SURESH DHANUKAversusSUNLTA MOHAPATRA

                   [2011] 15 (ADDL.) S.C.R. 512


A                      SURESH DHANUKA
                                 v.
                     SUNlTA MOHAPATRA
           (CIVIL APPEAL N0.10434-10435 OF 2011)
                      DECEMBER 02, 2011
B
      [ALTAMAS KABIR, SURINDER SINGH NIJJAR AND
                GYAN SUDHA MISRA, JJ.]

        Arbitration and Conciliation Act, 1996:
c
        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 H
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 the
  respondent from carrying on any trade or business, but he
  objected to the use by the respondent of the Trade Mark, in
c which he had acquired 50% interest, while selling her products
  - Interim order passed by the District Judge, restraining the
  respondent from selling her products by herself or by any
  other person, save and except through the appellant, was
  apposite to the circumstances - Contract Act, 1872 - s. 27.
D      The respondent, manufacturer of herbal products
   entered into an agreement with the appellant resulting in
  the formation of a Joint Venture Company under the
  name and style of 'A' for a period of five years which was
  further extended for five years. Thereafter, the
E respondent executed a deed of assignment in favour of
  the appellant assigning 50% of the right, title and interest
  in the Trade Mark 'Naturoma Herbal' which was
  registered in the name of. the respondent, with
  proportional goodwill of the business concei'ned in the
F goods with a stipulation that all goods manufactured by
  the respondent under the said Trade mark would be
  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
G its own name or jointly with some other party.
  Subsequently, an application was filed with the Trade
  Mark authorities for bringing on record the rame of the
  appellant as the Joint Proprietor of the Trade Mark. Five
  years later, the appellant and his son floated a company
H by the name of 'Naturoma Herbals (P) Ltd.' and also
    SURESH DHANUKA v. SUNITA MOHAPATRA                515

applied for registration of the Trade Mark in the name of A
that Company. Thereafter, the appellant resigned from the
company despite the fact that the company had not
started manufacturing the activities until then. The
respondent then filed a suit under Sections 134 and 135
of the Trade Marks Act, 1999. An ex-parte interim order B
was passed restraining the appellant and the Company
from selling, distributing, manufacturing and marketing
any of the products in the name of "Naturoma" or
"Naturoma Herbal" which was made absolute a year later,
till the disposal of the suit. The respondent filed an c
application under Section 9 of the 1996 Act before the
District Judge. Thereafter, the appellant came to know
that in breach of the agreements entered into by the
 parties, the respondent was approaching the dealers and
distributors of the appellant to take direct supply from the
                                                             0
 respondent on a higher discount. The appellant also filed
 an application under Section 9 of the 1996 Act before the
 District Judge. Thereafter, the respondent cancelled the
Agreement and also revoked the Deed of Assignment.
The appellant's application was dismissed and he filed a
fresh application under Section 9 of the 1996 Act. An ad- E
 interim order was passed restraining the respondent
 from selling her products by herself or by any other
 person, save and except through the appellant which
was later made absolute. Thereafter, a corrigendum was
made by the Trade Mark Registrar in the Trade Mark F
Journal, showing the appellant as the Joint Proprietor of
the Trade Mark "Naturoma Herbal" which was cancelled
without notice to the appellant. Meanwhile the
 respondent filed an appeal before the High Court against
the interim order passed on the application filed by the G
appellant under Section 9 of the 1996 Act. The High Court
 reserved the judgment. The respondent then filed an
 affidavit to bring on record the said cancellation of the
 corrigendum and the same was relied on by the High
                                                             H
    516   SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.


