Calcutta High Court
Sony Kabushiki Kaisha vs Sony Trade Links (India) Pvt. Ltd. & Anr on 14 January, 2015
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
Original Side
Before:
The Hon'ble Justice Debangsu Basak
C.S. No. 255 of 1994
Sony Kabushiki Kaisha
Vs.
Sony Trade Links (India) Pvt. Ltd. & Anr.
For the Plaintiff : Mr. Mainak Bose, Advocate
Mr. Sachin Shukla, Advocate
For the Defendants : Mr. Rudraman Bhattacharya, Advocate
Mr. Kuldip Mallik, Advocate
Mr. Swarajeet Dey, Advocate
Hearing concluded on : January 08, 2015
Judgment on : January 14, 2015
DEBANGSU BASAK, J.
The plaintiff seeks perpetual injunction against the defendants for using the trademark 'SONY" or any other trademark deceptively similar thereto. The plaintiff also seeks perpetual injunction restraining the defendants from passing off their business or goods as the business or goods of the plaintiff. The plaintiff seeks accounts and damages from the defendants.
The plaintiff is a manufacturer of electronic goods. It is the registered proprietor of the trademark 'SONY'. The plaintiff claims exclusive right over the trademark 'SONY' by virtue of such registration. The plaintiff claims that it learnt of the defendants carrying on business under the name and style as the first defendant is described in the cause title of the plaint and subsequent thereto the plaintiff has filed the instant suit for the reliefs as sought for herein.
The first defendant has filed written statement and has denied the material allegations made in the plaint. The first defendant claims that it does not manufacture any electronic goods. The name 'Sony' has been used by the first defendant as a part of the family name of the persons in control of the first defendant.
The parties disclosed various documents in the suit. The plaintiff adduced evidence through its sole witness. Four issues were settled for trial in the suit. Such issues are as follows:-
1. Are the defendants wrongfully and illegally infringing the exclusive rights of the plaintiff by wrongful use of the mark 'SONY' as alleged in paragraph 9 of the plaint?
2. Are the defendants dishonestly and deliberately infringing and/or passing off and have adopted the mark 'SONY' with the object of enabling the goods manufactured by the defendants to pass off the same and for the products manufactured and sold by the plaintiff as alleged in paragraph 11 of the plaint?
3. Is the plaintiff entitled to the claims made in the plaint?
4. To what relief is the plaintiff entitled?
The learned Counsel for the defendants commenced arguments first. The learned Counsel for the defendants also submitted Written Notes of Argument on behalf of the defendants. Learned Counsel for the defendants submits that, the suit has not been properly instituted and that the plaintiff did not prove its case by a duly competent witness. Such being the situation, he submits that the merits of the case need not be gone into till such time the plaintiff is able to cross such hurdles. He also made elaborate submissions and cited various decisions on the merits of the case without prejudice to the contentions raised as to the maintainability of the suit. On the conclusion of the submissions on the part of the learned Counsel for the defendants, the learned Counsel for the plaintiff commenced his submissions. As rightly pointed out by the learned Counsel for the plaintiff, the plaintiff is required to get over the point of improper verification of the plaint and a witness being produced by the plaintiff who was not appropriately authorized by the plaintiff to adduce evidence, to obtain any relief in the instant suit. In such circumstances, the third and the fourth issues are taken up for consideration first.
On the third and fourth issues learned Counsel for the defendants submits that, the plaint has not been properly verified. He contends that, the plaint has been verified by Ms. Anuradha Salhotra who is the Advocate for the plaintiff. Learned Counsel for the defendants submits that, no Board resolution of the plaintiff authorizing Ms. Anuradha Salhotra has been produced. Learned Counsel refers to Order XXIX Rule 1 of the Code of Civil Procedure, 1908 and submits that, Ms. Anuradha Salhotra is not a Principal Officer of the plaintiff and, therefore, is not entitled to verify the plaint on behalf of the plaintiff. He refers to Order VI Rule 15 of the Code of Civil Procedure, 1908 and submits that, pleading has to be verified in accordance therewith. He relies upon All India Reporter 1958 Calcutta page 104 (Raj Kumar Dhar & Ors. v. Colonel A. Stuart Lewis) and submits that, when a plaint is verified by an agent of a party under a power of attorney the verification must be justified by proving to the satisfaction of the Court that, the person is acquainted with the facts of the case. Learned Counsel for the defendants points out that, the person verifying the plaint on behalf of the plaintiff does not have personal knowledge of the facts involved in the instant suit. He relies upon All India Reporter 1996 Delhi page 198 (State of Haryana v. Bharat Steel Tubes Limited) in support of the proposition that, a person who has personal knowledge of the fact must verify the pleading. Learned Counsel for the defendants relies upon All India Reporter 1993 Bombay page 217 (Oil and Natural Gas Commission v. Offshore Enterprises Incorporated) and submits that, the plaintiff has failed to prove its case. The practice of an Advocate verifying a plaint on behalf of the party was deprecated in such case.
