Garden Silk Mills (P.) Ltd. Vs. Vasdev Motwani and anr. - Court Judgment

Excerpt:
the case debated on whether the temporary injunction can prevent mischief and can protect from avoidable damages - in the instant case, it was ruled that the lower court, had erred in dismissing the petition, on the ground that equally efficacious remedy was available by way of suit for damages for losses suffered on account of a public notice -it was clear that the notice was surely by way of defamation against the plaintiff that clearly implied that the goods that he was offering was not genuine goods and thereforee, to that extent not only there was probability of loss of business but also an assault on the goodwill of the business - - feeling aggrieved by the contents and tenor as well as manner of publication of these advertisements, he filed a suit against m/s garden silk mills p. had resorted to this device of issuance of public advertisements which cast aspersions on his honesty as businessman, and also suggest that be was surreptitiously dealing with goods which were not genuine products of the garden silk mills, and that this has resulted in fall in his sales as well as brought him into disrepute. (6) on an appeal filed, the learned additional senior sub judge, after taking note of the pleas set up in the plaint as well as the advertisement issued by the respondent and on the basis of the facts which were not controverter in reply filed by the respondent in the appeal, came to the conclusion that the advertisements which are annexed with the plaint as schedule ii were tantamount to casting aspersions against the plaintiff- appellant, suggesting that the goods which he was offering at the exhibition cum-sale hotel janpath were not the genuine product of the garden silk mills and to that extent there was a loss to business as well as to reputation and that it was a fit case where an appropriate order was required to be passed to safeguard the rights and interests of the plaintiff before the court. the learned court, thus, while allowing the appeal directed that the respondent shall have a right to inform the public by publishing advertisements or otherwise that the sale held at hotel janpath from time to time was neither conducted nor authorised by the garden silk mills and further that they could hold their own sale wherever they liked and duly publicise the same in any legitimate manner. rise to the order 'in appeal, impugned in the present revision, petition was filed in september, 1983, and there is a complete reference to the suit of the petitioner and orders passed by the learned single judge as well as the division bench. there is also positive assertion in the plaint as well as in the application under order 39 rules 1 and 2 code of civil procedure that the plaintiff had been purchasing goods over the years in .huge quantity, worth lacs of rupees from the authorised distributors/dealers of garden silk mills. plaintiff also pleaded that what he was doing were lawful business activities and there was no prohibition or restraint in law for him to organise such sales, and nor were they opposed to any public policy and that he was a bona fide and genuine purchaser of goods manufactured by garden silk mills and that by the impugned public notices an impression was sought to be created in the public mind that he was selling superiors goods, or was surreptitiously engaged in sale of products which were not the genuine products of garden silk mills and this fact adversly affected his business as well as his reputation. learned additional senior sub judge has rightly held that the lower court positively erred in dismissing the petition, solely on the ground that equally efficacious remedy, by way of suit for damages was available, inasmuch as there could be no criteria for assessing damages in such like actions, and secondly it would have given rise to multiplicity of proceedings as damages would be recurring, and thirdly any action for damages entails time consuming process whereas an action by way of temporary injunction can arrest the mischief, and protect a party from possibly avoidable damages. as already noted, this is not the case here because respondent herein has on the other hand placed material on record, which remains uncontroverter so far, that he had been purchasing huge quantity of good manufactured by garden silk mills, at times directly from them and frequently from their authorised distributors/dealers. inasmuch as it clearly says that if the opposite party can show justification for whatever it was doing, injunction must issue. injunction, if it is satisfied that the words complained of are defamatory of the plaintiff or calculated to disparage him in his office, profession, dealing, trade or business, and there is reason to apprehend and repetition of the wrong'.(16) it has already been noticed that public notices advertised by the petitioner were appearing repetitively in news papers, having wide circulation, and at short intervals, and contained insinuations of such a nature that respondent's business was bound to decline, and in the process damage his business reputation. (17) i am, thereforee, of the considered view that order passed by learned additional senior sub-judge takes a very balanced view of the matter, and is indicative of a very correct approach to the extent that the public notices like the one produced above contain unconcealed aspersions which are damaging to business reputation of the respondent and sure to adversly affect his sales. petitioner's legitimate interest, on the other band, has been suitably protected by giving them liberty to advertise their own sale in any manner they like, and further by according them a right to issue public disclaimer to the effect that sales organized by respondent were in no manner conducted or organized by garden silk mills. further explicit words, as used by them in the public notice of the like reproduced above, were in excess of their legitimate right of safeguarding their