Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
MHCC010021612020
Presented on : 20/02/2020
Registered on : 20/02/2020
Decided on : 14/07/2022
Duration : Y M D
02 04 23
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
NOTICE OF MOTION NO.788 OF 2020
IN
COMMERCIAL SUIT NO. 919 OF 2021
(S.C.SUIT NO.367 OF 2020)
Shailesh Chedda,
Adult, Indian Inhabitant,
sole proprietor of M/s. Subham Hardware,
having it's registered address at Shop No. 85,
Shrusti Bldg. No. 155, Naidu Colony, Pant Nagar,
Ghatkopar East, Mumbai 75. ..Plaintiff
VERSUS
1. M/s. Santo Enterprises
a partnership firm registered under the
provisions of the Partnership Act, 1932 having
its registered address at 103, Silver Tower,
Niwati Road, Haji Bapur Road, Malad
East, Mumbai400 097.
2. Vikas Jain,
Adult Indian inhabitant,
Partner of M/s. Santo Enterprises
having his office address at 103, Silver Tower,
Niwati Road, Haji Bapur Road, Malad
East, Mumbai400 097.
-- 1 of 13 --
2
3. Bharat Kubadia,
Adult Indian inhabitant,
Partner of M/s. Santo Enterprises
having his office address at 103, Silver Tower,
Niwati Road, Haji Bapur Road, Malad
East, Mumbai400 097.
4. Zaha Hardware LLP, a Limited Liability
Partnership firm registered under the
provisions of the Limited Liability
Partnership Act, 2008, having it's
registered address at Wadibunder
Cotton Press Cp, Near Haji Kasam
Compound, P.D.Mello Road, Dockyard
Road(East), Mumbai 400 010.
5. Jainesh Deepak Gala,
adult, Indian inhabitant,
Partner of Zaha Hardware LLP,
having his address at 2202 Shanti
Heights, G.D.Ambedkar Road, Opp.
Wadala Udyog Bhavan, Wadala West,
Mumbai400 031.
6. Pinkesh Kantilal Gala,
adult, Indianinhabitant,
Partner of Zaha Hardware LLP,
having his address at 2101 Shanti
Heights, G.D.Ambedkar Road, Opp.
Wadala Udyog Bhavan, Wadala West,
Mumbai400 031.
7. Deepak Popatlal Gala,
adult, Indianinhabitant,
Partner of Zaha Hardware LLP,
having his address at 2102, 2202 Shanti
Heights, G.D.Ambedkar Road, Opp.
Wadala Udyog Bhavan, Wadala West,
Mumbai400 031.
-- 2 of 13 --
3
8. Kantilal Popatlal Gala,
adult, Indian inhabitant,
Partner of Zaha Hardware LLP,
having his address at 2101 Shanti
Heights, G.D.Ambedkar Road, Opp.
Wadala Udyog Bhavan, Wadala West,
Mumbai400 031. ..Defendants
__________________________________________________________
Ld. Advocate N.R.Majra for plaintiff.
Ld. Advocate Varsha Mahajan for defendant Nos.1 to 3
Ld. Advocate Sachin Mandlik along with Adv. Nishi Doshi i/b Mandlik
and Partners for defendant Nos.4 to 8.
___________________________________________________________
ORAL ORDER
(Delivered this on 14 th day of July 2022)
This Notice of Motion is taken out by plaintiff praying to
appoint a Court Receiver as per Order XL Rule 1 and Order 39 Rule 7 of
C.P.C. for taking search of the defendants' premises and for taking
custody of all the counterfeit goods.
Briefly stated, plaintiff's case is as under:
2. Plaintiff is the sole and exclusive distributor of MCM locks
within the territory of India. Plaintiff is entrusted with the responsibility
of preventing unauthorized sale and counterfeiting of MCM locks.
Defendant No.1 is a partnership firm. Defendant Nos.2 and 3 are the
partners of defendant No.1 firm. Defendant No.4 is a limited liability
partnership firm. Defendant No.5 to 8 are the partners of defendant
No.4 partnership firm. Defendants are selling MCM locks
unauthorizedly in India. They are selling counterfeit MCM locks.