Learned Counsel for the defendants also refers to Exhibits 'A' and 'B' being the two power of attorneys relied upon by the plaintiff. He submits that, both the power of attorneys are inadmissible in evidence in view of The Notaries Act, 1952. He submits that, the plaintiff cannot obtain any decree from an Indian Court on the basis of the two power of attorneys marked as Exhibits 'A' and 'B'.
The learned for the defendants contends that, the claim of the plaintiff in the suit has not been proved by any evidence at all. He contends that, the witness of the plaintiff came to depose on the basis of Exhibit 'B'. He also contends that, Exhibit 'B' is not properly notarized. Exhibit 'B' is an alleged power of attorney allegedly executed before an alleged notary public at Japan. He contends that Exhibit 'B' is executed by one Mr. Takashi Kotoyori. He refers to Exhibit 'B' and submits that, Mr. Takashi Kotoyori did not appear before the notary public at Japan and that one Mr. Masayuki Nakamura claiming himself to be an agent of Mr. Takashi Kotoyori appeared before the notary public and claimed that Mr. Takashi Kotoyori signed the document. He submits that, Exhibit 'B' establishes that the notary public at Japan did not see Mr. Takashi Kotoyori signing the document. There is no signature of Mr. Takashi Kotoyori on the document. Exhibit 'B', therefore, is not valid. He cites All India Reporter 1992 Bombay page 149 (Pratap Rai Trumbaklal Mehta v. Jayant Nemchand Shah & Anr.) in support of the contention that, a notary public has to be satisfied himself that the executant had executed the particular document and verified the identity of the executant. In the instant case, he points out that, none of the two aforementioned ingredients has been satisfied with regard to Exhibit 'B'.
He refers to 2003 Volume 8 Supreme Court Cases page 745 (Narbada Devi Gupta v. Birendra Kumar Jaiswal & Anr.) and submits that, mere production and marking of a document as exhibit is not enough. The execution of the document has to be established by cogent evidence for the document to be admissible in evidence. He points out that, the witness of the plaintiff Mr. Chamupati Kumar Virmani did not prove the execution of the document. Referring to Exhibit 'A' he submits that, the same does not bear the seal and signature of the company. In such circumstances Exhibit 'A' cannot be construed as a valid power of attorney and the learned Counsel for the defendants refers to All India Reporter 1951 Punjab page 371 (D.H.M Framji & Ors. v. The Eastern Union Bank Ltd., Chittagong) in support of such proposition.
Learned Counsel for the defendants contends that, the power to depose on behalf of the Principal extends to acts done by the power of attorney holder in exercise of the power granted. In the instant case, he points out that, the allegations made in the plaint are not within the personal knowledge of the witness of the plaintiff. He submits that, the witness of the plaintiff is not a person competent to depose on behalf of the plaintiff as to the allegations made in the plaint. He relies upon 2005 Volume 2 Supreme Court Cases page 217 (Janki Vashdeo Bhojwani & Anr. v. IndusInd Bank Ltd. & Ors.) in this regard. The learned Counsel for the defendants contends that, in a suit for passing off the plaintiff has to prove its case. He refers All India Reporter 1953 Supreme Court page 357 (National Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd.). He contends that, the evidence of the plaintiff is not by an employee of the plaintiff. On the contrary, the witness of the plaintiff acted as an employee of M/s. Lal Lahiri & Salhotra who is the lawyer for the plaintiff. Therefore, according to him, the plaintiff has failed to prove its case.
He therefore contends that, the plaintiff not having a plaint duly verified by a person competent to do so there is no suit appropriately instituted in the eye of law. Furthermore, the plaintiff having failed to prove its case according to law, the plaintiff is not entitled to any relief in the instant suit.
