Yashwantrao Mohite Krushna ... vs Brihan Karan Sugar Syndicate Pvt. ...
2021 Latest Caselaw 8334 Bom

                                          (1)


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                  CIVIL APPLICATION NO.5391 OF 2021
                                  IN
                       FIRST APPEAL NO.851/2021

 YASHWANTRAO MOHITE KRUSHNA SAHAKARI
 SAKHAR KARKHANA THROUGH ITS
 AUTHORIZED SIGNATORy            - Appellant
                             (Original Defendant)
         VS

 BRIHAN KARAN SUGAR SYNDICATE PVT LTD.
 THROUGH ITS DIRECTOR, NASHIK.    - Respondent
                                  (Orig.Plaintiff)
                         -----
     Mr.SN Pahune-Patil and Mr.MD Karade, Adv. For
                 Applicant-Appellant;
  Mr.RN Dhorde, Sr.Counsel i/by Mr.MS Kulkarni, Adv.
                     For Respondent
                          -----
                     CORAM : SMT.VIBHA KANKANWADI,J.

DATE : 23rd June, 2021.

PER COURT :-

1. Present application has been filed for

stay of impugned judgment and decree passed in

Regular Civil Suit No.1/2017 by learned District

Judge-1, Osmanabad on 24.5.2021. The said suit,

filed for permanent injunction, damages and

rendition of accounts and other consequential

reliefs in action for infringement of copy right

under the Copy Rights Act and for passing off under

the Trade Marks Act, came to be decreed. Present

appellant-applicant (original defendant) or anybody

claiming through it, has been permanently

restrained. So also, the defendant has been

directed to pay sum of Rs.1,00,000/- by way of

damages.

2. The learned Advocate Mr. Karade,

appearing for the appellant-applicant/defendant,

vehemently submitted that the original plaintiff-

respondent had filed an application for temporary

injunction under Order 39 Rule 1 and 2 of CPC at

Exhibit-5 in the said suit. That application came

to be rejected by the Trial Court on 12.4.2019.

Thereafter, the original plaintiff approached this

Court by filing an Appeal from Order No.41/2014

with Civil Application. This Court rejected the

said appeal on January 7, 2020 and thereafter the

original plaintiff had approached the Hon'ble Apex

court by filing a petition for Special Leave to

Appeal (C) No. 9470/2020. The Hon'ble Supreme

Court observed that no interference is warranted in

the order passed by this Court as it is an

interlocutory in nature. However, the Trial Court

was directed to expedite the suit and thereafter

the suit has been decided. There was no injunction

running against the defendant since 2017, i.e.

filing of the suit. There are vital points, which

the appellant wants to raise in the First Appeal.

The learned Trial Judge has not appreciated the

evidence properly and has not considered the

evidence as it is required to be considered in a

suit involving copy rights. Merely because the

labels used by the plaintiff are registered that

does not mean that there is any infringement by the

present defendant when the defendant had printed

and used its labels. In fact, the defendant had

also, after they had prepared the impugned labels,

registered it or got its sanction from the

Commissioner of State Excise. The respondent-

plaintiff had raised objections by its

communication dated 21.3.2016 for approval of the

subject label. However, thereafter on 25.4.2016,

the plaintiff gave a communication to the same

authority and had unconditionally withdrawn the

objections. This impliedly suggested that the

plaintiff had no objection for the approval of the

impugned label and its use by the defendant. Under

such circumstance, now the plaintiff cannot object

to its use. The evidence has not been properly

appreciated. But, the learned Judge mostly relied

on his own observations which have no proper

appreciation of evidence and, therefore, till the

appeal is decided, there should be stay to the

impugned order.

3. Learned Sr.Counsel Mr. RN Dhorde,

instructed by learned Advocate MS Kulkarni,

vehemently submitted and taken this Court through

almost all the important pages in the impugned

judgment and the observations made by the Trial

Judge. He submitted that it is not in dispute that

the plaintiff-company got its label registered and

a Certificate to that effect has been produced and

proved on record. Exhibit-63 is the original

bottle, containing country liquor of the plaintiff

bearing label `Deshi Daru Tango Panch'; whereas

Exhibit-62 is the original in-tact glass bottle,

containing country liquor of defendant bearing

label `Deshi Daru Two Punch Premium'. The modified

labels have also been produced and proved since

there was some change in the name of the plaintiff-

company. Apart from the oral evidence, the learned

Trial Judge had carefully and minutely examined all

the labels and found out the similarities which are

deceptive and when the label of the plaintiff is

registered with the competent authority, then it

has presumption that anything which is identical or

striking resemblance to the same by any other

person is definitely prohibited. All those

similarities have been considered by the learned

Trial Judge. When after the full-fledged trial,

when the Competent authority has come to the

conclusion that the plaintiff has proved its case

then definitely the plaintiff would be entitled to

the relief and there is no necessity to interfere

with the same. The registration of the copy right

is since 2008 and, therefore, since then when the

plaintiff is using it and spent so much of amount

on its registration, then any derogatory act is

required to be compensated by the person infringing

the copy right. He has relied on the following

citations/decisions, -

 Sr.No                                 Citations
 1)          Nav Sahitya Prakash Vs. Anand Kumar
             AIR 1981 Allahabad 200
 2)          Hindustan Level Ltd. Vs. Nirma Pvt Ltd.
             AIR 1992 Bombay 195
 3)          Asian ants (I) Ltd. Vs. Jaikishan Paints
             2002 (6) Bom.C.R. 1
 4)          Daily Calendar Supplying Vs. United Concern
             AIR 1967 Madras 381