business interest, and have certainly a potential to create an impression in general public that what the respondent was offering at its sale were not genuine goods, and to that extent are markedly disparaging.santosh duggal, j. (1) this revision petition filed by m/s garden silk mills (p) ltd. (a company registered under the companies act) assails the correctness of an order passed by smt. manju goel, additional senior sub-judge, delhi, on may 18, 1985 whereby appeal filed by respondent herein, against dismissal of an application under order, 39 rules 1 & 2 code of civil procedure by the subordinate judge, was allowed. (2) the facts in so far as are material for the disposal of the present revision petition are that the petitioner claimed to be owner of the registered trade mark 'garden' with distinctive designs of a flower and they manufacture sarees with the said trade name, popularly known as 'garden sarees'. respondent vasdev motwani as sole proprietor of m/s vasdev brothers periodically organises exhibition-cum-sale of what purports to be 'garden sarees' as part of his business activities which sale is generally held at hotel janpath, new delhi. apprehending that the advertisement issued/publicity made by the respondent in connection with the sale organized by him at hotel janpath, new delhi, was likely to create an impression in the general public that the sales were organized or authorised by the garden silk mills; namely,fthe petitioner herein, they inserted public notice in various news papers in the nature of a public disclaimer of the sales held at hotel janpath adding that these are neither conducted nor organized by the garden silk mills and .that the garden silk mills took no responsibility for the products sold there and that the buyers would be making purchases at their own risk and they be not misled by such sales and that the.garden' did not guarantee the quality of the purchases made at the said sales. (3) it appears that these public notices appeared in various news papers during the month of june, july and september, 1983. apparently the respondent had been organising the exhibition-cum-sale at hotel janpatb in or about the same period. feeling aggrieved by the contents and tenor as well as manner of publication of these advertisements, he filed a suit against m/s garden silk mills p. ltd., petitioner herein, and its managing director seeking issuance of perpetual injunction restraining them from going on with public notices/advertisements of tbe type annexed with the plaint as schedule thereto, or in any other manner doing any such act publicly which was likely to adversely affect tbe business interest of the plaintiff, or his reputation as a businessman. he categorically pleaded that he had been purchasing, over the years, goods manufactured by the aforesaid company direct or through their authorised distributors/dealers worth lacs. and has been holding the exhibition-cum-sale of the bona fide purchased goods, and that the defendant had wrongly and with a view to pressurise him into acceding to their demand for additional purchases of their goods; had resorted to this device of issuance of public advertisements which cast aspersions on his honesty as businessman, and also suggest that be was surreptitiously dealing with goods which were not genuine products of the garden silk mills, and that this has resulted in fall in his sales as well as brought him into disrepute. (4) he simultaneously prayed for issuance for temporary injunction by means of an application under order 39, rules 1 & 2 of the code of civil procedure, seeking a restraint order against the respondent herein, during the pendency of the suit. (5) the application was disallowed by the sub-judge before whom the suit was pending vide order dated 29th september, 1983, on the view that there was no such loss or infringement of the right of the plaintiff which could not be compensated by dimages, and as such section 41 of the specific relief act acted as a bar to the grant of discretionary relief of temporary injunction when there was equally efficacious remedy available to the plaintiff to file a suit for damages for the losses suffered to business or reputation. (6) on an appeal filed, the learned additional senior sub judge, after taking note of the pleas set up in the plaint as well as the advertisement issued by the respondent and on the basis of the facts which were not controverter in reply filed by the respondent in the appeal, came to the conclusion that the advertisements which are annexed with the plaint as schedule ii were tantamount to casting aspersions against the plaintiff- appellant, suggesting that the goods which he was offering at the exhibition cum-sale hotel janpath were not the genuine product of the garden silk mills and to that extent there was a loss to business as well as to reputation and that it was a fit case where an appropriate order was required to be passed to safeguard the rights and interests of the plaintiff before the court. learned additional senior sub judge also held that the learned sub judge had taken an erroneous view of the matter by saying that the action for damages could furnish any efficacious alternative remedy. she, however, also took note of the legitimate interest of the defendant-respondent inasmuch as they were held to have a right to inform the general public that the sale being organized by the plaintiff was not in any manner authorised, much less conducted by them. the learned court, thus, while allowing the appeal directed that the respondent shall have a right to inform the public by publishing advertisements or otherwise that the sale held at hotel janpath from time to time was neither conducted nor authorised by the garden silk mills and further that they could hold their own sale wherever they liked and duly publicise the same in any legitimate manner. but in so far as the advertisements issued by them had the tendency to cast aspersions on the plaintiff, or suggest that the goods sold by him