MANOHAR SINGH CHADDA Vs. SHEETAL SWEETS

JUDGEMENT

(1.) The case set out in the plaint is that the parties were erstwhile partners in the firm"Sheetal Sweets". In April 1999, after mutual negociations between the two partnersthey decided that the firm would be dissolved. It is not disputed that two DissolutionDeeds, dated 22/04/1999 and 2 9/04/1999 were executed. The caveat ordemurer of the Defendant is that the second Deed was signed by him by mistake/oversight. It is his contention that this Deed was one of many papers and in thismanner his signatures were obtained thereon by fraud. The plaintiffs' grievance isthat despite the execution of these two Deeds the Defendant has set up his ownbusiness under the name of Sheetal Sweets. The Plaintiff has therefore prayed for aninjunction restraining the Defendant from carrying on business under this trade name.Whilst this allegation has not been denied by the Defendant, it is his case that therewas no agreement between the parties which restricted the Defendant from startingbusiness under the name and style of Sheetal Sweets. At the time of arguments itwas contended by the learned Counsel for the Defendant that it had been decidedthat the parties would use the firm name but with the suffix of their personal namesafter the trade name Sheetal sweets. Learned Counsel for the Defendant had alsosought to rely on an affidavit of the attesting witness in corroboration of his case. Hehas further contended that the first Deed clearly states that partnership had beenabsolutely dissolved and that therefore the second Deed could not possibly do thesame. Since the second Deed manifestly purports to do so. it cannot have any legalefficacy. He has also challenged the application of the second Deed. Relying on thecase of Shri Jawaharlal and Another Vs. M/s. Bharat Tobacco ManufacturingCo. 1984 PTC 110 he has strongly contended that the injunction should be declinedsince it would amount to decreeing the suit before Trial. Learned Counsel has furthersubmitted that since the Plaintiff has approached the Court with inordinate delay on 22/08/1999, the injunction should be declined. Finally it is his contention thatthe suit is essentially one of passing off which is not maintainable.

(2.) 1 shall first deal of the decision in Jawaharlal's case (supra). The Defendanthas relied on the opening words of the Head-Note but it would be relevant toreproduce it in its entirety, and when so done it would be clear that the Division Benchdid not opine that an injunction could not be granted in the facts disclosed in thePlaint.Interim injunction-prima facie case-passing off:Normally, in a passing off action, the injunction is not to be granted at the interimstage but keeping in view the facts that the product as well as the tin container andwordings thereon along with the photograph on the tin are so similar to the productand the appearance of the tin being used by the plaintiffs that any reasonable manwould be deceived into believing that the product being manufactured by thedefendants is the same that is being manufactured by the plaintiffs, thus this being aprima facie conclusion based on material on record, the interim injunction granted bythe single judge is upheld even when it may be that at the actual trial this conclusionmay be displaced or weekend.

(3.) The Defendant's reliance on the decision of the Division Bench of this court inthe case of Goramal Hari Ram Vs. Bharat Shop & Oil Industries 1985 Arb. LawRop. 49 does not advance his case either. Once again reliance has been placed ona portion of the paragraph and I am therefo(e reproducing the whole paragraph-