PERRY BEVERAGES INDIA PRIVATE LIMITED; HEMANT CHANDIRAMANI Vs. BHARAT CHANDIRAMANI S/O BHOJRAJ CHANDIRAMANI

JUDGEMENT

(1.) This appeal under Order XLIII Rule 1(r) CPC is directed against the order dated 11/1/2016 passed by the Addl. District Judge No.6, Jodhpur Metropolitan, whereby, the trial court has disposed of the application filed by the respondent under Order XXXIX Rule 1 & 2 CPC with the direction that till the disposal of the suit, the appellants would not use the word "Perry" on the bottles similar to the respondent's product.

(2.) The suit was filed by Bharat Chandiramani ('Bharat') against Perry Beverages India Pvt. Limited ('Perry Beverages') and Hemant Chandiramani ('Hemant') as Director of Perry Beverages under Section 134 of the Trade Marks Act, 1999 ('the Act') for permanent injunction. It was inter alia claimed in the suit that Perry Beverages is a company registered under the provisions of the Companies Act, which had three Directors Bhojraj Chandiramani ('Bhojraj'), Hemant and Bharat; the company was a family company whose head was Bhojraj, the two sons Hemant & Bharat used to mainly look after the business of the company; the arrangement continued till 2014; on intention being expressed by members of the family to start independent business, Bhojraj proposed that a family settlement be executed wherein every member of the family would get his share and arrangement regarding the brand developed by Bhojraj be also made in the said settlement. As per the family settlement, the plaintiff relinquished his share holding in Perry Beverages resulting in two share holders Bhojraj & Hemant remaining in the company, Bhojraj is the Managing Director and Hemant is Director. Before execution of family settlement it was decided that the entire business of Perry Beverages would be looked after by Bhojraj and Hemant and Perry Beverages would have right to manufacture all the drinks except 'Fruit Beer'; it was decided that Perry Beverages would not have any right to manufacture 'Fruit Beer' or any drink having flavour similar to 'Fruit Beer' and all the rights with regard to 'Fruit Beer' would be with the plaintiff. Hemant accepted the said arrangement; when the issue regarding executing the said arrangement in writing came up, Hemant proposed that he would get the document prepared, in the meanwhile Bhojraj fell ill and was required to be hospitalized, Hemant brought the document for signatures, after reading the document Bhojraj told Hemant that oral conditions agreed in relation to 'Fruit Beer' have not been incorporated in the document and, therefore, amended document be got prepared, however, Hemant told that whatever has been decided orally would be followed and if the document was not signed by all the parties, he would take steps. It is claimed that on account of family circumstances, the agreement was signed.

(3.) It was then alleged that as per the agreement, Perry Beverages could not have manufactured any product similar to 'Fruit Beer', despite that it was doing the same which was not legal and the same amounts to passing-off and the plaintiff was entitled to injunction.