M/s Haji Ali Fresh Fruit Juices (P.Firm) and K.K. Faizal v. A.K. Faisal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 6TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941** ## **FAO.No.50 OF 2019** **AGAINST THE ORDER IN IA 6204/18 IN OS 38/2018 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM** **--------** ## **APPELLANTS/PETITIONERS IN THE IA/PLAINTIFFS IN SUIT:** - **1 M/s HAJI ALI FRESH FRUIT JUICES, PARTNERSHIP FIRM HAVING ITS PRINCIPAL PLACES OF BUSINESS AT DOOR NO.32/2291 A & A1, NORTHERN SIDE OF VASUDEVA COMPLEX, CIVIL LINE ROAD, PALARIVATTOM P.O., COCHIN - 682 025, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK AND AT DOOR NO.27/479-C, TOLL JUNCTION, EDAPPALLY, COCHIN - 682 024, MANAGING PARTNER K.K. FAIZAL.** - **2 K.K. FAIZAL, AGED 53 YEARS,** **S/O. M.P.K. MOOSA HAJI, MANAGING PARTNER, M/S. HAJI ALI FRESH FRUIT JUICES, AT DOOR NO.32/2291 A & A1, NORTHERN SIDE OF VASUDEVA COMPLEX, CIVIL LINE ROAD, PALARIVATTOM P.O., COCHIN - 682 025 AND AT DOOR NO. 27/479-C, TOLL JUNCTION, EDAPPALLY, COCHIN - 682 024, EARLIER RESIDING AT DOOR NO. 41/1143 B, ID, AC ORION APARTMENTS, PULLEPADY, ERNAKULAM NORTH PO, COCHIN - 682 018, NOW RESIDING AT 'FARAH', DESHABHIMANI ROAD, AISWARYA LANE, NEAR BHAVANS SCHOOL, ELAMAKKARA P.O., ERNAKULAM, COCHIN - 682 026, ERNAKULAM VILLAGE, KANAYANNUR TALUK.** ## **FAO.No.50 OF 2019** -: 2 :- **3 JASIM MOOSSA SIRAJUDHEEN, MINOR OF 14 YEARS, S/O. LATE K.K. SIRAJUDHEEN, PARTNER, M/S. HAJI ALI FRESH FRUIT JUICES, DOOR NO.27/479-C, TOLL JUNCTION, EDAPPALLY, COCHIN - 682 024, RESIDING AT K.K. HOUSE, PERINGADI PO, VIA NEW MAHE, PIN - 673 312, REPRESENTED BY HIS GUARDIAN AND MOTHER LUBINA SIRAJUDHEEN, W/O. K.K. SIRAJUDHEEN, AGED 48, RESIDING AT K.K. HOUSE, PERINGADI PO, VIA NEW MAHE, PIN - 673 312.** **BY ADVS. SRI.T.KRISHNANUNNI (SR.) SRI.VINOD RAVINDRANATH SRI.JIJO THOMAS SMT.M.D.BEENA SRI.ANEESH JAMES** ## **RESPONDENT/RESPONDENT IN THE IA/DEFENDANT IN SUIT:** **MR.A.K.FAISAL, AGED 39 YEARS, S/O. T.V. MOOSA HAJI, RESIDING AT DOOR NO. 23/45, ZEENATH MANZIL, PACHALAM, VADUTHALA PO, COCHIN - 682 012, CHERANELLUR VILLAGE, KANAYANNUR TALUK.** **BY ADVS. SRI.R.HARIKRISHNAN** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 06.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = FAO No.50 of 2019** **= = = = = = = = = = = = = = = = = = Dated this the 6[th] day of August, 2019** ## **J U D G M E N T** Refusal to grant an order of interim injunction in a passing off action, by the District Court, is assailed in this appeal by the plaintiffs. 2. The name, “Haji Ali Fresh Fruit Juices” with its logo, is the subject matter of dispute. The first plaintiff is a partnership firm of which plaintiffs 2 and 3, and the defendant are the partners. They are doing business in running cool bar, juice shop, fruits shop, snacks etc. at Edappally Toll Junction. The second plaintiff and the defendant as partners under the very same partnership name, are doing business at Palarivattom. The second plaintiff is the Managing Partner of the firm. According to the plaintiffs, they have been doing business since the year 2010 and have acquired reputation and confidence among the general public in its business. The defendant without authority is going to commence a shop under FAO No.50 of 2019 :- 2 :- the same name and logo as that of the first plaintiff, at Shenoy Chambers, Shanmugham Road, Ernakulam. It is accordingly that the suit is filed. Along with the suit, the plaintiffs filed application as IA 6204/18 for an interim injunction to restrain the defendants from using the name and logo of the first plaintiff. 3. The District Court originally granted an ex parte order of injunction. However, after hearing both sides, the application was dismissed as per the order impugned. 4. Heard learned Senior Counsel Sri.T.Krishnanunni on behalf of the appellantsplaintiffs and Sri.Harikrishnan.R. on behalf of the respondent-defendant. 5. Generally, in passing off action, the first question that arises is regarding similarity or rather deceptive similarity in the name, display and logo being used by the rival parties and also an ascertainment as to whether such usage is likely to mislead the intending customers. However, in the FAO No.50 of 2019 :- 3 :- case at hand, the said question does not arise for the reason that the name and logo of the first plaintiff and that is intended to be used by the defendant is exactly one and the same. Therefore, a discussion and finding on the same is unnecessary. 