FAO Nos.98/2022 and 100/2022, In the High Court of Kerala at Ernakulam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` TUESDAY, THE 18[TH] DAY OF OCTOBER 2022 / 26TH ASWINA, 1944 FAO NO. 98 OF 2022 ``` ``` AGAINST THE ORDER DATED 10-08-2022 IN I.A.NO.1 OF 2022 IN OS 14/2022 OF ADDITIONAL DISTRICT COURT- VIII, ERNAKULAM ``` ## **`APPELLANTS/ADDITIONAL RESPONDENTS 2 TO 5:`** - **`1 BINOY JOSEPH, AGED 47, S/O. E.V.JOSEPH, PARTNER, M/S SUPREME FOOD INDUSTRIES, EDAPPULAVAN HOUSE, CHELLAMATTOM, OKKAL P.O, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN - 683550`** - **`2 MERCY THOMAS, AGED 69, W/O.A.V.THOMAS, PARTNER, M/S SUPREME FOOD INDUSTRIES, EDAPPULAVAN ROAD, VALLAM, RAYONPURAM.P.O, ERNAKULAM, PIN - 683543`** - **`3 DAISY DEVASSY, AGED 61, PARTNER, W/O.E.V.DEVASSY, M/S SUPREME FOOD INDUSTRIES, RESIDING AT MANIACHERRY HOUSE, KOOVAPPADY.P.O, ERNAKULAM, PIN - 683544`** - **`4 MINI VARGHESE, AGED 54, PARTNER, W/O. M.E VARGHESE, M/S SUPREME FOOD INDUSTRIES, RESIDING AT MANIACHERRY HOUSE, KOOVAPPADY.P.O, ERNAKULAM, PIN - 683544`** ``` BY ADVS. PRAVEEN K. JOY T.A.JOY ``` - **`E.S.SANEEJ`** ``` M.P.UNNIKRISHNAN ``` ``` M.K.SAMYUKTHA N.ABHILASH DEEPU RAJAGOPAL SANDRA S.KUMAR AJITH VISWANATHAN JEFFIN JOHN ``` ## **`RESPONDENTS/PETITIONER & 1ST RESPONDENT:`** - **`1 M/S SUPREME FOOD INDUSTRIES, A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO.1/228, ST THERESA'S SHOPPING COMPLEX, RAYONPURAM.P.O, VALLAM, PERUMBAVOOR, ERNAKULAM DISTRICT, KERALA, REPRESENTED BY ITS MANAGING PARTNER, JOSEPH M KADAMBUKATTIL @ K.M.JOSEPH, AGED 54, S/O LATE K.C. MERCELY OF KADAMBUKATTIL HOUSE, RAYONPURAM.P.O, VALLOM, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN - 683543`** ``` FAO Nos.98/2022, 100/2022 ``` ``` 2 ``` - **`2 NUTRICREAMS PVT LTD,`** ``` A COMPANY INCORPORATED UNDER THE COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT BUILDING NO.XXI/2936, 2ND FLOOR, TOMS PARK, PERUMBAVOOR KARA, PERUMBAVOOR.P.O, REPRESENTED BY ITS MANAGING DIRECTOR, STEPHEN M.D, AGED 35,S/O. E.E DEVASSY OF MANIYACHERY, NEAR KALLAMBALAM, KOOVAPPADY, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN - 683544 ``` ``` R1 BY ADVS.S.SREEKUMAR (SR.) MARTIN JOSE.P. P.PRIJITH THOMAS P.KURUVILLA R.GITHESH V.VISAL AJAYAN AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT HANI P.NAIR ANNA LINDA V.J HARIKRISHNAN S ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON 18.10.2022, ALONG WITH FAO.100/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` FAO Nos.98/2022, 100/2022 ``` ``` 3 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` TUESDAY, THE 18[TH] DAY OF OCTOBER 2022 / 26TH ASWINA, 1944 ``` ``` FAO NO. 100 OF 2022 ``` ``` AGAINST THE ORDER DATED 10.08.2022 IN I.A.NO.1/2022 IN OS 14/2022 ``` ``` OF ADDITIONAL DISTRICT COURT - VIII, ERNAKULAM ``` ``` APPELLANT/1ST RESPONDENT/1ST DEFENDANT: ``` ``` M/S. NUTRICREAMS PRIVATE LIMITED, COMPANY INCORPORATED UNDER THE COMPANIES ACT, 2013, HAVING ITS REGISTERED OFFICE AT BUILDING NO. XXI/2936, 2ND FLOOR, TOMS PARK, PERUMBAVOOR KARA, PERUMABVOOR P.O - 683542 REPRESENTED BY ITS MANAGING DIRECTOR, STEPHEN MD, S/O. E.E .DEVASSY, RESIDING AT MANIYACHERRY HOUSE, NEAR KALLAMBALAM, KOOVAPPADY, PERUMBAVOOR, ERNAKULAM DISTRICT. ``` ``` BY ADVS. ``` ``` M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN ASHER REVI JOB ``` ## **`RESPONDENTS/PETITIONER AND ADDITIONAL RESPONDENT 2 TO 5/PLAINTIFF`** ## **`AND ADDITIONAL DEFENDANTS 2 TO 5:`** - **`1 M/S. SUPREME FOOD INDUSTRIES, A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. 