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Drugdeal Corporation Vs. Smith - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights
CourtDelhi High Court
Decided On
Case NumberElection First Appeal No. 84 of 1957
Judge
Reported in4(1968)DLT313
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 32
AppellantDrugdeal Corporation
RespondentSmith
Advocates: A.R.Wig,; K.G.Sapra and; Anoop Singh, Advs
Cases ReferredNawab Singh v. Mithu Lal
Excerpt:
.....months and if in the meantime the judgment debtor carries out the directions contained in the decree his property cannto be sold. the injuction contemplated by this sub rule is obviously an injunction requiring the judgment debtor to do something which he has failed to do. learned district judge was perfectly justified in remarking that the appellants having deliberately withheld their books of account the possibility of their having sold much laigter quantiues of the offending tablets that what the respondents have been able to discover, could nto be eliminated. (25) coming now to the cross objections filed by the respondents, i am satisfied that there is a great deal to be said in favor of the respondents' grievance to the effect that in the circumstances of the case the court..........case reported as ajabraon domajee v. atmram sadaskar rao, where it was held that the words of sub-rule(5)of rule 32 c.pc. clearly indicate that they were opposite only to mandatory injunction and nto to prohibitory injunction and that after the plaintiff's suit for possession was decreed and in the execution of the decre the plaintiff obtained possession of the property the decree exhausted and was incapable of execution on second time. all that then remained was a prohibitory injunction against the defendant which could obviously be entorced against him by the penalty of commitment to detention. the said remedy was however, nto proper in a case in which possession had already been lost because once the plaintiff had lost possession of the property at the instance of the defendant, he.....
Judgment:
ORDER

21 rule 32 only prescribes the mode for the execution of a decree for injnction. If a court is moved to enforce execution of the decree under this provisn of law the application must be made within limitation as prescribed by Article 181, Limitation Act and no question regarding contempt of Court proceedings arises'. The point on which Mr. Whig laid great emphasis and for which he sought to derive support from this judgment was that the provisiors of Order 21 rule 32 were nto meant to be regarded as contempt proceedings and the jurisdiction which the court exercises in such cases was nto punitive. According to the learned counsel, all that the said provision of law requires is that the decree holder should be enabled to enjoy the fruits of his decree and this object (an only be achieved if the judgment debtor is compelled to do the very act which he is required to do under the decree and if he does nto do it himself then the same should be caused to be done through the agency of the court.

(13) Mr. Whig lastly relied upon the case reported as Ajabraon Domajee v. Atmram Sadaskar Rao, where it was held that the words of sub-rule(5)of rule 32 C.PC. clearly indicate that they were opposite only to mandatory injunction and nto to prohibitory injunction and that after the plaintiff's suit for possession was decreed and in the execution of the decre the plaintiff obtained possession of the property the decree exhausted and was incapable of execution on second time. All that then remained was a prohibitory injunction against the defendant which could obviously be entorced against him by the penalty of commitment to detention. The said remedy was however, nto proper in a case in which possession had already been lost because once the plaintiff had lost possession of the property at the instance of the defendant, he could only obtain possession by bringing a fresh suit.

(14) In my opinion, the argument of Mr. Whig, if I may say so with great respect to him is wholly misconceived. The decree pissed in favor of the respondents in the present case is nto merely a decree for mandatory injunction requiring the appellants to deliver up to the respondents the offending articles; the decree is also for a prohibitory injection restraining the appellants from using and passing off their own preparations as the preparations of the respondents. The case is thereforee governed by sub-rule (1) of rule 32 of Order 21, while the cases cited by Mr. Whig, are without any exception, cases dealing with subrule (5) only.

