Calcutta High Court
Ramji Lal Agarwal vs Sourav Agarwal on 12 March, 2025
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
G.A. No. 1 of 2023
With
G.A. No. 2 of 2023
In
C.S. No. 126 of 2023
Ramji Lal Agarwal
Versus
Sourav Agarwal
Mr. Sabyasachi Choudhury, Sr. Adv.
Mr. V.V.V. Sastry
Mr. Rahul Poddar
... For the plaintiff.
Mr. Ranjan Bachawat, Sr. Adv.
Mr. Anuj Singh
Mr. Sourojit Dasgupta
Mr. Shayak Mitra
Ms. Niharika Singh
Ms. Rupal Singh
Mr. Ashok Kumar Singh
... For the defendant.
2
Hearing Concluded On : 06.02.2025
Judgment on : 12.03.2025
Krishna Rao, J.:
1. The plaintiff has filed the present application being G.A. No. 1 of 2023
in CS No. 126 of 2023 for grant of interim order restraining the
defendant from carrying on any business using the trade name
“Sindharam Sanwarmal” with any prefix or suffix thereto, either at the
premises No. 43/44, Cotton Street, Kolkata -700 007 or at any area
within a radius of one kilometer thereof. The defendant has filed an
application being G.A. No. 2 of 2023 in CS No. 126 of 2023 for
dismissal of the suit.
2. The case of the plaintiff is that one Mangi Lal Agarwal, the father of the
plaintiff and grandfather of the defendant had established the business
of dry-fruits, spices, dry-vegetables and other products under the name
and style of “Sindharam Sanwarmal”. The said trade name acquired
substantial reputation and goodwill in the market of dry-fruits, spices,
dry-vegetables and other products.
3. The said Mangi Lal Agarwal had five sons and all have joined their
father in the family business under the name and style of “Sindharam
Sanwarmal & Co.” at 43/44, Cotton Street, Kolkata- 700 007. The sons
of Mangi Lal Agarwal and their respective families not only expanded
the family business but also set up and carried on similar business in
diverse places all over the India.
3
4. The said Mangi Lal Agarwal died on 2nd January, 2006 and his wife
died on 28th July, 2016. One of the sons of Mangi Lal Agarwal also died
on 4th February, 2016. On 13th January, 2017 in order to ensure that
all the five branches of the sons of the Mangi Lal Agarwal, can
effectively carry on business, using the said trade name and maintain
their own respective identity, a “Family Agreement” was executed
between the surviving heirs of the said Mangi Lal Agarwal.
5. Mr. Sabyasachi Choudhury, Learned Senior Advocate representing the
plaintiff submits that under the Family Agreement, the shops and the
godown wherefrom the family members of five branches carried on
business were clearly identified and a pattern of allotment of such shop
rooms to individual branches were agreed upon.
6. Mr. Choudhury submits that the plaintiff was allotted one shop room
on the ground floor (facing roadside) at premises No. 43/44, Cotton
Street, Kolkata – 700 007 with the business of dry-fruits, spices, dry-
vegetables and other products being carried out in the said premises
under the name and style of “Sindharam Sanwarmal”. He submits that
the father of the defendant, Mohan Kumar Agarwal died on 22nd
September, 2019. The father of the defendant was allotted one shop
room on the ground floor (facing roadside) at the premises No. 43/44,
Cotton Street, Kolkata- 700 007 wherefrom business of dry-fruits,
spices, dry-vegetables and other products was carried on in the name
and style of “Shree Hanuman Stores”.
4
7. Mr. Choudhury submits that from both the shop rooms under the trade
name “Sindharam Sanwarmal” and “Shree Hanuman Stores”, dry fruits
business were carried out. He submits that “Sindharam Sanwarmal &
Co.” has been registered with their logo under the Trade Marks Act,
1999 in the name of Gopal Agarwal and Smt. Rita Devi Agarwal (since
deceased), wife of Mohan Kumar Agarwal and the mother of the
defendant but it was always treated as family assets. He submits that it
was also agreed under the Family Agreement that all the branches will
be entitled to use the name of “Sindharam Sanwarmal” with either
suffix or prefix to identify their respective business.
