Kalyanam Jewellers, A Firm Represented By Its Managing Partner E.O. Lawrence vs T.S Kalyanaraman

Application for substitution is allowed subject to all just exceptions after condoning the delay and setting aside abatement in filing the substitution application.

Leave granted.

This appeal takes exception to the judgment and order dated 27.07.2016 passed by the High Court of Kerala at Ernakulam in AS No. 203/1996, whereby the High Court summarily dismissed the First Appeal by a cryptic order that it does not find any reason to interfere with the findings arrived at by the Court below. We say so because the First Appeal is disposed of in the following terms :

"Heard the learned counsel appearing for the appellant/defendant and the learned counsel appearing for the respondent/plaintiff.

Main contention raised by the respondent is that the names 'Kalyan and Kalyanam' are not similar. There is no possibility of causing any confusion in the minds of the customers as the two names are distinctly different.

The contention of the plaintiff is that his family is into multiple business and the word 'Kalyan' is coined from their father, Kalyana Rama Iyer's name. It is their case that they are running businesses by names 'Kalyan Jewellers', 'Kalyan Textiles' and 'Kalyan Silks'. Plaintiff would contend that the name 'Kalyan' is associated with their business concern as a group. It is also their case that the word 'Kalyanam' is used for the defendant's business with an intention to deceive the general public and to pass off their goods of inferior quality by encashing the goodwill of the plaintiff.

Court below considered the oral evidence adduced on both sides. It found that the word 'Kalyan' has acquired distinctiveness attached to the business of the plaintiff. Relying on the relevant decisions on the point, the court below found that there is phonetic similarity in the names and any attempt to pass off goods of the defendant in the name of the plaintiff's business concern will amount to an action in passing off.

The court below relied on documentary evidence also. Considering the entire facts and circumstances, and on re-appreciating the evidence, I find no reason to interfere with the findings arrived at by the court below. The court below has granted appropriate reliefs to the plaintiff. For valid reasons, mandatory injunction relief claimed was disallowed. Therefore, I find no illegality or irregularity in the judgment passed by the court below.

In the result, the appeal is dismissed."

No analysis of the factual position or the evidence produced by the respective parties has been undertaken by the High Court. Merely saying that there is no reason to interfere with the findings of the Court below is not enough when the appellant had raised several issues regarding the correctness of the said finding. The High Court ought to have addressed itself to those issues specifically either accepting the same or rejecting it, as the case may be.

Suffice it to observe that the disposal of the First Appeal in this manner cannot be countenanced. Hence, the appeal succeeds and the impugned judgment and order is set aside.

The parties are relegated before the High Court for reconsideration of the First Appeal on its own merits and in accordance with law.

All contentions available to both parties are left open.

The appeal is accordingly allowed and pending application(s) are disposed of.