SUNIL KUMAR ROY Vs. SUBRATA ROY

JUDGEMENT

(1.) THIS revisional application has been filed, challenging the order of temporary injunction passed by the learned Additional District Judge-in-Charge, 1st Court, Siliguri, Darjeeling in Misc. Appeal No. 7 (S of 2008 ).

(2.) THE father of the respondent set up a partnership firm in the year 1954 under the name and style of RAI and CO. The aforesaid company was engaged in retail and wholesale business of selling 'made Tea and Packet Tea'. In order to expand the business, his two brothers were inducted and consequently, a partnership firm came into being. In April, 1970 one of the partners namely Sukanta Kr. Roy retired from the firm. The remaining two partners continued their partnership firm even after the retirement of one of the erstwhile partners. On 11th October, 1971 the partnership firm was dissolved by virtue of registered deed of dissolution of partnership and as per terms of the said deed, Sri Sukumar Roy became the absolute owner of the firm "rai and Co". along with its all assets, liabilities and good will and the said Sri Sunil Kumar Roy relinquished all rights of using the trade name or goodwill of "rai and CO" by the said Registered Deed of dissolution of Partnership dated 11. 10. 1971. After the death of the erstwhile owner, plaintiff and his sister-in-law effected a family settlement whereby the plaintiff acquired the exclusive ownership of the said business styled as RAI and CO. along with its assets, liabilities and goodwill.

(3.) ALLEGING that the defendants without having any authority had been using the trade mark of RAI and CO. as well as their goodwill in a camouflage way by passing of their product under the name of style of Rai and Company, the plaintiff filed a suit for declaration and injunction. A separate application for temporary injunction was also moved on behalf of the plaintiff. On going through the documents and hearing the submission, the learned trial court was pleased to reject the prayer for ad-interim injunction. Challenging the order of rejection, the plaintiff/respondent filed a misc. appeal before the appellate court. In allowing the appeal, the learned appellate court passed an order of temporary injunction, restraining the petitioners and their men using the trade mark of RAI and CO. and from publishing any advertisement in the name of RAI and CO. as well as carrying any business in the name and style of RAI and co. Challenging the impugned order, Mr. Pratap Chatterjee, learned senior advocate, has submitted that since suit was filed in a court having no jurisdiction to entertain the aforesaid suit, the learned appellate court should not have passed any order of injunction in connection with the aforesaid suit for declaration and injunction.