 5)          Pidilite Industries Ltd. Vs. SM Associates
             2004 (28) PTC 193
 6)          Laxmikant V.Patel Vs. Chetan Bhai Shah
             2001 AIR (SCW) 4989
 7)          Satyam Infoway Ltd. Vs Sifynet Solutions
             2004 (28) PTC 566
 8)          Deccan    Bottling   Vs.  Brihan    Maha    Sugar
             Syndicate - 2009 (2) Mh.L.J. 302
 9)          M/s 7 Star Distilleries Vs. B.M.S.S.Ltd

A.O. No.38/2007 (HC, Aurangabad Bench)

10) Hiralal Prabhudas Vs. Ganesh Trading AIR 1984 Bom. 218

11) Tilaknagar Industries Ltd. Vs. Somarasa Distilleries - Notice of Motion No. 1665/2007 in Suit No.1266/2007 (Bombay High Court)

12) Poddar Tyres Vd. Bedrock Sales Corporation AIR 1993 Bombay 237

13) Shri Nath Heritage Liquor Vs. Bedrock Sales Corporation - 2015(63) PTC 551

14) Midas Hygiene Industries Vs. Sudhir Bhatia (2004) 3 SCC 90

15) Harish Motichand Sariya Vs.Ajanta India Ltd 2003 (4) Mh.L.J. 291

16) B.Y.Chavan Vs. Association of Tenants 2011 (5) All MR 815

17) Circular dated 17.7.2014 - Commissioner of State Excise, Mumbai.

18) Cadila Health Care Ltd Vs. Cadila Pharmaceuticals - AIR 2001 SC 1952

19) Sanjay Soya Pvt. Ltd. Vs. Narayani Trading Company - Commercial IP Suit No. 2 of 2021

20) Parle Products Ltd. JP and Co. Mysore AIR 1972 SC 11359

21) M/s Universal Twin Labs Vs. Ranbaxy Laboratories Ltd an Ors. - Appeal No. 163 of 2008- Bombay High Court

22) Prakash Roadline Vs. Prakash Parcel Service 1992 (2) ARBLR 274 SC 11359

4. It was also submitted by the learned

Sr.Counsel that it is not at all necessary that the

actual resemblance should be proved by examining a

person. But, it could be noticed when the evidence

is produced to that extent. He, therefore, prayed

for rejection of the application.

5. At the outset, it is to be noted that

since the First Appeal has been filed and it has to

be admitted as of right, we are required to

consider as to what was the position prior to the

decree in respect of the subject matter and how the

said position can be maintained till disposal of

the First Appeal. As aforesaid, the suit was filed

in the year 2017, however, Exhibit-5, i.e.

temporary injunction application came to be

rejected on 12.4.2019. Since the date of the suit

till rejection of the application at Exh.5, there

was no order much less ad interim, passed in favour

of the plaintiff. Thereafter, the Appeal from

Order preferred by the original plaintiff came to

be rejected by this Court and it has been

maintained by the Hon'ble Apex Court. That means

even after institution of the suit, none of the

authorities had estopped the defendant from using

the impugned labels. Further, the reference will

have to be considered, which was even earlier

considered by this Court at the time of decision in

the Appeal from Order No.41/2019 that when the

defendant society had made application for the

approval of the impugned label to the Commissioner

of State Excise, the present plaintiff had raised

objection for the same on 21.3.2016. But,

thereafter, by giving another communication on

25.4.2016, had withdrawn that objection

unconditionally. This factual aspect is definitely

on record in the oral evidence also before the

Court at the stage of final hearing. It indicates,

therefore, that when the plaintiff had no objection

for the approval of the defendant's label, then

question is, whether under the Copy Rights Act, the

plaintiff can seek the injunction as claimed. Now,

it has been tried to be contended that only the

Civil Court will have jurisdiction to decide

whether there is infringement of the copy right or

not. The said Commissioner of State Excise cannot

be said to be the appropriate authority. Factually

this fact may be corrected. But, when it comes to

the right for the use of a particular label, then

its use in any form, can be objected and such

attempt was made by the plaintiff. The plaintiff's

own action to withdraw that objection has not been

interpreted by the learned Trial Judge. Further,

even at this stage, prima facie impression can be

recorded that when it came to appreciation of oral

evidence, the learned Trial Judge was very much

short enough and appears to have brushed aside the

statements in the cross-examination of the

witnesses for the plaintiff. But, then he has

mostly relied on his own observations regarding

labels and other material that was produced before

him. The question, further, that is required to be

gone into, as to whether a customer's testimony was

necessary or not because he would be the person,

who could be said to be misled by such resemblance.

Without examination of such customer, whether the

Court can supplement its own findings and come to

the conclusion that for a person, such resemblance

would create confusion, is also a matter of fact,

which is required to be gone into. The ratio laid

down in aforesaid rulings/authorities can be

considered at the time of final hearing of the

Appeal. But, as regards the present stage is

concerned, when the defendant was never restrained

in the past by a competent Court, and when the

First Appeal has been admitted, involving the

points which are required to be gone into, it would

be put to irreparable loss if the impugned decree

is not stayed till hearing and final disposal of

the First Appeal.

6. Hence, there shall be stay in terms of

prayer clause (a) till hearing and final disposal

of the First Appeal. The Civil Application stands

disposed of.

(SMT. VIBHA KANKANWADI) JUDGE BDV