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Himachal Pradesh Horticulture Produce Marketing and Processing Corporation Ltd. Vs. Mohan MeakIn Breweries Limited - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1540 of 1980
Judge
Reported inAIR1981P& H117
ActsTrade and Merchandise Marks Act, 1958 - Sections 105 and 106
AppellantHimachal Pradesh Horticulture Produce Marketing and Processing Corporation Ltd.
RespondentMohan MeakIn Breweries Limited
Cases ReferredKheshtrapal Sharma v. Pancham Singh Varmam
Excerpt:
.....judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 2 on the hand and at best, between the p. a big firm like mohan meakin breweries limited has its..........section 105/106 of the trade and merchandise marks act, 1958. it was averred in the plaint that apple juice manufactured by the defendant corporation was sold under the impugned trade mark 'golden crown' in ludhiana and therefore, ludhiana courts had the jurisdiction to entertain any try the suit in question. the defendant corporation challenged the jurisdiction of ludhiana court and the trial court, therefore, framed the following preliminary issue for decision at the threshold :'whether this court has jurisdiction to try this suit?'2. the plaintiff examined gurdip singh and kamlesh kumar chamiji as p.w. 1 and p.w. 2 respectively. kamlesh kumar dhamij, who claimed himself to be the assistant manager of trade links, ludhina, stated that his company was the distributor of the goods.....
Judgment:
ORDER

1. Messrs. Mohan Meakin Breweries Limited plaintiff-respondent (hereinafter referred to as the plaintiff) sought against Himachal Pradesh Horticulture against Marketing and processing corporation Limited (hereinafter referred to as the defendant) permanent injunction and rendition of accounts for infringement and passing off under Section 105/106 of the Trade and Merchandise Marks Act, 1958. It was averred in the plaint that apple juice manufactured by the defendant Corporation was sold under the impugned trade mark 'Golden Crown' in Ludhiana and therefore, Ludhiana Courts had the jurisdiction to entertain any try the suit in question. The defendant Corporation challenged the jurisdiction of Ludhiana Court and the trial Court, therefore, framed the following preliminary issue for decision at the threshold :

'Whether this Court has jurisdiction to try this suit?'

2. The plaintiff examined Gurdip Singh and Kamlesh Kumar Chamiji as P.W. 1 and P.W. 2 respectively. Kamlesh Kumar Dhamij, Who claimed himself to be the Assistant Manager of Trade Links, Ludhina, Stated that his company was the distributor of the goods manufactured by the plaintiff-company was the distributor of the goods manufactured by the plaintiff company including apple juice under the trade mark 'Gold Coin'; that in pursuance of the direction of the plaintiff company, he had purchased 6 bottles of 'Golden Crown' apple juice from Deep Store at Ludhina who issued him cash memo marked 'A' One of the said six bottles was produced as Exhibit P. 1. He further stated that other shopkeepers also sold Golen Crown apple juice in July 1976. In his cross-examination he stated that Vinodi Lal was the stockiest of Golden Crown, later on he further stated that Brewerges (Beverages?) wee the stockiest of Golden Crown apple Juice. He was unable to say as to whether the sale at Ludihiana of Golden Crown apple juice was two bottles or two Lac bottles. He admitted that he had never paid visit to the office of Amrit Beverages not he had met any partner or director or shareholder or proprietor of Amrit Beverages. He further stated that he did not know as to who were the stockiest of various breweries at Ludhiana.

3. Gurdip Singh P.W. 1 stated that on 20th July 1978, a customer has purchased six bottles of Golden Crown apple juice and the cash memo marked 'A' had been issued by his brother. He produced carbon copy of the cash memo which was marked 'B'. He further stated that he used to get juice manufactured by the defendant from their distributor Amrit Beverages. The cash memo marked 'C' and 'D' are said to have been issued by the said distributors. In cross-examination, he stated that he was not a registered dealer in the city of Ludhiana. He also did not know as to whether Amrit Beverages were the registered dealer. He admitted that in the cash memo book brought by him in court, there was no other cash memo in which Golden Crown apple was specifically mentioned.He further added that the brand name of the juice is mentioned only if a customer specifically asks the same to be mentioned. The customer who had purchased apple juice marked 'P. 1' had specifically asked the brad name to be mentioned and therefore, it was mentioned. He admitted that the brand name for the apple juice purchased against cash memo 'A' is 'Gold Crown' and not 'Golden Crown'. However, he added that what he had sold was 'Golden Crown' to that customer. He did not produce the ledger book. He admitted that he kept no record as to how much quantity of different juice he had sold in the month of July, 1978. He stated that it was his brother who knew everything about the business.

