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imperial Tobacco Co. Vs. Albert Bonnan - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1928Cal1
Appellantimperial Tobacco Co.
RespondentAlbert Bonnan
Cases ReferredGrifit v. Blake
- rankin, c.j.1. this suit was instituted in january 1925 for the recovery of about seven and half lakhs of rupees as damages for a variety of acts done by the defendant company. it was stated in the plaint that no part of the cause of action arose before february 1922.2. the plaintiff towards the end of 1921 bought a large quantity of gold flake cigarettes on the terms that they should not be sold in great britain. the goods were two years old, they were made up in packets or cartons of tin, and 25,000 cigarettes in their cartons were packed in a strong tin-lined case. this brand of cigarettes is very well known as : having originally been the manufacture of w.d. & h.o. wills, of bristol whose successors in business are.the british american tobacco company limited. the goods so bought by.....

Rankin, C.J.

1. This suit was instituted in January 1925 for the recovery of about seven and half lakhs of rupees as damages for a variety of acts done by the defendant company. It was stated in the plaint that no part of the cause of action arose before February 1922.

2. The plaintiff towards the end of 1921 bought a large quantity of Gold Flake cigarettes on the terms that they should not be sold in Great Britain. The goods were two years old, they were made up in packets or cartons of tin, and 25,000 cigarettes in their cartons were packed in a strong tin-lined case. This brand of cigarettes is very well known as : having originally been the manufacture of W.D. & H.O. Wills, of Bristol whose successors in business are.the British American Tobacco Company Limited. The goods so bought by the plaintiff had (under a temporary arrangement necessitated apparently by the war) been manufactured in America and were part of a very large number of cigarettes which had originally been intended for troops but which were now being disposed of. They had been manufactured by the British American Tobacco Company Limited itself and were thus-genuine Gold Flake cigarettes and not counterfeit. The plaintiff bought them cheap at eight or nine shillings per thousand.

3. His case is that he contracted to buy 860 cases being 21 1/2 million cigarettes, that he disposed of some (apparently 194 cases) in Egypt and elsewhere, and that early in 1922 he came to India not merely to dispose of 666 cases already contracted for but also with a view to establish a continuing market in these war stocks of which further supplies in very large quantities were available or would become available.

4. Now 'Gold Flake' cigarettes were and lire sold in large quantities in India by the defendant company which is a 'subsidiary' or 'associated' company of the British American Tobacco Company Limited, the latter company holding at least 80 per cent of its shares. The defendant company had in 1910 acquired the business and trade-mark rights of the British American Tobacco Company Limited so far as India, Burma and Aden are concerned. For years it alone had been selling Gold Flake cigarettes in India and its price to dealers was Rs. 66 per thousand. It obtained its goods from the British American Tobacco Company in Great Britain though it had itself the right to manufacture. It sold fresh goods of British make taking back from dealers any unsold goods that were old and unlikely to be sound. It brought out its 'Gold Flake' cigarettes not only in tin-lined cases but in sealed tins of fifty packets in such cases.

5. The plaintiff's venture was a very promising one. He could afford to sell at a price far below the defendant company's price of Rs. 36 per thousand. If he could dispose, at a start, of some 16 million cigarettes at Rs. 20 per thousand he would do very well for himself and if he could continue so to do he would do very well indeed. There were, however, at least two danger spots. So long as the public would regard his merchandise as good Gold Flake cigarettes they would prefer his article because of the price. But old cigarettes do not 'stand up to the monsoon' so well as might be wished and when once the tin-lined case was opened, if not before, there was certain to be deterioration after June. That was one risk. The second was this. It was all very well to throw the defendant company out of the Indian market despite their purchase of the Gold Flake trademark and business but the defendant company might conceive themselves entitled to object and this might mean litigation. How far either of these risks had been considered by the plaintiff in advance it is difficult to say. Whether they were considered in combination I do not know at all.

6. The venture began well. The plaintiff having arrived in Bombay on the 7th February 1922 with samples sold no less than 220 eases to a Bombay firm Messrs. Irani Hormuz Sheriar & Company at Rs. 23-8-0 per thousand. His counsel on this appeal has referred to the correspondence passing between the offices, of the defendant company at Calcutta and Bombay and between them and their London advisers as showing that he was 'tearing their trade in Gold Flake cigarettes to shreds.' It seems to me that at first the defendant company's advisers in India did not appreciate this partly because they thought the goods would not last but in fact it is clear that the matter was one of great importance to the defendant company. Mr. Abbott's letter of 15th March, Mr. Macnaghten's cable received on 5th April and the cable of 10th April (which has been ruled out by the learned Judge for reasons which I do not appreciate) show what happened. The company's solicitors in India did not think they could do anything. Mr. Macnaghten in England advised that they could. He knew all about the defendant company's trade-marks and in a matter of this sort and of this importance it was most reasonable to take advice in London. It was after all a question of trade-marks law and Mr. Macnaghten was their legal adviser. It seems idle to suggest that the plaintiff has a grievance because the defendant company took advice from him.

7. The defendant company decided to take steps to establish that the plaintiff's scheme was an invasion of their rights. They thought it wise to take a formal assignment of the marks by way of perfecting their equitable title under the indenture of 1910 and this was not completed till the 10th May 1922. Meanwhile they applied under the Sea Customs Act to the Collector of Customs at Calcutta and at Bombay on 12th April and 1st May. The applications are in evidence and state that the goods are liable to confiscation because

we consider that the importation of the above goods into India, is an infringement of our trade-mark.

8. Indemnity bonds were given to the Collectors in the usual course and letters written to the plaintiff asking for an assurance that the goods would not be sold in India and threatening legal proceedings to restrain this. Matters really stood over to abide the result of an interview between the plaintiff and the defendant company's directors which took place on the 8th May. Suits were filed by the defendant company in Calcutta on 11th May and in Bombay on 22nd May. On 2nd May 1922 the Collector of Customs at Bombay ordered the detention of the goods till 1st June as the defendant company said there was an infringement of their trade-mark and in order to enable them to file a suit. On the 3rd May plaintiff's solicitors objected and after taking advice from the Government law officer the Collector released the goods by iris letter of the 5th May.

9. The Collector of Customs, Calcutta, did nothing till 22nd April when he wrote to the clearing agents Samuel Pitze and Company asking what they had to say. On 11th May an interim injunction had been obtained from the Court. Prom an order recorded by the Collector upon another matter - the assessment of the plaintiff's cigarettes for duty - we know exactly how lie dealt with the ease. He was under no misapprehension as to the fact that the plaintiff's goods, had been manufactured by the British American Tobacco Company and were in that, the ordinary sense, genuine, but he thought there was a prima facie case far holding that the trade-mark imported that the goods were the defendant company's and that accordingly its use by other dealers was pro tanto a counterfeit. This contention is certainly far-fetched and indeed erroneous and that the goods were not really within the provisions of the Sea Customs Act, Section 18, at all. The relevant clause speaks of

goods having applied theieto a counterfeit trademark within the meaning of the Indian Penal Code or a false trade description within the meaning of the Indian Merchandise Marks Act, 1889.

10. Any detention in Calcutta after 11th May was by virtue of the interim injunction of that date. The detention under the Sea Customs Act was from 1st to (say) 7th May in Bombay and from 12th April to 11th May in Calcutta.

11. The chief importance of this matter lies in the fact that the learned Judge thinks that the defendant company, in applying for detention of these goods under the Sea Customs Act, were acting maliciously. It is clear that the facts as to the origin of the goods were made quite clear to the Collectors of Customs and were not in any wise misstated in either application, both of which gave as the ground 'infringement of our trade-mark rights.' But it is said that if one looks at Clause (d), Section 18 of the Act it is apparent that the defendant company were maliciously accusing the plaintiff of a criminal offence and fraud, and were asking for a detention to which they knew they had no right.

12. It is desirable to add that there do not appear to be any regulations under Section 19-A, Sea Customs Act, but proceedings of the character now in question are governed in practice by certain 'instructions for the observance' of Customs officers published under authority of the Government of India in the Merchandise Marks Manual.

13. As I read these instructions they provide that if the 'informant' is willing to give an indemnity bond the Collector, unless he is of opinion that there is clearly no reasonable cause for detention, will detain the goods for a month in order to allow of a suit being brought and if a suit is instituted will detain them until a final decision by the highest appellate Court to which the matter is taken.

