Kale Khan Mohd. Hanif and Others vs Mohd. Iqbal

Dipak Misra, J.—In this intra-court appeal, the defensibility and legal tenability of the order dated 5-4-2007 passed by the learned single Judge in W.P. No. 1443 of 2007 is called in question.

The facts which are imperative to be uncurtained are that the Respondent invoked the extra-ordinary jurisdiction of this Court under Article 227 of the Constitution of India questioning the propriety of the order dated 2-1-2007, AnriEx. P-21, to the writ petition passed by the learned Additional District Judge, Bhopal in R.C.S. No. 127 of 2005 whereby he had rejected the report of the Commissioner dated 6-12-2006 appointed for valuation of the trade mark and prayed for issue of a writ of certiprari for quashment of the same. Additionally, it was played that a command should be issued to the trial Court to take into account the report for preparing the final decree.

As discernible from the material documents brought on record and the asseverations setforth in the writ petition, the Respondent decree-holder was the partner in the partnership firm, namely, Kalekhan Mohammad Hanif Khan which was engaged in the manufacture of bidis. In the said firm, the writ Petitioner as well as Mohd. Hanif Khan and Mohd. Aziz, the Respondents 1 and 2, and late Mohd. Islam, the real brothers, were the main partners. The remaining partners were the sons of three brothers. The firm was dissolved on 16-1-1986. On a civil action being initiated, the learned Additional District Judge, Bhopal, by judgment dated 4-11-1996, granted a preliminary decree of dissolution of the firm with effect from 17-1-1986 and directed that action be taken through the Commissioner for the purpose of passing a final decree. Pursuant to the preliminary decree, one R.K. Mangal, Chartered Accountant, was appointed as the Commissioner for settling the account of the dissolved firm. He submitted the report, AnnEx. R-5 to the writ petition, on 23-7-2001 before the trial Court. In his report, he valued the goodwill of the firm at Rs. 1.80,56,859/- and expressed the view that as the valuation of the trade mark was a technical matter for which valuers were not available, the matter should be referred to a trade mark valuer for its valuation. While the Commissioner was examined in Court, ''he deposed in his cross-examination that since he had not valued the trade mark, his report was incomplete. The trial Court, as is evincible, by order dated 31-1-2005, AnnEx. P-11 to the writ petition, ''expressed the view that the report of the Commissioner did not contain the valuation of the trade mark and was, therefore, incomplete and directed the writ Petitioner to initiate a proceeding for valuation of the trade mark. The said order was not assailed by the present Appellants who were the Respondents in the writ Court. As is evident, on the basis of an application filed by the writ Petitioner, the trial Court appointed Sanjeev Nifat Kar and Associates, which in its report dated 6-12-2006, AnnEx. P-12, valued the trade mark of the firm at Rs. 20,77,589.90.

The objections were filed vide Annex-ure-P-16 and P-17 to the writ petition praying therein that the report with regard to valuation of the trade mark should be excluded. The trial Court held that the valuation of the goodwill of the firm included valuation of the trade mark and accordingly rejected the report.

Questioning the legal propriety of the aforesaid order, it was.contended before the learned single Judge that once the Court had held that the report of the Commissioner in the absence of the valuation of trade mark was incomplete, it could not later on opine that the Commissioner''s report was not necessary. It is also urged that the trial Court has fallen into error by holding that the valuation of trade mark was included in the goodwill. The aforesaid stand and stance of the writ Petitioner was opposed on the ground that in the preliminary decree, there was no mention with regard to the valuation of the trade mark and as such, the report on the valuation of the trade mark was inconsequential and hence, the same has been correctly rejected by the learned trial Judge and the order impugned did not warrant any interference.

