 20.4.2011.
[R.Y.GANOO, J.] ::: Downloaded on - 09/06/2013 17:04:47 :::