14. The learned Judge has held that the plaintiff cannot now recover damages against, the defendant company for the detention of his goods by the Collectors of Customs at Bombay or Calcutta. In his opinion Article 36, Limitation Act, applies and Article 48 does not apply. Section 24, Limitation Act does not assist the plaintiff here if only because it is impossible to hold that the special damage flowing from these detentions in May and June 1922 did not result before the end of that year. The only contention therefore which need be referred to is that urged upon us by the plaintiff's counsel that Article 49 applies because though the detention was by the Collectors nevertheless the defendant company moved them to detain and are responsible for the detention as for their own act. In my opinion this argument fails whether as construction of Article 49 or otherwise. It is quite true that

all persona in trespass who aid or counsel, direct or join are joint trespassers : Petrie v. Lamont (1842) Car. & Marsh 96.

but the wrong done by the Collectors here is that being lawfully in possession of the plaintiff's goods they wrongfully i.e. contrary to their duty refused to deliver possession to him and so their possession became unlawful. This is what is contemplated by the concluding words of the first and third columns of Article 49. But this cannot possibly be predicated of the defendant company who never had possession of the goods. I think, therefore, that the learned Judge was right in holding that this cause of action is time barred under Article 36.

15. The defendant company filed two suits against the plaintiff one in this Court and one in the High Court of Bombay. The Calcutta suit was filed on 11th May 1922 and an interim injunction was on that day obtained ex parte from Mr. Justice Greaves restraining the plaintiff from removing from bond or dealing with 100 cases lying with the Customs. The defendant company gave an undertaking in damages. On the 8th June the motion for an interlocutory injunction was disposed of in the presence of both parties. The plaintiff undertook to deposit Rs. 20,000 (less certain charges) on fixed deposit in the Alliance Bank and the interim injunction was dissolved. There is no suggestion of any false statement or suppression made by the defendant company on this occasion. Indeed on asking to be referred to the affidavits I am informed that they were not even put in evidence in the present case. The suit came on for hearing promptly. It was heard by the same learned Judge whose decree in this case is now under appeal and was dismissed by him on 18th July 1922. An appeal to this Court was dismissed on 10th April 1923 : Imperial Tobacco Co. v. Albert Bonnan : AIR1924Cal216 , and an appeal to His Majesty in Council shared the same fate on 13th May 1924 Imperial Tobacco Co. v. Albert Bonnan A.I.R. 1924 P.C.

16. The suit in Bombay was filed on 22nd May 1922 and notice of motion for an injunction was given for 2nd June. It was heard on 19th June, that is, after the injunction given in Calcutta had been dissolved. On the 19th June the matter was settled by cross-undertakings. The plaintiff undertook pending the hearing not to sell any cigarettes then in Bombay or to arrive in Bombay and the defendant company undertook in damages. The plaintiff's undertaking not to sell was discontinued by order of the Court on 2nd August 1922 (soon after the Calcutta suit had been dismissed by the trial Judge) on his agreeing to keep an account, and this undertaking to keep an account came to an end by order of 20th September 1923 (by which time the appeal in Calcutta had been dismissed). The suit was abiding the result of the Calcutta case and the appeals therein, and was dismissed on 10th November 1924 after the decision of the Privy Council in that case.

17. The plaintiff says that these suits were brought maliciously and without probable cause and that he is entitled to damages accordingly; including, as I understand, damages for the harm done to his business by the litigation which discouraged dealers from buying goods which might land them in trouble. He says further that in this suit, and apart altogether from the defendant company's undertakings in damages, he can in these circumstances recover damages in respect of the Calcutta injunction and of his own undertaking not to sell given to the Bombay Court. It has further been maintained on his behalf more particularly on the authority of Bhut Nath v. Chandra Binode [1912] 16 C.L.J. 34 that so far as the Calcutta injunction is concerned, the obtaining of it was an act in the nature of trespass to property and it is not necessary for the plaintiff to prove malice or any want of probable cause.

18. At least two of these contentions appear to me to be wrong. The plaintiff has (if he has not lost it by delay) the right to apply to the High Court of Bombay to give him damages pursuant to the cross-undertakings given to that Court on 19th June 1922. In no other way can he get damages for carrying out his own undertaking whether the suit was or was not malicious or an abuse of process. I agree entirely on this point with the learned Judge.

19. That, apart from malice or want of probable cause, a plaintiff can recover damages in an independent suit (and apart from any undertaking given by the defendant) upon mere proof that an injunction was granted to restrain him from doing what has since been held to be within his rights - this too is a proposition I dissent from. It is to be found in the case cited but it proceeds upon a misunderstanding of such cases as Clissold v. Cratchley [1910] 2 K.B. 244 which are cases where trespass was committed and the defendant unsuccessfully set up as his justification an order of the Court which was disregarded because it was irregularly obtained by the defendant. To speak of an injunction as on a par with such a case as being an act

in the nature of trespass to property.

is merely to obscure matters by a false analogy or else to beg the question. Section 95, Civil P.C., is rendered almost absurd by such a doctrine.

20. On the 11th May 1922 when the interim injunction was obtained in Calcutta restraining the plaintiff from removing from bond or selling or disposing of 100 eases of cigarettes then lying with the Customs, the defendant company gave an express undertaking in damages. This was an undertaking to the Court and the character of such an undertaking has been discussed in the case of Smith v. Day [1883] 21 Ch. D. 421. It is not such an undertaking as amounts to contract with the other party, nor does it ground any action at common law. It is to be enforced by application to the Court to which it was given and in the suit or proceeding in which it was given. The right to ask for an enquiry as to damages there under may be lost by delay but there is no rule that an enquiry must be asked for when the injunction is dissolved or when the suit is decided : Ex-parte Hall [1883] 23 Ch. D. 644. It is clear now that although the granting of an enquiry as to damages is a matter upon which the Court exercises its judicial discretion, it is not necessary that the party aggrieved by the interlocutory injunction should show that his opponent suppressed material facts or otherwise obtained the injunction by improper means : Griffith v. Blake [1884] 27 Ch. D. 474. In the present case the plaintiff before taking action waited until the defendant company's appeal has been disposed of by the Privy Council but he commenced this suit promptly thereafter. This in substance satisfies the general rule that the Court ought to be asked to enforce the undertaking within a reasonable time after it is ascertained that the injunction has been improperly granted : see Ex parte Hall [1883] 23 Ch. D. 644.

21. No limitation is provided by Indian statue law for an application to enforce an undertaking given to the Court. It is, I think, clear that the plaintiff has brought an independent suit when for this purpose he should not have done so but this Court has jurisdiction to treat his suit as though it were an application made in the previous suit since it happens that both proceedings are in the same Court and have been dealt with by the same Judge. Where an independent suit is necessary a mere application may have to be dismissed; but where the plaintiff has adopted a more formal and elaborate procedure than he should have adopted in applying to the correct Court, no lack of jurisdiction is involved and the question becomes one of costs and of discretion. If the plaintiff had launched an application in the previous suit and asked that it should stand for hearing until the matter had been finally decided in appeal, he would have taken a very reasonable course. I consider also that in this case an enquiry as to damages could not have been refused as there is every reason to think that the interlocutory injunction would interfere with his chance to sell his cigarettes, cf. Graham v. Campbell [1877] 7 Ch. D. 490.

22. For these reasons it hardly appears to be necessary for the decision of this case that we should discuss the proposition that if A maliciously and without probable cause brings a suit against B and without suppression of facts, misstatements or other improper means, obtains an interlocutory injunction, an action will lie at common law for the damage done to his business by the injunction. But I think it right to say that this proposition is one to which I refuse assent. I respectfully agree with the observations of Fletcher J. in Mohini Mohan v. Surendra Narain [1914] 42 Cal. 550 and with the decision in that case. It is the duty of a Judge before granting an injunction to satisfy himself that the plaintiff is not without reasonable and probable cause - indeed to satisfy himself, that it will stand a higher test. Unless the malice of the plaintiff results in some form of misstatement or leads the plaintiff to suppress some fact or facts - it was his duty to lay before the Court - I have much difficulty in seeing how the granting of the injunction is causally related to the plaintiff's act or state of mind. The present case is probably unique in that no attempt is made to prove what was laid before the Court or that it contained any element of falsity. The granting of an injunction is a judicial act in the fullest sense : it is not a ministerial order or an order of course or mesne process or a necessary incident of any particular jurisdiction. The Quartz Hill case [1883] 11 Q.B.D. 674 is not really directed to the present question but to the question whether a plaintiff has a cause of action from the mere bringing of a suit or other proceeding. I observe that in one well-known text book (Clerk and Lindsell on Torts 7th edn. p. 654) it is suggested that the observations in that case (at p. 684) made by Brett M.R. show that in no case can a person who has maliciously and unreasonably set the law in motion absolve himself from the consequences which he invited and brought to pass, by the suggestion that their immediate cause was a mistake on the part of the Judge. On this view doubt is thrown upon Daniels v. Fielding [1846] 16 M. & W. 200. A careful perusal of the learned Judge's argument in criticism of what Martin B. said in Johnson v. Emerson [1817] 6 Ex. 329 leads me to think that this is a misunderstanding of what he said. His point is that damage to credit results from the mere present action of a bankruptcy petition and that Martin B. has failed; to notice this special feature of that kind of petition. Of the proposition imputed to him I think it quite likely that he would have thought as of Martin B's doctrine - its fault is that it is too large.

