- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION SHOW SHOW SHOW CAUSE NOTICE NO.1594 OF 2008 CAUSE NOTICE NO.1594 OF 2008 CAUSE NOTICE NO.1594 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.3234 OF MOTION NO.3234 OF MOTION NO.3234 OF 2008 OF 2008 OF 2008 IN IN IN SUIT SUIT SUIT NO.386 OF 2008 NO.386 OF 2008 NO.386 OF 2008 Dabur India Ltd. ...Plaintiffs vs. Bajaj Herbals Private Limited ...Defendant And Dwarkaprasad Gopiram Bajaj and others ...Respondent Dr.Virendra Tulzapurkar, Sr.Counsel a/w Pritesh Rajgor i/b PDS Legal for the plaintiffs Mr.Sanjay Kher a/w Bhagwati Trivedi, Bijal Trivedi, Pranjal Dave i/b Bhagwati & Co. for the defendant and respondents CORAM CORAM CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : DECEMBER 4,2008 : DECEMBER 4,2008 : DECEMBER 4,2008 P.C.: P.C.: P.C.: 1. I have heard the submissions of the learned senior counsel appearing for the plaintiffs. I have also heard the submissions of the learned counsel for the defendant and the respondents. 2. With a view to appreciate the submissions, it will be necessary to briefly refer to the facts of the case. In the suit filed by the plaintiffs, on a notice of motion No.475 of 2008 taken out by the plaintiffs, on 22nd January 2008, this court granted ad-interim relief. The Order dated 22nd January - 2 - 2008 reads thus : ". The plaintiff is the registered proprietor of the marks ‘MISWAK’ and ‘MESWAK’ in class 3 inter alia in relation to toothpaste, tooth powder and other oral preparations of the like nature. The defendants are using the same mark viz. MISWAK with the addition of the word ‘AJ’. A prima facie case of infringement has been made out. In paragraph 34 of the plaint it has been averred that an application has been made without furnishing a notice to the defendants since the goods are meant for export and the purpose of the application would stand defeated if exports are completed in the meantime. The Commissioner of Customs at JNPT and Mumbai have been impleaded as Respondents and consequential directions have also been sought against them. There shall be an ad interim order in terms of prayer clauses (b) and (d). . The Notice of Motion is made returnable in due course. . Liberty to the Defendants to apply for modification of the order with due notice to the plaintiffs." 3. Notice of motion no.3234 of 2008 was taken out by the plaintiffs alleging that the defendants and the respondents have committed breaches of the ad-interim order dated 22nd - 3 - January 2008. The first prayer in the notice of motion is for punishing the respondents in accordance with the provisions of Rule 2A of Order XXXIX of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code) for committing and/or aiding and abetting in committing the contempt of this court. The second prayer in the notice of motion is for striking out the defence of the defendant in the suit by exercising power under section Rule 11 of Order XXXIX of the said Code. The third prayer is for appointment of the Court Receiver. 4. The case made out by the plaintiffs in the affidavit in support is that a copy of the order dated 22nd January 2008 was served to the defendant on 4th February 2008 as well as on 14th March 2008. The case of the plaintiffs is that it was learnt from the Manager of its subsidiary company in Dubai (United Arab Emirates) that the defendant had participated in the Gulf Beauty Competition held in Dubai and had exhibited Tooth paste with the trade mark ‘BAJAJ MESWAK’. It is contended that the plaintiffs further learnt that the product of the defendant which is being exported by the defendant is being marketed in the United Arab Emirate by an associate company of the defendant. It is alleged that the three associated companies had placed an order with the defendant for six containers of the toothpaste to be manufactured by the defendant under the trade mark ‘BAJAJ MESWAK ’. Reliance has - 4 - been placed on notice dated 13th June 2008 sent by the Advocate for the plaintiffs to the defendant pointing out the breaches committed by the defendant of the order dated 22nd January 2008. By the said notice, the defendant was called upon to forthwith desist from manufacturing/marketing/exporting toothpaste manufactured by the defendant with the impugned trade mark "BAJAJ MESWAK’. The said notice was replied to by the defendant by letter dated 18th June 2008. The case made out in the said reply was of denial. It was contended in the said reply that the allegations made in the said notice issued by the plaintiffs are false and vexatious. 