Plaintiff received several complaints from various purchasers that
-- 3 of 13 --
4
counterfeit MCM locks are being sold in the open market.
3. In 2018, plaintiff noticed that demand for MCM locks is
suddenly fell down. Upon inquiry, plaintiff came to know that locks
manufactured by MCM company were being sold in the open market.
However, those locks were not purchased from plaintiff. Plaintiff's
representative Nikhil Chheda went to the retail shop where MCM locks
were being sold. He came to know that locks were substandard and
different from the locks which were distributed by plaintiff.
4. Plaintiff filed complaint with Dindoshi Police station
against defendant No.1. Police squad went to the godown of defendant
No.1. In the said godown, several locks were found without the outer
box and official packaging. During investigation by police, it was found
that defendant No.1 purchased those locks from defendant No.4. Police
also found that quantity of the locks found in the godown of defendant
No.1 was much more than the quantity of locks mentioned in the
invoices. Police released major stock of the locks. In order to verify the
genuineness of the locks, some sample locks were kept by the police.
Plaintiff made correspondence with export manager of MCM locks and
requested him to send the representative of the company for verification
of genuineness of MCM locks found in the godown of defendant No.1.
Export manager informed the plaintiff that packaging of the locks has
been modified and those locks prima facie did not appear to be MCM
products.
-- 4 of 13 --
5
5. Defendants are in possession of counterfeit goods. By
making all these averments, plaintiff prayed for appointing a Court
receiver under order XL Rule 1 and Order 39 Rule 7 of C.P.C. for taking
possession of the counterfeit goods.
6. Defendant Nos.1 to 3, by filing their reply affidavit,
strongly resisted the notice of motion. They submit that defendant No.1
has purchased the MCM locks from defendant No.4 in good faith.
Defendant No.1 is having all the bills regarding purchase of these locks.
They submit that plaintiff's representative entered in the premises of
defendants along with police without their permission. Police entered
into the premises of defendant Nos.1 to 3 illegally without any legal
order or warrant. Police carried out search and seizure without
following the due procedure of law. They have specifically denied that
locks were found without outer box and official packging. It is
submitted that plaintiff is making false allegations against defendant
Nos. 1 to 3. They are selling MCM locks which they have purchased
from defendant No.4 in good faith. By making all these averments,
defendant Nos.1 to 3 prayed to dismiss the notice of motion.
7. Defendant Nos.4 to 8, by filing their reply, and additional
affidavit of reply, also strongly resisted the notice of motion. They
submit that MCM company is a necessary party to the suit. Suit is bad
for non joinder of necessary party. Suit is barred by law of limitation.
Suit is filed on the basis of power of attorney dated 19/02/2019. Said
power of attorney is expired in February2020, therefore, plaintiff has
no locus to file this notice of motion. Plaintiff has not filed on record
-- 5 of 13 --
6
distributorship agreement. There is no material on record to show that
plaintiff is the sole distributor of MCM locks.
8. Defendant No.4 is a limited liability partnership firm. Since
the year 2008, one partnership firm by name 'Multiplus International'
along with a partnership firm by name 'Rohit Hardware' was in the
business of importing and distributing the locks including locks of MCM
in India. Multiplus International and Rohit Traders were importing
MCM locks from one Shama Traders, Dubai. Said fact was well known
to the firm, Arihant hardware, which was later on taken over by
plaintiff's proprietorship firmM/s. Subham hardware. In the year 2014,
defendant No.4 acquired the firms by name 'Multiplus International and
Rohit Hardware'. Defendant No.4 continued to purchase genuine MCM
locks from MCM company's distributor in Dubai. Defendant No.4 is
importing MCM locks officially in good faith. However, despite the
same, neither MCM company nor plaintiff commenced any legal
proceedings challenging the defendant No.4's authority to import and
distribute the MCM locks. Therefore, plaintiff's claim is hopelessly
barred by limitation.