at the said sales were not product of the garden silk mills, that had to be restrained by an order of injunction because the plaintiff-appellant had prima-facie shown on record and which fact at all had not been controverter that he was purchasing goods worth lacs, from authorised dealers of the respondent and to that extent the goods sold by him were to be presumed to be the products of the garden silk mills. (7) the petitioner challenged the correctness of this order in this revision on the ground that it was illegal or erroneous exercise of jurisdiction on the part of learned additional senior sub judge to pass such an order while disposing of the appeal of the plaintiff-appellant against dismissal of his application under order 39 rules 1 and 2 code of civil procedure and that there was misreading of vital facts as reflected in the orders of the sub judge, and that there was erroneous observations to the effect that plaintiff (respondent-herein) purchased goods from the petitioner, and that order restraining the respondent from inserting in their advertisements a warning to the effect that public would be buying the goods at the sales organized by the respondent at their own risk or that the petitioner did not guarantee the quality of such goods was not sustainable, and was a wrongful exercise of jurisdiction. (8) during arguments. mr. arun mohan appearing for the petitioner, after giving a brief resume of the facts referred to the advertisements which the respondent had been issuing in respect of the sales organized by him at hotel janpath from time to time and argued that these could manifestly misguide the public, that the goods offered at such sales were that of garden silk mills inasmuch as the prominence was being given to the trade mark, as also the trading name of the petitioner's mill. he, thereforee, asserted that in face of this activity of the plaintiff, the petitioner had every right to issue public notice to protect their interest, and to guard against any actions from the purchases at such sales, in respect to the quality or standard of the goods sold therein. (9) it, however, transpired during hearing that the petitioner had, in fact, brought a suit in the year 1981 for injunction against the respondent on the pica of being registered owner of trade mark ''garden', and on the allegations that respondent was guilty of infringement of their trade mark or passing off by advertising his sales in such a manner so as to create an impression as if the said sales were, in fact, held by the garden silk mills. this suit was filed in this court on the original side and even a temporary injunction was granted but on an appeal being filed, a division bench of this court vacated the stay order vide order dated 28th august, 1981. (10) it is pertinent to note that suit of the respondent which gave. rise to the order ' in appeal, impugned in the present revision, petition was filed in september, 1983, and there is a complete reference to the suit of the petitioner and orders passed by the learned single judge as well as the division bench. there is also positive assertion in the plaint as well as in the application under order 39 rules 1 and 2 code of civil procedure that the plaintiff had been purchasing goods over the years in .huge quantity, worth lacs of rupees from the authorised distributors/dealers of garden silk mills. he even set out the names of such distributors in detail in para 5 of the plaint and also gave particulars and summary of accounts as schedule to the plaint, of purchases made directly from garden silk mills during the year 1982 83 whereas written statement has not so far been filed, facts were not controverter in the reply filed to the application under order 39 rules 1 and 2 code of civil procedure. there is a specific averment in the said reply to the effect that the respondent therein was not in a position to affirm or deny the assertions of the plaintiff to the effect that he was purchasing goods from authorised distributors of the garden silk mills. it is also on record that most of the dealers set out in para 5 of the plaint are, in fact, authorised distributors/dealers of the garden silk mills. plaintiff also pleaded that what he was doing were lawful business activities and there was no prohibition or restraint in law for him to organise such sales, and nor were they opposed to any public policy and that he was a bona fide and genuine purchaser of goods manufactured by garden silk mills and that by the impugned public notices an impression was sought to be created in the public mind that he was selling superiors goods, or was surreptitiously engaged in sale of products which were not the genuine products of garden silk mills and this fact adversly affected his business as well as his reputation. (11) the advertisements issued by the petitioner, as annexed with the plaint, are more or less similarly worded. one of them can be noticed with a view to appreciate the correctness or otherwise of the approach adopted by learned additional senior sub judge while passing the impugned order. the advertisement as published in hindustan times of june 13, 1983 reads as under :-- 'the sale of garden sarees currently on at janpath hotel is neither conducted nor authorised by garden silk mills. do not be misled by such sales. we at garden regret, we cannot guarantee the quality of your purchases. buyers buy these products at their own risk'.. . the advertisement material is identical, as issued in various news papers spreading up to the period september 9,1983, as annexed with the plaint, filed on 13th september, 1983. (12) the whole thrust of arguments of learned counsel for the petitioner was with regard to the impression created by the advertisements given by the respondent to describe the sale held by him at hotel janpath. the issue, however, in so far as the present revision petition is concerned; is not the justifiability or otherwise of the advertisements issued by the plaintiff but the public notices inserted in