Anjana Srivastava vs Sandip Kumar Mukhopadhyay and Another

Sanjib Banerjee, J.—The petitioner, the plaintiff in a suit which remains pending in this Court, complains of three-fold violation by the respondents of an order dated July 21, 2011 by which an interlocutory application in the suit was disposed of. Two of the alleged violations are common to both the respondents, the third count of perceived breach is directed only against the first respondent. The facts need to be noticed to the extent necessary. The petitioner is the daughter of one of the erstwhile partners of a firm by the name of Macrotech India in which there were two other partners. The business of such firm was to supply a specialised kind of paint, primarily to the Indian Navy and related organisations. The firm was the registered owner of a trademark relating to one of the products which goes by the name of ''MAS''. The registration was in favour of the three original partners of the firm carrying on business under the name and style of Macrotech India. Disputes arose several years back between the predecessor-in-interest of the petitioner and the first respondent as to the affairs of the firm, following which an arbitral reference was commenced. It is not in dispute that the third partner took little interest in the matter whereupon the reference remained a fight between the predecessor-in-interest of the petitioner and the first respondent. Ultimately, a partial award was rendered finding the predecessor-in-interest of the petitioner to be entitled to the firm. A challenge to the partial award u/s 34 of the Arbitration and Conciliation Act, 1996 has stood abated. It appears that a recent application for setting aside the abatement has been filed. The deemed decree that the partial award has metamorphosed into upon the challenge thereto failing, has been put into execution.

The suit is primarily for the protection of the trademark of the firm to which the petitioner now appears to be entitled. The order dated July 21, 2011 proceeded upon a concession by the defendants (the defendants to that suit are the respondents herein and a company by the name of Macrotech Environment Coatings Private Limited, which is primarily controlled by the first respondent herein) that the defendants did not intend to carry on any business using ''Macrotech'' as part of their business name. Since the company defendant to the suit also agreed to remove the word ''Macrotech'' from its name and since the defendants submitted that they would not use the mark ''MAS'' in connection with their business, without prejudice to their contentions in the application to revive the challenge to the partial award, the order dated July 21, 2011 recorded and directed, in its material part, as follows -

In view of the submission of the defendants, the defendants are directed to cause the name of the third defendant to be changed as expeditiously as possible and an application in such regard should be filed within a fortnight from date and Advocates representing the plaintiff informed in such regard. The defendants are also restrained, in view of their concession, from using the mark "MAS" in connection with their products but such injunction will not prevent the defendants from completing the third defendant''s obligations under the existing contracts. Within a fortnight from date, the defendants will indicate to Advocates representing the plaintiff the existing contracts under which any product bearing the mark "MAS" is being supplied. The only particulars that need to be furnished are the names of the other contracting parties and the dates of the contracts.

The defendants say that the concession made here should not be regarded as the defendants'' acceptance of the interim award and the same is without prejudice to the first defendant''s challenge thereto.

Since the interim award still stands, the defendants are restrained from representing to any person that there is any continuing connection between firm Macrotech India and the defendants or any of them. For the period that the third defendant continues to execute the pending orders in respect of goods under the mark "MAS" the third defendant will furnish accounts therefor on a monthly basis and submit the same in the department by the 20th day of the following month.

There appear to be several parts to the directions contained in the order of July 21, 2011. In its first part, the order directed the name of the defendant company to be changed. It then restrained the defendants from using the mark ''MAS'' in connection with their products, but the injunction was not absolute since it carved out an exception to allow the defendants to complete the third defendant''s "obligations under the existing contracts." The third direction contained in the order was for the defendants to indicate to Advocates representing the plaintiff "the existing contracts under which any product bearing the mark "MAS" is being supplied." The ancillary direction as to the manner of disclosure is disregarded here. The defendants were also restrained from representing to any person that there was any continuing connection between firm Macrotech India and the defendants or any of them in any manner. The final direction in the order of July 21, 2011 was that for the period that the third defendant company continued to execute its pending orders in respect of the goods under the mark ''MAS'', the third defendant ought to furnish accounts on a monthly basis to be deposited in the department.