1/228, ST THERESA'S SHOPPING COMPLEX, RAYONPURAM P.O, VALLAM, PERUMBAVOOR – 683543, REPRESENTED BY ITS MANAGING PARTNERS, JOSEPH M KADAMBUKATTIL ALIAS K.M JOSEPH, S/O LATE K.C MARCELY, KADAMBUKATTIL HOUSE, RAYONPURAM P.O VALLAM, PERUMBAVOOR - 683543.`** - **`2 BINOY JOSEPH, AGED 47 YEARS OLD, PARTNER, M/S SUPREME FOOD INDUSTRIES, S/O E.V JOSEPH, EDAPPULAVAN HOUSE, CHELLAMATTOM, OKKAL P.O, PERUMBAVOOR, ERNAKULAM, KERALA – 683550.`** ``` FAO Nos.98/2022, 100/2022 ``` ``` 4 ``` - **`3 MERCY THOMAS, AGED 69 YEARS OLD, PARTNER, M/S SUPREME FOOD INDUSTRIES W/O SRI A.V THOMAS, EDAPPULAVAN HOUSE, VALLAM, RAYONPURAM. P.O., PIN - 683 543.`** - **`4 DAISY DEVASSY, AGED 61 YEARS OLD, PARTNER, M/S SUPREME FOOD INDUSTRIES, W/O SRI E. E .DEVASSY, RESIDING AT MANIACHERRY FOUSE, KOOVAPPADY P.O PIN - 683 544.`** ``` 5MINI VARGHESE, AGED 54 YEARS, PARTNER, M/S SUPREME FOOD INDUSTRIES, W/O SRI M. E. VARGHESE, RESIDING AT MANIACHERRY HOUSE, KOOVAPPADY P.O. PIN - 683 544. R1 BY ADVS.S.SREEKUMAR (SR.) MARTIN JOSE P. P.PRIJITH THOMAS P.KURUVILLA V.VISAL AJAYAN AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT HANI P.NAIR ANNA LINDA V.J HARIKRISHNAN S. ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON 18.10.2022, ALONG WITH FAO.98/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` FAO Nos.98/2022, 100/2022 ``` ``` 5 ``` ## **`JUDGMENT`** ``` The challenge in these two appeals by the defendant and additional defendants is pertaining to the grant of an interim injunction, which was made absolute against the user of a trademark “MERIIBOY” and “MERRICREM”. ``` ``` 2. It is an admitted case that the plaintiff partnership firm is the registered owner of the trademark (MERIIBOY). Ext.A3 agreement in the style of Memorandum of Understanding was entered into, by which the plaintiff firm granted permission to the defendant to use the trademark “MERIIBOY” upto 31/03/2023, with a further condition that a supplementaryagreementshouldbeexecuted enumerating the terms and conditions of the lease. But no such, supplementary agreement was executed. According to the defendant, the blame goes to the plaintiff as the Managing Partner and his mother-in-law, another partner took an adamant stand without permitting the defendant to execute the ``` ``` FAO Nos.98/2022, 100/2022 ``` ``` 6 ``` ``` supplementary agreement. Inter alia, it is contended that the other four partners have no objection in using the trademark by the defendant and they have even issued a letter to that effect, which was also produced. ``` ``` 3. The plaintiff on the other hand submitted thatexecutionofsupplementaryagreement enumerating the terms and conditions of the lease in the user of trademark is the essence of the Memorandum of Understanding executed and exhibited as Ext.A3. Hence, the user of the trademark by the defendant under the guise of Ext.A3 cannot be sustained. In fact, Ext.A3 will not constitute a concluded contract as far as the lease of trademark agreed into by the parties. The terms and conditions are yet to be finalised. Hence, the non- execution of supplementary agreement is so fatal to the claim of defendant. ``` ``` 4. It is true that the defendant is not claiming any acquisition of right by passing off or registration over the trademark in question. But, a ``` ``` FAO Nos.98/2022, 100/2022 ``` ``` 7 ``` ``` business of partnership must always be understood as a compendious business conducted by several persons with mutual liability and responsibility. The partnership firm may not get any independent status apart from its partners. As such, divergence of opinion, difference in the conduct of business among the partners