8. Mr. Choudhury submits that acting upon the Family Agreement dated
13th January, 2017, the five branches separated their respective
businesses and carried on the same as separate individual businesses
from the shops rooms and godowns recorded and allotted to the
respective branch as per the family agreement. He submits that it was
clearly agreed and understood between the parties that each one of
them will be free to use the name “Sindharam Sanwarmal” with a prefix
and suffix to carry on their respective business but no one shall operate
any business with such name within one kilometer radius of the
existing shop room in terms of Clause 3 of the said agreement.
9. Mr. Choudhury submits that at the time of execution of the agreement,
two shop rooms were operated from the said same premises, one in the
name of “Sindharam Sanwarmal” and another was in the name of
“Shree Hanuman Stores”. The shop room having the Board of
5
“Sindharam Sanwarmal” was allotted to the plaintiff and “Shree
Hanuman Stores” was allotted to the father of the defendant. The two
shop rooms were the existing shop rooms under Clause 3 of the
agreement.
10. Mr. Choudhury submits that after the death of the father, the
defendant has started operating the shop which was initially with the
Board “Shree Hanuman Stores” as its trade name under the name and
style of Sindharam Sanwaramal with suffix “Mewawala”. He submits
that this is the violation of the provisions of Clause 3 of the Agreement.
11. Mr. Choudhury submits that the defendant is free to operate any shop
with the name “Sindharam Sanwarmal” and the suffix but not within
one kilometer radius from his existing shop room.
12. Mr. Ranjan Bachawat, Learned Senior Advocate, representing the
defendant submits that the goodwill to the trade name “Sindharam
Sanwarmal” is a coparcenary assets belonging to the joint family of
Mangi Lal Agarwal and three generations are entitled to the trade name
and goodwill attached to it by way of survivorship under the
Mitakshara School of Hindu Law to which Mangi Lal Agarwal belonged
to during his life time.
13. Mr. Bachawat submits that the plaintiff cannot claim his exclusive right
with regard to the mark “Sindharam Sanwarmal”. He submits that the
defendant is carrying on business of dry fruits with trade name
“Sindharam Sanwarmal Mewawala” for more than five years and also
6
obtained Goods and Services Tax Registration Certificate and the
Kolkata Municipal Corporation issued enlistment certificate in the
name of the defendant.
14. Mr. Bachawat submits that the plaintiff has waived his right by
permitting the defendant to carry out such business in the said
premises. He submits that the suit and the application filed by the
plaintiff, is at belated stage and the plaintiff is not entitled to get any
interim order.
15. Mr. Bachawat submits that when the agreement was entered into by
several members of the Agarwal family, the defendant was a major but
the defendant was not made a signatory to the said agreement. In
support of his submissions, Mr. Bachawat relied upon the judgment in
the case of M.N. Aryamurthy and Another vs. M.D. Subbaraya Setty
(dead) through LR and Ors. reported in (1972) 4 SCC 1 wherein it
was held that where one of the sons of the family is shown to have not
accepted or participated in the family arrangement, the family
arrangement as binding agreement between the several co-parceners
must fail.
16. Mr. Bachawat relied upon the judgment in the case of Kalyani (Dead)
by Lrs. vs. Narayanan and Ors. reported in 1980 Supp SCC 298
submitted that while expounding on the scope of a family arrangement,
held that for a family arrangement to be valid all members of the family
7
so affected by such arrangement must consent and acquiesce to the
same.
17. Mr. Bachawat submits that the shop room in question was never a joint
family property. It had not been allotted the defendant’s father under
the agreement. It was tenancy in the name of the defendant solely since
the year, 2014. He submits that the defendant despite his right, title
and interest in the aforesaid mark as well as the moveable and
immovable properties acquired by exploiting such mark, was not a
signatory to the alleged family agreement and was not privy to the
terms thereof at the time of its execution, the agreement or the terms
thereof could not be said to be binding on the defendant.
18. Mr. Bachawat submits that the plaint is silent as to when the cause of
action arose i.e. the date when the defendant purportedly set up
another shop within the radius of one kilometer of the existing shop
room and when the defendant allegedly permitted third parties to use
the aforesaid mark.