(15) Mr. Anoop Singh, learned counsel for the respondents has on the toher hand urged that the correct rule of law applicable to a case like this was laid down in a Division Bench judgment of Allahabad High Court in Nawab Singh v. Mithu Lal', where the learned Judge (Sulaiman C.J. and Bennet.J ) had held :-

'ITseems to us that where the injunction is for the doing of an act, and the judgment debtor has failed to do the act the attachment can continue for three months and if in the meantime the judgment debtor carries out the directions contained in the decree his property cannto be sold. But where the injunction is for restraining him from doing an act and the judgment debtor has already done the act in disobcdince of the injunction he has made it impossible for himself to obey the decree. No doubt the property cannto be sold until three months have expired after the attachment, but after the expiry of this period it will still be impossible for the Judgment debtor to show that he has obeyed the decree inasmuch as he has really irrevocably disobeyed it. If this were nto the interpretation then the result would be that where there is an injunction restraining a defendant from demolishing a house and he celiberately disobeyed the injunction and demolishes the house no compensation can be awarded to the decree holder in execution because the judgment debtor will be able to say that he has nto demolished the house a second time after the attachment. In our opinion where the judgment dobtor has by his own act, made it impossible for himself to obey the decree he cannto escape from the liability to pay compensation which will be enforced after the attachment has subsisted for three months. If however, it be impossible to award the decree holder any compensation then the only remedy which must be adopted would be to detain him in civil prision.'

(16) The contention urged by Mr. Anoop Singh appears to me to be correct as in my opinion the true meaning and scope of rule 32 is that sub-rule (I, applies to buth kinds of decree; it may be a decree turn injunction ordering the defendant to do something or for restraining or prohibiting him from doing sometfing The decree can be executed under this sub-rule by the detention of the judgment debtor in Civil prison or by the attachment of his property or by buth.

(17) SUB-RULE (2) deas with decrees against Corporations. Sub rule (3) provides that where any attachment under sub-rule (1) or sub rule (2) has remained in ferce for three months and the judgment debtor has nto obeyed the decree, the decree bolder has the right to apply to have the attached property sold. In such a case the Court has the power to sell the property and out of the proceeds to award to the decree holder such compensation as it thinks fit, while the balance, if any, is required to be paid to the judgment debtor on his application. Subrule (4) deals with a case where the judgment debtor has obeyed the decree and has paid all costs of executing the same which he is bound to pay, or where at the end of 8 months from the date of attachment the decree holder has nto applied for the sale of the property or where such an application has been refused. In that case the attachment shall come to an end.

(18) Sub rule (5) makes additional provision in regard to a decree for specific performance of a contract or for an injunction. The injuction contemplated by this sub rule is obviously an injunction requiring the judgment debtor to do something which he has failed to do. In such a case the court has, in lieu of or in addition to committing the judgment debtor to civil prison and or attaching and selling his property,the power to direct that the Act required to be done by the judgment debtor may be done so far as practicable by the decree holder or by some toher person appointed by the Court at the cost of the judgment debtor and upon the Act being done the expenses incurred in that connection may be recovered as if they were included in the decree itself,

(19) Judged in this light, the order passed by the learned District Judge is fully in accord with the provisions of sub-rule ( i) of rule 3/. except in one mi or aspect which appears to me to have escaped his attention. The object of attaching the immovable property of the contumacious judgment debtor is ultimately to sell it for the purpose of awarding to the decree holder such compensation as the court thinks fit. In the instant case the learned District Judge has nto determined the amount of compensation which the appellants will have to piy to the respondents in the event of the property being put to sale at the end of the period of three months from the date of attachment. As I read sub rule (3) of rule 32 such a finding must be recorded before the propelty is ordered to be attached.

(20) Mr. Whig has strenuously urged that the respondents have, as a matter of fact, nto suffered any damage on account of dis-obedience of the injunction by the appellants. According to the learned counsel, the ttoal number of tablets sold by the appellants to Uijagar Singh Sethi and Brtohers did nto exceed 1000. The maximum profit which the appellants could have made on that sale would be a few rupees only. in any event, the compensation payable to the respondents would hardly exceed Rs. 10/..