9. Defendant No.4 has made heavy investments. It is lawfully
importing and distributing MCM locks in India. It has imported
genuine trade marked MCM locks. Averments in the notice of motion
regarding possession of counterfeit goods are vague. By making all
these averments, defendant Nos.4 to 8 prayed to dismiss the notice of
motion.
-- 6 of 13 --
7
10. Ld. Counsel appearing for plaintiff submits that plaintiff is
the sole distributor of MCM locks in India. MCM company has issued
letter dated 15/02/2019 in favour of plaintiff certifying that plaintiff is
the sole authorized/exclusive distributor of MCM locks in India.
Plaintiff noticed that his sale is reduced suddenly, therefore, he made
inquiry. Plaintiff made complaint to Dindoshi police station.
Defendants have not disputed that Dindoshi police has inspected the
godown of defendant No.1.
11. Ld. Counsel for plaintiff placed reliance upon legal notice
issued on behalf of defendant Nos.1 to 3 wherein it is mentioned that
defendant Nos.1 to 3 purchased MCM locks from defendant No.4.
12. It is further submitted that from the pleadings of defendant
Nos.1 to 8, it is clear that they are in possession of counterfeit MCM
locks. Defendant No.4 is claiming that it is importing MCM locks from
authorized distributor of Dubai since the year 2014. However,
defendants have failed to substantiate this contention.
13. Ld. Counsel appearing for plaintiff also drawn attention of
the Court towards the documents annexed with written statement of
defendant Nos.4 to 8 and submitted that those documents pertain to the
year 2016 and invoices are issued in the name of 'Rohit Hardware'. It is
further submitted that relying upon the documents submitted by
defendant Nos.4 to 8, it cannot be construed that defendant Nos.4 to 8
are legally importing MCM locks in good faith.
-- 7 of 13 --
8
14. Ld. Counsel for plaintiff further submits that appointment
of a Court receiver is necessary for taking possession of the counterfeit
goods. By making these submissions, plaintiff prayed for making an
appointment of a Court Receiver.
15. Ld. Counsel appearing for defendant Nos.1 to 3 submit that
Dindoshi police conducted raid at the premises of defendant No.1
without registration of FIR. There is no material on record to show that
Dindoshi police inspected the godown of defendant No.1 by following
due process of law. Defendant Nos.1 to 3 have purchased the goods in
good faith from defendant No.4. Appointment of a Court receiver is not
necessary. Plaintiff has not filed on record sole distributorship
agreement. Letter at Ex.A, annexed with plaint, cannot be considered
as a distributorship agreement. Plaintiff failed to establish prima facie
case, therefore, he is not entitled to the reliefs prayed in notice of
motion. By making all these submissions, Ld. Counsel for defendant
Nos.1 to 3 prayed to reject the notice of motion.
16. Ld. Counsel for defendant Nos.4 to 8 submits that suit is
filed in the year 2019. However, plaintiff has not pressed for notice of
motion seeking an appointment of a Court receiver immediately after
filing of the suit. Plaintiff is relying upon letter at 'Ex.A' annexed with
plaint. Said letter cannot be considered as a distributorship agreement.
Distributorship agreement requires stamp duty as per the provisions of
Maharashtra Stamp Act. Said document is not duly stamped, therefore,
as per Sec.34 of the Maharashtra Stamp Act, said document cannot be
relied upon. To buttress this submission, Ld. Counsel for defendant
-- 8 of 13 --
9
Nos.4 to 8 relied upon the case of N.N. Global Mercantile Pvt. Ltd.
V/s. Indo Unique Flame Ltd. and ors, MANU/SC/0014/2021, wherein
Hon'ble Supreme Court pleased to hold as under,
"In our view, there is no legal impediment to the enforceability of
the arbitration agreement, pending payment of Stamp duty on the
substantive contract. The adjudication of the rights and obligations under
the Work order of the substantive commercial contract would however not
proceed before complying with the mandatory provisions of the Stamp Act.
The Stamp Act is a fiscal enactment for payment of stamp duty to
the State on certain classes of instruments specified in the Stamp Act.