On these issues, the learned Counsel for the plaintiff submits that, the plaint has been verified by Ms. Anuradha Salhotra. The authority to verify the plaint on behalf of the plaintiff by Ms. Anuradha Salhotra was given to her by Exhibit 'B'. He submits that, in view of such authority granted by Exhibit 'B', it cannot be said that the plaint has not been verified by a person duly authorized. He refers to 1996 Volume 6 Supreme Court Cases page 660 (United bank of India v. Naresh Kumar & Anr.) and submits that, the defect in verification of the plaint is curable. Learned Counsel for the plaintiff refers to Exhibit 'A' and submits that, the sole witness on behalf of the plaintiff Mr. Chamupati Kumar Virmani adduced evidence on the strength of Exhibit 'A. Exhibit 'A' authorizes three persons to adduce evidence on behalf of the plaintiff. The sole witness of the plaintiff in the instant suit is one of the persons authorized by Exhibit 'A'. He, therefore, submits that, it cannot be said that the witness of the plaintiff adduced evidence without due authority from the plaintiff.
The other two issues must await the decision on the third and fourth issues.
The plaint is verified by Ms. Anuradha Salhotra. The verification of the plaint states that Ms. Anuradha Salhotra is the constituted attorney of the plaintiff.
In support of the contention that Ms. Anuradha Salhotra is the constituted attorney of the plaintiff reliance is placed on Exhibit 'B'. Exhibit 'B' is a power of attorney notarized before a Notary Public in Tokyo, Japan. The date of the notarial certificate is September 9, 1995.
Section 14 of the Notaries Act, 1952 specifies that, if the Central Government is satisfied that by law or practice of any country or place outside India, the notarial acts done by notaries within India recognized for all or any limited purposes in that country or place, the Central Government may, by notification in the Official Gazette, declare that the notarial acts lawfully done by notaries within such country or place shall be recognized within India for all purposes or, as the case may be, for such limited purposes as may be specified in the notification. Therefore, a notification under Section 14 of the Notaries Act, 1952 is essential when a notarial act done by a notary public of a country outside India is sought to be relied upon in a proceeding in India. In the instant case, Exhibits 'A' and 'B' are notarial certificates issued by a notary public of Japan.
The hearing of the suit continued over a considerable period of time. Even on the last date of hearing of the suit, the relevant notification under Section 14 of the Notaries Act, 1952 was not produced. In absence of such relevant notification being produced, I am afraid, I am not in a position to accept that, a notarial certificate issued by a Notary at Japan would be valid in terms of Section 14 of the Notaries Act, 1952 in India.
In such circumstances both Exhibit 'A' and 'B' must be held not to have any evidentiary value and cannot be looked into in support of the claim of the plaintiff. That the plaintiff not being able to rely upon Exhibits 'A' and 'B' in support of its case, the plaintiff cannot be allowed to succeed in the suit.
The claim of the plaintiff must fail on other grounds also apart from the ground that Exhibits 'A' and 'B' have no evidentiary value. The plaint is verified by Ms. Anuradha Salhotra who is one of the Advocates for the plaintiff. This is an admitted position as will appear from the question and answer given by the only witness of the plaintiff in question no. 6 put to him. Ms. Anuradha Salhotra cannot be considered to be a Principal Officer of the plaintiff. Ms. Anuradha Salhotra is not an employee of the plaintiff. Ms. Anuradha Salhotra does not claim to be the Principal Officer of the plaintiff in the verifications portion of the plaint. She claims that, the statements made in the plaint including the cause title thereon are based on information derived from the records of the plaintiff and believed by her to be true. Order XXIX of the Code of Civil Procedure, 1908 relates to suit by or against corporation. Rule 1 of Order XXIX of the Code of Civil Procedure, 1908 requires that in a suit by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the Secretary or by any Director or other Principal Officer of the corporation who is able to depose to the facts of the case. In the instant case, the person verifying the plaint is neither the Secretary nor a Director nor a Principal Officer of the plaintiff.
Learned Counsel for the plaintiff refers to United Bank of India (supra) and submits that, a plaint can be signed and verified by a person duly authorized. In United Bank of India (supra) the Supreme Court considers the question whether the suit for recovery filed by the bank was properly instituted. The Supreme Court considers the question whether the plaint in that case was duly signed and verified by a competent person. In paragraphs 9 and 10 of such report it is held as follows:-
"9. In cases like a present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or a Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would be appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorize any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorized to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a corporation can ratify the said action to its officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstance on the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had rectified the act of signing of the pleading by its officer."
