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Imperial Tobacco Co. Versus Albert Bonnan

1927 (1) TMI 1 - CALCUTTA HIGH COURT

Dated:- 21-1-1927 - Rankin, C.J. and Charu Chander Ghose, JJ. JUDGMENT Rankin, C.J. 1. This suit was instituted in January 1925 for the recovery of about seven and half lakhs of rupees as damages for a variety of acts done by the defendant company. It was stated in the plaint that no part of the cause of action arose before February 1922. 2. The plaintiff towards the end of 1921 bought a large quantity of Gold Flake cigarettes on the terms that they should not be sold in Great Britain. The goods .....

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rt of a very large number of cigarettes which had originally been intended for troops but which were now being disposed of. They had been manufactured by the British American Tobacco Company Limited itself and were thus-genuine Gold Flake cigarettes and not counterfeit. The plaintiff bought them cheap at eight or nine shillings per thousand. 3. His case is that he contracted to buy 860 cases being 21 1/2 million cigarettes, that he disposed of some (apparently 194 cases) in Egypt and elsewhere, .....

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latter company holding at least 80 per cent of its shares. The defendant company had in 1910 acquired the business and trade-mark rights of the British American Tobacco Company Limited so far as India, Burma and Aden are concerned. For years it alone had been selling Gold Flake cigarettes in India and its price to dealers was ₹ 66 per thousand. It obtained its goods from the British American Tobacco Company in Great Britain though it had itself the right to manufacture. It sold fresh goods .....

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y well for himself and if he could continue so to do he would do very well indeed. There were, however, at least two danger spots. So long as the public would regard his merchandise as good Gold Flake cigarettes they would prefer his article because of the price. But old cigarettes do not "stand up to the monsoon" so well as might be wished and when once the tin-lined case was opened, if not before, there was certain to be deterioration after June. That was one risk. The second was thi .....

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1922 with samples sold no less than 220 cases to a Bombay firm Messrs. Irani Hormuz Sheriar & Company at ₹ 23-8-0 per thousand. His counsel on this appeal has referred to the correspondence passing between the offices, of the defendant company at Calcutta and Bombay and between them and their London advisers as showing that he was "tearing their trade in Gold Flake cigarettes to shreds." It seems to me that at first the defendant company's advisers in India did not appre .....

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could. He knew all about the defendant company's trade-marks and in a matter of this sort and of this importance it was most reasonable to take advice in London. It was after all a question of trade-marks law and Mr. Macnaghten was their legal adviser. It seems idle to suggest that the plaintiff has a grievance because the defendant company took advice from him. 7. The defendant company decided to take steps to establish that the plaintiff's scheme was an invasion of their rights. They t .....

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k. 8. Indemnity bonds were given to the Collectors in the usual course and letters written to the plaintiff asking for an assurance that the goods would not be sold in India and threatening legal proceedings to restrain this. Matters really stood over to abide the result of an interview between the plaintiff and the defendant company's directors which took place on the 8th May. Suits were filed by the defendant company in Calcutta on 11th May and in Bombay on 22nd May. On 2nd May 1922 the Co .....

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king what they had to say. On 11th May an interim injunction had been obtained from the Court. From an order recorded by the Collector upon another matter - the assessment of the plaintiff's cigarettes for duty - we know exactly how he dealt with the case. He was under no misapprehension as to the fact that the plaintiff's goods, had been manufactured by the British American Tobacco Company and were in that, the ordinary sense, genuine, but he thought there was a prima facie case far hol .....

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e Indian Merchandise Marks Act, 1889. 10. Any detention in Calcutta after 11th May was by virtue of the interim injunction of that date. The detention under the Sea Customs Act was from 1st to (say) 7th May in Bombay and from 12th April to 11th May in Calcutta. 11. The chief importance of this matter lies in the fact that the learned Judge thinks that the defendant company, in applying for detention of these goods under the Sea Customs Act, were acting maliciously. It is clear that the facts as .....

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d that there do not appear to be any regulations under Section 19-A, Sea Customs Act, but proceedings of the character now in question are governed in practice by certain "instructions for the observance" of Customs officers published under authority of the Government of India in the Merchandise Marks Manual. 13. As I read these instructions they provide that if the "informant" is willing to give an indemnity bond the Collector, unless he is of opinion that there is clearly n .....

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not apply. Section 24, Limitation Act does not assist the plaintiff here if only because it is impossible to hold that the special damage flowing from these detentions in May and June 1922 did not result before the end of that year. The only contention therefore which need be referred to is that urged upon us by the plaintiff's counsel that Article 49 applies because though the detention was by the Collectors nevertheless the defendant company moved them to detain and are responsible for th .....

