Calcutta High Court (Appellete Side)
Rajiv Singh vs Manoj Kanti Sensarma & Ors on 4 October, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Ishan Chandra Das
F.M.A.T. 1049 of 2016
(CAN 9936 of 2016)
Rajiv Singh
-Versus-
Manoj Kanti Sensarma & Ors.
For the Plaintiff/Appellant : Mr. Debnath Ghose,
Mr. Aniruddha Chatterjee,
Mr. Srijib Chakraborty,
Mr. Probir Gayen.
For the Respondent Nos. : Mr. Ranjan Bachawat, Sr. Adv.,
1 and 2. Mr. Rudraman Bhattacharya, Mr. Anindya Lahiri, Mr. Samrat Dey Paul.
For the Respondent No.3. : Mr. Arunava Ghosh,
Mr. Sudhamoy Bhattacharya.
Mr. Mainak Ganguly,
Mr. Arkojyoti Das.
Heard on: 4th October, 2016.
Judgement on: 4th October, 2016.
Jyotirmay Bhattacharya, J. :-
By the impugned order, the plaintiff's prayer for ad interim injunction was rejected by the learned Trial Judge primarily on the ground for want of urgency. The learned Trial Judge thus, refused to pass ad interim order of injunction and directed the plaintiff to issue notice upon the defendants calling upon them to show cause as to why the plaintiff's prayer for temporary injunction will not be granted.
Let us now consider the legality of the impugned order in the facts of the present case. Since we are considering the legality of an order by which the plaintiff's prayer for ad interim injunction was refused by the learned Trial Court, we have to assess the correctness of the impugned order with reference to the pleadings of the plaintiff made out in the plaint as well as in the injunction application and nothing else. For ascertaining the claim made out by the plaintiff in the suit, we have read the plaint as well as the injunction application and the annexures thereto.
On perusal of the pleadings of the plaintiff, we find that admittedly the plaintiff and the defendant nos. 4 and 5 are the partners of an unregistered partnership firm. The name of the said partnership firm is Blue Fork Hospitality. The said partnership firm is carrying on its restaurant business in a rented accommodation under the trade name of "BALLE BALLE DHABA". The defendant nos. 1 and 2 also carrying on business in partnership in the name of Rock Sugar Hospitality Services. The plaintiff alleges that the Rock Sugar Hospitality Services which is formed by the defendant nos. 1 and 2 is in fact, controlled by or is an alter ego of the defendant nos. 4 and 5 as the defendant no.1 is the father-in-law of the defendant no. 4 and the defendant nos. 2 and 5 are brothers. He further alleges that the defendants are acting in collusion and conspiracy with each other in abuse of process of the court.
He further alleges that the Rock Sugar Hospitality Services does not have any trade licence to operate or run any restaurant business and in fact, the defendant nos. 1 and 2 being the partner of Rock Sugar Hospitality Services are running the restaurant business in the tenancy of the plaintiff's partnership firm by using the infrastructure of Blue Fork without any authority or consent of Blue Fork.
Since the plaintiff's partnership business is the prior user of the trade name "BALLE BALLE DHABA", the defendants, according to the plaintiff are not entitled to carry on any business by using and/or utilising the trade name of the plaintiff's partnership firm viz. "BALLE BALLE DHABA".
Thus, on the strength of prior user of the trade name of "BALLE BALLE DHABA", the plaintiff filed the said suit for passing off seeking injunction not only against the defendant nos. 1 and 2 who are the partners of Rock Sugar Hospitality Services but also against his own partners viz. the defendant nos. 4 and 5 from using the goodwill and/or name and/or mark and/or sign "BALLE BALLE DHABA" or under any other mark or name which is identical or deceptively similar to the plaintiff trade name and/or trademark "BALLE BALLE DHABA" in any manner whatsoever.
Several other reliefs by way of perpetual injunction in different forms were prayed for by the plaintiff against all the defendants so that the defendants cannot carry on similar or any other business under the name and style of "BALLE BALLE DHABA" or under any other mark or trade name which is identical or deceptively similar to the plaintiff trade name and/or trademark "BALLE BALLE DHABA" in any manner whatsoever in the premises described in the schedule.
