* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 4406 OF 2009 IN FIRST APPEAL NO. 1792 OF 2009 IN S.C.SUIT NO.2405 OF 2008 1. M/s. Anupama Distributors, a partnership firm 2. Mr. K. Ananda Rao ........Applicants V/S. 1. M/s.Tilaknagar Industries Ltd ..........Respondent ----------- Mr. A.A.Kumbhakoni a/w. Mr.Rafeeq P. a/w. Thomas J.K. i./by. Vidhi Partners, adv.for appellants. Mr. Vijay Thorat Senior Counsel i/by. M/s.Khaitan & Jaykar, adv.for respondent. CORAM: SMT. R.P. SONDURBALDOTA, J. DATED :- 7TH DECEMBER, 2009. P.C. :- 1. This Civil Application is for stay of operation of the decree impugned in the present Appeal. The application is strongly opposed by the respondent. The applicants/appellants are original defendants to S.C. Suit No. 2405 of 2008 filed by the respondent in the Bombay City Civil Court. 2. A brief reference to the essential facts alleged by the parties is as follows * 2 * :- . The respondent-company carries on business of manufacturing Indian made foreign Liquor under the brand name Mansion House amongst other “ ” brands owned by it. The brand names of its products are registered under the Copy Rights Act and the Trade Marks Act. Appellant no.1 and Anupama Wine Distributors were the sole distributors of the respondent s products in the State ’ of Karnataka. The plaint does not indicate the date on which the contract of distributorship was arrived at between the praties. It only mentions that the association as such, of the parties, was of more than 10 years. The respondent alleges in the plaint that because of the illegal and fraudulent activities of the appellants, it terminated the business arrangement by issuing public notice in the newspapers Deccan Herald and Prajavani on 24 “ ” “ ” th August, 2007. The plaint is silent about any individual notice of termination sent to the appellants. More than a year thereafter i.e. on 17th September, 2008 the respondent file the suit herein contending that one of its employees while browsing through the internet happened to log on to the website of appellant no.1, and noticed that the website contained advertisement exhibiting the products of the respondent- company by name Mansion House . The plaint however, is devoid of material “ ” particulars of the name of the employee, the date on which he visited the website of appellant no.1 etc. It is further alleged in the plaint that apart from exhibiting the products of the respondent s company on the website, the ’ * 3 * appellants have also included the name of the respondent-company in its list ’ of clients. The plaint is once again silent as regards the particulars of the allegation. On the above pleadings, the respondent filed the above mentioned suit for injunction simplicitor to restrain the appellants from displaying the logo or name of the respondent-company or names of its products on the website or at any place and/or posing themselves as Distributors of the respondent- company. 3. About a month after the filing of the suit, the respondent presented a Notice of Motion for interim reliefs. It was sent for service upon the appellants at Bangalore, through courier. On 14th November, 2008 the appellants appeared before the court through Advocate Mr. Rafiq Moiuddin. The pleadings in Notice of Motion were completed by 31st January, 2009. However before that i.e. on 18th November, 2008 the learned advocate for the appellants made a statement at bar, that the appellants had already removed the name of the respondent company and its logo from their website. Later, on 3rd March, 2008 he made a statement before the court, that he would file an undertaking of the appellants in terms of the suit claim so that the Suit could be disposed off on the basis of the undertaking. The learned advocate appearing for the respondent conceded to this aspect. Resultantly, the Notice of Motion was adjourned with a direction to the appellants to supply a copy of the undertaking to the Advocate for the respondent, well in advance. However, despite two opportunities being given, * 4 * the appellants were unable to file the undertaking and the Notice of Motion came to be made absolute on 29th April, 2009. In the same order, the court recorded that the suit would proceed for hearing without written statement. Immediately thereafter, the respondent filed its affidavit of examination-in-chief under Order 18 Rule 4 CPC and the compilation of documents. The court proceeded to take on record all the 11 documents and marked them as exhibits. After adjourning the matter on a couple of occasions, due to absence of the witness of the respondent, the court on 27th July 2009 closed the evidence despite the continued absence of the witness and despite non-service of the affidavit of examination-in-chief upon the appellants. On the same day, the arguments were heard. On the next day i.e. on 5th August, 2009 the suit was decreed under Order 8 Rule 10 CPC in terms of prayers (a) and (b). 