BHARATHIYA COFFEE WORKERS CATERING SERVICE PRIVATE LIMITED Vs. INDIAN COFFEE WORKERS CO OPERATIVE SOCIETY LIMITED

JUDGEMENT

(1.) The defendant Company challenges a decree for prohibitory injunction restraining it from using or continuing to use the name 'Indian Coffee House' to its catering establishments. The suit was filed by the respondent Cooperative Society. According to the Cooperative Society the Society was formed of the erstwhile employees of the Indian Coffee Board and according to them with the help of the Coffee Board they formed themselves into a Cooperative Society and were running coffee houses which are in reality hotels naming the establishments 'Indian Coffee House' as distinct from the establishments which were being run by the Coffee Board in the name of 'India Coffee House'. The Managing Director of the defendant Company was originally a member of the plaintiff Society and was also its Secretary for a number of years. The plaintiff society was registered in its original name in the year 1958 and the Indian Coffee Houses were started. After the Managing Director of the defendant Company left the Society due to differences of opinion, he formed a company, the Bharathiya Coffee Workers Catering (P) Ltd. and established two establishments which the defendant Company named 'Indian Coffee House" and started doing the identical business of supplying food articles and coffee and other beverages. According to the plaintiff Society it was running nine establishments in Cannanore District and the rival establishments set up by the defendant Company were deliberately named 'Indian Coffee House' with a view to mislead the public and to attract customers who would have otherwise patronised the establishments run by the plaintiff society. By so doing, the defendant was passing-off his establishments as that run by the plaintiff and the defendant Company was liable to be restrained from using the name 'Indian Coffee House' for its establishment. The defendant questioned the maintainability of the suit in the Munsiff's Court since the plaintiff had proceeded as if it was a passing-off action. The plaintiff had no right to prevent the using of the name 'Indian Coffee House' by the defendant Company and the plaintiff Society had no right to use exclusively the name 'Indian Coffee House'. There was no intention to mislead the public. The defendant was also a retired or retrenched employee of the Coffee Board and hence he was also entitled to run a Coffee House with the help of the Coffee Board. The plaintiff was not entitled to any injunction as sought for.

(2.) In the Trial Court on behalf of the plaintiff Exts. A1 and A2 were marked and the Secretary of the plaintiff Society was examined as PW.1. On behalf of the defendant the Managing Director of the Company was examined as DW. 1. Ext. A1 was only a letter sent by the Deputy Chief Coffee Marketing Officer of the Coffee Board informing it that a recognition granted to the plaintiff as an approved Coffee House was being renewed for a further period and a fixed quantity of blended coffee powder was being allotted to the plaintiff for brewing purpose only and that the said quantity could be drawn from India Coffee Depot, Calicut. Ext. A2 was the bit notice published by the defendant Company inviting people for the inauguration of its Indian Coffee House. The Trial Court held that it had jurisdiction to try the suit, and that on the evidence of PW. 1 and Dw. 1, a decree could be granted to the plaintiff since the names used by the plaintiff and the defendant were identical even though it was a fact that there was no evidence to show that both the names were written in the very same fashion and style. The lower appellate court held that the suit was maintainable relying on the decision of this Court in Ravunni v. Mathew ( ILR 1982 (2) Ker. 250 ). On the question whether a case for an injunction was made out in the case on hand, the lower appellate court even without discussing the evidence on record proceeded to confirm the decree for injunction essentially on the ground that the user of the name Indian Coffee House by the defendant Company would tend to mislead the public into thinking that it was a coffee house run by the plaintiff society and the Indian Coffee Houses run by the plaintiff society had a name and fame of its own. I am afraid that the finding that the Indian Coffee House run by the plaintiff society had a name and fame of its own is not something that can be said to be established on the evidence in the case. Whatever it be, the appellate court held that the Indian Coffee House run by the plaintiff society had established a goodwill and reputation and there was sufficient material on record to show that the customers are likely to be deceived by the name Indian Coffee House written on the board exhibited by the defendant for its catering establishment. In that view, the appellate court confirmed the decree. But, as I noticed, the appellate court did not even discuss the evidence on record in support of its conclusion. As the final court of fact, obviously the first appellate court had the duty to discuss the evidence in the case in the light of the relevant principles of law and to record clear findings on the evidence available in support of its finding. I must observe that there is a failure on the part of the appellate court to discuss the evidence on record and enter findings based on the evidence in support of its conclusion.

(3.) In the light of the decision of Mr. Justice V. Khalid (as he then was) in Ravunni v. Mathew (ILR 1982 (2) Kerala 250) I see no merit in the contention raised on behalf of the defendant appellant that the Munsiff's Court had no jurisdiction to entertain the suit. As distinct from the action based on the infringement of a trade mark, a passing-off action is essentially based on tort and could be fought in the ordinary court where a suit on tort would normally lie. A Division Bench of this Court in A. C. Krishnan v. Nambisan's Dairy Pvt. Ltd. ( 1997 (1) KLT 163 ) has considered the nature of a passing-off action and in the light of the ratio of that decision, it is clear that the suit before the Munsiff's Court was maintainable. I therefore, find no substance in the argument raised on behalf of the defendant that the suit was not maintainable in the Munsiff's Court. I agree with the courts below in their conclusion that the suit was maintainable in the Munsiff's Court.