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This is what is contemplated by the concluding words of the first and third columns of Article 49. But this cannot possibly be predicated of the defendant company who never had possession of the goods. I think, therefore, that the learned Judge was right in holding that this cause of action is time barred under Article 36. 15. The defendant company filed two suits against the plaintiff one in this Court and one in the High Court of Bombay. The Calcutta suit was filed on 11th May 1922 and an inte .....

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suggestion of any false statement or suppression made by the defendant company on this occasion. Indeed on asking to be referred to the affidavits I am informed that they were not even put in evidence in the present case. The suit came on for hearing promptly. It was heard by the same learned Judge whose decree in this case is now under appeal and was dismissed by him on 18th July 1922. An appeal to this Court was dismissed on 10th April 1923 : Imperial Tobacco Co. v. Albert Bonnan AIR1924Cal21 .....

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arrive in Bombay and the defendant company undertook in damages. The plaintiff's undertaking not to sell was discontinued by order of the Court on 2nd August 1922 (soon after the Calcutta suit had been dismissed by the trial Judge) on his agreeing to keep an account, and this undertaking to keep an account came to an end by order of 20th September 1923 (by which time the appeal in Calcutta had been dismissed). The suit was abiding the result of the Calcutta case and the appeals therein, and .....

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damages, he can in these circumstances recover damages in respect of the Calcutta injunction and of his own undertaking not to sell given to the Bombay Court. It has further been maintained on his behalf more particularly on the authority of Bhut Nath v. Chandra Binode [1912] 16 C.L.J. 34 that so far as the Calcutta injunction is concerned, the obtaining of it was an act in the nature of trespass to property and it is not necessary for the plaintiff to prove malice or any want of probable cause .....

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ause, a plaintiff can recover damages in an independent suit (and apart from any undertaking given by the defendant) upon mere proof that an injunction was granted to restrain him from doing what has since been held to be within his rights - this too is a proposition I dissent from. It is to be found in the case cited but it proceeds upon a misunderstanding of such cases as Clissold v. Cratchley [1910] 2 K.B. 244 which are cases where trespass was committed and the defendant unsuccessfully set u .....

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bond or selling or disposing of 100 cases of cigarettes then lying with the Customs, the defendant company gave an express undertaking in damages. This was an undertaking to the Court and the character of such an undertaking has been discussed in the case of Smith v. Day [1883] 21 Ch. D. 421. It is not such an undertaking as amounts to contract with the other party, nor does it ground any action at common law. It is to be enforced by application to the Court to which it was given and in the sui .....

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that his opponent suppressed material facts or otherwise obtained the injunction by improper means : Griffith v. Blake [1884] 27 Ch. D. 474. In the present case the plaintiff before taking action waited until the defendant company's appeal has been disposed of by the Privy Council but he commenced this suit promptly thereafter. This in substance satisfies the general rule that the Court ought to be asked to enforce the undertaking within a reasonable time after it is ascertained that the inj .....

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dealt with by the same Judge. Where an independent suit is necessary a mere application may have to be dismissed; but where the plaintiff has adopted a more formal and elaborate procedure than he should have adopted in applying to the correct Court, no lack of jurisdiction is involved and the question becomes one of costs and of discretion. If the plaintiff had launched an application in the previous suit and asked that it should stand for hearing until the matter had been finally decided in app .....

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t B and without suppression of facts, misstatements or other improper means, obtains an interlocutory injunction, an action will lie at common law for the damage done to his business by the injunction. But I think it right to say that this proposition is one to which I refuse assent. I respectfully agree with the observations of Fletcher J. in Mohini Mohan v. Surendra Narain [1914] 42 Cal. 550 and with the decision in that case. It is the duty of a Judge before granting an injunction to satisfy .....

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to prove what was laid before the Court or that it contained any element of falsity. The granting of an injunction is a judicial act in the fullest sense : it is not a ministerial order or an order of course or mesne process or a necessary incident of any particular jurisdiction. The Quartz Hill case [1883] 11 Q.B.D. 674 is not really directed to the present question but to the question whether a plaintiff has a cause of action from the mere bringing of a suit or other proceeding. I observe tha .....

