HOTEL BHAGAT TARACHAND Vs. EMPYREAL LINEAGE PVT. LTD.

JUDGEMENT

(1.) Heard the Ld. Counsel Mr. Vinod Bhagat appearing for the Applicant/Plaintiff. The Plaintiff has moved the present suit with notice to the Defendant. Although the learned Advocate for the Defendant had appeared on the last date i.e. on 11/8/2023 and the matter has been placed on 17/8/2023 (H.O.B.), today, none appears for the Defendant. It appears that the Vakalatnama has also not been filed on behalf of the Defendant. Accordingly, the Application for ad-interim relief is taken up in the absence of the Defendant.

(2.) Mr. Bhagat presses for ad-interim reliefs in his application to the extent that he seeks relief in terms of the prayers relating to infringement of the Plaintiff's trade mark, infringement of copyright in the artwork and for passing off the goods by the Defendant who, being the ex-franchisee of the Plaintiff, has continued to misuse the Plaintiff's trade mark BHAGAT TARACHAND despite the Plaintiff having called upon the Defendant to discontinue and despite the term of the Franchise Agreement having come to an end. Since the Defendant has been served, For the present, Mr. Bhagat does not press for appointment of Court Receiver in terms of prayer (d) of the Interim Application and restricts his submissions to prayers (a), (b) and (c) thereof.

(3.) The Plaintiff is engaged inter alia in carrying on an established and reputed restaurant business serving vegetarian food, non-alcoholic drinks; offering food catering and hospitality services, since the last more than four and a half decades under its reputed trade mark HOTEL BHAGAT TARACHAND, which is the name of the Plaintiff's restaurant and is in continuous use since April 1978. The words BHAGAT TARACHAND in the Plaintiff's trade mark occupies the leading and essential feature. The name of the hotel and restaurant is taken from the name of Gurmukh Chawla's grandfather, the late Bhagat Tarachand Chawla. He was a restaurateur of considerable repute in Karachi. Back then, in 1895, Bhagat Tarachand Chawla established a small eatery and restaurant serving pure vegetarian Sindhi and Punjabi food. That restaurant soon acquired renown for the quality of its food and its personalised service. Bhagat Tarachand Chawla's four sons assisted him in this business. One of them, was the father of Gurmukh Chawla. Over time, the name Bhagat Tarachand came to be associated with this business to such an extent that it became distinctive of that business and assumed the character and nature of a trade and service mark in relation to the Bhagat Tarachand's restaurant and eating house business in Karachi. After his death in 1943, his four sons continued the business in partnership. At Partition, all four sons migrated to India and eventually settled in Mumbai. At first, they struggled to establish themselves in this new city, far from their original home. One of the sons started a small restaurant in Zaveri Bazar in 1952 in partnership with two of his brothers. These two brothers then set up their own restaurants in Zaveri Bazar. Sometime in 1952, as the business and families grew, it seems to have been decided that the name Bhagat Tarachand would be used for the restaurant business that the elder son started with his brothers. The sons took the name as a mark of respect and to continue with an established tradition. Thus, starting in 1952 one or more of these brothers began the business in Zaveri Bazar. There was then a family separation. The brothers opened restaurants in Zaveri Bazar with the consent and knowledge of the others. In 1978, Gurmukh Khemchand Chawla, upon attaining majority, named his restaurant "Hotel Bhagat Tarachand". This is located at 69/75, Zaveri Bazar, Mumbai - 400 002.