23. There is nothing in the second sub-section of Section 95 of the Code or in Article 40, Schedule 1, Limitation Act 1908, which is inconsistent with what I have already said. These indeed are curious places in which to expect to find the law as to the conditions upon which a suit for damages caused by an injunction is sustainable, and it cannot be disputed that upon some conditions such a suit is competent as where an injunction has been procured by fraud.

24. For reasons already given I think, however, that it is within our power to make an order such as would have been more properly asked for by an application in a previous suit. But as a large body of evidence has been taken in this case and as the plaintiff has sought the judgment of the Court as to the amount of damages to which he is entitled, I propose that in ordering the inquiry this Court should give a decision upon one important matter for the guidance of the officer conducting the inquiry. I refer here to the question whether or not the plaintiff can, as part of the damages caused by the injunction, recover damages, for loss caused to him by the cancellation of two contracts for the purchase of cigarettes from Messrs. Venis and Company. In para. 18 of the plaint the plaintiff says that the Army & Canteen Board cancelled 258 cases of cigarettes by reason of which he was put to a loss of Rs. 1,09,549. In para. 16 he says that 160 cases, portion of 220 cases which he had contracted to sell in Bombay have not been shipped to India, but in Ex. O. as the summary of his claim which the learned Judge has acted upon, he definitely states of these 160 cases also that they were cancelled by sellers in England. Now it appears that the cancellations relied upon are cancellations made by the plaintiff himself and not by his sellers. On the 17th May 1922, he wrote to Messrs. Venis and Company:

Regarding my order of the 21th December for five million cigarettes, I very much regret to inform youth it owing to an injunction served upon ma by Messrs. Imperial Tobacco Co. of India Ltd. here, which restrains me from importing the. e goods, I shall not be able to take delivery of the cigarettes and therefore please cancel same and oblige.

25. On the 6th June 1922 he wrote to Messrs. Venis and Co.

I am in receipt of your letter of the 16th May for which I thank you. I note that you can still make arrangements for the delivery of the goods. But I regret to inform you that owing to an injunction brought against me by the Imparial Tobacco Co. in India, I am restrained from importing these goods and they have commenced proceedings against me. Therefore I regret I cannot accept your kind proposition. Thanking you for the same.

26. This is said to refer to six million cigarettes. Now the Calcutta injunction was granted ex parte on the 11th May and referred only to 100 cases then lying with the Customs. The injunction was dissolved on the 8th June. As I understand the reasoning of Brett L.J. in Smith v. Day [1883] 23 Ch. D. 644 damages to be paid by virtue of an undertaking are not necessarily confined to proximate and natural damages but may be enlarged either by reason that the opposite party had notice of all the circumstances or by reason that the case is one for the giving of exemplary damages in view of fraud or malice. But it is to my mind reasonably clear that in respect of neither cancellation was the plaintiff's conduct rendered reasonable by the exparte injunction; as to the 100 cases in Calcutta, the plaintiff did not even wait to see what view the Court would take when he appeared to put his case before it. The Court in fact dissolved the injunction on the 8th June. The plaintiff's conduct may well have been reasonable in the sense that he now saw that he was involved in litigation about questions of 'trade mark' law or by reason of the fact that he was not prepared to peril too much upon his chances of success. His claim that the contracts were cancelled against him is anything but candid, and I am of opinion that this matter ought not to be canvassed again at the enquiry which we direct. It is upon this condition only that I am prepared to direct such enquiry.

27. I turn now to consider whether the plaintiff is entitled to damages by reason of the mere bringing and prosecution of the suits in Calcutta and Bombay. I do not doubt that the existence of this litigation came readily and quickly to the notice of the trade. I do not doubt that the agents of the defendant company informed their customers in the trade and the persons whom they employed to canvass for orders, of the facts that they had started these proceedings. I do not doubt either that some dealers refused to buy the plaintiff's goods because they did not wish to offend the defendant company : others because the defendant company would refuse to deal with them or to deal with them on the same favourable terms as before; others because they anticipated that they too might become involved in litigation if they dealt in plaintiff's goods; others again because they were definitely informed that the defendant company were prepared to assert their rights to prevent the plaintiff's cigarettes being sold in India by bringing whatever suits were necessary to establish and enforce their alleged right. The learned Judge has held

that the defendant company made full use of the litigation in Bombay and Calcutta with its attendant threat of trouble to others as an obstruction to the plaintff and as a deterrent.

28. He has further held that the suits

were throughout designed as a disparagement of the plaintiff's goods and an obstruction to the unfettered exercise of his rights as a trader, of which I have no doubt the company made the fullest use the whole time of the litigation lasted and whenever occasion so required.

29. These observations of the learned Judge are to be coupled with his finding that the defendant company were actuated by malice and that their case had no reasonable or probable cause.

30. These findings taken broadly make an impressive case of hardship and oppression. It is, however, necessary to-remember that while the plaintiff might have been well entitled to seize the opportunity afforded by the existence of war stocks, to drive the defendant company out of the market, he was not in law entitled to rely upon the defendant's passivity in the face of his laudable endeavour; the defendant company were certainly entitled, if they chose, to protect themselves by refusing to deal at all with any person who sold the plaintiff's goods. This complaint may be put upon on one side. The rest of this formidable indictment may, 1 think, be examined under two heads. The first head is the bringing of the suits; the second is the question of threats. As regards the bringing of the suits I. think the relevant authorities are Savile v. Roberts [1697] 1 Ld. Raym. 374 and the Quartz Hill case [1883] 11 Q.B.D. 674 already cited to which I would add Wren v. Weild [1869] 4 Q.B. 730 (731); Pitt v. Donovan [1831] 1 M. & S. 639. The recent case of Sorrell v. Smith [1925] A.C. 700, although the immediate subject-matter is illegal combination or conspiracy, is I think particularly valuable because it takes account of the right of a rival trader to forward or defend his trade and it examines the notion of malice in connexion therewith.

31. Where damages are sought for the mere bringing and prosecution of a civil suit two main questions emerge. The first questions is the leading element in the Quartz Hill case [1883] 11 Q.B.D. 674. That question is a question of the remoteness of the damage. The mere institution of the proceedings may, having regard to their character, involve damage to credit or reputation, damage to property in the sense that the defendant is put to expense, or damage to the person in the sense that he is liable to arrest. In such cases that damage is not remote but in any ordinary case

the broad cannon is true, that in the present day and according to our present law the bringing of an ordinary action, however maliciously and however great the want of reasonable and proper cause, will not support a subsequent action for malicious prosecution. The counsel for the plaintiff company have argued this case with great ability but they could not point to a single instance since. Westminister Hall began to be the seat of justice, in which an ordinary action similar to the actions of the present day, has been considered to justify a subsequent action on the ground that it was brought maliciously and without reasonable and probable cause. Quartz v. Hill case [1883] 11 Q.B.D. 674.

32. Lord Bowen in saying this had clearly before his mind that incidentally matters connected with the action, such as the publication of the proceedings in the action, may do a man an injury; and Brett, M.R., in deciding that a petition to wind up a company was within the exception mentioned in Savile v. Roberts [1997] 1 Ld. Raym. 374 stated:

the present case is reduced to this question namely : Is a petition to wind up a company more like an notion charging fraud or more like a bankruptcy petition.

33. If injury to the fair fame of a person is not for this purpose a consequence of an action charging fraud, it is impossible to contend that injury to his business is, in such a case as the present, a cansequence of the mere bringing of the suit.

34. The second question which arises in cases of this sort is as to what is meant by malice. When we turn from criminal prosecutions to civil cases special consideration is here necessary. A prosecutor has no right to employ the process of the criminal Court save for the purpose of vindicating public order and justice. If there is no reasonableness in his charge that of itself raises at least a suggestion that he is acting from some other motive and that he is serving some private end in an oblique and improper manner. This may be mere spite or it may be something quite different, such as the desire, by abuse of the criminal process, to obtain money or other properties or to induce the person prosecuted to come to a compromise. Now in a civil suit the obtaining of money or property or the assertion of valuable rights is the declared object of the plaintiff. He is entitled, if he thinks that he has chances of success, to put the matter to the test and in this way it is daily experience that Courts of law are invited to do things which it would be most unreasonable for them to do. When two people are competing for the same market success on the part of the one necessarily involves injury to the other except indeed the market be capable of expansion so as to admit them both. Holt, C.J., in Savile v. Roberts [1697] 1 Ld. Raym. 374, in dealing with the second 'objection,' gives this answer:

There is a great difference between the suing of an action maliciously and the indicting of a man maliciously. When a man sues an action he claims a right to himself, or complains of an injury done to him; and if a man fancies he has a right, he may sue an action.... If the law will permit a man to make a false claim out of a Court of justice (i.e. outside a Court of justice) a fortiori when he proceeds to assert his right in a legal course.