4. The defendant led no evidence in rebuttal.

5. The trial court from the aforesaid material concluded on the strength of a single bench decision of Lahore High Court in Firm Bhagwan Dass v. Watkhins Mayor and Co. AIR 1947 Lah 289 that Ludhiana Courts had the jurisdiction to try the suit.

6. In my opinion, the decision relied upon by the learned trial Judge is rather to the contrary, Cornelus. J. had observed as follows:--

'In order, therefore, that the Courts at particular place should have jurisdiction to try a passing off action it is necessary to show that the defendants wee responsible for sending out to that district, goods which were liable to deceive intending purchasers into believing that they were goods manufactured by the plaintiff. It would of course not be sufficient if such goods were supplied by the defendant to individual purchasers for use, as in such a case, the probability of any members of the public being deceived would be slight. It is necessary to show that the supply has bee on a commercial scale to persons who are likely to offer the goods in question for sale.'

7. From the underlined observations, it is clear that the Court in that case had insisted upon two things; (I) that it is the defendant who must have supplied the goods ad that too not to the individual purchasers and, (ii) that such a supply should have been by the defendant at a commercial scale. It means that the plaintiff must prove that within certain jurisdiction, there has been a direct transaction of sale and purchase between the defendant and a distributor or a wholesaler or retailer of the goods of the impugned trade mark and such transactions be of commercial proportion.

8. In the present case, there is no evidence whatsoever to show any transaction of sale by the defendant to any party in Ludhiana. The transaction of sale and purchase that is deposed to is between P.W. 1 and P.W. 2 on the hand and at best, between the P.W. 1 and the alleged distributor on the other and that transaction too is of only six bottles.

9. In a case of present nature, the cause of action partly or wholly can arise in a given jurisdiction only if it is the defendant who is proved to have directly made sale of the goods under the impugned trade mark (within the jurisdiction of a given Court) not to an individual consumer but to a distributor or a wholesaler or a retailer and that such a sale should be at a commercial scale. If this much is not insisted upon, then the defendant can be dragged into litigation in any part of the country by only adducing flimsy kind of evidence that has been adduced in the present case by a company which has its head office of Solan in Himachal Pradesh where the defendant too have their head office and where it was convenient to the plaintiff to prosecute the suit and to the defendant to defend the suit. A big firm like Mohan Meakin Breweries Limited has its remification all over the country and it is easy for it to have dragged this public corporation into litigation even at a far off pace like Kanya Kumari if the only evidence necessary to give jurisdiction to that Court was of purchasing of a few bottles by any agent of Mohan Meakin Limited from someone locally there.

10. Mr. Chadha, learned counsel for the plaintiff--Company, however, placed reliance on a Division Bench decision of Allahabad High Court reported as Kheshtrapal Sharma v. Pancham Singh Varmam, AIR 1915 All 262. The facts in that case were that the defendant had advertised his goods through newspapers, hand-bills and circulars at Muttra. The plaintiff in stituted the suit in Muttra. The defendant challenged the jurisdiction of Muttra Court. The High Court after stressing the fact that the infringement alleged was by way of an advertisement of the respondents medicine in papers published in Muttra and in circulars and hand-bills distributed in the same place observed that the question for consideration was whether the publication of the advertisement by the respondent of his medicine, Asli Sudha Shindhu, in papers, hand-bills and circulars published in Muttra was an infringement of the applicants trade mark. It was held that it amounted to infringement and so it was held that the Court at Muttra had the jurisdiction.

11. The ratio of this decision can be of no help to the plaintiff. It was not in dispute that the advertisement had been done at Muttra by the respondent. The fact if said to have constituted the infringement of plaintiff trade mark. Since the said act was admittedly done by the respondent so the cause of action accrued at Muttra. Similarly, if the plaintiff had been able to prove the sale directly by the defendant of the apple juice under the impugned trade mark to someone other than the individual consumer at Ludhiana, then the Luhinana Court would certainly have had the jurisdiction. So the ratio of Khershtrapal Sharma's case (supra) in no way runs counter to what has been held by Lahore High Court and by me in this case.

12. In my opinion, the trial court had wrongly assumed the jurisdiction in this case, when in fact, it had no jurisdiction to entertain and try this suit. Consequently, the revision petition is allowed with costs and the impugned order is set aside.

13. Petition allowed.


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