19. Mr. Bachawat submits that it is clear from the plaint that the plaintiff
is aggrieved by the alleged act of the defendant in granting franchise of
the trade name to a third party. He further submits that though the
agreement is named as “Family Agreement” but in Clause 8 of the
agreement clearly stated that the parties thereto shall have separated
in business and properties for all time to come from the date of these
presents. He submits that the agreement clearly indicates that the
8
agreement was in fact a commercial agreement to divide the family
business and the properties used to conduct it. He submits that the
dispute raised by the plaintiff in the suit as well as in the present
application is a commercial dispute covered under the provisions of
Section 2(1)(c)(i), (vii), (viii) and (xvii) of the Commercial Courts Act,
2015.
20. Mr. Bachawat submits that the defendant has been using the mark
“Sindharam Sanwarmal” along with the suffix “Mewawala” since 2017
and the plaintiff had the knowledge that the defendant is using the
aforesaid mark but the plaintiff chose not to take any steps against the
defendant till March, 2023. He submits that failing to take appropriate
steps within a reasonable time after it had come to knowledge of the
plaintiff that the defendant was using the said mark, the plaintiff
acquiesced to the said act of the defendant. In support of his
submissions, Mr. Bachawat relied upon the judgment in the case of
Chairman, State Bank of India and Anr. vs. M.J. James reported in
(2022) 2 SCC 301.
21. Mr. Bachawat submits that the plaintiff and other alleged parties to the
agreement have not taken any steps towards transfer of the properties
mentioned in the schedules or the said agreement was duly stamped or
registered. He submits that the plaintiff has not handed over of the
possession of the properties, namely, two godowns in favour of the
defendant. He submits that as per the provisions of Section 42 of the
Specific Relief Act, 1963, the plaintiff has failed to perform the
9
purported family agreement, the plaintiff cannot seek enforcement of
the negative covenants in the purported agreement against the
defendant herein. In support of his submissions, Mr. Bachawat relied
upon the judgment in the case of Enter Tech Entertainment Private
Limited vs. Blueair India Pvt. Ltd. reported in 2016 SCC OnLine Del
5507 and in the case of All India Tea and Trading Company
Limited vs. Loobah Company Limited reported in 2021 SCC OnLine
Cal 2917.
22. The first contention raised by the defendant that the family agreement
dated 13th January, 2017 is not binding upon the defendant as the
defendant is not the signatory of the said agreement though at the time
of execution of the agreement, the defendant was a major. In the first
paragraph of the agreement, it is categorically recorded that “which
expression unless excluded by or repugnant to the context shall include
his heirs, executors, administrators, legal representatives and assigns”.
In paragraph 17(f) of the affidavit-in-opposition, the defendant
stated that from the year 2017, the defendant started using and
adopted the mark “Sindharam Sanwarmal Mewawala” to trace the
goodwill of the business to his own family. It is further stated that the
word “Sindharam Sanwarmal” has been used by the members of the
defendant’s family for a considerable period of time and the defendant
being the part of the said family is entitled to use the mark honestly
and concurrently.
10
Mr. Bachawat has relied upon the judgment in the case of
Kalyani (Supra) and M.N. Aryamurthy (Supra). In the case Kalyani
(Supra), the Hon’ble Court referred the case of M.N. Aryamurthy
(Supra) wherein it is held that when one of the sons of the family is
shown to have not accepted or participated in the family arrangement,
the family arrangement as binding agreement between the several
coparceners must fail.
In the present case though the defendant has taken a specific
stand that the Family Agreement is not binding upon him as he is not
the signatory of the Family Agreement and at the time of execution of
the Family Agreement, the defendant was a major. On the other hand,
the defendant is enjoying the shop room on the ground floor at
premises No. 43/44, Cotton Street, Kolkata -700 007. It is also
admitted that earlier the said shop room was under the trade name of
“Shree Hanuman Stores” and only in the year 2017, the defendant has
started using and adopted the mark “Sindharam Sanwarmal
Mewawala”. In the Fourth Schedule of the Family Agreement, the said
shop room was allotted to the father of the defendant.
In the written notes of arguments, the defendant has also taken
the stand that the plaintiff has not handed over the possession of the
properties, namely, two godowns on the ground floor of the premises at
Sri Hariram Goenka Street, Kolkata – 700 007 and one room of the
second floor of the premises No. 2326/1 Tilak Bazar, Gulley Hinga
11
Begh, Delhi -110 006 as mentioned in the Fourth Schedule of the
Family Agreement to the defendant.
The defendant cannot say at one time that the Family Agreement
is not binding upon him and on the other hand, the defendant is taking
the benefit of the shop room allotted to his father in the Family
Agreement and also taking the plea that the other godowns as
mentioned in Fourth Schedule were not handed over to the defendant.
In the case of R.N. Gosain vs. Yashpal Dhir reported in (1992) 4
SCC 683, the Hon’ble Supreme Court held that law does not permit a
person to both approbate and reprobate. The principle is based on the
doctrine of election which postulates that no party can accept and
reject the same instrument and that “a person cannot say at one time
that a transaction is valid and thereby obtain some advantage, to which
he could only be entitled on the footing that it is valid, and then turn
round and say it is void for the purpose of securing some other
advantage”.
The judgments relied by the defendant are distinguishable from
the facts and circumstances as in the present case, the defendant is
enjoying the shop room in the ground floor which is one of the property
of Fourth Schedule given to the father of the defendant and the
defendant is also stated that the other godowns were not handed over
to him which are also in the Fourth Schedule property.
12
Considering the above, the stand taken by the defendant that the
Family Agreement is not binding upon the defendant does not stand.
23. The second issue raised by the defendant that the reliefs claimed by the
plaintiff is barred by limitation on the ground that the defendant is
using and adopted the mark “Sindharam Sanwarmal Mewawala” since
the year, 2017. The defendant has relied upon the License issued by
the Kolkata Municipal Corporation in the month of August 2017, G.S.T.
Registration Certificate, Enlistment Certificates renewed from time to
time, Food License granted by the Food Standards Authority of India
and Certificate of registration of the mark “Sindharam Sanwarmal
Mewawala”. The defendant has also relied upon the criminal proceeding
initiated by the plaintiff against the defendant under Section 144 of the
Code of Criminal Procedure, 1973 with regard to the Glow Sign Board
of “Sindharam Sanwarmal Mewawala”.
The defendant has relied upon the judgment in the case of
Saranpal Kaur Anand vs. Praduman Singh Chandhok and Others
reported in (2022) 8 SCC 401 wherein it is held that :
“29. We have denoted the ambit and
conditions of Section 17(1) of the Limitation Act,
which is to protect rights of a party defrauded from
lapse of time till he remains in ignorance of the
fraud, or with reasonable diligence could have
discovered the fraud. Section 17(1) does not assist
a person who merely shuts his eyes in spite of
circumstances requiring him to ascertain facts on
which he would have discovered the fraud. Section
17(1) of the Limitation Act saves rights of the party
defrauded from lapse of time as long as the party
is not at fault on his own account. In the aforesaid
factual background, it is apparent that the plaintiff
13was aware and had knowledge in October 2008
about execution and transfer of the ownership
rights in favour of late Tej Kaur vide sale deed
dated 23-8-1969 executed by Defendant 3, Gurdev
Singh Anand. Unadorned assertion in the plaint
feigning ignorance as to the sale deed would not
help, as in the facts as pleaded and accepted in the
plaint, the plaintiff was required to state and
indicate that ignorance was not due to failure to
exercise reasonable diligence.
30. In view of the aforesaid facts and position
of law, we dismiss this appeal and uphold the
judgment of the Single Judge and the Division
Bench of the High Court dismissing the suit as
being barred by limitation. We also affirm the
judgment of the Single Judge and the Division
Bench with regard to the dismissal of two
applications filed by the plaintiff for amendment of
pleadings under Order 6 Rule 17 of the Code,
namely, IAs Nos. 17994 of 2012 and 7590 of 2014
on the ground that when the suit itself has been
barred by limitation, amendments to such a suit
will be unnecessary.”
The judgment relied by the defendant is of two Judge’s Bench of
the Hon’ble Supreme Court and both the Judges have expressed
difference of opinion by two separate judgments and matter is referred
to the Hon’ble Chief Justice of India for appropriate orders/ direction.
The Hon’ble second Judge in her separate judgment held that:
“53. From the aforestated decisions of this
Court, there remains no shadow of doubt that a
plea of limitation cannot be decided as an abstract
principle of law divorced from the facts as in every
case the starting point of limitation has to be
ascertained which is entirely a question of fact. A
plea of limitation being mixed question of law and
fact cannot be decided as a preliminary issue
under Order 14 Rule 2(2).”
14
The plaintiff has relied upon the judgement in the case of Sarat
Chandra Mukherjee vs. Nerode Chandra Mukherjee and Others
reported in 1935 SCC OnLine Cal 16 wherein the Hon’ble Division
Bench of this Court held that:
“6. He held however that Article 32 would
apply where the defendant, while perverting joint
property from its specific common purpose, admits
the plaintiffs’ right to share the perverted user. But
that is not the case here. It was held that in suits
between co-owners inter se where the title of one is
denied by the other, Article 144 or Article 120
would apply according as the relief claimed is one
for possession or injunction. That was a case in
which the defendants encroached upon common
land by cultivating it as part of their holding so that
the plaintiff co-owner was prevented from
exercising a common right of way in the land.
Article 120, Limitation Act, was held to apply. In
that case there was no reference to Section 23 of
the Limitation Act, which lays down that:
“In the case of a continuing breach of
contract and in the case of a continuing wrong
independent of contract, a fresh period of
limitation begins to run at every moment of the
time during which the breach or the wrong, as
the case may be, continues.”
7. Section 3 of the Limitation Act, makes the
provisions of Sch. 1, Limitation Act, subject to the
provisions contained in S. 23, so that, if it can be
shown that in this case there is a continuing
wrong, a fresh period of limitation begins to run at
every moment during which the wrong continues.
8. It has been established that the plaintiff in
this case has a right to use the land on which those
sheds have been erected as a passage and that
those sheds are obstructing-his passage way. The
learned Judge has held that in these circumstances
there was a continuing wrong and in this he
appears to be correct. If authority is needed it is to
be found in the case referred to by the learned
Judge, 1923 Cal. 356 , a case similar to the
15
present case in which land reserved as a common
passage by long usage and agreement was
obstructed by the erection of a verandah to a
house. Such an obstruction, was found to be a
continuing nuisance relying on the principle on
which the Privy Council acted in 6 Cal. 394. Other
cases which have been referred to are (1) the case
of 1916 Cal. 733 in which it was held that
obstructions which interfere with a right of way are
in the nature of continuing nuisance as to which
cause of action is renewed de die in them so long
as the obstructions causing such interference are
allowed to continue; (2) the case of 1919 Cal. 807,
in which it was held that Section 23 of the
Limitation Act, had no application in case of a
Bowak or platform built over municipal land
inasmuch as the injury was complete in the
erection of the wall and the mere fact that the effect
continued could not extend the time of limitation.
But the real reason of the decision appears to have
been that the Bowak having been in existence for
50 years the municipality had lost their right to the
land on which it stood and there was therefore no
continuing wrong; (3) another case referred to is the
Full Bench case of 25 Bom. 644 , in which it was
held that a suit for restitution of conjugal rights
under Act 15 of 1865 was barred under Article 35,
Limitation Act, and Article 23 had no application.
Jenkins, C.J., held that even if the conduct of the
husband be regarded as a continuing cause of
action since Article 23 is general in its terms,
whereas Article 35 provides a special remedy and
where there is a repugnancy the special provision
should prevail. With all due respect to the learned
Chief Justice he appears to have left out of account
Section 3 of the Limitation Act, by which all the
Articles of Sch. 1, Limitation Act, are subject to the
provisions of S. 23. No doubt the effect of this
appears to be to nullify certain provisions of the
Limitation Act, but we have to take the law as it
stands and the learned Judges who concurred with
the decision recognized the difficulty caused by the
application of S. 23 of the Act.
9. Inasmuch as it was held that Section 23 of
the Limitation Act, Applies in this case, there is no
need to consider the Question of onus arising as to
the proof of the elapse of the full period of six years
under Article 120, Limitation act. We find that the
16
suit is net barred by Limitation and this appeal
must be dismissed with costs.”
The plaintiff relying upon the Family Agreement dated 13th
January, 2017, specifically Clause 3 of the said agreement wherein it
clarified that only the second party and fourth party can start only one
shop room each using trade name “Sindharam Sanwarmal” with some
prefix and suffix but no business shall be started with these names
within one kilometer of the existing shop room. The defendant
admittedly started using and adopted the mark “Sindharam Sanwarmal
Mewawala” within the radius of one kilometer from the existing shop of
the plaintiff. The issue raised by the defendant with regard to limitation
whether the defendant is using and adopted the mark “Sindharam
Sanwarmal Mewawala” in the year 2017 and the same was within the
knowledge of the plaintiff and the plaintiff allowed the defendant to use
the same without any objection in the matter of fact and the same
cannot be decided in the summary proceeding. The point of limitation
can be arises during the trial of the suit.