35. In Wren v. Weild [1869] 4 Q.B. 730 (731) Blackburn, J., stated

that an action may be brought under such circumstances as to render it morally wrong and injurious in fact is certain, though the authorities leave it in doubt whether, under any circumstances, the person so sued can recover damages for the vexation and annoyance caused to him by the false suit.

36. He refers to the case reported in Maynard's Long Quinto

that for bringing a suit manifestly wrongful, to the defendant's own knowledge, an action might be maintained.

37. He refers to a case of Sir G. Gerard v. Dickenson [1590] 4 Co. Rep. 18a where the defendant had brought a suit alleging against her own knowledge that a certain lease, which was a forgery and which she knew was a forgery gave her title to the land. It is clear from his judgment that the furthest limit to which Blackburn, J., was prepared to go was that

if a man sue me in a proper Court, yet if his suit be utterly without ground of truth, and that certainly known to himself, I may have an action of the case against him for the undue vexation and damage that he putteth me unto by his ill practice.

38. The case before him was one in which the defendant had warned persons who had purchased or were intending to purchase machines from the plaintiff, that the machines sold by the plaintiff were infringements of the defendant's patents and that if they used the machines, he would claim royalties and should take legal proceedings. The actual decision was a s follows:

If, therefore, the plaintiffs had given evidence, on which the jury might properly find that the defendant made the communication to the intended purchasers mala fide, and without any intention to institute legal proceedings at all against the purchasers, so that it was not a step taken in support of his real or fancied right against the purchasers, but entirely out of malice against the plaintiff; or on which the jury might have properly found that the defendant did not (to use Lord Holt's phrase) so much as fancy he had a right, but as Lord Hobart says, knew certainly that his claim was utterly without ground of truth, we are inclined to think that it would have been proper to leave that evidence to the jury in support to the plaintiff's allegation that the defendant's letter was false and malicious.

39. In the judgment of Lord Cave, L.C., in Sorrell v. Smith [1925] A.C.700, it is stated in effect that there is some authority for the view, that it is actionable for one person wilfully to injure a man in his trade if damage results to him. This, however, is guarded by a proviso to the effect that if the real purpose is not to injure another, but to forward or defend one's own trade, then no wrong is committed and no action will lie, although damage to another ensues. Of malice the Lord Chancellor stated this:

In some cases malice is postulated as an element in the tort which I am considering. If the word means only that the act complained of is wilfully and knowingly done, or that it is done for the purpose of injuring another, then it is rightly used in this connexion. But there is a tendency to interpret malice as connoting personal enmity, or spite or some other evil motive, and as such a motive is neither an essential element in the offence nor conclusive of the offence having been committed, it seem better to forgo the use of the word.

40. I propose, in view of these authorities to consider in the light of the judgment of the learned Judge whether the defendants' suit was brought with the knowledge that it had no chance of success and for purposes other than the purpose of endeavouring to establish in Courts of law that the defendant company had the right to object to the plaintiff's importations and whether the defendant company's desire was to injure the trade of the plaintiff as distinct from the desire to forward or defend its own trade. It is suggested that the defendant company's case was essentially absurd because the plaintiff company's cigarettes had been made in America by the successors of W.D. and H.O. Wills of Bristol. Two cases have been cited to us which I think dispose of this contention : Imperial Tobacco Co. (Newfoundland) Ltd. v. Duffy [1918] A.C. 181 and Dunlop Rubber Co. v. Booth 43 Patent Cases 139. It is necessary, therefore, to see whether it can be imputed to the defendant company that their superior officers were well aware that they had no case for claiming that their assignment of all the Indian rights in the Will's trade-mark should carry a similar consequence, It cannot I think be contended on a perusal of the proceedings at the trial or in appeal that the defendant company were treated by the Courts as persons advancing an idle claim. The case offered no little scope for dispute upon the principles of law applicable. Nor was it one in which the careful sifting of somewhat numerous, and complicated considerations was unnecessary. The learned Judge who tried the case gave a very clear analysis of the whole matter, but I do not find in his judgment dismissing the suit an indication that he found the decision of it to be noticeably free from difficulty. In matters of trademark law the directors of a company are necessarily in the hands of their legal advisers. In this case they had received from the solicitors in India advice to the effect that the law was against them. Their legal experts in London took another view for the reason, as I think that they failed fully to appreciate the con sequences in India of the lack of statutory title to a trade-mark. These consequences have in the course of the case worked out with reference to Section 22, Trademarks Act, 1905 which authorizes the 'splitting up' of a trade-mark territorially. In any view the burden of proof lies heavily upon the plaintiff to show that the defendant company were persuaded that Mr. Macnaghten was wrong and the Indian solicitors were right.

41. In deciding appeal to the Courts of law they must have known not merely that they were committing themselves to some expense, but that they were taking the risk of an adverse decision which might affect them seriously in future. If the learned Judge has meant to find that the defendant company throughout the whole history of the litigation was intentionally riding for a fall, that they were not really endeavouring or hoping to establish by a judicial decision the right which they claim, but well knowing that they would ultimately lose, brought the actions for the sole purpose of obstructing plaintiff in the exercising of rights which they know to be his, I respectfully differ from his conclusion. It certainly was, not merely the object, but the declared purpose of the defendant company to prevent the plaintiff from selling these cigarettes in India. The plaintiff had at least several opportunities for considering whether the case made against him was transparently hollow. One was when he gave his undertaking to the Bombay High Court : another was when he decided to cancel the two contracts with Venis & Co. already mentioned. I do not know what transpired on the 8th June 1922 before Mr. Justice Greaves, but his order puts the plaintiff upon terms as to making a deposit with the Aliance Bank, as a condition of dissolving the ex-parte injunction. I will assume for the present purpose that in applying to the Collector of Customs the directors acted mala fide in the sense that they claimed a relief to which they knew that they had no right. Even so it is a different question whether, in taking steps to approach a Court of law for the decision of their claim, they knew that they had no right whatever or were merely suing to serve an oblique and improper purpose. The plaintiff has in my opinion wholly failed to show that either suit was brought mala fide, without belief that the defendant company had any reasonable cause or from oblique motives other than a motive to make their case good in furtherance of their own trade interests. I do not see that their case, though it turned out to be bad and has been overruled for reasons which I do not presume to challenge, was in any way such as to make it wrong or unreasonable for them to lay it before the Court.

42. With regard to the allegation that the defendant company maliciously threatened to harass the plaintiffs' customers with vexatious litigation, I do not know what threats in particular, if any, the learned Judge has considered to be proved, and I fail to find this allegation in the plaint. It appears to me that what I have already said is sufficient to dispose of any question as to threats, whether threats to litigate or threats to boycott, as such threats are unlawful only where the purpose of the threat is

wilful and ultraneously to injure the trade of another

as distinct from the purpose to forward one's trade : Sorrell v. Smith [1925] A.C. 700.

43. The plaintiff further claims damages for what is sometimes shortly called 'slander of goods,' i.e. for statements false, made maliciously or without lawful occasion, and causing him special damage.

44. Paragraph 11 of the plaint pleads this cause of action as follows:

The defendant company through its officers, servants and agents throughout India rumoured and caused to be rumoured and circulated statements to the effect that the Gold Flake cigarettes imported by the plaintiff were inferior in quality and otherwise than they represented to be, and they were otherwise than in a sound and good merchantable condition and that they were inferior to those sold by the defendant company, that they were not genuine Gold Flake cigarettes, and that the plaintiff had no right to import and sell them as such.

45. The allegation of special damage refers to all the other grievances as well as to this, viz. the injunction, the detention by the customs, and two suits etc. Para. 12 states:

By reason of the aforesaid conduct and acts of the defendant company, its servants, agents etc., the plaintiff failed to find a market for the cigarettes imported and arranged by him to be imported into India, and agents and dealers refused to purchase and sell or advertise or expose for sale the said cigarettes imported by the plaintiff as aforesaid with the result that by reason of the said wrongful and malicious acts and conduct of the defendant company, the plaintiff was put to considerable loss and expenses particulars whereof are hereinafter set out.

46. Speaking roughly the special damage for which he claims is his whole loss by reason of the failure of his venture.

47. The pleadings disclose no particulars of the time when, person to whom, or by whom the alleged 'rumours' were set on foot; in fact no particulars of publication whatsoever nor any specific statement what on any occasion was actually said. No particulars were applied for.

