SURESH DHANUKA versus SUNLTA MOHAPATRA

Citation: [2011] 15 S.C.R. 512 · Decided: 02-12-2011 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Appeal(s) allowed

Judgment (excerpt)

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B 
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[2011] 15 (ADDL.) S.C.R. 512 
SURESH DHANUKA 
v. 
SUNlTA MOHAPATRA 
(CIVIL APPEAL N0.10434-10435 OF 2011) 
DECEMBER 02, 2011 
[ALTAMAS KABIR, SURINDER SINGH NIJJAR AND 
GYAN SUDHA MISRA, JJ.] 
Arbitration and Conciliation Act, 1996: 
s. 9 - Object and intention of - Pending arbitration 
proceedings, passing of an order suspending the rights of the 
parties - Justification of - Joint venture agreement between 
parties to carry on business - Execution of deed of 
0 assignment by respondent in favour of appellant assigning 
50% of right, title and interest in trade mark 'NH' along with 
proportional goodwill -
Condition therein that on the 
termination of the Joint Venture, neither assignor nor the 
assignee would be entitled to use or register the Mark in its 
E own name or jointly with some other party - Subsequently 
appellant and his son floated a company by the name of 
'NHP' - Suit by the respondent wherein District Judge passing 
an interim order restraining the appellant and the company 
from selling, distributing, manufacturing and marketing any 
of the products in the name of 'NH' or 'NHP' which was later 
F made absolute - Arbitration <Jpplication u/s. 9 also filed by 
the respondent - Subsequently, the appellant came to know 
that in breach of the agreement, the respondent approached 
the dealers and distributors of the appellant to take direct 
supply from the respondent on a higher discount -
G Respondent canceling the Agreement and also revoked the 
Deed of Assignment - Thereafter, in an application filed by 
the appellant uls. 9, the District Judge passing an ad-interim 
order whereby the respondent was restrained from selling her 
products by herself or by any other person, save and except 
H 
512 
SURESH DHANUKA v. SUNITA MOHAPATRA 
513 
through the appellant which was later made absolute - Appeal A 
thereagainst, allowed by the High Court- On appeal, held: 
Terms of the Deed of Assignment clearly indicate that the 
respondent had of her own volition parted with 50% of her right, 
title and interest in the Trade Mark 'NH' with proportional 
goodwill of the business concerning the goods in respect of B 
which the Mark was used, absolutely and forever, from the date 
of the Deed - Order passed by the District Judge restraining 
the respondent from marketing her products through any 
person, other than the appellant, was more apposite, as the 
rights of both the parties stood protected till such time as a c 
final decision could be ta!<en in arbitral proceedings, which 
was the object and intention of s. 9 - High Court overlooked 
the provisions relating to the use of the trade marl< contained 
in the deed of assignment - Money cannot be an adequate 
compensation since the appellant apparently acquired 50% D 
interest in the trade mark. together with the goodwill of the 
business - Thus, order passed by the High Court set aside 
and that of the District Judge restored. 
s. 9 - Application u/s. 9 filed by appellant - Interim order 
passed and made absolute - Appeal thereagainst, by the 
E 
respondent - High Court reserved the judgment - Thereafter, 
the High Court allowed the respondent to file an affidavit to 
bring on record subsequent .events which did not form part of 
the records, ·without giving the appellant an opportunity of 
dealing with the same - Held: However innocuous the F 
additional affidavit may have been, once the hearing was 
concluded and judgment was reserved, it would have been 
prudent on the part of the High Court to have given an 
opportunity to the appellant to deal with the same before 
allowing it to be taken on record - It was a record of the official G 
proceedings and the appellant could not have been 
prejudiced since he himself had knowledge of th.e same. 
Specific Relief Act, 1963 - s. 42 - Deed of Assignment 
of trade mark - Condition therein that all goods manufactured 
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by the respondent under the said Trade mark would be 
514 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R. 
A marketed solely by the appellant; and that on the termination 
of the Joint Venture, neither assignor nor the assignee would 
be entitled to use or register the Mark in its own name or jointly 
with some other party - Invocation of s. 42 to enforce the 
negative covenant contained in the Deed of Assignment of 
B trade mark, if contrary to s. 27 of the Contract Act and thus, 
void - Held: Section 27 of the Contract Act is not attracted -
Appellant did not ask for any injunction against th

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