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Calcutta HC Judge Recalls Her Order Even After No Objection By Both Parties

 

It is really remarkable, refreshing, rejuvenating, righteous and reasonable that the Calcutta High Court has most recently on February 22, 2021 in a latest, learned, laudable and landmark judgment titled Duroply Industries Limited and anr. Vs Ma Mansa Enterprises Private Limited in IA No. GA 2 of 2020 in CS 94 of 2020 and IA No. GA 1 of 2020 in CS 94 of 2020 in exercise of its ordinary original civil jurisdiction has recalled its own order of an injunction passed in a trademark dispute as the Judge presiding over the case had appeared for one party in respect of the same trademark in the past. It must be mentioned here that a single Judge Bench of Calcutta High Court comprising of Justice Moushumi Bhattacharya had in a remarkable gesture recalled the order passed by her even after assurance by parties that they had no objection to the judgment being delivered by the Court. She found that releasing the matter was the best and only course of action since she had appeared for one party in relation to the same trademark on which the party claimed exclusivity in present proceedings. Every Judge in India must always try and emulate what Justice Moushumi Bhattacharya has done in this present case. It will ensure that no fingers are raised by anyone on the conduct of Judges and it will serve transparency and enhance further the reputation of Judges among the litigants.

To start with, this commendable, composed, courageous and cogent judgment via video conferencing authored by a single Judge Bench of Justice Moushumi Bhattacharya of Calcutta High Court  sets the ball rolling by first and foremost observing in the opening para that, “These applications were heard by this Bench in respect of an ex parte ad-interim order passed by this Court on 8th October, 2020 restraining the defendant from selling or distributing its goods under the mark ‘Duro Touch’ or any other mark deceptively similar to the plaintiffs’ trademark ‘Duroply’. The order was passed ex-parte in favour of the plaintiffs upon the Court being informed that several attempts were made by the plaintiffs to inform the defendant of the matter. The defendant thereafter applied for vacating the ex parte ad-interim order of injunction which was taken up together for hearing on several dates in December 2020 and January 2021. The matter was made reserved for judgment by an order dated 15th January, 2021.”

As we see, it is then stated in the next para that, “The judgment was drafted thereafter and steps taken to deliver the same in the week beginning 22nd February, 2021 after this Court returned from Circuit at Jalpaiguri, North Bengal.”

To put things in perspective, it is then revealed in the next para that, “On going through the papers annexed to the 4/5 volumes of documents filed by the parties to their respective applications, two orders of 10th May, 2005 and 29th December, 2006 were found which record the appearance of a “Miss M. Bhattacharya” and “Ms. Mousmi Chatterjee”. A clarification was sought from counsel appearing for the plaintiffs in this regard on 19th February, 2021. Counsel appearing for both the parties submitted that the name referred to me but offered to furnish undertakings/affidavits from their respective clients containing an assurance that the parties have no objection to the judgment being delivered by this Court.”

Quite remarkably, in a candid admission, the single Judge Bench of Justice Moushumi Bhattacharya of Calcutta High Court  then makes it a point to mention in the new para that, “Despite the assurance given, I find that releasing the matter is the only and the best course of action available in the present circumstances since I had appeared for the plaintiff no.1 and in relation to the same trademark on which the plaintiffs have claimed exclusivity in these proceedings. An undertaking given by a litigant to a Court with any form of assurance may be construed in a totally different light at a subsequent stage of the proceedings depending on the twists and turns of the litigation itself. It is also important to bear in mind that a matter should be released by a Court on the call of conscience of the Judge who is to decide and not on any assurance of the parties before the Court. Preserving the purity of the process of dissemination of justice is a collective responsibility which rests both on the Court as well as on counsel, advocates-on-record and instructing attorneys who act as officers of the Court on behalf of the parties.”

Most significantly, the Bench then also elegantly, effectively and eloquently points out in the next para that, “A litigant receiving a judgment must be convinced, for all times to come, that the judgment was delivered solely on the applicable law and facts relevant to the matter and not on any other considerations. A litigant can never be under the impression that it can control or influence the outcome of an adjudication by factors unconnected to the litigation and least of all by a professional connection which a Court may have to the matter. Although it is shocking that none of the two orders were pointed out to this Court by counsel despite the matter being heard on several occasions, finding the two orders before delivering the judgment was indeed fortunate. Since the parties cannot be saddled with the judgment in the given facts, the instant matter, though is a case of Love’s Labour’s Lost, is blessed with the silver lining that none of the parties before this Court will ever question the basis of the Court’s reasoning. The perception that parties have been treated fairly is as much a part of the justice dissemination process as the steps taken by the Court to ensure fairness.”

Equally significant is that it is then conceded in the next para that, “The state of affairs, namely, that I had appeared for the plaintiff no.1 in respect of the same trademark, existed on the date when the ex parte ad-interim order of injunction was passed on 8th October, 2020. Since the petition for interim relief contained averments in relation to the proceedings where the two orders were passed and considering the fact that my appearance was not brought to my notice by counsel/instructing advocates despite the aforesaid, the order of injunction is recalled. However, as the order of injunction has continued from 8th October, 2020 till date, the effect of this order to the extent of the recalling part, shall remain in abeyance for a period of seven days from date to enable the plaintiffs to apply for appropriate orders or as they may be advised.”

Finally, the single Judge Bench of Justice Moushumi Bhattacharya of Calcutta High Court then goes on to hold in the concluding para that, “The order dated 8th October, 2020 is, accordingly, recalled. IA No.GA/1/2020 and IA No.GA/2/2020 are released from my list for the reasons stated above. The order dated 15th January, 2021 by which GA 2 of 2020 was reserved for judgment is cancelled for the reasons stated above. The application, IA No.GA/1/2020, is treated as on the day’s list.”

All said and done, it is really a commendable judgment which is worth emulating by all the Judges in similar cases. Judges must be forthright enough to step forward and rule accordingly as we see Justice Moushumi Bhattacharya of Calcutta High Court doing here in this leading case! What is most outstanding is that Justice Moushumi Bhattacharya did this of recalling its own order of an injunction passed in a trademark dispute as the Judge presiding over the case had appeared for one party in respect of the same trademark in the past. This despite the irrefutable fact that the parties had on record stated that they had just no objection to the judgment being delivered by the Court!

But still Justice Moushumi Bhattacharya dig in her heels and for the right reason as already elaborated above in detail! Her exemplary conduct is really worth applauding and worth emulating by all the Judges in their respective public life as this will serve in vindicating the unflinching faith of people in public and further increase their confidence on Judges in the times to come! There can be no denying or disputing it!

To conclude, at the risk of repetition, it must be said again that Justice Moushumi Bhattacharya of Calcutta High Court was quite forthright in stating that, “A litigant receiving a judgment must be convinced, for all times to come, that the judgment was delivered solely on the applicable law and facts relevant to the matter and not on any other considerations. A litigant can never be under the impression that it can control or influence the outcome of an adjudication by factors unconnected to the litigation and least of all by a professional connection which a Court may have to the matter. Although it is shocking that none of the two orders were pointed out to this Court by counsel despite the matter being heard on several occasions, finding the two orders before delivering the judgment was indeed fortunate.” All the lawyers, Judges, litigants and others must always bear this in mind and act accordingly! Only then will the justice serve its true purpose for which it is meant. We also cannot be oblivious of the time tested dictum that, “Justice must not only be done but also seen to be done” which can be possible only if all Judges act like Justice Moushumi Bahttacharya has done so commendably in this present case! Rightly so!

Sanjeev Sirohi

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