48. The trial took place in November and December 1925. In July 1925 the plaintiff examined one witness on commission in Bombay, and in August 1925 another before this Court de bene esse. Prom the evidence of the former, Merwan Hormusji Irani, the defendant company got before trial notice of two occasions on which slander of goods was said to have been uttered. In the evidence of the latter (a dismissed servant of the defendant company called Carr) I cannot see that there is any indication of or reference to any slander now relied upon or anything else that looks like slander of goods. The defendant company, in August, examined de bene esse Mr. Abbott, their Chairman, and I see in his cross-examination no reference to any other slanders uttered by him or in his presence save a reference to one of the two occasions already mentioned. The witnesses examined by the defendant company in July on commission in Bombay are asked nothing about slanders.

49. At the hearing in December 1925 the plaintiff called nine witnesses including himself. The plaintiff's evidence-in-chief upon this part of the case forms questions 258 to 266 and contains only the most harmless hearsay. The only witnesses called to speak to any question of slander of goods are Ardeshir Khodadad, Kali Pada Eoy, N.N. Chakrabarti and M.N. Jarvar. The learned Judge deals specifically with two only of the alleged slanders: one said to have been uttered by Carr to Khodadad in March or April 1922, and another said to have been uttered by Mr. Ryan and Akhil Pal in July 1922 to Kali Pada Roy and his partner's father, N.N. Chakrabarti.

50. On the hearing of this appeal it appeared to us that this part of the case, as presented by the pleadings, was not at the time of the trial in a fit condition to be tried and that it would be as well to require a statement from the plaintiff of particulars of those slanders which he claimed to have proved. Accordingly particulars were filed alleging 13 several publications, five of which were in our opinion afterthoughts in no way within para. 11 of the plaint and dealt with neither by cross-examination nor by the learned Judge as substantive counts in the case. The attempt made was intelligible in view of the plaintiff's difficulties as to limitation. These five new counts are based upon letters and the charge is that the defendant company published them to their typists and staff, to the Collector of Customs and the Imperial Bank. It seems reasonably clear that neither counsel nor the learned Judge at the trial was aware that they were assisting at the investigation of any such case. In my opinion these counts must be disallowed altogether. They appear to amount to be a contention that for the defendant company even to claim that the plaintiff's goods infringed their trade-mark rights was an actionable wrong.

51. There remain eight allegations of slander of goods and it is our duty to examine each in the light of the findings of fact come to by the learned Judge. As I read his judgment the only finding of untrue statements made by anyone for whom the defendant company can be responsible is that while it is true that the plaintiff's goods were old and true, that his packing was inferior to the defendants' the defendant company's servants, when warning dealers that these were not the goods of the defendant company,

impressed on dealers a non-existent difference in the quality of the goods.

52. This seems to be a slender foundation for an action Bf this character brought against a rival trader and I am not surprised that learned Counsel for the plaintiff is not quite content with it. (The judgment then narrated and discussed the several occasions and proceeded.) It will be observed that all the occasions on which slander of goods is specified, except the twelfth and thirteenth (which refer to letters dated 1st and 14th,January 1924 sent to the Imperial Bank), are occasions in 1922. The learned Judge has held that they are covered by Article 36, Limitation Act, and are time barred. But he says that it is

a fair inference to draw from the evidence that the statements alleged and complained of continued to the extent already mentioned to be repeated within two years before suit.

53. Accordingly, as I understand, part of the damages which he awards is awarded for false and malicious statements made by persons unknown to persons unknown upon occasions and at times as to which the only information is that they were subsequent to January 1923. All that is known as to the contents of these statements is that they affirmed a non-existent difference in the quality of the goods.

54. What is supposed to be known as to the special damage caused is still more difficult to understand. Because, though the learned Judge has disallowed the claims in respect of detention of goods by the Collectors of Customs at Bombay and Calcutta, in respect of the undertaking given by the plaintiff to the High Court of Bombay, and in respect of all alleged slanders of goods prior to January 1923, lie has in the end awarded damages on the basis of compensation to the plaintiff for the whole of his loss of profit on all the cases destined for the Indian market which he had contracted to buy, i.e., 666 cases. I am not quite sure what the figure of Rs. 23-8-0 represents, but I think it is intended as the average price which the plaintiff could have obtained if the defendant company had never in any way claimed that ha was infringing their trademark rights or that their own goods were superior in quality to his.

55. With all respect to the learned Judge I cannot assent to this way of dealing with the case so far as it is a case of slander of goods. The defendant company [is doubtless responsible for the statements of agent or servant acting 'within the scope of his authority' (in the wide sense [given to that phrase by modern law) provided that they were false statements made maliciously or without lawful occasion In the present case malice is on any view an essential and I do not understand how malice or falsity or special damage can be attributed in the vogue.

56. As the question of special damage enters into questions of limitation I desire to observe that no single one of the slanders referred to in the plaintiff's particulars filed in this Court is within the doctrine of Ratcliffe v. Evans [1892] 2 Q.B. 524. Proper particulars would have shown; in each case the loss of the particular customer or dealer tc; whom they were spoken or some other really specific damage flowing from the publication to him : Leetham v. Bank [1912] 57 S.J. 111.

57. The statements here founded on are not statements printed in a newspaper or made at an auction or to the public or to a fluctuating and transitory class of persons unknown to the plaintiff. Neither the nature nor the circumstances in any case require the admission of evidence of general loss of business as the natural and direct result produced. It is in order to get out of the requirement of alleging and proving actual temporal loss with certainty and precision in each case that the plaintiff here claims to multiply by an imaginary number whatever he has proved. In my opinion he has proved no specific instance. But let it be assumed that he has proved three or six instances, all within limitation. One dealer refuses to buy, another cancels his purchase, another goes on buying as before:

If the words are uttered to an individual and repetition is not intended except to a limited extent general loss of custom cannot ordinarily be a direct and natural result of the limited slander, cf. Ratcliffe v. Evans [1892] 2 Q.B. 524.

Proof of a conspiracy to slander the plaintiff's goods, proof of twenty slanders, part of a course of conduct, proof of orders to a group of servants to go out uttering slanders throughout a market - this might bring a case to the same level as a case of publication in a newspaper and require the Court as a matter of common-sense to let in evidence of general loss of business. But where is the necessary proof? The case is not a case of conspiracy or illegal combination as learned Counsel for the plaintiff expressly concedes. If the number of specific instances proved does not show slander broadcast, what is the evidence to contradict the evidence of Abbott and of Selfe '? Is it the evidence of the dismissed servant Carr? or Javar's evidence - not put to Carr of what Carr said to him? Carr's evidence in cross-examination is that practically it was left to them to do what they liked so long as they did nothing wrong. He does also say that he was told to tell the dealers that the plaintiff's goods were old stock from the army and were inferior in quality. This last element does not appear in his statement as to what he actually said to the dealers. It seems, however, highly reasonable to suppose that if the defendant company were selling fresh stock from England with a superior form of protection from the weather and were asking Us. 36 per thousand they would represent to dealers that these goods were better than the plaintiff's, who charged a bare three-quarters of their price. Otherwise they could hardly hope to sell their cigarettes at all.

58. I pass over the statements of the plaintiff to the customs on the question of duty. That the question is one of opinion is clear enough. Sheriar says he gave some of plaintiff's cigarettes to two or, three customers to test them and that he relied on their opinion and his own also. He does not smoke himself, but he did not think there was any difference between plaintiff's and defendant's cigarettes. He would not pay the same price for goods two years old as for fresh goods. Carr says the plaintiff's cigarettes were absolutely sound and marketable when they first came to Bombay. Khodadad says the quality was equal. Das says he had no complaints. Bonnan Sheriar says they were fresh goods and saleable and he had no complaints. Kali Pada did not compare them with the defendant's, but says they were of good quality and condition and sold easily. Chakrabarti says some customers would choose the one and some the other. The assistant from Samuel Fitze & Company says they thought the plaintiff's goods to be sound in condition and quality and when they sold they had no complaints. Jawar who says he is an expert, asked how the plaintiff's goods compared with the defendant's, replied 'Not much difference' and 'practically the same.' It was put to Mr. Abbott in cross-examination that at the previous trial an experienced dealer gave evidence that the plaintiff's cigarettes were the better. He says it is a question of opinion and that ordinarily dealers and smokers would not detect the difference at once. His letters to London on 10th May 1921 said the plaintiff's goods were in surprisingly good condition, but 'they smoke rather nastily in our opinion.' On this evidence I fail to see why a claim that the fresher and dearer goods were better should not come within the principle that trade competition is no wrong or why malice should be imputed to the defendant company's servants for their efforts to persuade dealers that their article was superior : White v. Mellen [1895] A.C. 154 (165) Hubbock v. Wilkinson [1899] 1 Q.B. 86. In 'slander of goods' the burden of proof of falsity is on the plaintiff and in my opinion he fails to prove this statement to be false.

59. In these circumstances I do not propose to discuss the question of limitation as to this head of claim, but in my opinion Section 24 and Article 36 give the plaintiff two years from the accrual of special damage.

