NANDHINI DELUXE RESTAURANT Vs. NANDHINI

JUDGEMENT

(1.) The complainant has initiated contempt proceedings against the respondent No. 1 u/ss 11 & 12 of the Contempt of Courts Act, 1971 r/w Article 215 of the Constitution of India. It is alleged that the complainant filed a suit in OS No. 3827/2001 before the Additional City Civil Judge, Bangalore under the provisions of Section 62 of Copy Right Act, 1957 r/w Section 105 of Trade and Merchandise Marks Act, 1958 against the respondent for permanent injunction restraining the defendant from infringing Copy Right in respect of "NANDHINI" and also sought for an order of injunction restraining the defendant in the said suit, in any manner passing off complainant's well established Trade Mark and Trading Style "NANDHINI". In the said suit, the Court has passed an Interim order of injunction. A copy of the order of the Trial Court is served on the respondent through registered post. An affidavit was filed by the complainant before the Court, However, the respondent/defendant refused to receive the said notice. The respondent No. 1 thereafter appeared before the Court through an Advocate and filed an application for vacating the order of injunction. It is alleged that inspite of the order of injunction granted by the Court, the respondent continued to use Trade Mark and Trading Style "NANDHINI" and, therefore, made an application before the Court to initiate proceedings under Order XXXIX Rule 2(A) of CPC. The respondent No. 1 suppressed above facts and filed OS No. 240/01 before the District Munsiff at Hosur and obtained an order of injunction restraining the complainant from taking any coercive action and preventing him from carrying on business by using trading style "NANDHINI". It is in these circumstances, the complainant has initiated contempt proceedings against respondent.

(2.) This contempt petition was presented on 5.1.02 and the Office has raised an objection that consent of the Advocate general has to be obtained. When the matter was listed for orders on 12.02.02, a submission was made by the learned Counsel for the complainant that an application for consent has been filed before the learned Advocate General and as soon as the reply either granting or refusing sanction is received, the complainant's Advocate would file a memo. The matter was listed again on 13.03.02 and the Office had made a note that the complainant has produced the consent of the Advocate General in writing. It is thereafter that this Court took cognizance and ordered issue of notice to the respondent. The respondent has filed his statement. He has also filed additional statement before this Court on 15.07.02 raising the plea of maintainability of the petition in view of the receipt Judgement of the Hon'ble Supreme Court in the case of State of Kerala v. M.S. Mani and Others, (2001) 8 SCC 82. Thereafter, the matter came to be listed for hearing the submissions of the Counsels regarding maintainability. Hence, we heard the Counsels on both sides and perused the records.

(3.) The contempt proceedings is initiated on the ground that ground that the respondent herein suppressed certain material fact and filed a suit in the District Munsiff Court, Hosur in Krishnagiri Tq, Tamilnadu, even though there was an order of injunction granted against him by the City Civil Court, Bangalore upon the prayer made by the complainant in the earlier suit. The provisions of Section 15 of the Contempt of Courts Act has laid down the procedure for initiating any such proceedings. It is admittedly not a proceeding under Article 215 of the Constitution of India as contempt is not committed in the face of the Court. It is a contempt, according to the complainant, of the Court below. The Hon'ble Supreme Court in the case of State of Kerala v. M.S. Mani and others held at para No. 4 in the Judgement, as follows: