SOHAN LAL AND OTHERS versus AMIN CHAND AND SONS AND OTHERS

453

SOHAN LAL AND OTHERS

~. AMIN CHAND AND SONS AND OTIIERS (With connected appeals & petitions) August 22, 1973 [K. K. MATHEW AND M. ff. BEG, JJ.)

Arbitratio11 Act (10 of 1940) Ss. 13(6), 14(3) and 39(1){ii)-0pinlo11 '"'

a question of law referred by arbitration to Court-If appeaiable.

Code of Civil Procedure (Act 5 of 1908), s. 107; 0.30, r. 4-Appea/ h

(lrm-Deatlr of partner-If appeal abates.

Code of Civil Proaedure (Art 5 of 1908), 0.47, r. 7-Reriew 011 merits-

Scope of appeal.

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Certain trade marks \Vere registered in the name of two firms aitd one of the partners gave notice of dissolu!ion of the two firms. Thereafter, he filed two suits for accounts. While the suits were pending he died nnd his leg1tl representatives (.appellants) were impleaded. The parties agreed to ref or th' matter -to arbitration and before the arbitrators a question was raised whether the legal representatives were entitled to continue the suits. The arbitrators slated. a special case to the Court for its opinion under the first part of s. J3(h). Arbitration Act, 1940. Meanwhile, one of the firms filed a suit against tht: appellants in the names of the firms under which they (appellanls) were trad· ing. for an injunction restraining them from using the trade-marks. An ex~parte infunction was granted resttainin.e the appellants ,3n~1 selling certain implements under the trade marks. On obiection by the appel lants, the order was vacated. A review application by the respondents. W;.1.-; allowed. The order of the Court granting review was a combined order grantiu1! review and disposing of the application for interim iniunction on merits. On appeal, the High Court confirmed the order. Against the order of the High Court an appeal was filed to this Court and this Court passed an interim order that the appellants will be entitled to use the trade marks but that the partic< should keep accounts of all goods manufactured and sold and submit them h1 the trial court during the pendency of the appeal. While the appeal w:i; pending in this Court, one of the appellants died.

f ·om manufacturing

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The Court, to which reference was made under the first part of s. J3(b l. Arbitration Act, gave its opinion that the appellants were not entitled to continut> the suits, and an appeal was filed against the order under Art. 136.

The respondents filed a criminal complaint before

the Magistrate etatin~ that the appellants ":'ere using the trade marks without authority, and that thiy were passing ~ their g~ as goods manufactured by the original firm. Tho ap~llants applied to this Court for taking proceedings for contempt of court against the respondents 'for having disobeyed the interim order of this Court'.

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Ou the questions :

(I) Whether the appeal against the order of

injunction had abakJ

because of the death of one of the appellants ?

(2) Wf!eth~r the appeal a'gainst the order of injunction on merit. WO!

ma1nta1nable ?

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( 3) '!"hether the trial court was justified in passing the order of in'iunc

flon?

( 4) Whether an appeal against the op!nio~ of the Court given un4er the first part of s. J3(b) of the Arb1tral10n Act was maintainable, and filing the criminal complaint wore

(5) Whether the respondents, in

guilty of contempt of this Court ?

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SUPREME COURT llBPOllTS

[ 1974) 1 s.C.ll •.

HELD: (I) Under 0.30. r. 4, C.P.C .• two or more persons may sue or A

be sued in the name of a firm, and if any of the partners dies, whether before the institution or during the pendency of any suit ... it shall not be necessary tD 1oin the legal representativos of the deceased as a party to th~ suit. . Under s. 107. C.P.C., the provisions of 0.30. r· 4, apply to •.Pl•'8ls.also. Sin1;e the appellants were sued in the names of their firms, IDJUDction was 1SSued against them in the names of their firms, and they filed the appeal in the 11ames of their firms, the deatll of one of the partners would not cause the appeal to abate.