would destruct the very concept of partnership and such destruction may sometimes operate against the Managing Partner or any of the partners, who are competent to represent the partnership in a litigation. The consent letter given by four partners subsequent to Ext.A3 permitting the defendant to use the trademark as against the will of Managing Partner who instituted the suit in a representative capacity and the will of his mother-in-law, the other partner would vitiate the very proceedings instituted by the partnership as there is no provision to settle down the dispute between the partners in a suit instituted by the partnership firm as against the strangers. Ext.A3 is also a concluded contract ``` ``` FAO Nos.98/2022, 100/2022 ``` ``` 8 ``` ``` though styled as a Memorandum of Understanding, by which it was agreed to use the trademark by the defendant till 31/03/2023. The abovesaid date is so crucial and if it is delayed the very purpose of Ext.A3 would be defeated. As discussed above, there cannot be different stand or differences between the partners while addressing a suit matter or in the maintenance of a litigation. At this juncture, it is relevant to take up the five elements which constitute a valid partnership; (1) there must be a contract (2) between two or more persons (3) who agree to carry on a business (4) with the object of sharing profits and (5) the business must be carried on by all or any of them acting for all. The implied authority of a partner as agent of the firm is regulated and governed by Section 19 of the Partnership Act, subject to the application of Section 22 of the said Act. The word an “Act of firm” is defined under Section 2(a) of the Act as follows: ``` ``` “an “act of a firm” means any act or omission by all the partners, or by any ``` ``` FAO Nos.98/2022, 100/2022 ``` ``` 9 ``` ``` partner or agent of the firm which gives rise to a right enforceable by or against the firm” ``` ``` 5. It is also held by a Division Bench of High Court of Madras inStructee Mecha India v. ``` ## _**`Bharatkumar Pahlajrai, AIR 1982 Mad. 51 (DB)`**_ ``` defining “Act of firm” that : ``` ``` “an act of one partner can well be constructed as the act of all the partners if the circumstances warrant such a conclusion. It is not absolutely necessary for the petitioning creditor to prove that a letter written by one of the partners stating that the firm was suspending or was going to suspend payments to all creditors, had been written on the express authority given by each one of the partners to the particular partner who had written the letter. If the totality of circumstances go to show that the expression contained in the letter should be taken as the act done on behalf of all the partners, then the consequences that follow should have application to all the partners and not only to the partner who has written the letter.” ``` ``` 6. All the abovesaid questions need to be ``` ``` addressed based on the evidence to be adduced and as such, in order to prevent continuance of breach of contract, the order of injunction granted by the trial court can be maintained till the disposal of the suit and there will be a direction to the trial ``` ``` FAO Nos.98/2022, 100/2022 ``` ``` 10 ``` ``` court to dispose of the suit untrammelled by any of the observations contained in the impugned order and this judgment within a time schedule of three months from the date of receipt of a copy of this judgment. ``` ``` Both the appeals will stand disposed of accordingly. No costs. ``` ## **`Sd/-`** ``` P.SOMARAJAN JUDGE ``` msp