24. The defendant has raised an issue that the plaintiff himself breached
the Family Agreement dated 13th January, 2017 and thus, the plaintiff
cannot seek enforcement of negative covenant. It is the case of the
defendant that as per Clause 1 of the Family Agreement, the parties
agree and undertake that if necessary the party will register all
necessary documents, papers and deeds by giving effect to the
allotment in terms of the agreement but the same has not been done.
17
As per Clause 2, the concerned original deeds and papers of the
respective shares has not been handed over to the respective parties. It
is also the case of the defendant’s, the plaintiff has not handed over the
possession of the properties i.e. two godowns on the ground floor of the
premises at Sri Hariram Goenka Street, Kolkata – 700 007 and one
room on the second floor of the premises No. 2326/1, Tilak Bazar,
Gulley Hinga Begh, Delhi – 110006 in terms of the Fourth Schedule to
the defendant.
Section 42 of the Specific Relief Act, 1963 reads as follows:
“42. Injunction to perform negative
agreement.– Notwithstanding anything contained
in clause (e) of section 41, where a contract
comprises an affirmative agreement to do a certain
act, coupled with a negative agreement, express or
implied, not to do a certain act, the circumstances
that the court is unable to compel specific
performance of the affirmative agreement shall not
preclude it from granting an injunction to perform
the negative agreement:
Provided that the plaintiff has not failed to
perform the contract so far as it is binding on him.”
Mr. Bachawat has relied upon the judgment in the case of Enter
Tech Entertainment Private Limited vs. Blueair India Pvt. Ltd.
reported in 2016 SCC OnLine Del 5507 wherein the Delhi High Court
held as follows:
“22. It is apparent from the plain language of
the aforesaid section that it is only an enabling
provision, which enables a court at its discretion to
grant an injunction to enforce a negative covenant
even in cases where an agreement cannot be
specifically enforced; however, an injunction can
18only be granted where the petitioner has
established a good prima facie case and the
balance of convenience is also in his favour.
Further, in terms of the proviso to section 42, the
said section is applicable only when the plaintiff is
not in breach. In the present case, it is difficult to
accept that the petitioner was not in breach of the
Agreement since admittedly, the petitioner had
failed to pay for the goods supplied by the
respondent. Plainly, payment for goods is an
implicit obligation of a purchaser in a contract for
sale and purchase of goods, which is the substratal
subject of the Agreement. As indicated above, the
petitioner has not been able to establish a prima
facie case that the termination of the Agreement
was wrongful.”
In the case of All India Tea and Trading Company Limited Vs.
Loobah Company Limited reported in 2021 SCC OnLine Cal 2917,
the Coordinate Bench of this Court held that:
“19. Besides, relief at the interlocutory stage
would require a petitioner to establish a prima-facie
case and show that the balance of convenience is
in its favour and that irretrievable injury would be
caused to the petitioner if injunction is not granted.
Moreover, since accounts are being filed by the
respondent, the invasion is not such that
compensation in money would not afford adequate
relief to the petitioner.”
In the case of Gujarat Bottling Co. Ltd. and Others vs. Coca
Cola Co. and Others reported in (1995) 5 SCC 545, the Hon’ble
Supreme Court held that where a contract comprises an affirmative
agreement to do a certain act, coupled with a negative agreement,
express or implied, not to do a certain act, the circumstance that the
Court is unable to compel specific performance of the affirmative
agreement shall not preclude it from granting an injunction to perform
19
the negative agreement. This is the subject to proviso that the plaintiff
has failed to perform the contract so far as it is binding on him. The
Court is, however, not bound to grant an injunction in every case and
an injunction to enforce a negative covenant would be refused if it
would indirectly compel the employee either to idleness or to serve the
employer.
25. It is the case of the defendant that the defendant is using the word
“Sindharam Sanwarmal” because he is entitled to use such mark as he
is also the party of family. It is the case of the defendant that the
plaintiff is in collusion with other parties i.e. second and fifth party not
only siting on a larger share of the coparcenary property but the
plaintiff sought for only to enforce a portion of the purported family
settlement agreement which is beneficial to the plaintiff.