The learned single Judge referred to the preliminary decree and came to hold that the goodwill and trade mark are not one as is evincible from Sections 38 and 39 of the Trade Marks Act, 1999; that the Commissioner, R.K. Mangal, in his evidence has clearly stated that the valuation of goodwill in his report did not include the valuation of the trade mark; that though the preliminary decree did not expressly refer to the trade mark, yet reading of the decree in entirety clearly shows that the intention behind the decree is to value the entire properties and assets of the firm and to realize their value as far as possible by auction; that the trade mark is the property of the firm and, therefore, the trial Court was right in directing its valuation by appointing another Commissioner who had the expertise to value the trade mark; that the rejection of the report of the second Commissioner by the learned trial Judge was incorrect; that the valuation with regard to goodwill and trade mark as made by the two Commissioners was paper valuation and the real value of both the properties can be ascertained by putting them to auction; that the preliminary decree clearly directs sale of goodwill and stock-in-trade by auction with liberty to the parties to participate in the auction although the trade marks is not mentioned in Clause (b), the intention behind the decree is for sale of all the properties and assets and, therefore, there has to be a direction to sell by way of auction not only of the goodwill but also trade mark, and that the Commissioner was at liberty to sell them together or separately as the Commissioner may deem it proper in the circumstances of the case. Being of this view, the learned single Judge set aside the order dated 10-1-2007 and directed that the trial Court will direct the Commissioner to proceed in accordance with the preliminary decree as interpreted in the order passed in the writ petition.

We have heard Mr. M.P. Acharya alongwith Mr. Pradip Acharya, Learned Counsel for the Appellants; and Mr. Alok Aradhe learned Senior Counsel with Mr. Jaideep Sirpurkar and Mr. Avinash Zardar, Learned Counsel for the Respondent.

Mr. Acharya, Learned Counsel appearing for the Appellants, has raised the following submissions:

(a) The learned single Judge should have considered the previous litigations between the parties as reported in Mohammad Iqbal v. Mohd. Hanif, 1976 MPLJ 644 and the judgment and decree dated 1-10-2003 in F.A. No. 546 of 1996 inasmuch as the said decisions would have thrown immense light on the controversy in question.

(b) The learned single Judge has fallen into grave error in his interpretation of the preliminary decree which had already stood confirmed in F.A. No. 546 of 1996.

(c) The learned single Judge should have held that the Respondent had already abandoned his right and hence, could not have put forth a claim for trade mark.

(d) The order passed by the learned single Judge is vulnerable inasmuch as a fundamental principle, i.e. The Executing Court cannot go beyond the decree and cannot amend or enlarge the scope, has not been kept in view and the learned single Judge, in the garb of interpretation, could not have passed a new decree as the same runs counter to the law laid down by the Apex Court in C.F. Angadi Vs. Y.S. Hirannayya, .

(e) The learned single Judge has added words to the preliminary decree which is impermissible inasmuch as it is a well-known principle that while passing the decree, the Court is presumed to know the law.

(f) The learned single Judge would have been well-advised to conclude that the trial Court while passing the preliminary decree knew the law that the trade mark has no independent existence apart from a goodwill which was valued by the Commissioner and that is why no mention of the valuation of the trade mark as a separate property/asset has been ordained in the preliminary decree. The learned single Judge has erroneously relied upon the provisions of Trade Marks Act.

(g) The learned trial Judge has rightly rejected the report inasmuch as the goodwill has been valued at Rs. 1,80,56,859/- and the trade mark was valued as Rs. 20,77,58,259.90 p. which is illegal, exorbitant and unreasonable and not permission because goodwill consists of so many ingredients including situation, locality, expertise, product qualify, reputation but trade mark has no independent existence apart from goodwill.

(h) The learned single Judge has committed illegality by travelling beyond the scope of the writ petition while issuing a direction for auction of trade mark and goodwill while in the writ petition the singular issue was whether trade mark and goodwill are one thing or not.

Mr. Alok Aradhe, learned Senior Counsel appearing on behalf of the Respondent, resisting the aforesaid proponements, advanced the following submissions:

(i) It is not open to the Appellants to contend that trade mark and goodwill of the firm are one and the same thing inasmuch as the Commissioner by report dated 31-1-2005 had rejected the report of the Commissioner on the ground that the valuation of the trade mark had not been done separately; and the said order was acceded to by the Appellants.

(ii) The contention of the Appellants that the trade mark is included in the goodwill of the firm and is an asset of the firm is erroneous inasmuch as the goodwill belongs to a firm and is an asset of the firm and the trade mark is a different concept having a different connotation under the provisions of the Trade Marks Act.