United Bank of India (supra) is of the view that, even in the absence of any formal letter of authority or power of attorney having been executed a person referred to Rule 1 of Order XXIX of the Code of Civil Procedure, 1908 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order XXIX Rule 1 of the Code of Civil Procedure, 1908 as a company is a juristic entity, it can duly authorize any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order VI Rule 14 of the Code of Civil Procedure, 1908. A person may be expressly authorized or his action can be ratified. Such ratification can be expressed or implied. A Court can on the basis of evidence on record and after taking all the circumstances on the case, specially the conduct of the trial come to the conclusion that the corporation had rectified the act of signing of the pleadings by its officer. Applying such ratio to the facts on the case the plaint is verified by a constituted attorney. Therefore, the provisions of Order XXIX Rule 1 of the Code of Civil Procedure, 1908 is not available to the plaintiff. The claim that the person verifying the plaint is the constituted attorney of the plaintiff has not been established at the trial of the suit. Even then the Court can come to a finding that given the evidence on record and taking the circumstances of the case specially the conduct of the trial the corporation has ratified the act of signing of the pleadings by its officer. The facts of the instant case do not permit me to arrive at a conclusion of ratification. There is no material before me that the plaintiff is conducting the suit and has authorized the person who has verified the plaint to verify the plaint on its behalf. The suit is pending since 1994. The plaintiff has not made any effort to ratify the action of the person verifying the plaint either expressly or otherwise. The plaintiff has sought to adduce evidence in the suit through a person who has not been duly authorized by the plaintiff to do so. In fact, there is no material evidence on record that the plaintiff has filed the suit and is conducting the same.
In Raj Kumar Dhar & Ors. (supra) the Division Bench lays down that verification of pleading is an important matter which may have serious consequences as in case of false verification, the person verifying may be liable to criminal prosecution. The object of verification is to fix responsibility on the party verifying and to present false pleadings being recklessly filed or false allegations being recklessly made. In the instant suit, the person verifying the plaint has stated that the contents of the plaint are on the basis of information derived from the records of the plaintiff and believed by the deponent to be true. The person verifying the plaint did not come as a witness of the plaintiff. The so-called records were also not proved in evidence.
In Bharat Steel Tubes Limited (supra) the Delhi High Court came to the finding on facts that the suit was not properly verified on behalf of the state. In the instant case, I have already held that, the source of power of the person verifying the plaint being the power of attorney which is Exhibit 'B' in the suit cannot be looked into. Therefore, without such power to verify being available, the suit filed by the plaintiff has not been properly instituted.
The next question arises as to whether the witness of the plaintiff was competent to depose on behalf of the plaintiff. As noted herein, the person verifying the plaint did not come as a witness of the plaintiff. A different person comes as the witness of the plaintiff while the plaint is verified by Ms. Anuradha Salhotra. The witness of the plaintiff Mr. Chamupati Kumar Virmani deposes on the basis of a power of attorney being Exhibit 'A'. Exhibit 'A' is a power of attorney claimed to be executed before a notary public in Japan. Exhibit 'A' therefore also suffers from the same infirmity of Section 14 of the Notaries Act, 1952 as that of Exhibit 'B'. I have already held that, I cannot consider Exhibit 'B' to be a power of attorney in absence of relevant notification under Section 14 of the Notaries Act, 1952 being placed. The witness of the plaintiff also admits in answer to question no. 1 that he has come to depose on behalf of the plaintiff on the basis of a power of attorney being Exhibit 'A'. Therefore, the irresistible conclusion is that, there is no witness on behalf of the plaintiff. With the plaintiff not having any witness, it must be held that the plaintiff has failed to establish its case.