[456F-HJ

the

(2) 'The order of the trial court was not only an order granting the review out also an order passed on merits. Therefore, the appellants were entitled, not only to cha.Uen~e the order on the grounds mentioned in 0.47, r. 1, but &ho on any other ground open to them, namely that on merits, the order of injunc [457 B-DJ lion should not have been passed.

(3) Prima facie the respondents are not entitled to the· exclusive use of the two If that be so, the court was not justified in granting the injunction res·

1 radc marks which formed part of the assets of the partnership of the tirms. 1rainin1 the appcllants from using the trade marks.

[457 G-HJ

( 4) 'The consultative jurisdiction of the court does not result in a decision which is equivalent to a judgment, decree, determination or order which is appealable to this Court under Art. 136, and hence, the appe:tl is incompetent. (458E; U9F-OJ

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(a) There is no material difference in the

language of the corresponding section of English Act and s. 13(b) of the Indian Arbirtation Act. In spite of the opinion given by the Court the arbitratora are clothed with the final duty of determinin11 the case and the opinion of the Court does not finally determine 1 he case and is not binding on the arbitrators.

[ 469E-F; 4608]

British Westing House Electric and Manufacturing Company Ltd. v. Under· ground Electric Railways Company of London, Ltd., [1912] A.C. 673, 1" re a11 .4rbitration between Knight and the Tabernacle Permanent Bullding Society, H892] 2 Q.B.D. 613, Union of India v. M/a So111h India Corporation A.I.R. 1960 Andhra Pradesh 346, Union of !ndia v. M /s Ram ·sukh Das and Othera, A.l.R. 1959 Punjab 61, Adamii Lukmanii and Louis Dreyfus & Co. In the matter of an Arbitration, A.I.R. 1925 Sind 83, and Clive Mills Ltd. v. Swalal lain A.I.R. 1957 Calcutta 692, referred to.

( b) It might be that the •rbitrators may choose to act upon the opinion, but that is not because the opinion is a determination or d<'cision binding on the arbitrator. It need even be incorporated in the award under s. 14(3). Section 14(3) is concerned only with the latter part of s.13(b) because, that part pro·· vides for stating the award wholly or in part in the form/of a special case of 'uch question for the opinion of the court, and under s. 14(3) such epinion should. be added to and form part of the award. But an opinion given under the first part of secti011 13 (b) need not be added to and does not form rart of the award. There could be no appeal from the decision of the arbitrators on rhe ground they did not act upon the '>Pinion although jt might be a ljr<>Und for impeaching their a\vard on the ground of misconduct. [459F; 469F-H; 461.A .. l"]

(c) Moreover, under s. 39(1)(ii) an appeal is provided only against an order on an a\\•ard stated in the form of a special case, but there- is no provi .. ~ion for an appeal against the opinion given by the court on a special case 'tated to the court under the first part of s. 13(b). The scheme of the. Act there ~.hoVto-s that the legislature wanted to_ provide for an appeal only when 1s to be a decision by the court binding on the parties and not when it tenders :~n opinion which is not binding on the arbitrators and which is not to be incorporateJ in Lhe award,

f460G-H: 46181

(5) There could be no dispute that the respondent was entitled to file the complaint and therefore, it cannot be held that the respondent had disobeyed 1 he order of this Court and committed any contempt.

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SOHAN LAL v. AMIN CHAND & SONS (Mathew, /.)

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Ctvn. APPELLATE JURISDICTION : Ovil Appeal No. 227(N}

of 1970.

Appeal by Special Leave from the Judgment and Order ·dated April 7, 1969 of the Punjab and Haryana High Court at Chandigarh in F.A.0. No. 41 of 1969 and civil appeals Nos. 1296-1297 of ,971.

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From the judgment and order .dated 1st June 1971 of the Court of Senior Sub Ju<lge, at Jullundur in Case No. 130 and 140 of 1968.

C. L. Lakhanpal, S. K. Mehta, K. R. Nagaraja, M. Qamaruddin

~nd Vinod Dliavan, for the appellant in all the appeals.