The petitioner complains of the respondents herein not disclosing the particulars of a contract with a Russian party that was in the process of being executed as on the date of the order of July 21, 2011. In the appropriate disclosure not being made under cover of the letter dated August 4, 2011 issued by Advocate representing the defendants in the suit, the petitioner claims that the third direction contained in the order has been violated. The petitioner says that upon it being evident that accounts relating to the relevant Russian contract have not been filed in the department, there is also a violation in such regard. The petitioner says that the first respondent having submitted an income tax return on behalf of the firm Macrotech India by a document dated September 30, 2011 would also be in derogation of the direction contained in the order that the defendants to the suit were not to represent that they were associated with firm Macrotech India in any manner.

For a start, it must be appreciated that the third defendant to the suit is not a party to the present proceedings, nor has any allegation been made against the first respondent for any alleged breach on the part of the third defendant company on account of the first respondent being the controlling mind of the third defendant company. Since the third defendant to the suit is not even a party to the present contempt proceedings, the second ground of breach of the order dated July 21, 2011 canvassed by the petitioner cannot be countenanced.

The grievance that the plaintiff in the suit carried to Court was that the use of the mark "MAS" was in derogation of her right as the registered proprietor thereof since the plaintiff and/or her predecessor-in-interest succeeded to the entire assets of firm Macrotech India. The direction in the order dated July 21, 2011 on the defendants to indicate to Advocates representing the plaintiff" the existing contracts under which any product bearing the mark "MAS" was being supplied, in such circumstances, could be, in a sense, understood to have required the defendants to indicate such contracts under which any future supplies of products bearing the mark "MAS" were to be made. It must not be missed that the order did not require the defendants either to furnish accounts in respect of previous contracts involving the supply of products bearing the mark "MAS". If it is possible to interpret the direction to furnish the particulars of the existing contracts in connection with the order of injunction to be a direction to furnish the particulars of such contracts under which products bearing the mark "MAS" were to be supplied subsequent to the date of the order, the explanation that appears at page 14 of the first respondent''s affidavit, which is echoed in the second respondent''s affidavit, would suffice in the context of the present proceedings; though it need not be indicated whether further interlocutory orders sought by the plaintiff on similar grounds would be liable to be refused on such basis.

The third count of breach asserted by the petitioner is in the first respondent''s name appearing in the income tax return relating to firm Macrotech India filed on September 30, 2011. There are two aspects to the relevant document. The first is the insignificant aspect of the first respondent having been shown as the Managing Director of the firm. The first respondent''s affidavit says that it was a mistake committed by the auditor who had been authorised to file the E-form. The petitioner has also not made much of such aspect of the matter. The petitioner insists that if the first respondent could write letters to the income tax authorities refusing to deal with the queries raised by such authorities relating to the accounts of the firm, the first respondent should then not have filed the annual return on behalf of the firm claiming to be associated with the firm notwithstanding the specific direction to the contrary contained in the order dated July 21, 2011.

The directions contained in the relevant order were for the purpose of the defendants to the suit not obtaining any further benefit in course of their business in respect of the matters specified in the order. The filing of an income tax return cannot be regarded as the first respondent seeking to obtain a benefit. Indeed, the filing of an income tax return is an obligation and in filing such return, the first respondent has taken on an onerous responsibility. Since such conduct cannot be regarded as either being in breach of the relevant direction contained in the order dated July 21, 2011 when read in its proper spirit or obtaining any undue benefit in derogation of such order, it is not necessary to look into the affidavit filed by the first respondent explaining such conduct.

The authority available in this jurisdiction must be used sparingly and with great circumspection. It is true that a beneficiary of an order is entitled to bring it to the notice of the Court that such person had been deprived of the benefit of the order by reason of any willful or deliberate act of the person complained against, but the ultimate purpose of the jurisdiction is to uphold the dignity and majesty of this institution and to ensure the confidence of litigants in the institution. There is a larger public purpose in this jurisdiction which cannot be compromised to allow litigants to give vent to their vendetta.

Since it is found that there are plausible explanations which are available to the respondents in respect of two of the matters complained of and since it has been found that the second charge canvassed by the petitioner is irrelevant in the absence of the third defendant to the suit, CC No. 87 of 2012 is dropped.

It is recorded that neither respondent has been called upon. There will be no order as to costs.

Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.