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Damodar Laxman Lele Vs. Kashinath Waman Lele - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 511 of 1904
Judge
Reported in(1907)9BOMLR312
AppellantDamodar Laxman Lele
RespondentKashinath Waman Lele
Excerpt:
.....petition filed by appellant on ground of lack of jurisdiction. - ' then it appears that the defendant in his anxiety to gut a good sale for his paper 'dharma,'sent out notices to his former subscribers to 'modavritta' that they ought not to subscribe to 'modavritta' but to 'dharma......has the plaintiff so lost and what sum of money has ho been deprived of by reason of such loss of customers?10. evidence to be given on both sides, as they may be advised. return to be made in two months. we issue the following injunction:-let the defendant, his servants and agents meanwhile be restrained from issuing any notice to the former subscribers of ' modavritta' to the prejudice of the plaintiff's rights therein. and let the defendant, his servant and his agents be restrained from publishing any translation of the 'devibhagwat' except for the plaintiff until further order. 11. the finding of the lower court on the first issue was that it was not proved that the plaintiff had suffered damages by the loss of any number of subscribers by reason of the defendants having.....
Judgment:

Russell, J.

1. In this case the defendant was the owner of a printing press at Wai and from that press he published a paper called 'Modavritta' and he also published a supplement to that paper which consisted of a translation of a certain portion of a Sanskrit book called 'Devibhagwat' into the Marathi language. This state of things continued until the 9th January 1903. On the 9th January 1903, the plaintiff and defendant entered into two agreements,-one Ex. 11 and the other Ex. 13. These documents are evidently not drawn up by a lawyer, though judging from the arguments of the defendant before us, we certainly think that he has a certain amount of knowledge of law, which he made use of in these documents. The effect of these documents is, in the first place, that the plaintiff purchased the defendant's right in the printing press and newspaper for Rs. 3,999. Ex. 11 goes on to say that defendant is to write a certain number of articles every week for the paper and further defendant was to go on giving translations of ' Devibhagwat' from week to week and in consideration of that he was to get Rs. 25 per month from the plaintiff. Then we have Ex. 13, passed by the defendant to the plaintiff, in which he says that he has no right or interest whatever in the printing and copyright in respect of the newspaper and in the Devibhagwat. The parties acted under these agreements until 12th August 1903 and from that date defendant ceased translating the portions of 'Devibhagwat' for the plaintiff and on the 16th November 1903 defendant announced his intention of translating the 'Devibhagwat' in connection with a paper called 'Dharma,' which he had started himself after the sale of the 'Modavritta.' Then it appears that the defendant in his anxiety to gut a good sale for his paper ' Dharma,' sent out notices to his former subscribers to 'Modavritta' that they ought not to subscribe to 'Modavritta' but to 'Dharma.'

2. On these material facts the plaintiff filed his suit. As appears above, the various matters must be kept distinct.

3. The first question is, is the defendant entitled, after having sold all his right, title and interest in the 'Modavritta' to the plaintiff, to solicit his old customers of the 'Modavritta' when it was under his control. On this point Labouchere v. Dawson (1872) 13 Eq.322, Ginesi v. Cooper & Co. (1880) 14 Ch. D. 596 and Heaton v. Beachey [1904] 1 Ch. 67 have been cited. These are all clear that where a person sells his goodwill in a business, the vendor after sale is not entitled to solicit his old customers to the prejudice of the purchaser. In soliciting his old customers the defendant committed a breach of his contract and his obligation to the plaintiff. An injunction must go in respect of this.

4. The second question is, has the defendant by soliciting his old customers caused damages to the plaintiff? Mr. Kelkar, for the defendant, has very rightly argued that it must be shown that it was by reason of this solicitation that the plaintiff has lost his customers. The lower Court has awarded Rs. 400 as damages without there being any evidence on the point to show that the plaintiff has suffered that loss. All that the first Court says is that there has been a reduction in the number of subscribers and that the loss is said to be 200 and at Rs. 2 per subscriber the loss is put down at Rs. 400. That is obviously insufficient.

5. We must remand this case for determination of the issues which we will frame hereafter.

6. The third question is, whether the plaintiff is entitled to any and if so, what relief, in respect of the defendant's action as to the translation of 'Devibhagwat.'

7. The defendant says-and there is no reason to disbelieve him-that ho has never translated or published any portion of the 'Devibhagwat'' since the 10th August, but that he has announced his intention of doing so. His object evidently being to publish it as a supplement to his newspaper 'Dharma' because that was evidently an attractive feature of 'Modavritta.' Is the defendant now entitled to issue translations of 'Devibhagwat' as supplement to 'Dharma?' Looking at Ex. 13, he is certainly not entitled to do so. Because by Ex. 11 ho has undertaken to translate 'Devibhagwat' for the plaintiff and by Ex.13 he has given up his right and interest in the translations of 'Devibhagwat' which is being published. In our opinion, that amounts to an undertaking on the part of the defendant that he will not translate 'Devibhagwat' unless the plaintiff requests him to do so. on payment of Rs. 2') a mouth as remuneration for that work.

8. The fourth question is, whether the plaintiff has sustained any damages by reason of this translation or threatened translation of the 'Devibhagwat.' It has been found on remand made by the lower Appellate Court that the plaintiff has not sustained any damages in this respect. So there will be no damages in this respect.

9. We accordingly send down the following issues:-

Has the plaintiff suffered damages by the loss of any and if so how many subscribers to his paper by reason of the defendant having issued notices to subscribers of 'Modavritta' soliciting their custom or prejudicing them against 'Modavritta?'

If the answer to the above is in the affirmative.

What a number of subscribers has the plaintiff so lost and what sum of money has ho been deprived of by reason of such loss of customers?

10. Evidence to be given on both sides, as they may be advised. Return to be made in two months. We issue the following injunction:-

Let the defendant, his servants and agents meanwhile be restrained from issuing any notice to the former subscribers of ' Modavritta' to the prejudice of the plaintiff's rights therein.

And let the defendant, his servant and his agents be restrained from publishing any translation of the 'Devibhagwat' except for the plaintiff until further order.

11. The finding of the lower Court on the first issue was that it was not proved that the plaintiff had suffered damages by the loss of any number of subscribers by reason of the defendants having issued notices to subscribers of ' Modavritta' soliciting their custom or prejudicing them against 'Modavritta.'

12. On the 15th February 1907, the Court (Jenkins C.J. and Beaman J.) passed the following decree:

The Court doth perpetually restrain the respondent Kashinath Waman Lele, his servants and agents, from issuing any notice to the former subscribers of ' Modvritta ' to the prejudice of the plaintiff's rights therein and from publishing any translation of 'Devibhagwat' except for the plaintiff.

13. So far as the damages are sought the claim fails.

14. Each party to bear his own costs.


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