After filing the said suit, the plaintiff filed an application for temporary injunction seeking identical relief by way of interim injunction so that the defendants cannot carry on business of restaurant in the same premises or in any other premises by using the trade name of the plaintiff's firm, viz. "BALLE BALLE DHABA" during the pendency of the suit. Ad interim order of injunction was also sought for in similar form against the defendants.
The learned Trial Judge refused to pass ad interim order of injunction, the correctness of which is now under our scrutiny in this appeal.
On perusal of the plaint, we find that the plaintiff is not the exclusive user of the trade name "BALLE BALLE DHABA". The plaintiff claims that the plaintiff along with the defendant nos. 4 and 5 are running the restaurant business in co-partnership in a rented accommodation mentioned in the schedule of the plaint under the trade name of "BALLE BALLE DHABA". The plaintiff's firm is not a registered partnership firm. The plaintiff's firm is also not the registered propriety of the trade mark "BALLE BALLE DHABA". The plaintiff claims his right of prior user of the trade mark "BALLE BALLE DHABA".
The plaintiff further claims that the defendant nos. 1 and 2 are carrying on business in co-partnership under the name and style of Rock Sugar Hospitality Services. The plaintiff also claims that the defendant nos. 1 and 2 are not the partners of the plaintiff's partnership firm viz. Blue Fork. The plaintiff further claims that the defendant nos. 1 and 2 being the partners of Rock Sugar Hospitality Services are running the restaurant business in the tenancy let out to the plaintiff's firm and the said business of the defendant nos. 1 and 2 is controlled by the defendant nos. 4 and 5 who are near relation of the defendant nos. 1 and 2. The plaintiff thus, claims that since the defendant nos. 1 and 2 are not partners of the plaintiff's partnership firm and they were never authorised by the plaintiff and/or the other partners of his partnership firm, the defendant nos. 1 and 2 cannot carry on the business in the said premises by using the plaintiff's trade name "BALLE BALLE DHABA".
On reading of the pleadings of the plaintiff it appears to us that the plaintiff has not restricted his claim for injunction against the defendant nos. 1 and 2 alone. He has prayed for temporary injunction against all the defendants including his own partners for restraining them from carrying on their business by using the trade name of the plaintiff's partnership firm viz.
"BALLE BALLE DHABA". The plaintiff never claims that the plaintiff is the sole proprietor and/or prior user of the trade name "BALLE BALLE DHABA". He himself claims that the partnership of which the plaintiff and the defendant nos. 4 and 5 are partners, is the prior user of the trade name "BALLE BALLE DHABA". The goodwill is the intangible asset of the partnership firm in which all the partners have proprietary right according to their share. Since all the partners have undivided interest in the goodwill, no partner can restrain the other partner from exploiting the goodwill of the partnership business according to his share in it. Good will of a partnership business is closely related to the trade name of the partnership business.
Since the plaintiff himself claims that the defendant nos. 1 and 2 are close relation of defendant nos. 4 and 5 and the business of the defendant nos. 1 and 2 is controlled by the defendant nos. 4 and 5, we feel that the arrangement under which the plaintiff nos. 1, 2, 4 and 5 are carrying on the said business by utilising the said trade name of the plaintiff's partnership firm is required to be considered after exchange of affidavits between the parties.
As such, we decline to interfere with the impugned order.
The appeal thus fails.
Leave is granted to the defendants to file affidavit-in-opposition to the plaintiff's application for temporary injunction within two weeks after reopening of the court after Puja Vacation, reply if any, be filed by the plaintiff within a week thereafter.
We request the learned Trial Judge to dispose of the plaintiff's application for temporary injunction by middle of December, 2016 without granting any unnecessary adjournment to any of the parties.
It is made clear that the learned Trial Judge while considering the plaintiff's application for temporary injunction will assess the merit of the plaintiff's application for temporary injunction according to his own wisdom and in accordance with law without being influenced by any of the observations made hereinabove which were made by this Court for the purpose of disposal of the plaintiff's prayer ad interim injunction only.
Both the appeal and the application are thus, disposed of.
Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.) dp