Section 40 of the Indian Stamp Act, 1899 provides the procedure for
instruments which have been impounded, and Subsection (1) of Section
42 requires the instrument to be endorsed after it is duly stamped by the
concerned Collector. Section 42(2) provides that after the document is
duly stamped, it shall be admissible in evidence, and may be acted upon."
17. Considered the submissions advanced on behalf of both the
sides. Plaintiff is praying for an appointment of a Court Receiver in
order to take possession of counterfeit goods.
18. Plaintiff claims that he has made report to Dindoshi police
station. On the basis of his report, police station officer of Dindoshi
police station inspected the premises of defendant No.1. Defendant
No.1 was found in possession of counterfeit MCM locks. However,
plaintiff has not filed on record report given to Dindoshi police station.
He has not also filed on record documents relating to search and seizure
conducted by Dindoshi police station. There is no material on record to
-- 9 of 13 --
10
substantiate plaintiff's contention regarding inspection of godown of
defendant No.1 by police station officer of Dindoshi police station. If
concerned police station officer visited the premises of defendant No.1,
by following due process of law, he might have conducted search and
seizure panchanama. However, no material is filed on record to show
that concerned police station officer followed the due process of law
and inspected the premises of defendant No.1.
19. Plaintiff relied upon his correspondence with Export
Manager of MCM company. By email dated 16/10/2019, export
manager of MCM company opined that packagings of the locks were
modified and he is doubtful if this is really MCM original
packing/products. Thus, concerned Export Manager also did not give a
specific opinion regarding samples sent to him.
20. As stated above, plaintiff claims that defendants are in
possession of counterfeit goods and he is seeking an appointment of a
Court receiver for taking possession of those counterfeit goods.
However, plaintiff has not filed suit for infringement of a registered
trade mark of MCM company. Plaintiff has not sought a declaration
that defendants are dealing with counterfeit goods. Plaintiff has prayed
for perpectual injunction restraining defendants from selling or
importing or distributing MCM locks. Plaintiff has filed suit on the
strength of one letter of distributorship issued by MCM company.
Plaintiff has attached one power of attorney given by company dated
19/02/2019 which was effective for a period of 12 months from
19/02/2019 only. Thus, on the strength of said power of attorney,
-- 10 of 13 --
11
plaintiff cannot claim any relief.
21. An appointment of a Court Receiver is one of the harshest
remedy provided under the law and ,therefore, it should not be lightly
resorted. Since, it deprives the opposite party possession of property
before a final judgment is pronounced, it should only be granted for the
prevention of a manifest wrong or injury. The very object of an
appointment of a Court Receiver is preservation of the property in
dispute pending a judicial determination of the rights of the parties. As
stated supra, plaintiff has not filed the suit for infringement of a
registered trade mark. He has not been authorized by MCM company to
file a suit for infringement of a registered trade mark. Therefore,
plaintiff would not be having prima facie legal right to make any claim
regarding counterfeiting of goods. Thus, plaintiff has failed to establish
a prima facie case for an appointment of a Court Receiver. Therefore,
considering the reliefs claimed in the suit, it would not be just and
proper to appoint a receiver for taking possession of counterfeit goods
as prayed by plaintiff.
22. Conspectus of above discussion, it is held that plaintiff is
not entitled for the reliefs claimed in the notice of motion. In the result,
following order:
ORDER
1. Notice of Motion No.788 of 2020 is dismissed.
2. No order as to costs.
-- 11 of 13 --
12
3. Notice of Motion No.788 of 2020 is disposed of accordingly.
(S. U. HAKE)
JUDGE,
Dt. 14/07/2022 CITY CIVIL COURT, GR.MUMBAI.
Dictated on : 14/07/2022
Transcribed on : 18/07/2022
Signed on : 22/07/2022
-- 12 of 13 --
13
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
22.07.2022 04.30 pm Tanushree C.Kamble
Name of the Judge HHJ Shri S.U.HAKE
(CR No.14)
Date of Pronouncement of
Judgment/Order.
14.07.2022
Judgment/order signed by P.O on 22.07.2022
Judgment/order uploaded on 22.07.2022
-- 13 of 13 --