1973 (8) TMI 171 - SC - Indian Laws

Appeal partially allowed, injunction varied for trademark use, contempt petition dismissed.

The appeal was allowed in part and dismissed in other aspects. The court varied the injunction order to allow the appellants to use the trade marks while ... - Issues Involved:1. Whether the appeal has abated due to the death of one of the appellants.2. The merits of the injunction order and whether it was justified.3. The competency of the legal representatives of Bakshi Ram to continue the suits post his death.4. The nature of the opinion given by the court under Section 13(b) of the Arbitration Act and its appealability.5. Allegations of contempt of court against the respondents for disobeying the interim order.Issue-wise Detailed Analysis:1. Appeal Abatement Due to Death of Appellant:The first issue addressed was whether the appeal had abated due to the death of one of the appellants, Dharam Vir. The court noted that the injunction order was issued against the partners in the names of the firms and operated against them as such. Under Order 30 Rule 4 of the Civil Procedure Code, the death of a partner does not necessitate joining the legal representative of the deceased as a party to the suit. Therefore, the failure to implead Dharam Vir's legal representatives did not cause the appeal to abate.2. Merits and Justification of the Injunction Order:The second issue examined was whether the injunction order was justified. The court observed that Bakshi Ram had given notices for the dissolution of the firms in January 1967, and the appellants contended that the assets, including the trade marks, belonged to the partners as co-owners. The respondents sought an injunction to restrain the appellants from using the trade marks registered in the name of Amin Chand and Sons. The court found that the respondents were not entitled to the exclusive use of the trade marks, as the appellants, being the legal representatives of Bakshi Ram, were also entitled to a share of the assets. Consequently, the court held that the injunction was not justified and varied the order to allow the appellants to use the trade marks while keeping accounts of all goods manufactured and sold.3. Competency of Legal Representatives to Continue Suits:The third issue was whether the legal representatives of Bakshi Ram were competent to continue the suits for rendition of accounts after his death. The arbitrators had raised this question and stated a special case for the opinion of the court under Section 13(b) of the Arbitration Act. The court noted that the partnerships were at will and could be dissolved by notice under Section 43 of the Indian Partnerships Act. There was no bar to Bakshi Ram filing the suits for rendition of accounts if the partnerships stood dissolved by his notices, and thus, his legal representatives could continue the suits. However, the court did not express a final opinion on the merits of the controversy.4. Nature and Appealability of Court's Opinion under Section 13(b):The fourth issue involved the nature of the opinion given by the court under Section 13(b) of the Arbitration Act and whether it was appealable. The court referred to precedents, including British Westing House Electric and Manufacturing Company Ltd. v. Underground Electric Railways Company of London Ltd., and held that the opinion given by the court was consultative and not a binding determination. Therefore, it was not appealable under Article 136 of the Constitution. The court concluded that the appeals were incompetent as the opinion did not amount to a judgment, decree, determination, or order.5. Allegations of Contempt of Court:The final issue was the application for contempt proceedings against the respondents for allegedly disobeying the interim order of the court. The respondents had filed a criminal complaint alleging that the appellants were using the trade marks without authority and passing off their goods as those of Amin Chand and Sons. The court found that the complaint was maintainable as it included allegations of passing off. The court held that there was no contempt as the respondents were entitled to file the complaint, and dismissed the petition for contempt.Conclusion:The appeal was allowed to the extent indicated but dismissed in other respects. The court varied the injunction order to permit the appellants to use the trade marks while keeping accounts. The appeals regarding the opinion under Section 13(b) were dismissed as incompetent. The petition for contempt was also dismissed. No order as to costs was made.