5. The said notice of motion no.3424 of 2008 came up before this court on 25th September 2008. This court passed an order recording a primafacie opinion that a case made out for issuing a show cause notice in terms of prayer clause (a) of the notice of motion. As stated earlier, the prayer clause (a) of the notice of motion is for punishing the defendant and the respondents in exercise of the power of this court under Rule 2A of Order XXXIX of the Code of Civil Procedure,1908 for committing wilful breach of the order dated 22nd January 2008 passed on the notice of motion taken out by the plaintiffs. 6. A reply has been filed to the said show cause. Apart from raising other contentions, in the said reply filed by the 2nd - 5 - respondent, unconditional apology has been tendered. It is sought to be contended in the reply that the correct interpretation of the order dated 22nd January 2008 was not earlier appreciated by the defendant and therefore, the act alleged in the affidavit in support was inadvertently committed. It is stated that the swift and immediate action was undertaken by the defendant by ceasing all the business activities as regards the trade mark ‘BAJAJ MESWAK’. It is stated that since 9th September 2008, web page relating to ‘BAJAJ MESWAK’ has been removed. An unconditional apology has been tendered by the 2nd respondent on behalf of the defendant. 7. The learned senior counsel for the plaintiffs invited my attention to the averments made in the affidavit in support of the notice of motion no.3234 of 2008 and the annexure thereto. Inviting my attention to the annexures to the affidavit in support and especially Exh.B, E and F, he submitted that this is a case of a gross breach of order of this court on the part of the defendant and the respondents. He invited my attention to the reply dated 18th June 2008 sent by the Advocate for the defendant to the Advocate for the plaintiffs in which the allegations made by the advocate for the plaintiffs regarding breach committed by the defendant have been denied. He pointed out that the case made out in the reply to the show cause notice is that the order of this court was not properly - 6 - interpreted and understood by the defendant. He submitted that considering what is stated in the aforesaid reply to the notice and the stand taken in the reply in the notice of motion, the apology offered by the respondents does not appear to be bonafide and therefore, the same cannot be accepted in view of admitted breaches committed by the respondents. 8. The learned counsel for the defendant/respondents submitted that the defendant and the respondents have tendered unconditional apology to this court in the affidavit in reply. He pointed out that the breach alleged is of an ad-interim order passed by this court which is an exparte order. He submitted that before deciding the show cause notice, the notice of motion will have to be heard finally. He invited my attention to the various averments made in the reply filed by the 2nd respondents and submitted that after correctly understanding the order, prompt steps have been taken to ensure the implementation of the order passed by this court. He invited my attention to the various parts of the reply including clauses a, b, c, e, o and p of paragraph 2 of the reply. He submitted that no action is called for against the respondents. 9. I have carefully considered the submissions. The plaintiffs’ case is based on alleged breach committed by the defendant and the respondents of this court’s order dated 22nd - 7 - January 2008. The action, if any, which can be taken against the contemnors is always a matter between the court and the contemnors. Primafacie, it does appear to me that the action complained of on the part of the defendant amounts to breach of ad-interim order dated 22nd January 2008 passed by this court. It is true that the defendant came out with a case of complete denial in reply dated 18th June 2008 issued to the notice of the Advocate for the plaintiffs. However, it will be necessary to refer to the reply filed to the show cause notice by the 2nd respondent. Clause (a) of the paragraph 2 of the said reply reads thus : 2(a).With reference to paragraph 13 of the affidavit-in-support, I say that despite the plaintiffs not having adduced any evidence, the defendant admits the allegation therein and says that toothpastes bearing the mark BAJAJ MESWAK were manufactured and exported to Morocco. I say that the transgression has occurred as a result of my misreading and misinterpreting the impugned Order. I have now sought legal advice and have been advised that although the impugned Order of this Hon’ble Court, dated 22nd January 2008, clearly and expressly prevents the manufacture and export of toothpastes bearing the mark TAJ MESWAK; the said order also interalia prevents (for export) use of the mark MESWAK in combination with any other word. I say that this I say that this I say that this - 8 - interpretation interpretation interpretation of the said order was earlier not of the said order was earlier not of the said order was earlier not appreciated appreciated appreciated by the defendant and consequently the act by the defendant and consequently the act by the defendant and consequently the act alleged alleged alleged in paragraph 13 of the affidavit-in-support was in paragraph 13 of the affidavit-in-support was in paragraph 13 of the affidavit-in-support was inadvertently inadvertently inadvertently committed. For this act of transgression, committed. For this act of transgression, committed. For this act of transgression, I on behalf of the defendant, tender an unreserved and on behalf of the defendant, tender an unreserved and on behalf of the defendant, tender an unreserved and unconditional unconditional unconditional apology to this Hon’ble Court and also apology to this Hon’ble Court and also apology to this Hon’ble Court and also undertake undertake undertake to ensure that there is no further to ensure that there is no further to ensure that there is no further transgression, transgression, transgression, in any manner whatsoever, of any order of in any manner whatsoever, of any order of in any manner whatsoever, of any order of this this this Hon’ble Court. I say that the defendant is a Hon’ble Court. I say that the defendant is a Hon’ble Court. I say that the defendant is a reputed reputed reputed and honourable member of the business community and honourable member of the business community and honourable member of the business community and and and holds this Hon’ble Court in the highest esteem and holds this Hon’ble Court in the highest esteem and holds this Hon’ble Court in the highest esteem and would would would not do any act which would undermine its authority not do any act which would undermine its authority not do any act which would undermine its authority and and and majesty. majesty. majesty." (Emphasis added) 10. In clause (b) of paragraph 2, it is pointed out that the order of this court was promptly acted upon by immediately ceasing the business/commercial activities in connection with toothpaste TAJ MESWAK. In clause (c) of the paragraph 2 it is stated that the web page of the defendant relating to the toothpaste bearing mark BAJAJ MESWAK has been removed from the web-site with effect from 9th September 2008. Reliance has been placed on the letters dated 5th April 2008 and 8th September 2008 (Exh.B and C to the reply). Perusal of the reply shows that the 2nd respondent has repeatedly offered unconditional apology. - 9 - 11. When a query was made by the court to the learned senior counsel for the plaintiffs as to whether any further breaches has been committed by the defendant after the show cause notice was issued, on instructions, he stated that to the knowledge of the plaintiffs, no such breach has been committed. 12. Taking overall view of the matter, it is not possible to accept the submission of the learned senior counsel for the plaintiffs that the apology offered by the defendant and the respondent by filing a reply is not bonafide. It is well settled law that the power of this court to punish for contempt either under the Contempt of Courts Act,1971 or Article 215 has to be exercised sparingly. Moreover, in this case, this court is dealing with a case of breach of ad-interim order which was passed by this court on a notice of motion taken out by the plaintiffs. Ad-interim order itself records that the plaintiffs were permitted to make an application for ad-interim relief without service of notice to the defendant. 13. It is true that there is prima facie material on record to show that the order of this court was not immediately implemented by the defendant. The case made out by the defendant is that after fully understanding of the order, - 10 - prompt action has been taken and no further breaches have been committed. Considering all the aforesaid aspects, this is not a case where a punitive action can be taken against the defendant and the respondents. Therefore, proceedings of show cause notice deserve to be dropped by accepting the apology. 14. However, due to default on the part of the defendant, the plaintiffs were forced to file a notice of motion complaining about the breaches committed by the defendant. Therefore, the defendant and respondents will have to pay costs to the plaintiffs. The amount of costs is quantified at Rs.20,000/-. 15. Hence, I pass the following order : i) The apology tendered by the respondents is accepted. ii) The proceedings of the show cause notice are dropped. iii) The defendant and the respondents are directed to pay costs of Rs.20,000/- to the plaintiffs within a period of four weeks from today. JUDGE JUDGE JUDGE