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R. P. Kltosla, R. S. Sodhi and Hardev Singh, for respondent No. 1

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in Civil Appeal No. 227 of 1970.

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,, G. N. Dikshit, S. K. Bisaria and Parmod Swaroop, for respondent

No. I in Civil Appeal Nos. 1296-97 of 1971.

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The Judgment of the Court was delivered by MATHEW, J.

Civil Appeal No. 227 of 1970.

There were two firms called 'Amin Chand and Sons" and "Landra Engineering & foundry Works". The partners of the firms were three brothers Bakshi Ram, Shiv Dayal and Kishan Chand, after the retire· ment of the 4th partner. Certain trade marks were registered in the names of the firms. On January 30, 1967, Bakshi Ram gave notices to· the other partners dissolving the firms. The notices were served upon the other partners sometime before March, 1967. On October 3, 1967, Bakshi Ram filed two suits for rendition of accounts against the other two partners in the s11bordinate Judge's court at Jullundur. The defen dants in the suits filed applications under s. 34 of the Indian Arbitra tion Act for stay of the trial of the suits on the ground that the court had no jurisdiction to proceed with the trial in view of the clause for arbitration in the partnership agreements. On February 4, 1968, Bakshi. Ram died and his legal representatives, 10 in number, were broug_ht on record. On June 24, 1968, the parties agreed to hl!ve the matter refer· red to arbitration. The court stayed the trial of the suits and referred th~ matter to arbitrators. Before the arbitrators, a question was. raised whether the legal representatives of Bakshi Ram were entitled the to continue the suits. The arbitrators stated a special case for opinic;in of the court under the first part of s. 13 (b) of the Act the ques.tion of law! whether the legal representatives are competent to contm~~ ~ swts. On Decem~~r 20, 1968,. a suit was filed by a firm called Amm Chand .and Sons Court· at :'lohtak agamst three of the legal representatives of Bakshi Ram tradmg under the names "Bakshi Ram and Sons" "Sohan Lal and· ~rothera" ~ "Kaybus Industries and others", for a ~rmanent in 'unc· plai~tiff- hon restrammg them from using certain trade marks. The

through Shiv Dayal, in

the District ,

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SUPRBMB COUllT IU!POllTS

( 1974} 1 s.C.R.

-respondents in the suit applied for restraining the defendant-appellants and their dealers from manufact-Jring or selling agricultural implements under the trade mark Nos. 125062 and 138979 which were 01iginally .-egistered in the name of Amin Chand '1Jld Sons of which Bakshi Ram .. Shiv Dayal and Kishan Chand were partners. The court granted an ex parte injunction. That was vacated on the objection of the suit. Thereafter applications were filed by the defendants in the plaintiff-respondents for reviewing the order dismissing the application for temporary injunction, and .for issue of a temporary injunction, to restrain the defendant-appellants trade marks registered in the name of Amin Chand and Sons of which Bakshi Ram was a partner. These applications were allowed and temporary injunction as prayed for was granted. The defendant-appellants preferred an appeal against that order to the High Court. The High Court confirmed tbc order. This appeal, by special leave, is directed against that order ..

from using the

During the pendency of the appeal here, one of the appellants, namely, Dharnm Vir, died on May 14, 1970. The application to implea<l his legal representatives was filed only on July 14, 1970. The respondents, by way of preliminary objection, contended that the appeal has abated.

So, the. first question for consideration is whether the appeal has abated. The plaint shows that three persons were sued in the names of the firms under which th~y were carrying on business. The in junction order was issued against these persons in the names of the firms. The injunction qrder operated against these persons as carrying .on business in the names of the firms.

Orde1 30 rule 4 of the Civil Procedure Code provides that not withstanding anything contained in s. 45 of the Indian Contract Act, the nan1e of a 1872, two or more persons may sue or be sued in firm under the foregoing provisions and if any of such persons dies, whethrr before the institution or during the pendency of any suit. it shall not be necessary to join th.e legal representative of the deceased as a party to the suit. We have already said that the injunction order was directed against the partners in the names of the firms and that it operated as against them. The partenrs tiled the appeal in the names of the firms against the order and when one of the parlneIS died, the failure to implead his legal representatives would not cause the appeal to abate under sec. 107 of the C.P.C. the provisions ~f rule 4 of Order XXX will apply to appeals also.