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ul perusal of the learned Judge's argument in criticism of what Martin B. said in Johnson v. Emerson [1817] 6 Ex. 329 leads me to think that this is a misunderstanding of what he said. His point is that damage to credit results from the mere present action of a bankruptcy petition and that Martin B. has failed; to notice this special feature of that kind of petition. Of the proposition imputed to him I think it quite likely that he would have thought as of Martin B's doctrine - its fault .....

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sons already given I think, however, that it is within our power to make an order such as would have been more properly asked for by an application in a previous suit. But as a large body of evidence has been taken in this case and as the plaintiff has sought the judgment of the Court as to the amount of damages to which he is entitled, I propose that in ordering the inquiry this Court should give a decision upon one important matter for the guidance of the officer conducting the inquiry. I refe .....

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to sell in Bombay have not been shipped to India, but in Ex. O. as the summary of his claim which the learned Judge has acted upon, he definitely states of these 160 cases also that they were cancelled by sellers in England. Now it appears that the cancellations relied upon are cancellations made by the plaintiff himself and not by his sellers. On the 17th May 1922, he wrote to Messrs. Venis and Company: Regarding my order of the 21th December for five million cigarettes, I very much regret to .....

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njunction brought against me by the Imparial Tobacco Co. in India, I am restrained from importing these goods and they have commenced proceedings against me. Therefore I regret I cannot accept your kind proposition. Thanking you for the same. 26. This is said to refer to six million cigarettes. Now the Calcutta injunction was granted ex parte on the 11th May and referred only to 100 cases then lying with the Customs. The injunction was dissolved on the 8th June. As I understand the reasoning of .....

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junction; as to the 100 cases in Calcutta, the plaintiff did not even wait to see what view the Court would take when he appeared to put his case before it. The Court in fact dissolved the injunction on the 8th June. The plaintiff's conduct may well have been reasonable in the sense that he now saw that he was involved in litigation about questions of "trade mark" law or by reason of the fact that he was not prepared to peril too much upon his chances of success. His claim that the .....

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do not doubt that the agents of the defendant company informed their customers in the trade and the persons whom they employed to canvass for orders, of the facts that they had started these proceedings. I do not doubt either that some dealers refused to buy the plaintiff's goods because they did not wish to offend the defendant company : others because the defendant company would refuse to deal with them or to deal with them on the same favourable terms as before; others because they antic .....

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trouble to others as an obstruction to the plaintiff and as a deterrent. 28. He has further held that the suits were throughout designed as a disparagement of the plaintiff's goods and an obstruction to the unfettered exercise of his rights as a trader, of which I have no doubt the company made the fullest use the whole time of the litigation lasted and whenever occasion so required. 29. These observations of the learned Judge are to be coupled with his finding that the defendant company wer .....

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ny were certainly entitled, if they chose, to protect themselves by refusing to deal at all with any person who sold the plaintiff's goods. This complaint may be put upon on one side. The rest of this formidable indictment may, 1 think, be examined under two heads. The first head is the bringing of the suits; the second is the question of threats. As regards the bringing of the suits I. think the relevant authorities are Savile v. Roberts [1697] 1 Ld. Raym. 374 and the Quartz Hill case [1883 .....

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secution of a civil suit two main questions emerge. The first questions is the leading element in the Quartz Hill case [1883] 11 Q.B.D. 674. That question is a question of the remoteness of the damage. The mere institution of the proceedings may, having regard to their character, involve damage to credit or reputation, damage to property in the sense that the defendant is put to expense, or damage to the person in the sense that he is liable to arrest. In such cases that damage is not remote but .....

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ar to the actions of the present day, has been considered to justify a subsequent action on the ground that it was brought maliciously and without reasonable and probable cause. Quartz v. Hill case [1883] 11 Q.B.D. 674. 32. Lord Bowen in saying this had clearly before his mind that incidentally matters connected with the action, such as the publication of the proceedings in the action, may do a man an injury; and Brett, M.R., in deciding that a petition to wind up a company was within the except .....

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hich arises in cases of this sort is as to what is meant by malice. When we turn from criminal prosecutions to civil cases special consideration is here necessary. A prosecutor has no right to employ the process of the criminal Court save for the purpose of vindicating public order and justice. If there is no reasonableness in his charge that of itself raises at least a suggestion that he is acting from some other motive and that he is serving some private end in an oblique and improper manner. .....

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vited to do things which it would be most unreasonable for them to do. When two people are competing for the same market success on the part of the one necessarily involves injury to the other except indeed the market be capable of expansion so as to admit them both. Holt, C.J., in Savile v. Roberts [1697] 1 Ld. Raym. 374, in dealing with the second "objection," gives this answer: There is a great difference between the suing of an action maliciously and the indicting of a man maliciou .....