(iii) The trade mark can be assigned with or without goodwill and therefore, it has a different status altogether and hence, the order passed by the learned single Judge cannot be found fault with.

To appreciate the submissions raised at the bar, it is apposite to refer to the directions incorporated in the preliminary decree. They read as under:--

(a) (1) An account of the credits, property and effects now belonging to the said partnership;

(2) An account of the assets and liabilities of the said partnership.

(3) An account of all dealings and transactions between the Plaintiff and the Defendants from the accounts of the firm prior to its dissolution.

(b) And it be ordered that the goodwill of the business heretofore carried on by the Plaintiff and Defendants and the stock-in-hand be sold on the premises and that the Commissioner may on the application of any of the parties fix a reserved bidding for all or any of the lots at such sale, and either of the parties is to be at liberty to bid at the sale.

(c) And it is ordered that the above accounts be taken and all the other acts required to be done be completed, within six months from the date of the preliminary decree and the Commissioner will certify the result of the accounts and that all other acts are completed and submit the report within the period stated hereinabove for inspection of the parties and if the parties will have any objection, then after having adjudicated such objection a final decree may be drawn ultimately.

On a scrutiny of the preliminary decree, it is clear as day that though it does not expressly refer to the trade mark, yet the intention behind it is clear as crystal inasmuch as it refers to the assets of the firm. Thus, the concept of asset is included in the connotative expanse of the decree. Be it noted that the preliminary decree is in terms of property and assets and. therefore, it is to be seen whether a trade mark is a property of the firm or not. In this context, the provisions of the Trade Marks Act, 1958 which were in existence at the relevant time and which are relevant for the purpose of the present case deserve scrutiny. Sections 37 and 38 of the Trade Marks Act, 1958 are reproduced below:

Assignability and transmissibility of registered trade marks--Notwithstanding anything in any other law to the contrary, a registered trade Hark shall, subject to the provisions of this Chapter, be assigned and transmissible, whether with or without the goodwill of the business concerned and in respect either of all the goods in respect of which the trade mark is registered of some only of those goods.

Assignability and transmissibility of unregistered trade marks--

(1) An unregistered trade mark shall not be assignable or transmissible except along with the goodwill of the business concerned.

(2) Notwithstanding anything contained in Sub-section (1), art unregistered trade mark may be assigned or transmitted otherwise than along with the goodwill of the business concerned if--

(a) at the time of assignment or transmission of the unregistered trade mark, it is used in the same business as a registered trade mark; and

(b)the registered trade mark is assigned or transmitted at the same time and to the same person as the unregistered trade mark; and

(c) the unregistered trade mark relates to goods in respect of which the registered trade mark is assigned or transmitted.

It is worth nothing that similar provisions find place in Sections 38 and 39 of the Trade Marks Act, 1999, which have been reproduced by the learned single Judge.

The central controversy is whether the trade mark has any separate entity or is included in the good will. In this regard, we may refer with profit to the decision in Sohan Lal and Others Vs. Amin Chand and Sons and Others, wherein the Apex Court noted the contention of the Appellants therein that with the dissolution of the firm, the assets of the firm including the trade marks registered in the name of the firm belonged to the partners as co-owners and that two of the partners, namely, the Respondents, have no right to appropriate or the assets of the firm to the exclusion of the legal representatives of the other partner, Bakshi Ram and opined that the Appellants being the legal representatives of Bakshi Ram were also entitled to a share of the assets of that partnership and hence, the Courts were not justified in granting the injunction restraining the Appellants from using the trade marks.

In Sumat Prasad Jain Vs. Sheojanam Prasad (Dead) and Others and State of Bihar, , the Apex Court has held as follows:--

The concept of trade mark is distinct from that of a property mark. A mark, as defined by Section 2(1)(j) of the Trade and Merchandise Marks Act, 1958, includes a device, brand, heading, label, ticket, name, signature, word, letter or numerical or any combination thereof. A trade mark means a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use that mark. The function of a trade mark is to give an indication to the purchaser or a possible purchaser as to the manufacture or quality of the goods, to give an indication to his eye of the trade source from which the goods come, or the trade hands through which they pass on their way to the market (per Bowen, L.J. in In re, Powell''s Trade Mark, (1893) 10 RFC 2000).