Counsel for the respondents also raised another objection namely that since the appeal to the High Court was against the order i:rant ing a review, the only groun~ which could have been take~ !11 the appeal were those mentioned Ill Order 47, rule 7 of the Civil Pro-

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SOHAN LAL v. AMIN CHAND & SONS (Mathew,/.)

457

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cedure Code and that tlio appellallla are not, therefore,. entitled to clllJYISS the merits of tho Injunction order here. There IS no subs• lllDCC in this objection either.

It is not very clear from tbc onler of the trial court whether that court reviewoo us previous erder vacatmg tbe m1~11011 and tn4l!1 J>assed the order ot injunction after granling the review or whether II modified its previous order vacating the Injunction in the ~ercise of its inherent power. H the <>nl;cr under aJ.>PCBI before th~ Hi&h Court is considered to be one grantlllg the reVleW, then certainly the only pounds on which that order could have been Impeached In the appeal are those stated in rule 7 .of Order 111. But the order appealed against was not only an order granting the review but also an order passed It cannot be disputed on merits on the application for injunction. that an appeal lay from the order granting the injunction, and in such an appeal it was open to the appellan, to urge any grounds . to show that the injunction was wrongly granted. The order of Ute trial court was a combmed order grantmg the review"and d1spvsing of the appli· the appellants were cation for iniunction on merits and, therefore, ·not only entitled to challenge the order on the grounds mentioned in Order 47, rule 7, but also on any other ground open to them, namely, that, on merits, the order of injunction should not have been passed.

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Then the question is whether there was any justification for pass ing the order of injunction and whether the_ appellate court was rig_ht in l:oafuming it.

It may be recalled that Bakshi Ram gave notices for lilc dissolution of the two firms in January, 1967 to the other partners. The appellants. contend that \Vi.th the dissolution of the firm assets of the firm includ ing the trade marks registered in the name of the firms be!Onged to. the partners as co-owners and that two of. the partners, namely, the respondents, have no right to appropriate or use the assets of the firm to the exclusion of the legal representatives of the other partnet, Bakshi Ram. The suit in which the injunction order was passed was filed for a declaration that "Amin Chand and Sons" constituted by the two surviving partners alone was entitled to use the assets of the firm of "Amin Chand and Sons" of which Bakshi Ram was a partner and it was for restraining the appellants from using that firm's assets' namely, the two trade marks in question, that the order of injunctiim was sought. Prima facie, it would appear that the respondents are not entitled to the exclusive use of the two trade marks which formed part of the assets of the partnership of Aminchand and Sons of whicli the fh:ee brothers were partners. The appellants being the legal reprc· sentallves 9f ~akshi Ram were also entitled to a share of the assets of that partnership. If that be so we do not think that the courts were ju~tified in granting the injuncti?Jl restraining from usmg the trade lf!arks. In ~hese circumstances, we think that the proper course. to adopt 1s to con!m ue in force the order passed by this Court when 1t granted the special leave. on the basis of the application filed by the appellants for stay of the order of injunction, after setting aside· the order under appeal.

the . aopellants

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SUPREME COURT REPORTS

( 1974 J 1 S.C.R.

the Disliict · We, therefore, order that the injunction granted by Judge, Rohtak, on March 20,1969, is varied to the extent that the appellants will be entitled to use the trade l!lark "Amin Chand aad Sons" and "Landra", but they will keep accounts of all goods manu factured and sold and submit six-monthly accounts to the trial court 'during the pendency of the suit and that the respondents will also ·keep similar accounts and furnish accounts to the trial court.

The appeal is allowed to the extent indicated but is dismissed in

other respects. We make no order as to costs.