26. The plaintiff has filed the suit for mandatory injunction, perpetual
injunction and damages against the defendant. The plaintiff has filed
the suit on the basis of the Family Agreement dated 13th January,
2017. In the Family Agreement, altogether particulars of 26 properties
have been described. Five Scheduled properties have been mentioned
by allocating the shares of each party. The plaintiff is in the present
suit only concern with the Clause-3 of the Family Agreement. The
plaintiff has neither prayed for specific performance of the Family
Agreement nor has prayed for partition of the property. The plaintiff has
also not made all the parties to the agreement as party in the suit.
20
27. The plaintiff has filed the suit for mandatory injunction against the
defendant to perform the negative agreement in terms of Clause 3 of the
Family Agreement dated 13th January, 2017. Clause 3 of the Agreement
is in connection with three shop rooms either under the tradename
“Sindharam Sanwarmal” or with some suffix which has been allotted to
the first party, third party and fifth party and only the second party and
the fourth party can start only one shop room each using tradename
“Sindharam Sanwarmal” with some prefix or suffix. However, no
business shall be started with these names within one kilometer of the
existing shop room. It is the specific case of the plaintiff that the
defendant has been using the shop room on the ground floor at the
premises no. 43/44, Cotton Street, Kolkata – 700 007 in the name and
style of “Sindharam Sanwarmal Mewawala” by violating the terms and
conditions of Clause 3 of the Family Agreement.
28. The defendant has received the advantage of benefit of using the mark
and the shop room which is the part of Agreement. The defendant has
also made allegation that the plaintiff, Binod Kumar Agarwal, “second
party” and Gopal Agarwal, “fifth party” have not complied with their
obligation in terms of the Agreement. The defendant is using and
adopted the mark since 2017 within the radius of one kilometer from
the shop of the plaintiff. Before using the said name by the defendant,
the name of the business of the defendant was “Shree Hanuman
Stores”, thus considering all the aspects, it is prima facie ground that
the defendant is running his business in the premises under the name
21
and style of “Sindharam Sanwarmal Mewawala” in violation of Clause –
3 of the Family Agreement.
29. Section 2(1)(c)(vii) and (xvii) of the Commercial Courts Act, 2015 reads
as follows.
“2.(1) In this Act, unless the context otherwise
requires,-
(c) “commercial dispute” means a dispute arising
out of–
(vii) agreements relating to immovable
property used exclusively in trade or
commerce;
(xvii) intellectual property rights relating to
registered and unregistered trademarks,
copyright, patent, design, domain names,
geographical indications and semiconductor
integrated circuits.”
30. The defendant is running the business in the premises in question
under the name and style of “Sindharam Sanwarmal Mewawala”. The
only question raised by the plaintiff that the defendant cannot run the
business under the name and style of “Sindharam Sanwarmal
Mewawala” in the said place in terms of Clause 3 of the Family
Agreement. In the case of Ambalal Sarabhai Enterprises Limited vs.
K.S. Infraspace LLP & Anr. reported in (2020) 15 SCC 585 the
Hon’ble Supreme Court held as follows:
“37. A dispute relating to immovable property
per se may not be a commercial dispute. But it
becomes a commercial dispute, if it falls under sub-
clause (vii) of Section 2(1)(c) of the Act viz. “the
agreements relating to immovable property used
22exclusively in trade or commerce”. The words “used
exclusively in trade or commerce” are to be
interpreted purposefully. The word “used” denotes
“actually used” and it cannot be either “ready for
use” or “likely to be used” or “to be used”. It should
be “actually used”. Such a wide interpretation
would defeat the objects of the Act and the fast
tracking procedure discussed above.”
31. In the present case also the defendant is using the trademark
“Sindharam Sanwarmal Mewawala” and is exclusively using the said
premises for the purpose of business, thus, the case is totally covered
in Clause (vii) and (xvii) of Section 2(1)(c) of the Commercial Courts Act,
2015.
32. In view of the above, this Court finds that the suit filed by the plaintiff
is not maintainable before this Court. Accordingly, the plaint is
returned to the plaintiff with the liberty to file the same before the
appropriate court.
33. GA No. 1 of 2023 is dismissed. GA No. 2 of 2023 is allowed.
Consequently, CS No. 126 of 2023 is dismissed.
(Krishna Rao, J.)