Decided on July 16,1980

S P S SELVARAJ Appellant


- (1.) THIS appeal coming on for hearing on this day the court delivered the following order:-
(2.) THIS is a petition under section 10 of the Contempt of courts Act, 1971 (Act No. 70 of 1971) filed by one S. P. S Selvaraj who will be herein after referred to as the petitioner, against V. Muthuswamy Naicker: the respondent. The petitioner is a partner of a firm known as M/s S. P. S Jayam & Co. which manufactures tooth powder, which is marketed under the name and style of "gopal Tooth Powder". It has a registered trade mark, the mark having been registered on 30th April 1947 in class 3 as Mark No. 129120 in relation to the tooth powder under the law then in force viz. , the Trade Marks act, 1940. It has been renewed subsequently under the Trade and Merchandise marks Act, 1958. It is claimed that the firms annual turnover is in the reign of Rs. 50. 000 and it spends on advertisement through various media a sum of Rs. 4, 00, 000. A packet of tooth powder manufactured by the firm is said to cost about 35 paise. The respondent was found to be marketing tooth powder in similar packets under the name and style of Ram Gopal Tooth Powder. A complaint was lodged before the Police and the respondent was prosecuted in c. C. No. 126 of 1971 before the Additional First Class Magistrate No. II madurai. He was found guilty under sections 482, 483, 485, 487 and 488 of the indian Penal Code read with the sections 78 and 79 of the Trade and Merchandise marks Act, 1958, He was sentenced to undergo three months simple imprisonment. There was an appeal to the Sessions Court, Madurai, which was dismissed on 26th february 1972. Subsequently the respondent continued to trade in tooth powder in packets similar to those of the petitioner. The petitioner filed O. S. No. of 1978 in the Court of the District Judge, Madurai in accordance with the provisions of sections 105 and 106 of the Trade and Merchandise Marks act 1958. There was a prayer for permanent injunction and other relief's. The respondent submitted to decree on 16th November, 1976. During the tendency of the aforesaid suit the respondent was found again to be selling tooth powder in packets similar to those of the petitioner and a notice was issued by the petitioner through his counsel on 28th November, 1973 to the respondent threatening further proceedings. It is stated that the activities of the respondent has subsided for sometime, but again in the middle of 1976 there was a resumption of the trade in the name and style of lion brand tooth powder. There was a change in the manufacturing address which was originally in the name and style of Sri Murugan Chemicals, and which was changed to N. S. M. & Sons. Sri Prakash Cottage Industry, madurai. O. S. No. 17 of 1976 was filed by the petitioner in accordance with the provisions of sections 105 and 106 of the act and on 28th October 1976, the defendant appeared in person and submitted to a decree as prayed for. Consequently, there was and injunction restraining the respondent from using his label lion brand tooth powder. It is alleged that as the malpractice continued, the petitioner has comeforward with the present petition under section 10 of the Contempt of Courts Act, 1971 for committing him for contempt consequent on the willful violation and disobedience of the order of injunction passed in o. S. No. 17 of 1976 on 28th October, 1976. The respondent filed a counter denying the allegations made in the affidavit in support of the petition under section 10 of the Act.
(3.) DURING the course of the hearing the petitioner marked exs. P. 1 to P. 6 Exs. P. 1 and P-2 are the bills said to have been issued by the respondent. Ex. P. 3 is one packet of lion brand tooth powder for which Ex. P. 4 bill was issued on the 6th March 1980. E. P. 6 is a bundle of 10 packets of lion brand tooth powder said to have been sold by the respondent. The petitioner's Manager one Mr. P. James was examined as P. W. 1. He stated that he went with one Chandran and purchased 60 packets of tooth powder. On 14. 9. 1978. This Chandran is said to be an employees of Topaz Private Investigations Madurai and to prove that the said Chandran was an employee of Topaz Private investigators Ex. P. 5 produced. The respondent marked Exs. D1 and D2 which are respectively packets of tooth powder. Ex D2 relates to the goods which are manufactured by the petitioner. The respondent was also examined as R. W. 1 and according to him he never sold any goods or issued any of the bills, which were produced by the petitioner and which have been marked as mentioned earlier. The learned counsel for the petitioner submitted that the respondent is guilty of willful disobedience of the decree dated 28th October, 1976 in O. S. No. 17 of 1976 on the file of the District Judge Madurai. The earlier proceedings were referred to as showing that the respondent was bent upon violating court's order without the least compunction. It was therefore, contended that a different sentence should be passed on the respondent so that he did not indulge in such activities at any rate hereafter. For the respondent Mr. R. S. Venkatachari has learned counsel, took two objections to the maintainability of the present petition. The first submission was that the proceeding for contempt was not available in any case where it was open to a party to execute a decree that was passed against him and that contempt proceedings should not be used as a mechanism or substitute for execution. His second submission was that section 10 of the contempt of Courts Act, 1971, provided that the High Court shall not take cognizance of a contempt alleged to have been committed in respect of a court subordinate to High Court where such contempt is an offence punishable under the Indian Panel Code. The Point urged was that assuming without admitting that there was an infringement of the trade mark of the petitioner. The petitioner could also take proceeding in criminal court as he did earlier and that the present proceedings were, therefore, incompetent and unsustainable. There was also a third contention that there was no violation at all of any order or decree of the court and, therefore, there could be no proceedings under the contempt of Courts Act. It would be convenient to turn to the third contention first as in case it is established that there was no disobedience of any court order or decree. There is no question of any contempt proceedings going on further as against the respondent. In that event, it would be unnecessary to get into the other submissions made on behalf of the respondent. ;

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