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U. Srinivas Malliah and anr. Vs. Krishna Kumar Chatterjee and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberOriginal Suit No. 2397 of 1952
Reported inAIR1952Cal804
ActsSpecific Relief Act, 1877 - Section 54; ; Code of Civil Procedure (CPC) , 1908 - Order 39, Rule 1 and 2; ; Societies Registration Act, 1860 - Section 3; ; Companies Act, 1913 - Section 11; ;Trade Mark Act
AppellantU. Srinivas Malliah and anr.
RespondentKrishna Kumar Chatterjee and ors.
Appellant AdvocateS.M. Bose, Adv. General of the State of West Bengal, ; S.D. Banerjee and ; A.K. Sen, Advs.
Respondent AdvocateR. Choudhury, Adv.
Cases ReferredBritish Medical Association v. Marsh
- the affidavit that there has been internecine dissensions and political differences in the congress organisation itself and as a result thereof certain eminent leaders whose names are set out in the affidavit have left the organisation which has forfeited the confidence of the public. it is denied that it has as large a number of members as is alleged or that it has vast properties as suggested. it is submitted that there is no likelihood of the public being deceived or the petitioners' organisation suffering any injury as alleged. the deponent also charges the petitioners as being in collusion with the registrar of joint stock companies.4. the petitioner biswanath mukherjee has affirmed an affidavit in reply in which certain particulars of the properties owned by the central.....

Bose, J.

1. This is an application for an interlocutory injunction restraining the defendants, their agents and servants from applying for registration to the Registrar of Joint Stock Companies of Calcutta or elsewhere and getting registered under the Societies Registration Act 1860 an association under the name of the Indian National Congress or name similar to the same and also for injunction restraining the defendants from inviting or receiving any subscriptions or donations or acquiring any property in the name of the association so proposed to be registered under the Societies Registration Act 1860.

2. The case of the petitioners is that the Indian National Congress which is the greatest political organisation in India, was started in the year 1885. It has various political, social, cultural, economic and benevolent activities. The headquarters of the organisation are at New Delhi and it has branches and committees in all the States in India and in the various districts in the States. The central organisation, the Pradesh Congress Committees and the District Congress Committees have considerable properties, movable and immovable in the country. The organisation has its own Constitution, a copy of which is annexed to the petition. It has over a crore of members all over the country, who have paid subscriptions for becoming its members in terms of its Constitution. Its activities consist inter alia in collecting subscriptions and donations and in acquiring property by purchase, transfer, gifts and settlement.

It is alleged in the petition that on or about 19-3-1952 the petitioner Biswanath Mukherjee came to learn that the defendants had applied to the Registrar of Joint Stock Companies at Calcutta, to register an association under the name and style of toe Indian National Congress as a Society under the Societies Registration Act 1860. It is alleged that this application for registration is not a bona fide one but is made with the mala fide object of deceiving the public and leading them by mistake to pay subscriptions and donations in the belief that they are doing so to the organisation of Indian National Congress of which the petitioners are the members and also to induce the public to join the association proposed to be registered as members thereof in the belief that they are joining the petitioners' organisation, the Indian National Congress. It is further stated in the petition that the petitioners have proprietary rights to and interest in the properties of the Indian National Congress and/or the West Bengal Pradesh Congress Committee. The petitioners apprehend that if the association proposed to be registered by the defendants is allowed to be so registered the rights and interests of the members of the Indian National Congress and the vast properties thereof would be seriously prejudiced and endangered, and such registration will amount to a fraud upon the public. It is alleged that the objects of the defendants is to grab the properties of the Indian National Congress and to stifle its functions and activities. It is further stated that the objects and purposes of the proposed association are colourable imitations of the objects and purposes of the Indian National Congress.

3. Defendant 1 has affirmed the affiavit in opposition and there is a denial of practically all the allegations in the petition. It is further stated in the affidavit that there has been internecine dissensions and political differences in the Congress organisation itself and as a result thereof certain eminent leaders whose names are set out in the affidavit have left the organisation which has forfeited the confidence of the public. It is denied that it has as large a number of members as is alleged or that it has vast properties as suggested. It is submitted that there is no likelihood of the public being deceived or the petitioners' organisation suffering any injury as alleged. The deponent also charges the petitioners as being in collusion with the Registrar of Joint Stock Companies.