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rious in fact is certain, though the authorities leave it in doubt whether, under any circumstances, the person so sued can recover damages for the vexation and annoyance caused to him by the false suit. 36. He refers to the case reported in Maynard's Long Quinto that for bringing a suit manifestly wrongful, to the defendant's own knowledge, an action might be maintained. 37. He refers to a case of Sir G. Gerard v. Dickenson [1590] 4 Co. Rep. 18a where the defendant had brought a suit al .....

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se before him was one in which the defendant had warned persons who had purchased or were intending to purchase machines from the plaintiff, that the machines sold by the plaintiff were infringements of the defendant's patents and that if they used the machines, he would claim royalties and should take legal proceedings. The actual decision was a s follows: If, therefore, the plaintiffs had given evidence, on which the jury might properly find that the defendant made the communication to the .....

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are inclined to think that it would have been proper to leave that evidence to the jury in support to the plaintiff's allegation that the defendant's letter was false and malicious. 39. In the judgment of Lord Cave, L.C., in Sorrell v. Smith [1925] A.C.700, it is stated in effect that there is some authority for the view, that it is actionable for one person wilfully to injure a man in his trade if damage results to him. This, however, is guarded by a proviso to the effect that if the re .....

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y to interpret malice as connoting personal enmity, or spite or some other evil motive, and as such a motive is neither an essential element in the offence nor conclusive of the offence having been committed, it seem better to forgo the use of the word. 40. I propose, in view of these authorities to consider in the light of the judgment of the learned Judge whether the defendants' suit was brought with the knowledge that it had no chance of success and for purposes other than the purpose of .....

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een cited to us which I think dispose of this contention : Imperial Tobacco Co. (Newfoundland) Ltd. v. Duffy [1918] A.C. 181 and Dunlop Rubber Co. v. Booth 43 PC 139. It is necessary, therefore, to see whether it can be imputed to the defendant company that their superior officers were well aware that they had no case for claiming that their assignment of all the Indian rights in the Will's trade-mark should carry a similar consequence, It cannot I think be contended on a perusal of the proc .....

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n of it to be noticeably free from difficulty. In matters of trademark law the directors of a company are necessarily in the hands of their legal advisers. In this case they had received from the solicitors in India advice to the effect that the law was against them. Their legal experts in London took another view for the reason, as I think that they failed fully to appreciate the con sequences in India of the lack of statutory title to a trade-mark. These consequences have in the course of the .....

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erse decision which might affect them seriously in future. If the learned Judge has meant to find that the defendant company throughout the whole history of the litigation was intentionally riding for a fall, that they were not really endeavouring or hoping to establish by a judicial decision the right which they claim, but well knowing that they would ultimately lose, brought the actions for the sole purpose of obstructing plaintiff in the exercising of rights which they know to be his, I respe .....

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spired on the 8th June 1922 before Mr. Justice Greaves, but his order puts the plaintiff upon terms as to making a deposit with the Aliance Bank, as a condition of dissolving the ex-parte injunction. I will assume for the present purpose that in applying to the Collector of Customs the directors acted mala fide in the sense that they claimed a relief to which they knew that they had no right. Even so it is a different question whether, in taking steps to approach a Court of law for the decision .....

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o not presume to challenge, was in any way such as to make it wrong or unreasonable for them to lay it before the Court. 42. With regard to the allegation that the defendant company maliciously threatened to harass the plaintiffs' customers with vexatious litigation, I do not know what threats in particular, if any, the learned Judge has considered to be proved, and I fail to find this allegation in the plaint. It appears to me that what I have already said is sufficient to dispose of any qu .....

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44. Paragraph 11 of the plaint pleads this cause of action as follows: The defendant company through its officers, servants and agents throughout India rumoured and caused to be rumoured and circulated statements to the effect that the Gold Flake cigarettes imported by the plaintiff were inferior in quality and otherwise than they represented to be, and they were otherwise than in a sound and good merchantable condition and that they were inferior to those sold by the defendant company, that th .....

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and agents and dealers refused to purchase and sell or advertise or expose for sale the said cigarettes imported by the plaintiff as aforesaid with the result that by reason of the said wrongful and malicious acts and conduct of the defendant company, the plaintiff was put to considerable loss and expenses particulars whereof are hereinafter set out. 46. Speaking roughly the special damage for which he claims is his whole loss by reason of the failure of his venture. 47. The pleadings disclose .....