On the other hand, a property mark, as defined by Section 479 of the Penal Code means a mark used for denoting that a movable property belongs to a particular person. Thus, the distinction between a trade mark and a property mark is that whereas the former denotes the manufacture or quality of the goods to which it is attached, the latter denotes the ownership in them. In other words, a trade mark concerns the goods themselves, while a property mark concerns the proprietor. A property mark attached to the movable properly of a person remains even if part of such property goes out of his hands and ceases to be his. In Emperor v. Dahyabhai Chakasha. (1904) 6 Bom LR 513 the National Bank of India used to import bars of gold for sale in India. Each bar was of a uniform size, weight and purity and had the words "National Bank of India" inscribed on it as its property mark. The gold so imported was known in the market as ''Nasrana Bak'' and acquired a special value in the market. The accused placed in the market gold of their own mark with words ''Nasrana Bak'' inscribed on their bars. The High Court of Bombay held that the National Bank of India owned a property mark in the bars imported by it, and that the accused were guilty of counterfeiting their property mark. It further held that though some of those bars had been sold by the Bank and had thus passed out of its hands, that fact did not mean that its property mark did not remain, for the function of a property mark to denote ownership is not distroyed because any part of it on which it was impressed has leased to be of that ownership (see also S.K. Pothilingam Pillai and Another Vs. Nagoor Meeran Rowther, ).

In Commissioner of Income Tax, Bangalore Vs. B.C. Srinivasa Setty, , it has been ruled thus:--

Goodwill denotes the benefit arising from connection and reputation. The Original definition by Lord Edon in Cruttwell v. Lye, (1819) 17 Ves 335 that goodwill was nothing more than "the probability that the old customers would resort to the old places" was expanded by Wood V.C. in Chirton v. Douglas, (1859) John 174 to encompass even-positive advantage "that has been acquired by the old firm in carrying on its business, whether connected with the premises in which the business was previously carried on or with the name of the old firm, or with any other matter carrying with it the benefit of the business". In Trego v. Hunt, 1896 AC 7 Lord Herschell described goodwill as a connection which tended to become permanent because of habit or otherwise. The benefit to the business varies with the nature of the business and also from one business to another. No business commenced for the first time possesses goodwill from the start. It is generated as the business is carried on and may be augmented with the passage of time. Lawson in the "Introduction to the Law of Property" describes it as property of a highly peculiar kind. In Commissioner of Income Tax, W.B. III Vs. Chunilal Prabhudas and Co. (Defunct Firm), the Calcutta High Court reveiwed the different approaches to the concept:

It has been horticulturally and botanically viewed as "a seed sprouting" or an "acorn growing into the mighty oak of goodwill. It has been geographically described by locality. It has been historically explained as growing and crystallising traditions in the business. It has been described in terms of a magnet as the "attracting force". In terms of comparative dynamics, goodwill has been described as the "different return of profit". Philosophically it has been held to be intangible. Though immaterial, it is materially valued. Physically and psychologically, it is a "habit" and sociologically it is a "custom". Biologically it has been described as Lord Macnaghten in Trego v. Hunt as the "sap and life" of the business. Architecturally, it has been described as the "cement" binding together the business and its assets as a whole and a going and developing concern.

A variety of elements goes into its making, and its composition varies in different trade and in different businesses in the same trade, and while one element may preponderate in one business, another may dominate in another business. And yet because of its intangible nature, it remains insubstantial in form and nebulous in character. Those features prompted Lord Mac Naghten to remark in Commissioner of Inland Revenue v. Muller and Company''s Margarine Limited, 1901 AC 217 that although goodwill was easy to describe, it was nonetheless difficult to define. In a progressing business goodwill tends to show progressive increase. And in a failing business it may begin to wane. Its value may fluctuate from one moment to another depending on changes in the reputation of the business. It is affected by everything relating to the business, the personality and business rectitude of the owners, the nature and character of the business, its name and reputation, its location, its impact on the contemporary market, the prevailing socio-economic ecology, introduction to old customers, and agreed absence of competition. There can be no account in value of the factors producing it. It is also impossible to predicate the moment of its birth. It comes silently into the world, unheralded and un-proclaimed and its impact may not be visibly felt for an undefined period. Imperceptible at birth it exists enwrapped in a concept, growing or fluctuating with the numerous imponderables pouring into, and affecting, the business.