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Civil Appeals No. 1296 and 1297 of 1971

It might be recalled that Bakshi Ram had filed two suits for rendi • tion of accounts on the basis that the firms stood dissolved by the c notices issued by him in 1967 and that after his death, the parties to .. the suits had agreed to have the subject matter of the suits referred to arbitration. After the arbitrators had entered upon the reference, a question was raised whether the legal representatives of Bakshi Ram were competent to proceed with the two suits. The arbitrators stated ii special case for the opinion of the court under the first part of s. l-3 (b) of the Arbitration Act.

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The Court gave the opinion and it is against

the opinion that

these appeals by way of special leave have been preferred.

A preliminary objection was raised by the respondents to the main tainability of th!lSe appeals on the ground that an opinion given pur suant to the first part of s. 13(b) of the Arbitration Act is not a judgment, decree, determination or order as visualiz.ed Jn article 136 of the Constitution and, therefore, the appeals would not lie. · In order to dispose of the objection it is necessary to decide the nature of an opinion given by a court under the first part of s. 13 (b) of the Arbitration Act.

'.. Jn British Westing House Electric and Manufacturing Company Ltd. v. Underground Electric Railways Company of London Ltd.(I) · I.he House of Lords held that the opinion of the High Court upon a special case stated by an arbitrator under the Arbitration Act, the 1!189, with regard to a question of law arising in the cOUll'se of r11ference cannot be the subject of an appeal, but, if that opinion is ~ironeous an award. expressed to be founded on that opinion can be s.et aside as containing an erFor of law apparent on the face of the award. In the course of his speech Viscount Haldane L.C. said :

"No doubt an opinion given by the Court under the provisions of the Arbitration Act is not a judgment or order, and 1s, therefore, not susceptible of being the subject of an appeal. But in mY opinion, that is the only reason why it cannot be appealed, and if the law embodied in it is after wards set out on the face of a final award, I see no reason for thinking with vaughan Williams, L.J. that the Act inten-

. (I) [19121 A. C. t73.

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~OHAN LAL I'. AMIN CHAND & SONS (Mathew, I.)

459

ded to make the statement of the law appearing on the face of the awa,rd binding on "l higher tribunal · before which the award might come for review."

that when

the words being

Ill re an Arbitration between Knight and the Tabernacee Perma· nent Building Society (1), Lord Esh~r said the statute stated (Arbitration Act, 1889) that "any referee, arbitrator or umpire may at any stage of the proceedings under a reference, and shall if so directed by the Court or a Judge, state in the form of a special case for the opinion of the Court any question of Jaw arising in the course of the reference", not "for determination" or "decision" by the court, there. is no determination or decision when the inexpe· court gives the opinion. He also said that it would be most dient that, where an opinion is given by the court under this statute in the course of a reference for the guidance of the arbitrators, there should be an apeal which might be carried up to the House of Lords. Bowen, L.J. said that it could not have been intended that, when ever a case is stated under this section for the opinion of the Court. such opinion when taken is to be treated as an absolute determination of the rights of the parties with the result that there may be an appeal from it which may be carried to the House of Lords. He furthe.r said that the section in question contemplated a proceeding by the arbitrator for the purpose of guiding himself as to the course he should pursue in the reference and that he does not divest himself of his complete authority over the subject matter of the arbitration but still remains the final judge of law and fact although, a fair and honest arbitrator would, in the absence of special circumstances, be bound in honesty and morality, after taking the opinion of the Court, to act upon such opjnion.

We think that in spite of the opinion given by the Court, the arbi trators are clothed with the final duty of determining the case and that the opinion of the Court does not finally determine the case, althougl\ it rnight bind the arbitrators in honesty and morals to act upon the law as the court stated it. We also think that there could be no appeal from their decision because they did not act upon the opinion although it might be a ground for impeaching their award on the ground of misconduct. I.t. appears to us that this consultative jurisdiction of the Court does not result in a decisi9n which is equivalent to a judgment, decree, determination or order.

