ALBERT BONNAN Vs. IMPERIAL TOBACCO CO(INDIA) LTD

JUDGEMENT

(1.) This is a suit for damages arising out of certain acts of the defendant Company alleged to be wrongful and malicious. The defendant Company had been formed in 1910 to take over the business for importing and selling within the limits of India various cigarettes under the manufacturers brand of W. D. and H.O. Wills including this Gold Flake brand. On the 1st September 1910 an agreement was executed with that object, the parties being the British- American Tobacco Co., Ltd., the British American Tobacco Co, (India), Ltd., and the defendant Company. No actual document of assignment or transfer was executed until the 11 April 1922. The shares in the defendant Company were owned to the extent of some 80 per cent. or 00 per cent. by the vendor Company, and from 1910 onwards the sale of these brands in India was entirely in the hands of the defendant Company acting under the agreement. At the termination of the war the Army Canteen Authorities found themselves in possession of a very large stock of cigarettes purchased from the British-American Tobacca Co., and from elsewhere: accordingly they took steps to sell them off, but imposed on purchasers the restrictive condition that the goods should not be disposed of in Great Britain. The plaintiff was one of those who came forward and made considerable purchases of these cigarettes of the Gold Flake Brand from the Canteen Authorities through Venis & Co., Ltd. and M. Drapkin. Some he disposed of in Europe, Egypt or Palestine. Others he imported into India for sale through Calcutta or Bombay. The first arrivals in India were at the e February, and beginning of March 1922. By the middle of March 1922 the defendant Company too was alive to the plaintiff's intrusion and the effect it might have on its trade. On the 12 April 1922 the defendant Company moved the Collector of Customs in Calcutta for confiscation of some of these goods which had arrived and were lying in bond. The goods were accordingly detained by the Collector of Customs under his statutory powers, and the usual period of 30 days was later extended by 10 days at the request of the defendant Company. On the 10 May 1922 the indenture of assignment (dated 11 April 1922) was executed in Calcutta by Mr. Abbott as agent of the British-American Tobacco Co., Ltd., and by Mr. Abbott and another as Directors of the defendant Company: the 10 May 1922 was also the date of registration of that document in Calcutta.

(2.) On the next day, the 11 May 1922, the Company filed a suit in the High Court here against the plaintiff and A. Bonnan & Co., claiming an injunction to restrain him from selling his goods. The defendant Company in that suit based its claim upon an exclusive proprietary right in the brand and also upon the allegation that the Gold Flake cigarettes had acquired amongst purchasers in India the reputation of being goods imported by the Company and that the plaintiff in selling his goods in India would be deceiving purchasers by passing off his goods as those imported by the defendant Company. The Company also gave notice of motion for an injunction and obtained an interim order for injunction covering the 100 cases then in the Customs in Calcutta, the plaintiff giving the usual undertaking in damages, This injunction was dissolved by an order of 8 June when the plaintiff undertook to place a certain sum of money out of the sale proceeds on deposit of receipt with the Bank and lodged the receipt in Court. The suit in Calcutta was dismissed on the 18 July 1922, the appeal on the 10 April 1923 and the appeal to His Majesty in Council on the 13 May 1924.

(3.) Similar action was taken by the defendant Company in Bombay. On the 1 May 1922, application was made to the Collector of Customs in regard to 60 cases by S.S. "Australia." An order for detention for one month was passed, but this was re-called and the goods were released after 48 hours notice from the 5 May. An unusual feature was that in this instance in addition to the usual indemnity bond, a Bank guarantee was taken from the Company. On the 22 May, the defendant Company filed a suit in the High Court in Bombay against the Cigarettes Importers Agency and Bonnan & Co., under which names the cigarettes had been imported, claiming an injunction and other relief similar to that in the suit filed in Calcutta. Notice of motion was given on the 23 May for an injunction restraining the defendants in that suit from importing, advertising, exposing for sale or selling their goods. On the 19 June 1922 when the motion came on, it was ordered by consent that it should stand over to the hearing on the 17 July 1922 and it was further ordered by consent that pending the hearing of the suit the defendants undertook not to dispose of or in any other way deal with the cigarettes then lying in Bombay or to arrive in the interim and it was further ordered by consent that the plaintiffs undertaking as to damages should continue pending the final disposal of the suit, On the 2 August, 1922 an order was passed staying the suit until after disposal of the appeal in the Calcutta suit, the defendants undertaking was also vacated, they having agreed to keep an account of sales. Subsequently on the 25 September 1923 an. order was passed discharging the defendants undertaking of 2 August, 1922 to keep account of the sales. Finally on the 9 January 1925 a consent decree was made in the suit whereby the suit was dismissed with cost, "without prejudice to the defendants rights, if any, to claim and recover damages from the plaintiffs in any other proceedings."