6. According to the plaintiffs, the second plaintiff is the owner/proprietor of the name and logo, and going by the materials, at least from the year 2010 he was doing business in partnership under the name and logo. The defendant who is a partner with him is attempting to do independent business and pass off the goods. The learned counsel for the respondent-defendant would contend that the plaintiffs are not entitled to exclusive use of the name and logo for various reasons; firstly there are different users for the same; secondly, the name “Haji Ali” is public juris and the plaintiffs cannot claim exclusive right over the same. Pointing out that several shops are being run under the same name and logo, learned counsel drew my attention to the details of the same as FAO No.50 of 2019 :- 4 :- provided in paragraph 6 of the written statement. The same is re-produced hereunder for convenience:- |Sl.<br>No.|Shops|Location|Status|Nature of<br>Business| |---|---|---|---|---| |A|Haji Ali Fresh<br>Fruit Juices|Jos Junction|Closed|Partnership| |B|Haji Ali Fresh<br>Fruit Juices|Palarivattom|Running|Partnership<br>(Plaintiff<br>and defendant<br>are partners)| |C|Haji Ali Fresh<br>Fruit Juices|Edappally|Running|Partnership<br>(Plaintiff<br>and defendant<br>arepartners)| |C1|Haji Ali Fresh<br>Fruit Juices|Cheranelloor|Running|Partnership<br>(Plaintiff<br>and defendant<br>are partners)| |D|Haji Ali Fresh<br>Juices|Ravipuram|Running|Noufal, the<br>retired<br>partner| |E|Haji Ali Fresh<br>Fruit Juices|M.G.Road,<br>Near Shenoys<br>Theatre|Running|Noufal, the<br>retired<br>partner| |F|Haji Ali Fresh<br>Fruit Juices|Fort Kochi|Running|Noufal, the<br>retired<br>partner| |G|Haji Ali Fresh<br>Fruit Juices|Tripunithura|Running|Noufal, the<br>retired<br>partner| |H|Haji Ali Fresh<br>Fruit Juices|Cherthala|Running|Noufal, the<br>retired<br>partner| |I|Haji Ali Fresh<br>Fruit Juices|Trivandrum|Running|K.K.Faizal,<br>the plaintiff| |J|Haji Ali Fresh<br>Fruit Juices|Kazhakkoottam|Proposed<br>to start|K.K.Faizal,<br>theplaintiff| FAO No.50 of 2019 :- 5 :- 7. Referring to the above, he would submit that this reveals that plaintiff is not in exclusive user of the name and logo. Therefore, not only that the plaintiffs could not claim injunction against its user but also, no injury would result to the plaintiff consequent to the user by the defendant, submits the counsel. Noticeably, apart from Sl. Nos.D to J in the chart regarding business as extracted above, the defendant is also a partner along with the plaintiff. Sl. Nos.D to H are being run by one Noufal who is stated to be a retired partner from the firm. In the reply affidavit filed by the plaintiffs, it has been stated that the said Noufal is doing business under the name and logo with due permission from the plaintiffs. Sl. Nos.I and J are by the second plaintiff. Therefore, it cannot be said that there are different users doing business under the same name and logo as that of the plaintiff. Though the District Court enters a finding that several partnerships are in existence and that they are still subsisting, even assuming FAO No.50 of 2019 :- 6 :- it to be correct, is of no consequence since the business currently being run under the name are only the ones mentioned supra. 8. The second plaintiff claims to be the proprietor of the trade name. Clause 14(B) of the partnership deed relating to the business at Palarivattom and Edappally are significant in this regard and is extracted hereunder. “B) The Proprietary right of the Trade Mark “HAJI ALI” is vested with the Managing Partner K.K.Faizal. In case of a dissolution, reconstitution or termination of the partnership, the rights of the Trade Mark “HAJI ALI” shall vest with K.K.Faizal, the Managing Partner of the firm and he will have the absolute right to decide the mode in which the aforesaid trade mark has to be assigned to any other person or establishment.” 9. Evidently the proprietory right of the second plaintiff over the trade name is acknowledged therein by the defendant. The contention that the said recitals are relevant only insofar as it relates to the said two businesses, FAO No.50 of 2019 :- 7 :- cannot be sustained. The said recitals in the documents reveal that the defendant acknowledges the second plaintiff as the proprietor of the name and logo. 10. As regards the contention that the name 'Haji Ali' is sui juris, it is to be noticed that it is not the mere usage of the said name that is sought to be prevented. It is the usage of the name with the particular style of the writing along with its logo, over which the plaintiffs raise claim of exclusive right or a right to have the defendants restrained from using. Therefore, the said contention cannot hold good. 11. The next contention of the defendant is that, the defendant being a partner of the firm and the allegation being that he is doing acts against the interests of the firm, the remedy of the plaintiffs is to initiate action under the provisions of the Partnership Act and not by way of a passing off action. I am unable to agree with the said contention. The mere fact that the plaintiffs FAO No.50 of 2019 :- 8 :- may have a right or remedy under the Partnership Act does not militate against their rights for a passing off action. The averments in the plaint are prima facie sufficient enough to maintain an action for passing off. The plaintiffs are entitled to opt for such a remedy. 