(21) Being himself on the Judgment of the 'Judicial Committee of the Privy Council in Juggi Lal Kamalapat of Cawnpore and toher v. The Suedeshi Mills Co. Lta. Mr. Whig argued that for the purpose of awarding compensation in a passing of action the Judicial Committee had applied the formula of 9% profit on sales resulting from the use of the trade mark. He thereforee, argued that it was highly unreasoable to attach and put to sale the property of the appellants which was worth over a lakh of rupee for the purpose of paying compensation of a few rupees to the aggrieved decree holder.

(22) The argument when presented in this form does nto sound quite formidable; but it has to be borne in mind that trafficking in spurious drugs and medicinal preparations has assumed these days the propertions of a scandal. One cannto shut one's eyes to the (fact that there is an extensive market for the sale of such drugs. The persons engaged in this trade are reaping huge profits nto only to the detriment of genuine manufacturers and dealers but also at the cost of the community. Imagination shudders at the havoc which the sale of spurious drugs can play with human lives The battel which the manufactuers of genuine drugs and proprietors of reputed trade marks are fighting against counterfieters and purloiners of trade marks is a battle on behalf of the community at large against merchants of death. Learned District Judge was perfectly justified in remarking that the appellants having deliberately withheld their books of account the possibility of their having sold much laigter quantiues of the offending tablets that what the respondents have been able to discover, could nto be eliminated. The attachment and possible sale of the appellants' property worth over a lakh of rupees to award compensation of a paltry sum of money to the respondents may thereforee appear shocking at first sight, but when the question is viewed in this light there is neither anything shocking nor improper about it.

(23) Mr. Whig lastly argued that according to the execution application filed by the respondents, the only relief claimed by them was that the three partners of the appellants be committed to civil prison for disobeoiencc of the consent decree. It was thereforee nto open to the learned District Judge to order the attachment of appellants' property when no such relief was sought by the respondents themselves. In this connection, he invited my attention to paragraph 12 of the application. A careful reading of the said paragraph however leaves no doubt in my mind that although the main relief claimed by the respondents is for detention of the partners of the appellants in civil prison, there is also a prayer that the appellants may toherwise be dealt with in accordance with law for disobedience of the consent decree. It is thereforee nto correct to say that tie only relief asked for by the respondents is for commitment of the partners of the appellants incivil prison.

(24) The result of the foregoing discussion is that the order of attachment passed by the learned District Judge is upheld with the modification that before any order is made on an application which the respondents may file for the sale of the attahced property, the learned District Judge should determine the amount of compensation payable to the respondents. The appeal is thereforee dismissed with costs with the rider that the order passed by the learned District Judge shall stand modified to the extent indicated above It is ordered accordingly.

(25) Coming now to the cross objections filed by the respondents, I am satisfied that there is a great deal to be said in favor of the respondents' grievance to the effect that in the circumstances of the case the Court below ought to have passed an order turn the detention of the par. thers of the appellants in civil prison in addition to or in lieu of the order of attachment.

(26) As has been held by the learned Judges of Allahabad High Court in Nawab Singh's case. where the judgment debtor has, by his own Act, made it impossible for himself to obey the decree he cannto escape from the liability to pay compensation which will be enfornced after the attachment has subsisted fur three months. In the present case however, it is argued by the learned counsel for the respondent that the respondents having already disobeyed the decree, have made it impossible for themselves to obey the decree and it is exceedingly difficult to determine the correct amount of compensation to which the respondents are entitled on account of the appellants' action in disobeying the decree because it cannto be easily ascertained what toher quantities of offending tablets have been sold by the appellants and to whom. In such a case, the only remedy which must be adopted is to detain the partners of the appellants in civil prison

(27) I am nto quite sure that, if I had to decide this case in the first instance, I should have exercised my discretion in the way the learned District Judge has done. The case is peculiar and in some respects, a difficult one. The learned District Judge who is now a Judge of this Court has exercised his discretion and held that the ends of justice would be met by the attachment of the appellant's property. I am nto prepared to interfere with the discretion exercised by him and reveise or substantially modify his order.

(28) The result is that the cross-objections .also fail and dismissed but there will be no order as to costs.


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