WEARWELL CYCLE CO INDIA LIMITED Vs. WEARWELL INDUSTRIES

JUDGEMENT

(1.) This is an appeal against the order of the Additional District Judge, Delhi dated 16/5/1967 refusing the grant of temporary injunction to the plaintiff-appellant. The application for temporary injunction by the plaintiff before the Additional District Judge, though made under Order 39, Rules I and 2 read with Section 151 Civil Procedure Code ., was actually cov.ered by Order 39, Rule 2 alone inasmuch as the suit by the plaintiff was for restraining the defendants from committing "other injury of any kind" within the meaning of Rule 2(1). The injury complained of was the harm caused to the plaintiff by the sale of deceptiv.e goods by the defendants. The order of the learned Additional District Judge was apparently, therefore, passed under Order 39, Rule 2 Civil Procedure Code and not under Section 151 Civil Procedure Code It was therefore, appealable under Order 43, Civil Procedure Code .

(2.) Briefly, the facts leading to the filing of this appeal against the order dated 16/5/1967 passed by the Additional District Judge, dismissing the appellants' application for temporary injunction are as follows:

(3.) Shri K. C. Aggarwal, the father of defendant No. 2 and certain other persons decided to promote a company to manufacture "Wearwell" Cycles. These cycles used to be manufactured by an English Company called the Wearwell Cycle Company Limited in England. Shri Aggarwal, therefore, went to England and entered into an agreement with the English Company. Shri Aggarwal acted for Janki Das and Sons of Jullundur, India, and the agreement was entered into by him for the benefit of the Indian Company which was to be formed under the name of "Wearwell Cycle Company (India) Limited". The English Company permitted by this agreement the Indian Company to use any of its proprietary marks in India. The Indian Company was registered under the Indian Companies Act on 14/11/1951. It obtained the licence to manufacture cycles under the Registration and Licencing of Industrial Undertaking Rules, 1952 on 14/1/1953. The Indian company went into production by the end of 1954 and produced and. sold cycles worth Rs. 3 crores or so by the time the suit came to be filed in 1966. The Indian Company had spent about Rs. 4 lakhs to adv.ertise its cycles. The word "Wearwell" and monogram containing the said word were displaced on all the cycles made and sold by the Indian Company.