SALOO CHOUDHURY Vs. NISSAN EUROPE N V

JUDGEMENT

(1.) Defendant 3 in the suit has filed this application for revocation of leave granted to the plaintiffs under clause 12 of the Letters Patent and also for dismissal of the suit.

(2.) The case made out in the plaint is this: The plaintiffs are motor enthusiasts and rallyists. In 1989 they circumnavigated the glove in a Contessa car manufactured by Hindustan Motors, an Indian company.

(3.) The circumnavigation was recorded in the Guinness Book of Records as the first and fastest one. Since a British Army team broke their record, in 1991 they undertook the circumnavigation for the second time, and this time in a Nissan Sunny Car manufactured by Nissan Motors (GB) Limited (defendant 2). They set up a new record, which was entered in the Guinness Book of Records as the fastest circumnavigation round the world by car. Although the plaintiffs became well known globally, and were sought after for endorsement and promotion, particularly in relation to automobiles, they however, by choice and as a matter of principle, refused to endorse or promote products and services, and refrained from lending their names to advertise, sell or promote products. Defendants 1 and 2 manufacture distributes market and sell motor vehicles. Defendant 3 is the advertising agent of defendants 1 and 2. On or about December 15th, 1999 one Ms. Ghislaine Bakker of defendant contracted by the plaintiffs at 12C, Camac Street, Kolkata; she wanted the plaintiffs' photographs and a short story about their trip in the Nissan Sunny car. She represented that the photographs and the write up would be used for a non commercial booklet to be published by defendants 1 and 2. Believing the representation the plaintiffs sent their photographs and newspaper reports containing details of their circumnavigation. In breach of the terms and conditions the defendants utilized the plaintiffs' photographs and the circumnavigation event to show that the plaintiffs were endorsing their products. The defendants distributed the brochures to both their actual customers and prospective customers. Their acts amounted to commission of breach of contract and fraud; and the acts also caused loss of the plaintiffs' goodwill and reputation. The plaintiff became subject matter of ridicule, and their standing was lowered in the estimation of right thinking members of the society, who started shunning their association. The loss suffered by them, if reasonably assessed, would be US$ 25 million, and the defendants are jointly and severally liable to compensate them.