60. In my judgment this appeal should be allowed. Treating this suit as an application in Suit No. 1610 of 1922 for an inquiry as to the sum to which the plaintiff is entitled as damages for loss caused to him by the injunction granted therein on 11th May 1922, we should order that such inquiry be held in the said suit by the Official Referee and direct that in ascertaining the said sum the Official Referee do not include any loss accruing to the plaintiff by reason of the cancellation of the contracts referred to in the plaintiff's letters of 17th May 1922 and 6th June 1922 to Messrs. Venis & Co. Quoad ultra the suit should be dismissed. The plaintiff must pay to the defendant company (1) their costs of this appeal and also (2) their costs of the suit before the learned Judge less a sum of Rs. 300 which we assess as the reasonable costs of an application for an inquiry as to damages.

61. It is desirable to make clear that except for the direction just mentioned as to the cancelled contracts the question of the amount of damage caused by the injunction is at large. The figure of Rs. 23-8-0 mentioned by the learned Judge was arrived at on a footing which is not consistent with our decision and the Official Referee will be in no way bound by it. The inquiry should be treated as an urgent reference.

C.C. Ghose, J.

62. This is an appeal against a judgment delivered by my learned brother Mr. Justice Pearson on the 25th January 1926, by which he held that the plaintiff was entitled to recover damages from the defendant company on account of certain wrongful and malicious acts alleged to have been done by the latter.

63. The facts giving rise to the litigation, out of which the present appeal has arisen, are to be found, among other things, in Ex. D.D. being the judgments delivered in a previous litigation between the parties by Mr. Justice Pearson on the 18th July 1922, by the late Chief Justice and Mr. Justice Richardson on the 10th April 1923, Imperial Tobacco Co. v. Albert Bonnan : AIR1924Cal216 and by their Lordships of the Judicial Committee of the Privy Council on the 13th May 1924 : Imperial Tobacco Co. v. Albert Bonnan A.I.R. 1924 P.C. 187. It will, therefore, and also in view of the judgment just delivered by my Lord, not be necessary for me to state in detail herein the facts involved in the present appeal, except in so far as may be necessary.

64. In the action in which the said judgments were pronounced, the present appellants sought to restrain the plaintiff from selling in India a well-known brand of cigarettes, namely Wills Gold Flakes which, for many years, they alone, as assignees of the trade-mark and goodwill for India, had been importing into and selling in India. It appeared that the present plaintiff having bought as surplus war stock, over 21 millions of the said cigarettes cheaply in England from purchasers from the manufacturers (who had granted to the present appellants the sale rights for India) was able to undersell in India the present appellants It was held in that litigation that the sale by the present plaintiff in India of the said cigarettes involved no breach of contract, misrepresentation, or infringement of the rights of the present appellants, and that it had not been shown that the latter had acquired any independent reputation as importers of the said cigarettes. Their Lordships of the Judicial Committee held confirming the judgments delivered in this Court that the present appellants' suit was not maintainable, see Imperial Tobacco Co. v. Albert Bonnan A.I.R. 1924 P.C. 187.

65. On the 28th February 1922 and on the 8th March 1922 the first lot of the plaintiff's goods arrived in Bombay and Calcutta respectively and he sold also certain cases to dealers. Thereupon the present appellants who had, up to then, exclusive rights of selling the said cigarettes in India, applied to the Collectors of Customs in Bombay and Calcutta for orders for detention of the plaintiff's goods, on the ground, among others, that having regard to the trade history of the appellants' cigarettes and the acquisition by them, as purchasers of the goodwill in India of the business with which the trade-mark 'Wills' Gold Flakes' was associated, the importation of the said cigarettes by the plaintiff (who was not one of the appellants' customers) infringed their trade-mark. The plaintiff's goods were accordingly detained by the Collectors of Customs in Bombay and Calcutta. This was done in order to allow the appellants an opportunity of having the matter adjudicated Upon in the civil Courts.

66. Thereafter, two suits, one in this Court and another in the Bombay High Court, were filed on the 11th and 22nd days of May 1922 respectively. On the first mentioned date, application having been made by the appellants an interim injunction was issued by this Court restraining the plaintiff, his servants and agents, from disposing of certain cases of cigarettes then lying with the Customs authorities in Calcutta. The application for injunction was disposed of by this Court in the presence of both sides on the 8th June 1922, when, it appearing that the present plaintiff had placed a sum in fixed deposit of Rs. 20,000 into the Alliance Bank of Simla, it was ordered that the interim injunction referred to above should stand dissolved. It was stated in the order of the 8th June that the present plaintiff's claim for damages, if any, owing to the interim injunction having been granted was reserved. In the Bombay suit the present appellants gave notice of motion on the 23rd May 1922 for a similar injunction against the present plaintiff. The application in the Bombay Court was disposed of on the 19th June 1922 when the present plaintiff, who was the defendant, having given an undertaking not to dispose of or in any way deal with the cigarettes then in Bombay or to arrive in Bombay, the application stood over by consent of parties till the hearing of the suit. Subsequently, by an order of the 2nd August 1922 the then defendant's undertaking of the 19th June 1922 was vacated, as he agreed to keep an account of the sale of the contents of the cases of cigarettes mentioned in the plaint in the Bombay suit, without prejudice to the rights of the defendant, if any, to claim damages consequential on the order of the 19th June 1922.

67. On the 21st January 1.925 the plaint in the present suit was put on the file and in it the present respondent complained that certain acts which had been done by the present appellants were malicious and wrongful and he accordingly claimed damages for seven and half lacs of rupees The acts complained of are referred to in paras. 6 to 11 of the plaint, and they may be classified as follows.:

(a) Wrongfully and maliciously apply plying to the Collectors of Customs in Bombay and Calcutta and obtaining from them orders for detention of the plaintiff's goods.

(b) Wrongfully and maliciously instituting and prosecuting suits against the plaintiff in the High Courts in Bombay and Calcutta.

(c) Wrongfully and maliciously obtaining an injunction against the plaintiff from this Court as referred to above.

(d) Wrongfully and maliciously giving notice of motion for an injunction against the plaintiff in the Bombay High Court in which proceeding the plaintiff was made to give an undertaking on the 19th June 1922.

(e) Wrongfully and maliciously publishing various statements slandering the plaintiffs goods.

68. Mr. Justice Pearson held that the conduct of the appellants in regard to the proceedings before the Collectors of Customs in Bombay and Calcutta was malicious and without reasonable and probable cause. He also held that in filing the two suits in Bombay and Calcutta and in proceeding with them as they did, the appellants acted maliciously and without reasonable and pro-bale cause. He found that the appellants did make and circulate statements slandering the plaintiff's goods, and he finally came to the conclusion that the plaintiff, had suffered damages by reason of the said acts on the part of the appellants. According to Mr. Justice Pearson, the plaintiff started off very well in Bombay in the matter of the sale of his cigarettes, but instead of finding a fair field for his goods, he found himself faced with obstruction after obstruction, maliciously raised by the appellant's courses of delay, disparagement of his goods, assertion of unfounded rights - all of which interfered with the plaintiff's right to trade in his goods in the ordinary way. In short, Mr. Justice Pearson came to the conclusion that in this case the appellants had acted mala fide and with ulterior motive from beginning to end. He therefore directed an enquiry for ascertainment of damages sustained by the plaintiff under heads 1 to 5, both inclusive, in Schedule A to the plaint on the basis of a uniform rate of Rs. 23-8-0 per thousand cigarettes vide A.I.R. 1926 Gal. 757-Ed.

69. The appellants' case has been elaborately argued and I propose to examine whether the plaintiff's said claim for damages are sustainable in law or on facts. To start with it appears that in respect of claim (a), the orders for detention of the plaintiff's goods in Bombay and Calcutta by the Collectors of Customs were made under the provisions of the Sea Customs Act (Act 8 of 1878) under the usual indemnity from the appellants on the ground that the goods which the plaintiff had imported into India bore a counterfeit trade-mark. Whether they bore a counterfeit trade-mark or-not, it is quite clear that the provisions under the Sea Customs Act are in some cases to be read with the provisions of the Indian Merchandise Marks Act (Act 4 of 1889) relating to false trade description and that they are intended not only for the protection of manufacturers...and merchants against the piracy of their marks, but also for the protection of the public against the supply of goods of an inferior or unknown quality under cover of a well-known brand. As I read the provisions of the Sea Customs Act, as amended by the Merchandise Marks Act, it is clear that although ordinarily action thereunder is taken upon information received from the manufacturer or merchant aggrieved, there is nothing to prevent the customs officers from acting upon their own initiative. The sections of the Sea Customs Act which were referred to at the hearing before us are Sections 18 and 19A. The appellants might have taken an exaggerated view of their rights, but it appears that the customs officers really proceeded in this matter to act in accordance with the instructions for the observance of customs officers appearing on p. 11 of the Merchandise Majks Manuil (1925) issued by the Government of India. (The judgment then discussed facts and evidence and proceeded) Now the first question which arises for consideration is whether the present plaintiff has on the evidence before us, substantiated his contention that the statements made to the two Collectors of Customs were untrue in fact, that the said statements were made maliciously, and without reasonable and probable cause and that he has suffered special damage thereby : see the case of Nemi Chand v. Wallace [1907] 34 Cal. 495. From what has been stated above in my opinion there cannot be any doubt that the appellants did really believe in what they had stated to the customs authorities and that there was no misstatement of fact on their part. On the evidence on record both oral and documentary, I am not prepared to say that the appellants had made statements to the Collectors of Customs which were untrue in fact and untrue to their knowledge, or had acted maliciously in the proceedings before the said Collectors. The plaintiff has, in my opinion, entirely failed to bring his case within the rule laid down by the Court of appeal in the case of Nemi Chand v. Wallace [1907] 34 Cal. 495. So much on the evidence; but the plaintiff's claim on this head is bound to fail for another reason, namely, that it is, having regard to the dates set out above, barred by limitation under Article 36, Schedule 1, Limitation Act, as was indeed held by the learned Judge at the bottom of p. 528 of the paper-book, Part I. It was urged that Article 49 applied to this part of the plaintiff's case. In my opinion Article 49 does not apply at all; the detention of the plaintiff's goods was not by the appellants.