In this context, we may fruitfully refer to the decision in Laxmikant V. Patel Vs. Chetanbhat Shah and Another, : Laxmikant V. Patel Vs. Chetanbhat Shah and Another, wherein their Lordships opined thus:--

8.--It is common in trade and business for a trader or a businessman to adopt a name and/or mark under which he would carry on his trade or business. According to Kerly (Law of Trade Marks and Trade Names, 12th Edn., para 16.49), the name under which a business trades will almost always be a trade mark (or if the business provides services, a serve mark, or both). Independently of questions of trade or service mark, however, the name of a business (a trading business or any other) will normally have attached to it a goodwill that the Courts will protect. An action for passing-off will then lie wherever the Defendant company''s name, or its intended name, is calculated to deceive, and so to divert business from the Plaintiff, or to occasion a confusion between the two businesses. If this is not made out there is no case. The ground is not to be limited to the date of the proceedings, the Court will have regard to- the way in which the business may be carried on in the future, and to its not being carried on precisely as carried on at the'' date of the proceedings. Where there is probability of confusion in business, an injunction will be granted even though the Defendants adopted the name innocently.

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A person may sell his goods or deliver his services such as, in case of a profession under a trading name or style. With the lapse of time such business or services associated with a person acquire a reputation or goodwill which becomes a property which is protected by Courts. A competitor initiating sale of goods or services in the same name or by imitating that name results in injury to the business of one who has the property in that name. The law does not permit any one to carry on his business in such a way as would persuade the customers or clients in believing that the goods or services belonging to someone else are his or are associated therewith. It does not matter whether the latter person does so fraudulently or otherwise. The reasons are two. Firstly, honesty and fair play are, and ought to be, the basic policies in the world of business. Secondly, when a person adopts or intends to adopt a name in connection with his business or services which already belong to someone else it results in confusion and has propensity of diverting the customers and clients of someone else to himself and thereby resulting in injury.

In Sri Ramnik Vallabhdas Madhvani and Others Vs. Taraben Pravinlal Madhvani, the Apex Court in paragraphs 67, 68 and 69 has held as under:

"Goodwill", as Lord Mac Naghten described is "a thing very easy to describe, very difficult to define", in IRC v. Muller & Company, ( All ERp. 416 G).

The term "goodwill" signifies the value of the business in the hands of a successor, so far as increased by the continuity of the undertaking being preserved in the shape of the right to use the old name and otherwise. It is something more than a mere chance or probability of old customers maintaining their connection, though this is a material part of the practical fruits. "Goodwill" may be the whole advantage belonging to the firm, its reputation as also connection thereof. It thus, means that every affirmative advantage as contrasted with negative advantage that has been acquired in carrying on the business whether connected with the premises of business or its name or style, everything connected with or carrying the benefit of the business.

In Halsbury''s Laws of England, 4th Edn. Vol. 35, at pp. 114-15, the law is stated in the following terms:

Goodwill generally, right to use name; sale to a partner.... The goodwill of the business carried on by a partnership forms part of the assets to be realised on distribution. If the goodwill is not sold, each partner may use the name of the firm, if by doing so he does not hold out the other partners as still being partners with him. If a partner agrees to retire and his partners buy his share but do not take any express assignment of the goodwill, they are not entitled to continue the use of his name as part of the firm name; and where a business is carried on under the name, solely or with any addition, of an outgoing partner who is still living and not banking, a purchaser of the business including the goodwill is not entitled to use.the name of the outgoing partner in such a way as to suggest that he is still connected with the business, unless the right to use the firm name is expressly assigned. On dissolution, a partner may advertise that he is no longer connected with a periodical that the firm publishes.

Where the goodwill becomes on dissolution the property of one of the partners (either by purchase in the ordinary way or pursuant to a provision in the articles), the outgoing partner or partners may not carry on a similar business in the name of the old firm, and may not solicit old customers.