4. The petitioner Biswanath Mukherjee has affirmed an affidavit in reply in which certain particulars of the properties owned by the Central organisation and the Branch organisations are set out and there is denial of the allegations in the affidavit in opposition.

5. The learned Advocate General appearing for the petitioners has drawn my attention to the case of Hendriks v. Montagu, (1881) 17 Ch. D. 638. In this case the facts were that a company was formed in 1834 under the name and style of Universal Life Assurance Society. It was not registered under the Companies Act. It had three Branch offices, one in London and two in India.

It had acquired a large business in life assurance at home and abroad and it had also built up a great name and reputation. Certain persons of the name of Lord Robert montague, Mr. Alexander and others as promoters of a projected company, intended to be incorporated under the Companies Act under the name and style of Universe Life Assurance Association, applied to the Registrar of Joint Stock Companies in England for registration.

Thereupon an action was started by the Actuary of the said unregistered company for self and on behalf of other members of the Universal Life Assurance Society against the promoters of the proposed company and the plaintiffs moved for an iterim injunction on the ground that, if the proposed company was allowed to be incorporated and to carry on business under the name of Universe Life Assurance Association, the business of the plaintiff Society would be seriously interfered with and damaged by reason of the public failing to distinguish between the two Societies on account of the similarity of the names. The defendants in their affidavits denied that in selecting the name of the Universe Life Assurance Association Ltd. there had existed any intention of deceiving or misleading the public by adopting a title similar to that of the plaintiff company.

6. It was held by the Court of Appeal that as the similarity of the name was sufficient to lead to the conclusion that what the defendants were going to do was calculated to deceive and would deceive the public to the prejudice of the plaintiff the Court would enforce the well known equity, namely, prevent the defendants from doing that which would lead the public to think that the defendant company was the company of the plaintiff. Injunction was therefore issued in terms asked for.

7. Mr. R. Chaudhuri has submitted that it is only in cases where a name is used or associated with a business involving pecuniary gain or the name has relation to a trade or sale of goods, that the Court had jurisdiction to issue an injunction if the Court is satisfied that the user of such name or similar name by a rival business having similar objects is likely to deceive the public by causing confusion as to the identity of the two businesses and that legal injury would result to one by the adoption of its name by the other. According to Mr. Chaudhuri, apart from this, there is no jurisdiction to interfere.

8. Mr. Chaudhuri relies on Buckley on Companies (12th Edn.) pages 46-47. The passage is as follows :

'If a Company about to register is to carry on the same business as and to bear a name so similar to the name of the plaintiff as to be calculated to deceive, there is jurisdiction under the general law for the Court to restrain registration and none the less that the plaintiff is not a registered company. The jurisdiction in these cases rests either upon fraud or upon property; not that there is property in the name but that the use of a name closely resembling that in which another carries on business is calculated to deceive or cause confusion between the two businesses and to affect property by diverting customers to the person taking the name or by affecting the credit or goodwill of the person whose name is taken. Where this is not the case there is no jurisdiction.'

9. There is somewhat similar observation to be found also in Palmer's Company Precedents, Part I page 307 (16th Edn.)

10. In Pollock on Torts, the following statement of the law appears (15th Bdn. page 112) :

'Again our law does not in 'general recognise any exclusive right to the use of a name personal or local. I may use a name similar to that my neighbour use and that whether I inherited or 'found it or have assumed it of my own motion-so long as I do not use it to pass off my wares or businesses as being his, which is quite another matter. The fact that inconvenience arises from the similarity will not of itself constitute a legal injury and allegations of pecuniary damage will not add any legal effect. You must have in our law injury as well as damage.'

11. Reliance has also been placed

on Halsbury-Vol. 18-page 98 para 137

Halsbury-vol. 23-page 555 Para 810 and

Halsbury-Vol. 32-page 614 Para 920.