70. I will now deal with claim (e), which is referred to in para. 11 of the plaint, which runs as follows:

The defendant company through its officers' servants and agents throughout India rumoured and caused to be remoured and circulated (statements) to the effect that the Gold Flake cigarettes imported by the plaintiff were inferior in quality and otherwise than they were represented to be, and that they were otherwise than in a sound and good and merchantable condition and that they were inferior to those sold by the defendant company, that they were not genuine Gold Flake cigarettes and that the plaintiff had no right to import and sell them as such.

71. The learned Judge's finding on this point is summed up in the following words:

Undoubtedly the company's servants were going round warning dealers that they would not be responsible for the plaintiff's goods. There is no harm in that and they could properly employ the whole of their organization in broadcasting it to the dealers. There seems to be no doubt, however, that they went further and wrongly impressed on dealers a non-existent difference in the quality of the goods, and also made full use of the litigation in Bombay and Calcutta with its attendant threat of trouble to others as an obstruction to the plaintiff and as a deterrent. That is a clear impression which I retain after hearing the evidence.

72. The learned Judge further added, in dealing with the question of limitation raised on behalf of the defendant company as an answer to this part of the plaintiff's claim, the following:

In so far as the cause of action may be slander of title or slander of goods the limitation would be either one year und r Article 25 or two years under Article 36 : the latter is in my opinion applicable in the circumstances for I think the action would be on the case. Nevertheless I think it is a fair inference to draw from the evidence that the statements alleged and complained of continued, to the extent already mentioned, to be repeated within two years before suit, particularly having regard to the continuance of the previous suits which throughout were designed as a disparagement of the plaintiff's goods and an obstuction to the unfettered exercise of his rights as a trader, of which I have no doubt the company made the fullest use the whole time the litigation lasted and whenever occasion so required. I am not prepared to say that in any view of the matter the company is excused by the principle that a trader is entitled to protect his own property and his own interests because I think in this case there was mala fides and ulterior motive from the beginning until the end.

73. It will be seen from the above that the learned Judge laid particular stress on the pendency of the previous suits for founding his conclusion that slander of the plaintiff's goods had been going on.

74. Now, in an action for damages for slander of, goods the precise words complained of must be set out in the statement of claim: there are many authorities that it is not sufficient to allege that the slanderer used such and such words or to that effect. Has this rule been complied with in the present instance by the plaintiff? In my opinion para. 11 of the plaint offends in every way against this cardinal rule; and it is surprising that the defendant company should not have insisted in the Court of first instance on full and sufficient particulars being furnished to them before the pleadings were closed, in respect of the matters alleged or suggested in para. 11 of the plaint. However, at the hearing before us, learned Counsel on behalf of the plaintiff has furnished us with a number of particulars of the statements complained of and we have been taken through them, (The judgment then discussed the evidence and proceeded.) Now, to succeed in an action for slander of goods, the plaintiff must allege and prove (1) that the statement complained of was made of and concerning his goods; (2) that it was false, (3) that it was published maliciously i.e. with the intention of injuring him and (4) that he has suffered special damage thereby. A trader is entitled to commend his own goods and state that they are better than the goods of another and if he does so, no action will lie against him, whatever damage may ensue from such statement. : see White v. Mellin [1895] A.C. 154 (165).

75. It is otherwise where a trader does not limit himself to a comparison of his goods with those manufactured by another trader and a mere statement that they are inferior in quality to his own, but goes further and makes an untrue statement of fact about his rival's goods, for example, where he states that they are rotten or unmerchantable. In a case like this, an action on the ease will lie, provided it can be proved that such statement was published maliciously and that special damage has ensued : see Lyne v. Nicholls [1906] 23 .L.R. 86. It is not malice if the object of the trader is to push his own business. To make the act malicious it must be done with the direct object of injuring the other person's business. Therefore, the mere fact that it would injure that other person's business is no evidence of malice: see Dunlop Pneumatic Tyre Co. v. liaison Talbot [1904] 20 .L.R. 579.

76. This being the state of the authorities, I have carefully scrutinized the evidence of Sheriar and Khodadad and of the other witnesses on the side of the plaintiff taken along with the evidence of the officers of the defendant company and I have come to the conclusion that no statements in slander of the plaintiffs goods were made by the officers of the defendant company which would give rise to a cause of action. I am not unmindful that it was alleged on the plaintiffs side that the plaintiff's goods were said to have been described by Mr. Selfe, an officer of the defendant company, on one occasion as being 'kharab' or unmerchantable; but I am unable to place any reliance on that piece of evidence. In what context was the word used, if used at all? I have grave doubts if it was at all used. The learned Judge says that the statements alleged and complained of continued to be repeated within two years before suit. Where is the evidence in support of this statement? It is possible and indeed likely that the appellant gave instructions to their officers to see that their rights are protected so far as the market was concerned; but I do not find on the evidence that lying reports about the plaintiff's goods were made by the company's officers or were authorized by them, if ever made or that they were repeated from time to time within two years before suit. Therefore, on the facts I must hold that the plaintiff has failed to make out any case whatsoever in support of his claim (e), as set out in para. 11, of the plaint. His claim for damages must also be held to be barred under Section 24 and Article 36, Limitation Act.

77. I now proceed to consider the case set up by the plaintiff under claim (b), as set out above, viz. wrongfully and maliciously instituting suits against the plaintiff in the High Court in Bombay and Calcutta. On behalf of the appellant it has been contended before us on the authority of the case of the Quartz Hill Consolidated Gold Mining Co. v. Eyre [1883] 11 Q.B.D. 674, that no action would lie against the defendant company for having brought the suits in the Bombay High Court and in this Court referred to above. Brett M.R., in that case observed as follows:

I entirely agree that even although civil proceedings are taken falsely and maliciously and without reasonable or probable cause, nevertheless no action will lie in respect of them, unless they produce some damage of which the law will take notice.

78. Bowen, L.J. observed as follows:

I start with this, that at the present day the bringing of an action under our present rules of procedure, and with the consequences attaching under our present law, although the action is brought falsely and maliciously and without reasonable or probable cause, and whatever may be the allegations contained in the pleadings, will not furnish a ground for a subsequent complaint by the person who has been sued, nor support an action on his part for maliciously bringing the first action. To speak broadly, and without travelling into every corner of the law, whenever a man complains before a Court of justice of the false and malicious legal proceedings of another, his complaint, in order to give a good and substantial cause of action, must show that the false and malicious legal proceedings have been accompanied by damage express or implied. The reason why, to my mind, the bringing of an action under our present rules of procedure and under our present law, even if it is brought without reasonable or: probable cause and with malice, gives rise to no ground of complaint, appears to me easily to be seen upon referring to the doctrine laid down by Holt, C.J., in Savile v. Roberts [1697] 1 Ld. Raym. 374. He there said that there 'were three sorts of damages, any one of which would be sufficient to support an action for malicious prosecution, (1) The damage to a man's fame, as if the matter whereof he is accused be scandalous. And this was the ground of the case between Sir Andrew Henley and Dr. Burstall : Raym. 180....(2) The second sort of damages, which would support such an action, are such as are done to the person; as where a man is put in danger to lose his life, or limb, or liberty, which his been always allowed a good foundation of such an action.... (3) The third sort of damages, which will support such an action, is damage to a man's property, as where he is forced to expend his money in necessary charges to acquit himself of the crime of which he is accused, which is the present charge. That a man in such case is put to expenses, is without doubt, which is an injury to his property; and if that injury is done to him maliciously, it is reasonable that ho shall have an action to repair himself.

It is clear that Holt, C.J., considered one of these three heads of damages necessary to support an action for malicious prosecution. To apply this test to any action that can be conceived under our present mode of procedure and under our present law, it seems to me that no mere bringing of an action, although it is brought maliciously and without reasonable or probable cause, will give rise to an action for malicious prosecution. In no action, at all events in none of the ordinary kind, not even in those based upon fraud where there are scandalous allegations in the pleadings, is damage to a man's fair fame the necessary and natural consequence of bringing the action, Incidentally matters connected with the action, such as the publication of the proceedings in the action, may do a man an injury; but the bringing of the action is of itself no injury to him. When the action is tried in public, his fair fame will be cleared, if it deserves to be cleared : if the action is not tried, his fair fame cannot be assailed in any way by the bringing of the action.

To apply the second head of damage, namely, those injuries which are done to the person; the bringing of no action under our present law and under the ordinary rules of procedure will involve as a necessary and natural consequence damage to the person. The third sort of damage, the existence of which will support such an action as this, is damage to a man's property. The same observation applies to this third head of damage. The bringing of an ordinary action does not as a natural or necessary consequence involve any injury to a man's property, for this reason, that the only costs which the law recognizes, and for which it will compensate him, are the costs properly incurred in the action itself. For those the successful defendant will have been already compensated, so far as the law chooses to compensate him. If the Judge refuses to give him costs, it is because he does not deserve them. If ho deserves them, he will get them in the original action; if he does not deserve them, he ought not to get them in a subsequent action. Therefore, the broad canon is true that in the present day, and according to our present law, the bringing of an ordinary action, however maliciously and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution.

I do not say that if one travels into the past and looks through the cases cited to us, one will not find scattered observations and even scattered cases which seem to show that in other days, under other systems of procedure and law, in which the consequences of actions were different from those of the present day, it was supposed that there might be some kind of action which, if it were brought maliciously and unreasonably, might subsequently give rise to an action for malicious prosecution.

It is unnecessary to say that there could not be an action of that kind in the past, and it is unnecessary to say that there may not be such an action in the future, although it cannot be found at the present day. The counsel for the plaintiff company have argued this case with great ability; but they cannot point to a single instance since Westminister Hall began to be the seat of justice in which an ordinary action, similar to the actions of the present day, has been considered to justify a subsequent action on the ground that it was brought maliciously and without reasonable and probable cause. And although every Judge of the present day will be swift to do justice and slow to allow himself as to matters of justice to be encumbered with either precedents or technicalities, still every wise Judge who sits to administer justice must feel the greatest respect for the wisdom of the past, and the wisdom of the past presents us with no decisive authority for the broad proposition in its entirety which the counsel for the plaintiff company have put forward.

79. In this case it is contended on behalf of the appellants that when they instituted the suit in this Court and in Bombay in 1922, they had a perfectly genuine and reasonable case which they could present to the Courts : see in this connexion Imperial Tobacco Co. (Newfoundland) v. Duffy []1918 A.C. 181 and Dunlop Rubber Co. v. Booth 43 Patent Cases 139; and it was never suggested at any time that the actions brought by the appellants in this Court and in the Bombay High Court were malicious. It is quite true that the actions did not succeed; but it is contended that mere dismissal of a suit is no evidence whatsoever of there being no reasonable and probable cause for the institution thereof. It is further urged that all that the appellants did was to take steps for the purpose of protecting their trade in which they had been engaged for a number of years and where their cigarettes had acquired an enduring reputation and that in circumstances like these malice will not be imputed : see Sorrell v. Smith [1925] A.C. 700. On behalf of the plaintiff it has been argued that the right of a defendant to institute a regular suit for compensation after the termination of certain previous proceedings is clearly recognized in Section 95, Sub-section 2, Civil P.C., and that in India the matter is not concluded by the authority of the case, Quartz Hill Mining Co. v. Eyre [1883] 11 Q.B.D. 674. It is not disputed, however, that in such a suit for compensation one of the ingredients which the plaintiff must prove is malice, in addition to the facts required to be proved by Section 95, Civil P.C., see the case, Nanjappa v. Ganapathi [1911] 35 Mad. 598. In this case, whether the matter is looked at from the point of view indicated in Quarts Hill Mining Co. v. Eyre [1883] 11 Q.B.D. 674 or from that referred to in Section 95, Civil P.C., the present plaintiff must in my opinion fail on the facts. On the evidence on record which I have read and re-read, I can find no trace of malice or of want of reasonable and probable cause on the part of the present appellants, in instituting the suits in this Court and in the Bombay High Court. They had received expert professional advice from London that they had a fair case to go to Court with, having regard to the authorities on the subject, and in these circumstances and without more it is difficult to see why the appellants' suits in Bombay and Calcutta should have been described as malicious. On this conclusion it is not necessary for me to refer to the question of limitation; but if I had to pronounce an opinion on the question of limitation, I should be prepared to hold that the plaintiff's claim for damages under this head is barred by Article c&, Limitation Act.

80. I next come to the question whether the plaintiff has made out his case under claim (d). The facts in connexion with this branch of the case have already been set out by me in an earlier portion of this judgment and I need not, therefore, refer to the same here. It appears to me that having regard to. the consent order of the 19th June 1922 in the Bombay suit, and having regard to the undertaking in the Bombay suit, the plaintiff cannot seek any relief in this Court in respect of any claim he may have for damages. Further, if he had any case under this head, it is barred by limitation.

81. There now remains for me to consider the question whether the plaintiff is entitled to any relief under claim (c). The plaintiff relies upon the case of Bhut Nath v. Chandra [1912] 16 C.L.J. 34. In my opinion that case lays down the proposition that an injunction is in the nature of trespass to property in terms far too broad and I am unable to agree with it. Now the plaintiff is seeking to recover damages that had accrued to him by reason of the temporary injunction granted at the instance of the appellants in the suit in this Court. In the proceedings in which the temporary injunction was issued, an undertaking was taken from the appellants to compensate the plaintiff for any loss that might arise by reason of the injunction. Such an undertaking is on the authorities to be enforced by an application to the Court which granted the injunction : see Smith v. Day [1883] 21 Ch. D. 421. In that case Jessel, M.R. observed as follows:

But the Court has a discretion, and before it will grant damages it must be satisfied that the injunction was improperly obtained, and that the defendant reasonably abstained from going on with his building, and that under all the, circumstances damages ought to be given. It may happen that an interlocutory injunction is dissolved for delay or some cause which disentitles the plaintiff to an interlocutory injunction, though not to relief at the trial, and then at the trial a perpetual injunction is granted. The Court in such a case has a discretion whether, under all the circumstances, the defendant ought to have damages in respect of the interlocutory injunction having been improperly granted, though a. perpetual injunction is granted at the trial. Then, again, the Court must have regard to the amount of damages; if it be trifling or remote the Court would not be justified in directing an enquiry as to damages, though the injury might not be so remote that an action would not lie. Then again the time at which the application is made is material. Having regard to the decisions, we are not entitled to say that the application for an inquiry must be made either when the injunction is dissolved, or at the trial. One of these must be the most proper time. The application may be made when the injunction is dissolved, but if made then it probably will be ordered to stand over till the trial. If made by motion subsequent to the trial, the party moving is subject to some disadvantage, for the application is one which should be made speedily and not after the. Court has forgotten the circumstances; see also Grifit v. Blake [1877] 7 Ch. D. 490.

82. It would, therefore, appear that the enquiry into damages can be and is ordinarily had by means of an application to the Court which originally granted the temporary injunction. In this case, the proceedings, as will be seen from what has been stated above, did not finally terminate until the 13th May 1924. The present plaint was filed on 2ist January 1925. It is contended, however, on behalf of the plaintiff that he is not limited to making an application in the suit in which the temporary injunction was granted for enquiry into damages; but that; he has an independent right to bring a suit for compensation and that such right exists is clearly recognized by the terms of Article 42, Limitation Act. The procedure on the original side of this Court, being what it is, I think the proper course for the plaintiff should have been to make an application to the Court which granted the temporary injunction and ask for an enquiry into damages. The plaintiff, however, has not been guilty of unreasonable delay in coming to this Court with his present plaint and I think, in the circumstances of this case and for the reasons given by the learned Chief Justice, the plaint in this suit may be treated as an application for an enquiry into damages that might have been sustained by the defendant by reason of the temporary injunction issuing from this Court. The result, therefore, is that in my judgment on all the claims ceexpt claim (c) the plaintiff must fail and that as regards claim (c) there should be an enquiry into damages as indicated above. What the nature of those damages should be has been indicated by the learned Chief Justice and it is not necessary, therefore, for me to refer to it.

83. I, therefore, agree with the learned Chief Justice as regards the order which lie proposes to make.

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