In Ramdev Food Products Pvt. Ltd. Vs. Arvindbhai Rambhai Patel and Others, , Ramdev Food Products Pvt. Ltd. Vs. Arvindbhai Rambhai Patel and Others, , their Lordships have expressed thus:--

In Laxmikant V. Patel Vs. Chetanbhat Shah and Another, it was stated (SCC pp. 71-72 para 10):

A person may sell his goods or deliver his services such as in case of a profession under a trading name or style. With the lapse of time such business or services associated with a person acquire a reputation or goodwill which becomes a property which is protected by Courts. A competitor initiating sale of goods or services in the same name or by imitating that name results in injury to the business of one who has the property in that name. The law does not permit anyone to carry on his business in such a way as would persuade the customers or clients in believing that the goods or services belonging to someone else are his or are associated therewith. It does not matter whether the latter person does so fraudulently or otherwise. The reasons are two. Firstly, honesty and fair play are, and ought to be, the basic policies in the world of business. Secondly, when a person adopts or intends to adopt a name in connection with his business or services which already belongs to someone else it results in fusion and has propensity of diverting the customers and clients of someone else to himself and there by resulting in injury.

A trade mark is the property of the manufacturer. The purpose of a trade mark is to establish a connection between the goods and the source thereof which would suggest the quality of goods. If the trade mark in registered, indisputably the user thereof by a person who is not otherwise authorised to do so would constitute infringement. Section 21 of the 1958 Act provides that where an application for registration is filed, the same can be opposed. Ordinarily under the law and, as noticed hereinbefore, there can only be one mark, one source or one proprietor. Ordinarily, again the right to user of a trade mark cannot have two origins. The first Respondent herein is a rival trader of the Appellant Company. It did not in law have any right to use the said trade mark, save and except to reason of the terms contained in the MOU or continuous user. It is well settled that when defences in regard to right of user are set up, the onus would be on the person who has taken the said plea. It is equally well settled that a person cannot use a mark which would be deceptively similar to that of the registered trade mark. Registration of trade marks is envisaged to remove any confusion in the minds of the consumers.

Mr. Acharya, Learned Counsel for the Petitioner has commended us to V.A. Mehta book on Trade Marks Act, 1999 wherein the learned author has referred to certain foreign judgments to show that the trade mark is a symbol of goodwill. He has also referred to the decisions in, New Gujarat Cotton Mills Ltd. Vs. Labour Appellate Tribunal and Others, , Dulaldas Mullick and Others Vs. Ganesh Das Damani and Others, , State of Rajasthan Vs. Bundi Electric Supply Co. Ltd., Bundi, , AIR 1970 SC 1147 and B.C. Srinivasa Setty (supra). He has also drawn inspiration from United Drug Company v. Theodore Rectarius Company, (1981) 248 US 90 to highlight that there is no such thing as property in the trade mark except a right appurtenant to an established business or trade in connection with which the mark is employed. He has also referred to another decision in American Steel Foundries v. Thomas E. Robertson, (1926) 269 US 872 td highlight that there is no property in a trade-mark apart from the business or trade in connection with its goodwill. He has commended to a decision rendered to Dulaldas Mullick (supra) wherein it has been held as under:

The law of goodwill is often misunderstood because I think Jurisprudence not infrequently treats it as an abstract notion which in fact is not Goodwill must always be understood in relation to facts. Goodwill in jurisprudence is not the abstract quality which the grammarian means by that expression but a very concrete notion of great practical import. What the goodwill of a business is depends a good deal on the facts and circumstances of the particular business. Goodwill represents business reputation. Business reputation in my view is a complex of personal reputation, local reputation and objective reputation of the products of the business. Which one of these elements will predominate will depend on the facts and circumstances of each case. Except where the reputation of a business and where the product of the business more than its proprietor have won widespread popularity and universal approval and except in the case of well-known patents and manufacturing processes in which event the personal and objective reputations predominate, it is the local reputation or the attribute of locality which forms the largest content of goodwill in almost every other business, specially is the attribute of locality the most important consideration in the business of an ordinary trader or a dealer as in the present case. In my opinion there can be no hard and fast rule, no simple formula and no inflexible and rigid definition of the term ''goodwill'' but in each case it is necessary to see the entire nexus of facts connected with the business whose goodwill is to be determined.