various news papers by the petitioner herein, to counter-act the publicity resorted to by the respondent in respect of his sales. learned additional senior sub judge has rightly held that the lower court positively erred in dismissing the petition, solely on the ground that equally efficacious remedy, by way of suit for damages was available, inasmuch as there could be no criteria for assessing damages in such like actions, and secondly it would have given rise to multiplicity of proceedings as damages would be recurring, and thirdly any action for damages entails time consuming process whereas an action by way of temporary injunction can arrest the mischief, and protect a party from possibly avoidable damages. learned additional senior sub judge was also right in holding that use of words such as,' do not to be misled by such sales' or 'we at garden regret, cannot guarantee the quality of your purchases' or 'buyers buy these products at their own risk', was surely by way of aspersions against the plaintiff with obvious implication that what he was offering for sale, was not genuine goods of the garden silk mills, or that he was engaged in unfair or under hand activities, and to that extent not only there was likelihood of loss of business but also an assault on his business reputation. (13) learned counsel for the respondent also rightly pointed out that what was inserted in the public notice issued by the petitioner was also not fully true because one fact was shown on record, which assertion had not been controverter, that the respondent herein had been purchasing goods from the authorised distributors/dealers of the garden silk mills, and even directly from them, the suggestion in the advertisement, issued by the petitioner that they could not guarantee the quality of the purchases was thus not a legitimate exercise of their right to safeguard their business interests, and the impression created was not, in fact, true because as already observed, respondent had succeeded in showing prima-facie that he had been, and did buy large quantity of products of the garden silk mills. (14) learned counsel the petitioner in an effort to seek endorsement of the court, for the public notices under reference placed reliance on a judgment of punjab and haryana high court, reported as m/s. raj sons and another v. mis. bombay dyeing and . and another, . i am afraid, the petitioner cannot draw any support from this authority because the facts are totally distinguishable, for the reasons that it had been found as a fact there that the offending party therein had been indulging in unfair practices, so much so that while storing /stocking goods of various other companies, not of such reputation or goodwill as bombay dyeing and manufacturing co., had created an impression by sign-boards and other modes of display, that the goods sold at the shop were entirely that of bombay dyeing mills. as already noted, this is not the case here because respondent herein has on the other hand placed material on record, which remains uncontroverter so far, that he had been purchasing huge quantity of good manufactured by garden silk mills, at times directly from them and frequently from their authorised distributors/dealers. (15) the respondent has thus substantially succeeded in showing prima-facie that whatever representation his advertisements for sale contained; those were by and large true. to that extent, observations of lord denning, as made in harakas and others v baltic mercantile and shipping exchange ltd. and another. (1982) elr 701 rather assist the respondent although the case was cited by learned counsel for the petitioner; inasmuch as it clearly says that if the opposite party can show justification for whatever it was doing, injunction must issue. halsbwy's laws of england (third edition. volume 24) provide explicit guidelines in this respect, to the effect that, 'the court will grant an. injunction, if it is satisfied that the words complained of are defamatory of the plaintiff or calculated to disparage him in his office, profession, dealing, trade or business, and there is reason to apprehend and repetition of the wrong'. (16) it has already been noticed that public notices advertised by the petitioner were appearing repetitively in news papers, having wide circulation, and at short intervals, and contained insinuations of such a nature that respondent's business was bound to decline, and in the process damage his business reputation. (17) i am, thereforee, of the considered view that order passed by learned additional senior sub-judge takes a very balanced view of the matter, and is indicative of a very correct approach to the extent that the public notices like the one produced above contain unconcealed aspersions which are damaging to business reputation of the respondent and sure to adversly affect his sales. petitioner's legitimate interest, on the other band, has been suitably protected by giving them liberty to advertise their own sale in any manner they like, and further by according them a right to issue public disclaimer to the effect that sales organized by respondent were in no manner conducted or organized by garden silk mills. this is a sufficient guarantee by itself for the petitioner, so as to put the general public at notice that they had no association whatsoever with the sales conducted by the respondent. further explicit words, as used by them in the public notice of the like reproduced above, were in excess of their legitimate right of safeguarding their business interest, and have certainly a potential to create an impression in general public that what the respondent was offering at its sale were not genuine goods, and to that extent are markedly disparaging. this the learned additional senior sub judge rightly held to be liable to be deleted. i, thereforee, do not find any case made out for interference in this order the revision petition is, accordingly, dismissed. in the circumstances, parties are left to bear their own costs.