Exhibit 'A' is otherwise an interesting document. Exhibit 'A' is executed by Mr. Takashi Kotoyori on behalf of the plaintiff on February 14, 2007. Mr. Takashi Kotoyori did not appear before the notary public in Japan on February 20, 2007 when the notarial certificate was issued. Another gentleman by the name of Mr. Masayuki Nakamura claiming to be an agent of Mr. Takashi Kotoyori stated to the notary public in Japan that Mr. Takashi Kotoyori had acknowledged the signature attached to the power of attorney. No evidence is on record as to the authority given by Mr. Takashi Kotoyori to Mr. Masayuki Nakamura to undertake such an exercise. In Pratap Rai Trumbaklal Mehta (supra) the Bombay High Court is of the view that a notary has the responsibility to satisfy himself that the original document intended to be executed before him was executed by the person concerned. In the instant case, the executant of the power of attorney was admittedly not present before the notary public in Japan. In Narbada Devi Gupta (supra) the Supreme Court has held that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence. In the instant case, the execution of Exhibit 'A' has not been established by admissible evidence. The contents of Exhibit 'A', therefore, cannot be looked into also on this ground apart from the ground of Section 14 of the Notaries Act, 1952.
In D.H.M Framji & Ors. (supra) it is held that, a power of attorney needs to be signed by a duly authorized person of the company and must bear the seal of the company. In absence of such material being present in a power of attorney it does not confer any power on the person in whose favour it is executed. In the instant case, Exhibit 'A' does not bear the seal of the plaintiff. There is no evidence on record to show that Mr. Takashi Kotoyori is a Director of the plaintiff company or a person duly authorized by the plaintiff company to execute such power of attorney. Therefore, on this ground also Exhibit 'A' cannot be said to give any authority to Mr. Chamupati Kumar Virmani to depose on behalf of the plaintiff.
In Janki Vashdeo Bhojwani & Anr. (supra) it is held that a power of attorney holder can depose in place of the principal only in respect of acts done by the power of attorney holder in exercise of the power granted by the instrument. A power of attorney does not include the power to depose in place and stead of the principal for acts done by principal and not by the power of attorney holder. A power of attorney holder cannot depose for a principal in respect of matters which only the principal can have personal knowledge and in respect of which the principal is liable to be cross-examined. The inability of the principal to attend Court to give evidence can be cured by taking evidence on commission and not by substituting the evidence of the principal by a power of attorney holder. In the instant case, the so-called power of attorney holder purporting to act in terms of Exhibit 'A' has come and deposed on behalf of the plaintiff in respect of the matters pertaining to acts done by the power of attorney holder in exercise of the power of attorney granted. Mr. C.K. Virmani deposed on behalf of the plaintiff on the merits of the claim of the plaintiff and in respect of acts and damages suffered by the plaintiff. As a power of attorney holder the witness of the plaintiff cannot substitute the evidence of the principal with his evidence. It must, therefore, be held that the evidence led by the plaintiff through its power of attorney holder has no value at all.
In National Sewing Thread Co. Ltd. (supra) it was held that the onus in a passing off action rests on the plaintiff to prove whether there is likelihood of the defendant's goods being passed off as the goods of the plaintiffs. In the instant case, there is no evidence on record by the plaintiff to allow the plaintiff to obtain any decree as prayed for otherwise.
The learned Counsel for the plaintiff relies on All India Reporter 1996 Bombay page 149 (Kiloskar Diesel Recon Private Limited & Anr. v. Kirloskar Proprietary Ltd. & Ors.) in support of the proposition that even if the defendant's activities are remote and there is likely presumption of a possible extension of the plaintiff's business or activities then the plaintiff is entitled to the relief as prayed for. In Kiloskar Diesel Recon Private Limited & Anr. (supra) it has been held that, in a passing off action the plaintiff is not required to establish fraudulent intention on the part of the defendant. It is not even necessary for the plaintiff to establish that the defendant is causing actual confusion amongst the customers or public at large. What a plaintiff is required to establish is that there is a likelihood of deception or confusion. In the instant case, the suit has not been properly instituted and the claim of the plaintiff has not been proved by any evidence. Therefore, the ratio laid down in Kiloskar Diesel Recon Private Limited & Anr. (supra) will not assist the plaintiff in any manner.
In such circumstances, it must be held that, the plaintiff did not institute the instant suit properly and that, the plaintiff did not lead any evidence to establish its claim in the plaint. The third and the fourth issues, therefore, must be answered in the negative and against the plaintiff.
With the finding that the suit has not been properly instituted and that the plaintiff has failed to establish its claim, the first and the second issues must also be answered in the negative and against the plaintiff.
C.S. No. 255 of 1994 is, therefore, dismissed. No order as to costs. The department is directed to draw up and complete the decree expeditiously.
[DEBANGSU BASAK, J.]