Learned Counsel has also drawn our attention to the decision in M/s. Bundi Electric Supply Company Ltd. Bundi (supra) wherein in para 16, it has been held as under:--

The Indian Contract Act does not define the word "goodwill" but in its legal sense the word ''goodwill'' means every affirmative advantage as, contrasted with negative advantage that has been acquired in carrying on the business, whether connected with the premises, or, its ''name or style and everything connected with it, or carrying with it, the benefit of the business. It includes the whole advantage of the reputation and connection of the firm or the owner, which may have been built up by years of hard work, or gained, by lavish expenditure, beyond the mere value of the capital stock and property embarked in the business, in consequence of the general public patronage and encouragement, which is received from habitual or constant customers. It is that species of connection in trade, which induces customers to deal with a particular firm or concern. It differs in its composition in different trades, and different businesses in the same trade. It has no meaning, except in connection with a continuing business. It is treated as part of the assets of the firm. In other words goodwill represent business reputation. The sale of a goodwill implies the probability that the old customers will resort to the old place, that is. to the established business, wherever it may be situated. Reference in this connection may also be made in New Gujarat Cotton Mills Ltd. Vs. Labour Appellate Tribunal and Others, and Dulaldas Mullick and Others Vs. Ganesh Das Damani and Others, in which their Lordships have discussed the meaning and implications of the term ''goodwill''.

On a survey of the aforesaid pronouncement, we are of the considered opinion that the law laid down in Sohan Lal and Others Vs. Amin Chand and Sons and Others, , Sumat Prasad Jain Vs. Sheojanam Prasad (Dead) and Others and State of Bihar, , Laxmikant V. Patel Vs. Chetanbhat Shah and Another, , Ramnik Vallabhdas Madhvani ( AIR 2004 SC 1084) (supra) and Ramdev Food Products Pvt. Ltd. Vs. Arvindbhai Rambhai Patel and Others, are applicable to the case at hand inasmuch as their Lordships have treated the concept of ''trade mark'' different from ''goodwill''. The authorities on which reliance have been placed upon by Mr. Acharya, as we are disposed to think, really do not relate or pertain to the field of distinction between ''trade mark'' and ''goodwill''. They are, as we perceive, relate to a different sphere. Hence, the said decisions are distinguishable.

In view of our aforesaid analysis in the. backdrop of enunciation of law, there can be no doubt that there is a marked distinction between ''trade mark'' and ''goodwill AE and., (in fact, the learned single Judge has correctly stated that trade mark is a property and can be assigned. Thus, the submissions put forth by Mr. Acharya do not deserve acceptance.

The second aspect of the submission, of Mr. Acharya is that the learned trial Judge has travelled beyond the scope of the writ jurisdiction by directing that goodwill and trade mark as per the two Commissioners are before valuation and a real value of both properties are known only when they are put to auction.

It is contended by Mr. Acharya there could not have been alteration of the decree. He has referred to the decision rendered in State Bank of India Vs. Maa Sarada Oil Mills and Others, to highlight that it is the settled proposition of law that where there is some inconsistency between the judgment and the decree, the real intendment of the result of the suit should be gathered by reconciliation between the judgment and the decree and neither the decree nor the judgment should be read in isolation but in combination and it is the duty of the Executing Courts to give effect to the decree in its substance and not to pass any order rendering the judgment as a futile attempt.

On a perusal of the preliminary decree, it is noticeable that there has been direction that the goodwill of the business carried on by the Plaintiff and Defendants and the stock-in-hand be sold on the premises and that the Commissioner may on the application of any of the parties fix a reserved building for all or any of the lots at such sale and the either of the parties is at liberty to bid at the sale. The learned single Judge has directed that there would be an auction of the trade mark as that is in consonance with the Intention behind the decree. As there has been direction to carry out auction of the goodwill of the business and the real purpose is to sell the property as assets by way of auction and the trade mark having a different existence, there is no bar to put the same in auction. In fact, it is in accord with the decree.

In view of the aforesaid analysis, we do not perceive any merit in this writ appeal and the same is dismissed without any order as to costs. Appeal dismissed.