12. Yet another contention of the defendant which weighed much with the District Court is “suppression of facts”. According to the defendant, the name presently claimed by the plaintiffs is the registered trade mark of one Farid Abdul Latif Noorani. The said Noorani had filed a suit against the second plaintiff and defendant herein as OS 9/11 before the District Court, Ernakulam, for an injunction against using the trade name. The same has not been disclosed by the plaintiffs. According to the defendant, the plaintiffs having suppressed this fact from the court is not entitled for the equitable remedy of interim injunction. Admittedly, the suit OS 9/11 was dismissed for non-payment of balance court fee. The suit was not on the files at FAO No.50 of 2019 :- 9 :- the time of filing of the present suit. The mentioning or otherwise regarding the same in the present proceeding could not affect the grant of interim relief and hence cannot be held to be a material fact suppressed from the court. 13. The District Court has noticed that the said Noorani is the registered proprietor of the name and therefore, the plaintiffs are not entitled to have the defendant restrained from using the name. As held by the High Court of Delhi in Jai Prakash Gupta v. Vishal Aluminium Mfg. Co. [1996 PTC 575] , it is without merit to contend that the petitioner is infringing the trade mark of a third party. It is a matter between the petitioner and the registered proprietor of the trademark. It would be apposite to refer to the following statement of law therein:- “..... it will be useless and without merit to contend that the petitioner himself is infringing the trade mark of another person. It is a matter between the petitioner and the other party in whose favour that trade mark is registered. The respondent cannot be allowed to make FAO No.50 of 2019 :- 10 :- use of the reputation and goodwill of the petitioner by adopting his trade mark or a deceptively similar trade mark for his product. .....” Therefore, the said contention also fails. 14. The District Court held that, the plaintiffs withheld from the court the fact that other shops are being run at various places under the same name and logo, which amounts to “suppression of facts”, dis-entitling the plaintiff for the equitable relief of injunction. The details of the shops being run under the name, as stated by the defendant, has been referred to earlier. Apart from the shops of which the plaintiffs and the defendant are partners, the other shops are run by an erst while partner as permitted by the plaintiffs. The plaintiffs do not have any grievance regarding those shops. Therefore, I do not think that the non-mentioning of the same, in the plaint, is of any significance. 15. The first plaintiff-firm is presently doing business at Palarivattom under a deed of reconstituted partnership executed on 10.11.17. The FAO No.50 of 2019 :- 11 :- said document refers to a previous partnership deed dated 11.04.14 in respect of the business. So also the deed of reconstituted partnership dated 10.11.2017 of the first plaintiff relates to the business that is being carried on at Edappally. The document refers to a previous deed of partnership dated 19.04.2011 in respect of the partnership. It shows that the plaintiffs have been doing business for quite a long time under the name and logo. In fact, the prior user, is not in dispute. 16. The Cochin Corporation has issued licence in favour of the defendants in respect of the business, on 08.11.18. The suit is filed on 12.11.18. The plaintiffs have approached the court without delay. I do not find any reason to deny the interim relief to the plaintiffs. The reasons given by the District Court for refusing the interim injunction cannot be sustained, are liable to be interfered with, and I do so. In the result, this appeal is allowed. The respondent-defendant is restrained by an interim FAO No.50 of 2019 :- 12 :- order of injunction from passing off the business name and logo of the plaintiffs in so far as it relates to cool bar, juice shop, fruit shop and allied business, till the disposal of the suit. No costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge