U.C. Surendranath vs Mamballys Bakery

NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No(s). 5775 OF 2019 (Arising out of SLP(C)No.2910 of 2016)

U.C. SURENDRANATH Appellant(s)

VERSUS

MAMBALLY’S BAKERY Respondent(s)

J U D G M E N T

BANUMATHI, J.

Leave granted.

2. This appeal arises out of judgment and order dated 05th

January, 2016 passed by the High Court of Kerala at Ernakulam

in FAO No.2 of 2016 in and by which the High Court has affirmed

the order of the Trial Court passed under Order XXXIX Rule 2A

of the C.P.C. and also the sentence of imprisonment of one week

imposed upon the respondent.

3. Brief stated facts are as under. The respondent-

Mambally’s Bakery filed a suit for permanent injunction

restraining the appellant from passing off the goods by using

respondent’s trade mark “Mambally’s Bakery” or any other trade

mark deceptively identical or similar to the respondent’s mark

and also to restrain the appellant from wrongfully selling the

product using the trade mark “Mambally’s Bakery”. The Trial

Court Signature Not Verified vide Order dated 04.11.2015 granted the interim Digitally signed by MAHABIR SINGH Date: 2019.07.25

injunction 17:40:46 IST Reason: and the same was served upon the appellant on

09.11.2015. In the said suit the Trial Court appointed an

advocate Commissioner who inspected the appellant’s shop on 2

07.11.2015 and submitted a report on 26,11.2015 wherein the

Commissioner stated that the appellant is conducting the bakery

and tea shop business and tea cakes and masala cakes are sold

using respondent’s trade mark “Mambally’s Bakery”. The

Commissioner has also pointed out that a big hoarding with the

name “Mambally’s Bakery” has been displayed in front of the

appellant’s shop. Based on the Commissioner’s report, upon

perusal of the averments made in the counter affidavit and also

hearing the parties, the Trial Court came to the conclusion

that there is a willful disobedience on the part of the

appellant and directed that the appellant be sentenced to

undergo imprisonment for one week. Being aggrieved, the

appellant has preferred appeal before the High Court which came

to be dismissed as aforesaid in para (2).

4. We have heard Mr. P.V. Surendranath, learned senior

counsel appearing for the appellant and Mr. P.B. Suresh,

learned counsel appearing for the respondent and also perused

the impugned judgment and materials on record.

5. By perusal of the impugned judgment and also the order of

the Trial Court, it is seen that the Commissioner has inspected

the appellant’s premises on 07.11.2015; whereas the interim

order was served on the appellant on 09.11.2015. On the date

of inspection i.e. 07.11.2015 the Commissioner has noticed that

all the tea cakes and masala cakes prepared were covered having

trade mark “Mambally’s Bakery”. Since the interim order was

served on the appellant only on 09.11.2015 whatever was noticed

by the Commissioner on 07.11.2015 cannot be in violation of the 3

interim order, much less willful disobedience.

6. At the request of the respondent, the Commissioner again

inspected the appellant’s shop on 20.11.2015. It is to be

pointed out that on his second visit, the Commissioner noted

that the sale of tea cakes and masala cakes prepared, were

without “wrappers/labels” meaning thereby that on the date of

second visit of the Commissioner the appellant was not using

the mark of the respondent “Mambally’s Bakery”. During the

second visit, of course, the Commissioner noted that the

hoarding “Mambally’s Bakery” was displayed in front of the

appellant shop was not removed. In this regard, the appellant

has offered his explanation stating that since the hoarding is

situated at height of 13 feet and also due to the scarcity of

the labour force, he could not immediately remove the hoarding.

Mr. P.V. Surendranath, learned senior counsel appearing for the

appellant, has submitted that the appellant is 40% disabled and

he was incapacitated from climbing up and removing the hoarding

by himself.

7. For finding a person guilty of willful disobedience of the

order under XXXIX Rule 2A C.P.C. there has to be not mere

“disobedience” but it should be a “willful disobedience”. The

allegation of willful disobedience being in the nature of

criminal liability, the same has to be proved to the

satisfaction of the court that the disobedience was not mere

“disobedience” but a “willful disobedience”. As pointed out

earlier, during the second visit of the Commissioner to the

appellant’s shop, tea cakes and masala cakes were being sold 4

without any wrappers/labels. The only thing which the

Commissioner has noted is that “non removal of the hoarding”

displayed in front of the appellant’s shop for which the

appellant has offered an explanation which, in our considered

view, is acceptable one.

8. In the facts and circumstances of the case, we do not find

any “willful disobedience” on the part of the appellant

warranting invoking Order XXXIX Rule 2A of the C.P.C. and

sentencing the appellant to one week civil imprisonment.

9. Accordingly, the impugned order is set aside and this

appeal is allowed. Since, O.S.NO.1 of 2015 is pending

consideration, the Trial Court shall proceed with the said suit

and dispose of the same as expeditiously as possible. We make

it clear that we have not expressed any opinion either on the

merits of the matter or the contentions raised by the parties.

There shall be no order as to costs.

..........................J. (R. BANUMATHI)

..........................J. (A.S. BOPANNA)

NEW DELHI, JULY 22, 2019.