12. Mr. Chaudhuri has also referred to Day v. Brownrigg, (1878) 10 Ch. D. 294 where use of similar name in respect of a neighbour's house was sought to be restrained but the application failed.

13. He also referred to Street v. Union Bank of Spain and England, (1885) 30 Ch. D. 156, Turton v. Turton, (1889) 42 Ch. D. 128; Du Bouley v. Du. Bouley, (1869) L. R. 2 P. C. 430 at 441-442 in support of his proposition.

14. It is true that apart from certain special statutes which entitle companies or persons to the exclusive use of a name or a mark, such as the Companies Act or the Trade Marks Act, a man has no exclusive proprietary rights in a fancy name or title, and normally and principally it is in relation to the user of a name associated with a certain business or trading concern or some profession that the Court; affords protection and grants an injunction restraining the adoption and use of such a name by another when the Court is satisfied that casmage has been caused or there is a tangible risk or possibility of a damage resulting from confusion caused in the public mind or in other words by reason of the public being deceived by the use of such name.

15. But the decided cases show that the protection afforded by injunction had not been restricted absolutely only to cases of passing off in relation to business names or names associated with sale of goods. There are exceptions to the general rule.

16. In the case of British Legion v. British Legion Club (Street) Ltd., ,48 R. P. C. 555 the protection was extended to a charitable institution which was incorporated by Royal Charter for the purpose of taking over and carrying on the management of a voluntary Association or Society known as British Legion whose activities consisted in promoting the unity of all who had served in His Majesty's forces and in educating public opinion to the view that the maintenance of the disabled and the welfare or ex-service men and women and their dependants were a national duty. The society had its own rules and constitution, and large sums of moneys were used to be collected by way of ,donations from individuals and general public and were applied for benefit of ex-service men and women and their children and dependents. The Institution had its head office at 28 Eccleston Street in the County of London and about 2703 branches in Great Britain and in other parts of the world.

17. A company limited by guarantee was incorporated in 1922 in the name of British Legion Club (Street) Ltd. which had its registered office at Hindhayas Lane, Street in the County of Somerset. The objects of this Company were to establish, maintain and conduct a non-political social club for the purpose of social intercourse and recreation and to carry on the same as a membership club affording to members and friends all the privileges of a club.

18. The British Legion instituted an action against the Company British Legion Club (Street) Ltd. and asked for injunction restraining the user of the name of the defendant company on the ground that such use had misled and/or was calculated to mislead members of the general public into believing that the defendant company was part of or connected with the British Legion and was calculated to obtain financial advantage from such misrepresentation. Farwell J. held that as people might be misled into thinking that the defendants' company was a branch of the plaintiff association any financial trouble or discredit that the defendant company might suffer in future might reflect discredit on the plaintiff association and might result in damage to the Association an injunction should be granted and his Lordship accordingly granted an injunction. This was not a case of business or trading concern in the strict sense, yet an injunction was issued, because there was possibility of confusion between the two associations and tangible possibility of damage to the plaintiff association.

19. In another case reported at page 565 of the same volume of 48 R. P. C. (British Medical Association v. Marsh) Maugham J. reaffirmed the same principles enunciated in the British Legion case and also held that the nature of the activities of the plaintiff association - namely collecting subscriptions-amounted to carrying on a business, Maugham J., observed:

'The plaintiff as a corporation have in my opinion a business, they subsist on subscriptions and mainly on subscriptions of persons who become members'. (P. 576).

20. In a Bombay case Purshottam Das v. Bai Dahi, I. L. R. (1940) Bom. 339: A. I. E. 1940 Bom. 205, where an idol. in a particular temple had acquired considerable fame, and pilgrims from various parts visited it and took vows and made offerings, the establishment of another temple of the same name and installation of an identical image which was likely to deceive the pilgrims into making offering to the newly installed image under the impression that they were making them to the old one was restrained by an injunction. The principles of the English cases of passing off were applied in this case.

21. In the case before me the old organisation of Indian National Congress is an institution which has a world wide reputation. It has about one crore of members. It has branches in various parts of the Indian 'Union. The various bodies which are carrying on the Congress activities in the State of West Bengal and other States are affiliated to the Central Organisation and are known to be parts of the Central Organisation. The substantial portion of its funds which is a very large amount consists in subscription received from its members and donations made by others. Article IV (a), Article VIII (e) and Article XII (i). It is these subscriptions and donations which enable the organisation to carry on its activities. The object of the Indian National Congress is the well being and advancement of the people of India and the establishment in India by peaceful .and legitimate means of a co-operative Commonwealth based on equality of opportunity and political, economic and social rights and aiming at world peace and fellowship. Its management is entrusted to a Working Committee.

22. The Society proposed to be registered by the defendants, in its memorandum, sets out its various objects. Although the objects are couched in a different language the activities to be carried on by the Society, if formed, will not be dissimilar to the activities of the Congress organisation. The object of* the plaintiff's organisation is stated in a comprehensive form without 'going into details and an analysis of the proposed Society's objects shows that such objects are included in and covered by the objects of the plaintiff's organisation expressed in a compendious form. The Society's affairs are to be managed by a Working Committee. In my view there is every possibility of a confusion in the mind of the public to the effect that the Society of the defendants is a branch of and is sponsored by the Central organisation of the Indian National Congress at New Delhi. If the Society ever becomes involved in pecuniary difficulties or is guilty of any misdeeds the same is likely to reflect discredit upon the Central organisation and its branches and may seriously prejudice their activities. Many persons may get' enrolled as members of the proposed Society with the feeling that they will get all the benefits and advantages of Congress membership without having to pay any subscription for the membership of the Society, and there is thus likelihood of the Congress organisation being deprived of the subscriptions which these persons would have paid if they had become members of the Congress.

23. I asked Mr. R. Chaudhuri, the learned counsel for the defendants, why is it the defendants have taken a fancy for this name for their Society. The learned counsel could not offer any explanation. It appears to me that the acts of the defendants in getting the Society registered tend to injure and cause damage to the plaintiffs in their said organisation of the Indian National Congress and as a matter of law that is sufficient ground for granting an injunction in the present case.

24. It was submitted on behalf of the petitioners that there is also likelihood of the plaintiff's organisation becoming involved in litigation by reason of any wrongful acts of the defendants. But as observed by an English Judge this risk of litigation is, wholly visionary and illusory and should not weigh with the Court in the matter of granting injunction and I on my part am not, inclined to attach much importance to this aspect of the matter (See Mc. Culloch v. Lewis A. May Ltd. (1947) 2 ALL E. R. 845 where Wynn-Parry J. refused the injunction, as plaintiff had no pecuniary interest to suffer, and the field of activity being different there was no likelihood of deception, and the defendants established clearly that they had no fraudulent intention in adopting the name in question for their trade. The learned Judge also reaffirmed the general proposition that injunction can issue to restrain the user of a similar name when it has relation to a business or trade or to sale of goods. The learned Judge has also dealt with the case of British Medical Association v. Marsh, 48 R. P. C. 565 in his judgment.

25. It was contended by the learned counsel for the defendants before me that as the prayer of the plaint does not specifically ask for any injunction restraining registration of the Society the petitioners cannot get any injunction to that effect in this interlocutory application. The learned counsel for the petitioners Mr. Sachin Chaudhuri pointed out that this omission was due to inadvertence and asked for leave to make the necessary amendments in the prayer of the plaint, if I am of the view that such amendment is necessary.

26. It appears to me that the suit having been filed after the application for registration was lodged with the Registrar, the prayer should have been properly framed and injunction against registration should have been asked for. I grant the plaintiff's prayer for leave to amend the prayer of the plaint by adding the words 'getting registered' after the words 'for registration' in prayer (d) of the plaint and by deleting the word 'of' after '1860' and by deleting the words 'to be registered' after the word ''Association' in the said prayer.

27. There will be therefore an order for injunction in terms of clause (a) of the Notice of Motion. The petitioners will however pay the costs of this application to the defendant respondents in any event.

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