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i, the defendant company got before trial notice of two occasions on which slander of goods was said to have been uttered. In the evidence of the latter (a dismissed servant of the defendant company called Carr) I cannot see that there is any indication of or reference to any slander now relied upon or anything else that looks like slander of goods. The defendant company, in August, examined de bene esse Mr. Abbott, their Chairman, and I see in his cross-examination no reference to any other sla .....

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slander of goods are Ardeshir Khodadad, Kali Pada Eoy, N.N. Chakrabarti and M.N. Jarvar. The learned Judge deals specifically with two only of the alleged slanders: one said to have been uttered by Carr to Khodadad in March or April 1922, and another said to have been uttered by Mr. Ryan and Akhil Pal in July 1922 to Kali Pada Roy and his partner's father, N.N. Chakrabarti. 50. On the hearing of this appeal it appeared to us that this part of the case, as presented by the pleadings, was not .....

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he plaintiff's difficulties as to limitation. These five new counts are based upon letters and the charge is that the defendant company published them to their typists and staff, to the Collector of Customs and the Imperial Bank. It seems reasonably clear that neither counsel nor the learned Judge at the trial was aware that they were assisting at the investigation of any such case. In my opinion these counts must be disallowed altogether. They appear to amount to be a contention that for th .....

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as inferior to the defendants' the defendant company's servants, when warning dealers that these were not the goods of the defendant company, impressed on dealers a non-existent difference in the quality of the goods. 52. This seems to be a slender foundation for an action Bf this character brought against a rival trader and I am not surprised that learned Counsel for the plaintiff is not quite content with it. (The judgment then narrated and discussed the several occasions and proceeded .....

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thin two years before suit. 53. Accordingly, as I understand, part of the damages which he awards is awarded for false and malicious statements made by persons unknown to persons unknown upon occasions and at times as to which the only information is that they were subsequent to January 1923. All that is known as to the contents of these statements is that they affirmed a non-existent difference in the quality of the goods. 54. What is supposed to be known as to the special damage caused is stil .....

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h he had contracted to buy, i.e., 666 cases. I am not quite sure what the figure of ₹ 23-8-0 represents, but I think it is intended as the average price which the plaintiff could have obtained if the defendant company had never in any way claimed that he was infringing their trademark rights or that their own goods were superior in quality to his. 55. With all respect to the learned Judge I cannot assent to this way of dealing with the case so far as it is a case of slander of goods. The d .....

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I desire to observe that no single one of the slanders referred to in the plaintiff's particulars filed in this Court is within the doctrine of Ratcliffe v. Evans [1892] 2 Q.B. 524. Proper particulars would have shown; in each case the loss of the particular customer or dealer tc; whom they were spoken or some other really specific damage flowing from the publication to him : Leetham v. Bank [1912] 57 S.J. 111. 57. The statements here founded on are not statements printed in a newspaper or .....

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opinion he has proved no specific instance. But let it be assumed that he has proved three or six instances, all within limitation. One dealer refuses to buy, another cancels his purchase, another goes on buying as before: If the words are uttered to an individual and repetition is not intended except to a limited extent general loss of custom cannot ordinarily be a direct and natural result of the limited slander, cf. Ratcliffe v. Evans [1892] 2 Q.B. 524. Proof of a conspiracy to slander the pl .....

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he number of specific instances proved does not show slander broadcast, what is the evidence to contradict the evidence of Abbott and of Selfe '? Is it the evidence of the dismissed servant Carr? or Javar's evidence - not put to Carr of what Carr said to him? Carr's evidence in cross-examination is that practically it was left to them to do what they liked so long as they did nothing wrong. He does also say that he was told to tell the dealers that the plaintiff's goods were old .....

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could hardly hope to sell their cigarettes at all. 58. I pass over the statements of the plaintiff to the customs on the question of duty. That the question is one of opinion is clear enough. Sheriar says he gave some of plaintiff's cigarettes to two or, three customers to test them and that he relied on their opinion and his own also. He does not smoke himself, but he did not think there was any difference between plaintiff's and defendant's cigarettes. He would not pay the same pr .....

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r. The assistant from Samuel Fitze & Company says they thought the plaintiff's goods to be sound in condition and quality and when they sold they had no complaints. Jawar who says he is an expert, asked how the plaintiff's goods compared with the defendant's, replied "Not much difference" and "practically the same." It was put to Mr. Abbott in cross-examination that at the previous trial an experienced dealer gave evidence that the plaintiff's cigarettes w .....