4. Mr. Kumbhakoni, the learned counsel for the appellants, submits that the the appellants have a good case on merits and therefore the impugned judgment and order should be stayed. He further states that the appellants have no desire whatsoever to display the logo of the respondent on their website and that the appellants had in fact stopped displaying the logo on their website from the very date of the termination of the agreement. This was informed to the court at the time of the hearing of the Notice of Motion. However, what is really hurting the appellants is the finding of the City Civil Court that the appellants have committed breach of the trade mark of the * 5 * products of the respondent and that their conduct also amounts to breach of copy rights of the products 5. Mr. Thorat, the learned senior counsel for the respondent, on the other hand comes out with a strong opposition submitting that the above submission of Mr. Kumbhakoni makes it obvious that the impugned decree does not cause any prejudice to the appellants and therefore they cannot be said to be aggrieved by it. Therefore, there can be no substance in the appeal. He further submits that grievance of the appellants as regards findings in the judgment cannot be subject matter of appeal. There can be no appeal from a mere finding in the judgment. In order to support his submission, Mr. Thorat refers to the provisions of Section 96 and Order 41 Rule 1 CPC and also decision of the of the Supreme Court in the case of Smt. Ganga Bai V/S. Vijay Kumar and Others reported in (1974) 2 S.C.C. page 393. In the said decision, the Apex Court has observed that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by Order 43 Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. After observing thus, the Apex Court considered the contention of the respondents before it on the maintainability of the appeal. It was contended by the respondents before the Apex Court relying upon a decision of Calcutta High Court in Harachandra Das V/S. Bholanath * 6 * Das reported in ILR (1935) 62 Cal 701 that though under the Code of Civil Procedure, there can be no appeal as against a mere finding, it has been the view of courts in India generally, that a party to the suit adversely affected by a finding contained in a judgment, on which a decree is based, may appeal ; and the test applied in some of the cases for the purpose of determining whether a party has been aggrieved or not was whether the finding would be res-judicata in other proceedings. The Apex Court considered the view of the Calcutta High Court, applied the test therein to the facts of the case before it and opined that the concerned finding could not operate as res-judicata. It held that the appeal before it was not maintainable even on the assumption that the High Court of Calcutta is right in its view that though under the Code there could be no appeal against a finding, yet on grounds of justice an appeal may lie “ ” against a finding provided that it would operate as res judicata so to preclude a party aggrieved by the finding from agitating the question covered by the finding in any other proceeding. As regards the view of the Calcutta High Court, it stated that it was not necessary to determine in that case, whether the view of the Calcutta High Court is correct. The Apex Court thus left this question open. In the circumstances, the decision cited by Mr. Thorat cannot be said to have laid down an absolute legal principle as regards an appeal against the finding. In the instant case, the finding of the trial court herein would operate as res-judicata and therefore the appellants would be seriously * 7 * prejudiced by the same. In any case, the decree in the instant case is also against the appellants. Therefore, there is no question as regards maintainability of the appeal. 6. Mr. Kumbhakoni, has also taken me through the respective cases of the parties on merits. He points out that the allegations in the plaint as regards the infringement of trade marks and copy rights is absolutely vague and without the necessary particulars. The allegations contained at para-5 read as follows :- 5. “ The plaintiffs state that the management of the plaintiff company were shocked and surprised to find out through one of their employees who happened to be browsing through the internet and who further happened to log on to the website of Defendant no.1 and see that the Defendant s’ website contains advertisements exhibiting the products of the plaintiff company such as Mansion House as one of the products distributed by “ ” them, however the plaintiff states that since 24-8-2007 the Defendants are no more distributors of any of the products of the Plaintiff company.” . He then draws attention to the evidence led by the respondent on the allegations of breach of copy rights or trade marks. The evidence is seen to be as vague as the pleadings. The copy of the affidavit of the examination-in-chief shows that the same is almost replica of the plaint. The deponent is one Dr. Keshab Nandy, the Senior Vice President (Legal & Human Resource) & Chief * 8 * Vigilance Officer of the respondent. He does not state to have visited the website of the respondent. The name of the person visiting the site continues to be a mystery. The deponent has no personal knowledge of the alleged act of breach. Therefore, his evidence may have to be discarded as hear-say. Therefore, according to Mr. Kumbhakoni the inference of infringement drawn by the learned Judge even in the absence of the appellants, is not justified and cannot be sustained. I find substance in the arguments advanced by Mr. Kumbhakoni. Though the final decision on these arguments will be at the time of final hearing of the appeal, the same are sufficient for the present purposes for considering the application for interim reliefs. At the same time, one cannot loose sight of the fact that the appellants are no more distributors of the respondent. Therefore, stay of the impugned judgment and order cannot mean that they are allowed to display the logo of the respondent on their website or represent themselves as distributors of the respondent. Mr. Kumbhakoni, states that, the appellants are ready to file an undertaking in the same terms as the decree. The undertaking tendered by Mr. Kumbhakoni is taken on record and marked `X . It is hereby accepted. The Civil Application is allowed in terms of ’ prayer clause (a). [SMT. R.P. SONDURBALDOTA, J]