In Union of India v. Mis. South India Corporation( 2 ) it was held that an opinion on a special case stated under the first part of s. 13 (b) of the A~bitration Act is consultative in character and is not a determination of the rights of the parties.

In Union of ln<lia v. M/s. Ram Sukh Das and Others(3 ), the Court said that no appeal will lie from an opinion given by the Court on a special case stated under the first part of s. 13 (b) of the Arbitra·

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(1) [1892) 2 Q. B. D. 613.

(2) A. I. R. 1960 Andhra Pradesh 346.

(3) A. I. R. 1959 Punjab 61.

460

SUPREME COURT Rl!PORTS

[ 1974} 1 S.C.R,

t ion Act. TI1e same view was taken in Adamji Lukmanji and Louis A Dreyfus & Co. In the matter of an Arbitration(').

Counsel for the appellants relied on the ruling in Clive Mills Ltd. "· Swalal Jain(2) and submit~ that there are ~aterial. diJ!erences between the English Arbitration Act and the Ind1~ Arbitration Act and therefore. the decision of the House of Lords nught not be a safe guide: We do not thinlc that there is any material difference in the language of the corresponding section of the English Act with whicli the House of Lords was dealing.

Counsel for the appellants submitted that the opinion given by court has to be incorporated in the award under s. 14 (3) and there fore, the opinion was binding on the arbitrators. Section 14 (3) 1irovides:

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"14 (3) Where the arbitrators or umpire state a special case under clause (b) of s. 13, the Court after giving notice to the parties and hearing them, shall pronounce its opinion thereon and such opinion shall be added to, and shall form part of the'llward."

The marginal note to s. 14 says: "Award to be signed and filed". Section 14 ( 1) says that when the award is made by the arbitrators. they shall sign it and give notice to the parties of the making and signing of the award; s. 14 (2) provides that the arbitrators shall, at the request of any party to the arbitration agreement, cause the award to be filed in court and that the court shall thereupon give notice to the parties of the filing of the award. Then comes sub-section ( 3) of s. 14 The entire scheme of the section would show that the section is concerned with the making of an award. Therefore, the reasonable way to read s. 14 (3) is that it is oonc~ed only with the latter part of s. 13 (b), because the latter part of s. 13(b) pro vides for stating the award wholly or in part in the form of a special case of such question for the opinion of the court. The opinion given under the latter part of s. 13 (b) should be added to and form part nf the award under s. 14(3). We do not think that an opinion given under the first part of s. 13 (b) sh.ould be added to and from part of the award. The reason why the opinion given under the latter part of s. 13 ( b) should be added to and becomes part of the award is because the arbitrators have stated the award wholly or in part in the form of a special case of such question for the opinion of the court. This view is further strengthened by the circumstance that under s. 39(1) (ii), an appeal is provided only against an order on an award' stated in the form of a special case. The reason why an appeal is provided for in such a case is that the opinion of the <WJurt has to be added to and form part · of the award and it therefore becomes a decision of the court, notwith standing the fact that it is incorporated in the award. There is no provision for an appeal against an opinion given by the court on · a · specisl case stated to the court under the first part of s. 13 (b) or the)

against the decision to state a special case for the opinion of

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· (I) A. J. R. 1925 Sind 83.

(2) A. I. R. 1957 Calcutta 692.

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SOHAN LAL v. AMIN CHAND & SONS (Mathew, !.)

461

court for the reason that the opinion is not a decision. Nor is it to be incorporated in the award. If, as a matter of fact, the opinion given by the conrt on a special case stated under first part of s. 13 (b) is binding on the arbitrators and has to be incorporated in the award, there was no reason why the legislature should not have provided for an appeal againsf the opinion or against the reference which led to the opinion. The scheme of the Act shows that the legislature wanted to provide for an appeal only when there is· to be a decision by the court binding on the parties, not when it tenders an opinion which is not binding on the arbitrators and which is not to be incorporated in the ·award. It might be that the arbitrator may choose to act upon the opinion. But that is not for the reason that it is a binding determina tion or a decision. We have, therefore no hesitation in holding that the appeals are incompetent.

The appellan_ts' coun,sel argued that the opinion expressed b:1 the conrt is prima facie wrong foi; the reason that it did not t.ake into account the real issue. The real issue, according to counsel, was whether the partnerships "Amin Chand and Sons" and "Landra Engineering & Foundry Works" stood dissolved by the notices issued by Bakshi Ram in 1967, whether . the two suits instituted by Bakshi Ram for rendition of accounts were competent, and whether there was any bar in his legal representatives continuing the suits. Counsel argued that under s. 43' of the Indian Partnerships Act, it was open to BakShi Ram to dissolve the partnerships by giving notice' to the other partners as the partnerships ·were partnerships at will arid that clauses 14 and 15'-of the partnership agreement have nothing to do with the competency of one of the partners to dissolve the firms or the legal representatives of Bakshi Ram to continue the suits. Apparently, it would seem that there was no bar to Bakshi Ram filing the suits for rendition of accounts if the partnerships stood dissolved by the notices issned by him and perhaps there would then be no reason also why his legal representatives could not continue the suits. However, we do not _express any final opinion on the merits of the controversy. We need only say' is . not binding on the arbitrators ·and counsel for the respondents did not contend other· wise.

that that opinion of

the court

The appeals have to be dismissed and we do so but in the circnrn-

without any order as to costs.

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Civil Miscellaneous Petitions No. 2183 and 2184 of 1972

.This" app~cation is for taking proceedings for contempt of court agamst ".'-= Chand. '.llld Sons" represented by Shiv Dayal, the res· pondent m these petitions, for having disobeyed the interim order passed by this Conrt on the application for stay while admitting .Special Leave Petitioµ (Civil) No. 1851 of 1969 on January .29, 1970. That order provided as follows:-

. "~pecial leave granted. The injnnction granted by the D1stnct Judge, Rohtak on 20·3·69 is varied to the extent that the petitioner will be entitled to use the trade mark "Amin Clland and Sons and Landra", ,bnt they will keep

4-L382Sup Cl/74

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SUPREME COURT REPORTS

[ 1974 J 1 s.c.R.

:ccounts of all goods manufactured and sold and submit iix-monthly accounts to the Trial Court. during the pendency ·cf the appeal. The r~spondents will also . keep similar cccounts and furnish accounts to the Trial Court."

The main alkgation in this application is that the respondent Shiv Dayal filed a criminal complaint before the Judicial Magistrme, I Class. Phillaur stating that the applicants were using the uade marks that "Special Landra" . and "Amin Chand" without authority and they were u~ing the name of "Amin Chand and Sons" under which the respondent Shiv Dayal and his partner were carrying on their trade.

that

On the objection of the applicants as to the maintainability of the complaint, the learned Magistrate passed an order holding the complaint was maintainable because one of the allegations in the complaint was that the applicants were using the name of "Amin Chand and Sons", the firm under which Shiv Dayal and his partnei: are carry ing on the trade on the goods manufactured by the applicants and thus passed off their goods as goods manufactured by "Amin Chand and Sons'. On a perusal of the complaint, it is clear that there are allega tiops to show that the applicants were using the name of the fu'm "Amin Chand and. Sons" under which the respondent Shiv Dayal and his part ner are carrying on the business, on the goods manufactured by the In these circumstances, we do riot sec how the respondent applicants. has committed any contempt by disobeying the order of this Court There can be no dispute that the respondent wa,s entitled to file a complaint on the ground that the applicants were manufacturing goods under the trade marks as being manufactured by the finn of "Amin Chand and Sons" and. were passing off the goods as manufactured by the respond It would appear that the applicants have filed a petition ent firm. under s. 561-A of the Code of Criminal Procedure before the High Court of Punjab and Haryana for quashing the order of the Magistrate holding that the complaint was maintainable. The High Court will pass .the appropriate order on that petition.

\Ve see no substance in this petition. We therefore dismiss it.

V.P.S.

C.A. 227 of 1970 allowed. Other matters dismissed.

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