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fendant company's servants for their efforts to persuade dealers that their article was superior : White v. Mellen [1895] A.C. 154 (165) Hubbock v. Wilkinson [1899] 1 Q.B. 86. In "slander of goods" the burden of proof of falsity is on the plaintiff and in my opinion he fails to prove this statement to be false. 59. In these circumstances I do not propose to discuss the question of limitation as to this head of claim, but in my opinion Section 24 and Article 36 give the plaintiff tw .....

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tiff by reason of the cancellation of the contracts referred to in the plaintiff's letters of 17th May 1922 and 6th June 1922 to Messrs. Venis & Co. Quoad ultra the suit should be dismissed. The plaintiff must pay to the defendant company (1) their costs of this appeal and also (2) their costs of the suit before the learned Judge less a sum of ₹ 300 which we assess as the reasonable costs of an application for an inquiry as to damages. 61. It is desirable to make clear that except .....

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e 25th January 1926, by which he held that the plaintiff was entitled to recover damages from the defendant company on account of certain wrongful and malicious acts alleged to have been done by the latter. 63. The facts giving rise to the litigation, out of which the present appeal has arisen, are to be found, among other things, in Ex. D.D. being the judgments delivered in a previous litigation between the parties by Mr. Justice Pearson on the 18th July 1922, by the late Chief Justice and Mr. .....

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nts were pronounced, the present appellants sought to restrain the plaintiff from selling in India a well-known brand of cigarettes, namely Wills Gold Flakes which, for many years, they alone, as assignees of the trade-mark and goodwill for India, had been importing into and selling in India. It appeared that the present plaintiff having bought as surplus war stock, over 21 millions of the said cigarettes cheaply in England from purchasers from the manufacturers (who had granted to the present a .....

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ivered in this Court that the present appellants' suit was not maintainable, see Imperial Tobacco Co. v. Albert Bonnan A.I.R. 1924 P.C. 187. 65. On the 28th February 1922 and on the 8th March 1922 the first lot of the plaintiff's goods arrived in Bombay and Calcutta respectively and he sold also certain cases to dealers. Thereupon the present appellants who had, up to then, exclusive rights of selling the said cigarettes in India, applied to the Collectors of Customs in Bombay and Calcut .....

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detained by the Collectors of Customs in Bombay and Calcutta. This was done in order to allow the appellants an opportunity of having the matter adjudicated Upon in the civil Courts. 66. Thereafter, two suits, one in this Court and another in the Bombay High Court, were filed on the 11th and 22nd days of May 1922 respectively. On the first mentioned date, application having been made by the appellants an interim injunction was issued by this Court restraining the plaintiff, his servants and agen .....

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f's claim for damages, if any, owing to the interim injunction having been granted was reserved. In the Bombay suit the present appellants gave notice of motion on the 23rd May 1922 for a similar injunction against the present plaintiff. The application in the Bombay Court was disposed of on the 19th June 1922 when the present plaintiff, who was the defendant, having given an undertaking not to dispose of or in any way deal with the cigarettes then in Bombay or to arrive in Bombay, the appli .....

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nt suit was put on the file and in it the present respondent complained that certain acts which had been done by the present appellants were malicious and wrongful and he accordingly claimed damages for seven and half lacs of rupees The acts complained of are referred to in paras. 6 to 11 of the plaint, and they may be classified as follows.: (a) Wrongfully and maliciously apply plying to the Collectors of Customs in Bombay and Calcutta and obtaining from them orders for detention of the plainti .....

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publishing various statements slandering the plaintiffs goods. 68. Mr. Justice Pearson held that the conduct of the appellants in regard to the proceedings before the Collectors of Customs in Bombay and Calcutta was malicious and without reasonable and probable cause. He also held that in filing the two suits in Bombay and Calcutta and in proceeding with them as they did, the appellants acted maliciously and without reasonable and pro-bale cause. He found that the appellants did make and circul .....

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f his goods, assertion of unfounded rights - all of which interfered with the plaintiff's right to trade in his goods in the ordinary way. In short, Mr. Justice Pearson came to the conclusion that in this case the appellants had acted mala fide and with ulterior motive from beginning to end. He therefore directed an enquiry for ascertainment of damages sustained by the plaintiff under heads 1 to 5, both inclusive, in Schedule A to the plaint on the basis of a uniform rate of ₹ 23-8-0 p .....

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he ground that the goods which the plaintiff had imported into India bore a counterfeit trade-mark. Whether they bore a counterfeit trade-mark or-not, it is quite clear that the provisions under the Sea Customs Act are in some cases to be read with the provisions of the Indian Merchandise Marks Act (Act 4 of 1889) relating to false trade description and that they are intended not only for the protection of manufacturers...and merchants against the piracy of their marks, but also for the protecti .....

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before us are Sections 18 and 19A. The appellants might have taken an exaggerated view of their rights, but it appears that the customs officers really proceeded in this matter to act in accordance with the instructions for the observance of customs officers appearing on p. 11 of the Merchandise Majks Manuil (1925) issued by the Government of India. (The judgment then discussed facts and evidence and proceeded) Now the first question which arises for consideration is whether the present plainti .....

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s and that there was no misstatement of fact on their part. On the evidence on record both oral and documentary, I am not prepared to say that the appellants had made statements to the Collectors of Customs which were untrue in fact and untrue to their knowledge, or had acted maliciously in the proceedings before the said Collectors. The plaintiff has, in my opinion, entirely failed to bring his case within the rule laid down by the Court of appeal in the case of Nemi Chand v. Wallace [1907] 34 .....

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oods was not by the appellants. 70. I will now deal with claim (e), which is referred to in para. 11 of the plaint, which runs as follows: The defendant company through its officers' servants and agents throughout India rumoured and caused to be remoured and circulated (statements) to the effect that the Gold Flake cigarettes imported by the plaintiff were inferior in quality and otherwise than they were represented to be, and that they were otherwise than in a sound and good and merchantabl .....

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ganization in broadcasting it to the dealers. There seems to be no doubt, however, that they went further and wrongly impressed on dealers a non-existent difference in the quality of the goods, and also made full use of the litigation in Bombay and Calcutta with its attendant threat of trouble to others as an obstruction to the plaintiff and as a deterrent. That is a clear impression which I retain after hearing the evidence. 72. The learned Judge further added, in dealing with the question of l .....

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lained of continued, to the extent already mentioned, to be repeated within two years before suit, particularly having regard to the continuance of the previous suits which throughout were designed as a disparagement of the plaintiff's goods and an obstruction to the unfettered exercise of his rights as a trader, of which I have no doubt the company made the fullest use the whole time the litigation lasted and whenever occasion so required. I am not prepared to say that in any view of the ma .....

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words complained of must be set out in the statement of claim: there are many authorities that it is not sufficient to allege that the slanderer used such and such words or to that effect. Has this rule been complied with in the present instance by the plaintiff? In my opinion para. 11 of the plaint offends in every way against this cardinal rule; and it is surprising that the defendant company should not have insisted in the Court of first instance on full and sufficient particulars being furn .....

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made of and concerning his goods; (2) that it was false, (3) that it was published maliciously i.e. with the intention of injuring him and (4) that he has suffered special damage thereby. A trader is entitled to commend his own goods and state that they are better than the goods of another and if he does so, no action will lie against him, whatever damage may ensue from such statement. : see White v. Mellin [1895] A.C. 154 (165). 75. It is otherwise where a trader does not limit himself to a co .....

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ice if the object of the trader is to push his own business. To make the act malicious it must be done with the direct object of injuring the other person's business. Therefore, the mere fact that it would injure that other person's business is no evidence of malice: see Dunlop Pneumatic Tyre Co. v. liaison Talbot [1904] 20 .L.R. 579. 76. This being the state of the authorities, I have carefully scrutinized the evidence of Sheriar and Khodadad and of the other witnesses on the side of th .....

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able; but I am unable to place any reliance on that piece of evidence. In what context was the word used, if used at all? I have grave doubts if it was at all used. The learned Judge says that the statements alleged and complained of continued to be repeated within two years before suit. Where is the evidence in support of this statement? It is possible and indeed likely that the appellant gave instructions to their officers to see that their rights are protected so far as the market was concern .....

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itation Act. 77. I now proceed to consider the case set up by the plaintiff under claim (b), as set out above, viz. wrongfully and maliciously instituting suits against the plaintiff in the High Court in Bombay and Calcutta. On behalf of the appellant it has been contended before us on the authority of the case of the Quartz Hill Consolidated Gold Mining Co. v. Eyre [1883] 11 Q.B.D. 674, that no action would lie against the defendant company for having brought the suits in the Bombay High Court .....

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s attaching under our present law, although the action is brought falsely and maliciously and without reasonable or probable cause, and whatever may be the allegations contained in the pleadings, will not furnish a ground for a subsequent complaint by the person who has been sued, nor support an action on his part for maliciously bringing the first action. To speak broadly, and without travelling into every corner of the law, whenever a man complains before a Court of justice of the false and ma .....

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o the doctrine laid down by Holt, C.J., in Savile v. Roberts [1697] 1 Ld. Raym. 374. He there said that there "were three sorts of damages, any one of which would be sufficient to support an action for malicious prosecution, (1) The damage to a man's fame, as if the matter whereof he is accused be scandalous. And this was the ground of the case between Sir Andrew Henley and Dr. Burstall : Raym. 180....(2) The second sort of damages, which would support such an action, are such as are do .....

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rty; and if that injury is done to him maliciously, it is reasonable that he shall have an action to repair himself. It is clear that Holt, C.J., considered one of these three heads of damages necessary to support an action for malicious prosecution. To apply this test to any action that can be conceived under our present mode of procedure and under our present law, it seems to me that no mere bringing of an action, although it is brought maliciously and without reasonable or probable cause, wil .....

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action is tried in public, his fair fame will be cleared, if it deserves to be cleared : if the action is not tried, his fair fame cannot be assailed in any way by the bringing of the action. To apply the second head of damage, namely, those injuries which are done to the person; the bringing of no action under our present law and under the ordinary rules of procedure will involve as a necessary and natural consequence damage to the person. The third sort of damage, the existence of which will s .....

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es to compensate him. If the Judge refuses to give him costs, it is because he does not deserve them. If he deserves them, he will get them in the original action; if he does not deserve them, he ought not to get them in a subsequent action. Therefore, the broad canon is true that in the present day, and according to our present law, the bringing of an ordinary action, however maliciously and however great the want of reasonable and probable cause, will not support a subsequent action for malici .....

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us prosecution. It is unnecessary to say that there could not be an action of that kind in the past, and it is unnecessary to say that there may not be such an action in the future, although it cannot be found at the present day. The counsel for the plaintiff company have argued this case with great ability; but they cannot point to a single instance since Westminister Hall began to be the seat of justice in which an ordinary action, similar to the actions of the present day, has been considered .....

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osition in its entirety which the counsel for the plaintiff company have put forward. 79. In this case it is contended on behalf of the appellants that when they instituted the suit in this Court and in Bombay in 1922, they had a perfectly genuine and reasonable case which they could present to the Courts : see in this connexion Imperial Tobacco Co. (Newfoundland) v. Duffy []1918 A.C. 181 and Dunlop Rubber Co. v. Booth 43 Patent Cases 139; and it was never suggested at any time that the actions .....

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during reputation and that in circumstances like these malice will not be imputed : see Sorrell v. Smith [1925] A.C. 700. On behalf of the plaintiff it has been argued that the right of a defendant to institute a regular suit for compensation after the termination of certain previous proceedings is clearly recognized in Section 95, Sub-section 2, Civil P.C., and that in India the matter is not concluded by the authority of the case, Quartz Hill Mining Co. v. Eyre [1883] 11 Q.B.D. 674. It is not .....

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the evidence on record which I have read and re-read, I can find no trace of malice or of want of reasonable and probable cause on the part of the present appellants, in instituting the suits in this Court and in the Bombay High Court. They had received expert professional advice from London that they had a fair case to go to Court with, having regard to the authorities on the subject, and in these circumstances and without more it is difficult to see why the appellants' suits in Bombay and .....

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set out by me in an earlier portion of this judgment and I need not, therefore, refer to the same here. It appears to me that having regard to. the consent order of the 19th June 1922 in the Bombay suit, and having regard to the undertaking in the Bombay suit, the plaintiff cannot seek any relief in this Court in respect of any claim he may have for damages. Further, if he had any case under this head, it is barred by limitation. 81. There now remains for me to consider the question whether the .....

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which the temporary injunction was issued, an undertaking was taken from the appellants to compensate the plaintiff for any loss that might arise by reason of the injunction. Such an undertaking is on the authorities to be enforced by an application to the Court which granted the injunction : see Smith v. Day [1883] 21 Ch. D. 421. In that case Jessel, M.R. observed as follows: But the Court has a discretion, and before it will grant damages it must be satisfied that the injunction was improperl .....

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e damages in respect of the interlocutory injunction having been improperly granted, though a. perpetual injunction is granted at the trial. Then, again, the Court must have regard to the amount of damages; if it be trifling or remote the Court would not be justified in directing an enquiry as to damages, though the injury might not be so remote that an action would not lie. Then again the time at which the application is made is material. Having regard to the decisions, we are not entitled to s .....

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