S P S SELVARAJ Vs. V MUTHUSAMY NAICKER

JUDGEMENT

(1.) THIS appeal coming on for hearing on this day the court delivered the following order:-

(2.) THIS is a petition under section 10 of the Contempt of courts Act, 1971 (Act No. 70 of 1971) filed by one S. P. S Selvaraj who will be herein after referred to as the petitioner, against V. Muthuswamy Naicker: the respondent. The petitioner is a partner of a firm known as M/s S. P. S Jayam & Co. which manufactures tooth powder, which is marketed under the name and style of "gopal Tooth Powder". It has a registered trade mark, the mark having been registered on 30th April 1947 in class 3 as Mark No. 129120 in relation to the tooth powder under the law then in force viz. , the Trade Marks act, 1940. It has been renewed subsequently under the Trade and Merchandise marks Act, 1958. It is claimed that the firms annual turnover is in the reign of Rs. 50. 000 and it spends on advertisement through various media a sum of Rs. 4, 00, 000. A packet of tooth powder manufactured by the firm is said to cost about 35 paise.

(3.) DURING the course of the hearing the petitioner marked exs. P. 1 to P. 6 Exs. P. 1 and P-2 are the bills said to have been issued by the respondent. Ex. P. 3 is one packet of lion brand tooth powder for which Ex. P. 4 bill was issued on the 6th March 1980. E. P. 6 is a bundle of 10 packets of lion brand tooth powder said to have been sold by the respondent. The petitioner's Manager one Mr. P. James was examined as P. W. 1. He stated that he went with one Chandran and purchased 60 packets of tooth powder. On 14. 9. 1978. This Chandran is said to be an employees of Topaz Private Investigations Madurai and to prove that the said Chandran was an employee of Topaz Private investigators Ex. P. 5 produced. The respondent marked Exs. D1 and D2 which are respectively packets of tooth powder. Ex D2 relates to the goods which are manufactured by the petitioner. The respondent was also examined as R. W. 1 and according to him he never sold any goods or issued any of the bills, which were produced by the petitioner and which have been marked as mentioned earlier. The learned counsel for the petitioner submitted that the respondent is guilty of willful disobedience of the decree dated 28th October, 1976 in O. S. No. 17 of 1976 on the file of the District Judge Madurai. The earlier proceedings were referred to as showing that the respondent was bent upon violating court's order without the least compunction. It was therefore, contended that a different sentence should be passed on the respondent so that he did not indulge in such activities at any rate hereafter.