Allowed

Skol Breweries Ltd. v. Fortune Alcobrew Pvt. Ltd. and 2 Ors.

Bombay HC1 Feb 2012CHS/158/2008

Case brief

AI extract

What is this about?

This judgment concerns a chamber summons for document inspection in a trade mark infringement suit. The court held that requests for general documents or historical board resolutions were fishing enquiries, but allowed inspection of specific sales figures and promotional expenses sought by the defendants.

What did the court decide?

The chamber summons is allowed to the extent of Item 11 of the Schedule, requiring inspection of sales figures and promotional expenses.

Skol Breweries Ltd. Vs Fortune Alcobrew Pvt… — Civil Procedure and Limitation | Bombay HC (2012)

chs158-08

vai

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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CHAMBER SUMMONS NO.158 OF 2008

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IN SUIT NO.3653 OF 2007

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SKOL Breweries Limited V/s.

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Fortune Alcobrew Pvt. Ltd. & Ors.

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....Plaintiff

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....Defendants

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Mr.H.W. Kane for the Plaintiff.

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Mr.S.J. Khera i/b S.J. Khera & Sucharita Patra for Defendant Nos.1 and 2.

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CORAM : S.J. VAZIFDAR, J. DATE : 1ST FEBRUARY, 2012.

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P.C. :-

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This chamber summons has been taken out by defendant Nos.1 and 2 for inspection of various documents enumerated in the Schedule to the chamber summons. Item 1 is only a general item requiring inspection of all the documents relevant and relied upon in the plaint. They are specified in the subsequent items.

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Items 2, 5 to 10 and 12 to 16 of the Schedule pertain to the papers and proceedings in various other suits filed by the plaintiff against other defendants. It is contended that the papers and proceedings are relevant as the plaintiff has relied upon the orders passed by the Courts in those proceedings in its favour and that the defendants desire to establish that those orders were obtained by

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misrepresentation by making false statements. Firstly, the orders passed in other matters, do not necessarily bind the defendants in this suit on question of fact. The defendants can always establish that the averments and submissions in this suit are false and that therefore, any finding in other orders do not bind the defendants. It is not open, in any event for this Court to question the correctness of the orders and judgments passed in other proceedings.

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The application for inspection of all the papers and proceedings in other matters appears therefore, to be a fishing enquiry. If during the course of the hearing, the papers and proceedings are required by the Court, the Court can always call for the same.

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Item 3 of the Schedule pertains to the documents referred to in the Deed of Assignment dated 27.5.2005. By the said Deed of Assignment, the mark which is the subject matter of this suit, was assigned in favour of the plaintiff. Pursuant thereto, the plaintiff made an application for being brought on record as a subsequent proprietor. The application has been granted by the Registrar of Trade Marks in an application under section 45. The registration certificate for use in legal proceedings has been produced. As far as the action for infringement is concerned that is all that is necessary. The other documents pertaining to the mark are referred to only to narrate the preceding facts.

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By the said Deed of Assignment, various other marks were also assigned. The plaintiff having been brought on record as a

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subsequent proprietor under section 45, the other documents referred to in the Deed of Assignment are not relevant. At the highest, such documents would be relevant, if any application is made for rectification of the register.

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The documents referred to in the Deed of Assignment therefore, are not relevant, at least as far as the hearing of the interlocutory proceedings are concerned.

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Item 4 of the Schedule refers to the resolution of the Board of Director of the plaintiff authorizing one Ms.Aroona Bonda, to institute the legal proceedings against the defendants. By a letter dated 2.2.2008, the plaintiff’s advocate recorded that the inspection of the original certified true copy of the resolution dated 17.9.2007 in this regard had been furnished to the defendants. The demand for the original book containing the board resolution is nothing but a fishing enquiry. There is nothing to indicate that the plaintiff, who has also issued a Vakalatnama in favour of its advocate does not stand by the said Ms.Aroona Bonda having instituted the proceedings in this behalf.

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In item 11 of the schedule, the defendants have sought particulars referred to in Exhibit “B” to the plaint together with details of the sales figures including the invoices during the years 1993 to 2004 and the particulars of the annual publicity and sale promotion expenses etc. allegedly incurred by the plaintiff.

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Mr.Kane states that the sales figures furnished in the plaint

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also pertain to the records of the plaintiff’s predecessor. He states that all the records may not be available.

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This is an action for infringement and passing off. If the plaintiff seeks to rely upon the sales figures and promotional expenses in respect of its claim for passing off, the plaintiff is bound to furnish inspection of the same, if demanded. The reliance upon a certificate of the Chartered Accountant to deny such inspection is not sustainable. Defendant Nos.1 and 2 are entitled to question the correctness of the figures/particulars.

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It is true that by an order dated 6.8.2009, I recorded the statement on behalf of defendant Nos.1 and 2 that the chamber summons be heard with Notice of Motion No.1 of 2008 and Notice of Motion No.537 of 2008 and that the said notices of motion may be heard irrespective of the outcome of this chamber summons. Despite the same, the plaintiff is put to notice that if it proceeds with the hearing of the notices of motion for injunction, without giving inspection of the documents/particulars sought in item 11 of the Schedule to the chamber summons, they do so at their own risk including that the Court may disregard the details of the sales figures and promotional expenses furnished in the plaint.

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Accordingly the chamber summons is allowed to the extent of item 11 of the Schedule thereto.

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No order as to costs.

Skol Breweries Ltd. v. Fortune Alcobrew Pvt. Ltd. and 2 Ors.

Case brief

What is this about?

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Skol Breweries Ltd. v. Fortune Alcobrew Pvt. Ltd. and 2 Ors.

Case brief

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