A Court though the appellant was not given an opportunity
   to deal with the same. The High Court allowed the
   appeal. Aggrieved, the appellant filed a review application
 . and the same was dismissed. Therefore, the appellant
   filed the instant appeal.              -
B
        The questions which, therefore, arose for
    determination were:

       i) Whether the High Court was justified in interfering
  with the order passed by the District Judge in the
C arbitration application, on account whereof pending
  arbitration, the respondent was restrained from
   marketing the products manufactured by her under the
  Trade Mark "Naturoma Herbal" or "Naturoma" by herself
  or through anyone, except through the appellant?
D
       ii) Whether, pending arbitration proceedings, an
  order could have been passed by which the right
  acquired by the appellant under the Deed of Assignment
  of 50% of the right, title and interest in the Trade Mark
  "Naturoma Herbal", could have been suspended and he
E could have been restrained from objecting to the use of
  the said Mark by the respondent?

      iii) Whether the High Court was justified in relying
  upon an affidavit filed on behalf of the respondent after
F hearing had been concluded and judgment had been
  reserved in the appeal, without giving the appellant an
  opportunity of dealing with the same?
      iv) Whether the invocation of Section 42 of the
G Specific Relief Act, 1963, to enforce the negative covenant
  contained in the Deed of Assignment, was contrary to the
  provisions of Section 27 of the Contract Act, 1872 and
  was, therefore, void.
       Allowing the appeals, the Court
H
    SURESH DHANUKA v. SUNITA MOHAPATRA              517


     HELD: 1.1 The terms of the Deed of Assignment A
clearly indicate that the respondent had of her own
volition parted with 50% of her right, title and interest in
the Trade Mark "Naturoma Herbal" with proportional
goodwill of the business concerning the goods in respect
of which the Mark was used, absolutely and forever, from B
the date of the Deed. On behalf of the respondent it was
claimed that the Deed of Assignment had never been
acted upon and that, in any event, the same had been
revoked, when the Agreement, was cancelled. However,
in view of the provisions of the Deed of Assignment, it is c
yet to be adjudicated upon and decided as to whether by
virtue of the revocation of the Deed of Assignment by the
respondent, the appellant was no longer entitled lo the
benefits of the Trade Mark which had been transferred to
him to the extent of 50% absolutely and forever. In such 0
circumstances, the order passed by the District Judge,
restraining the respondent from marketing her products·
through any person, other than the appellant, was more
apposite in the facts of the case, as the rights of both the
parties stood protected till such time as a final decision E
could be taken in arbitral proceedings, which, in effect,
is the object and intention of Section 9 of the Arbitration
and Conciliation Act, 1996. [Para 31] [535-B-FJ

     1.2 It was inappropriate on the part of the High Court
to allow the respondent to file an affidavit, on which F
reliance was placed, after the hearing had been
concluded and judgment had been reserved, without
giving the appellant an opportunity of dealing with the
same. However innocuous the additional affidavit may
have been, once the hearing was concluded and G
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 has been submitted that the
additional affidavit which was filed on behalf of the H
    518   SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A respondent after the judgment had been reserved by the
  Appeal Court, only sought to bring on record the .
  proceedings whereby the corrigendum which had been
  issued by the Trade Mark Registrar, showing the
  appellant as the Joint Proprietor of the Trade Mark
B "Naturoma Herbal", had been subsequently cancelled.
  Since what was produced was a record of the official
  proceedings, the appellant could not have been
  prejudiced since he himself had knowledge of the same.
  [Para 32] (535-G-H; 536-A-C]                 .
c      1.3 As regards the invocation of Section 42 of the
  Specific Relief Act, 1963, to enforce the negative covenant
  contained in the Deed of Assignment, was contrary to the
   provisions of Section 27 of the Contract Act, 1872, the
  provisions of Section 27 would not be attracted to the
D facts of the instant case. What is declared to be void by
  virtue of Section 27 is any Agreement to restrain any
  person from exercising his right to carry on a profession
  or trade or business and any restraint thereupon by an
  Agreement would be void. It is seen from the materials
E on record that the appellant did not ask for any injunction
  against the respondent from carrying on any trade or
  business, but he objected to the use by the respondent
  of the Trade Mark, in which he had acquired a 50%
  interest, while selling her products. [Paras 33, 34] [536-
F D-F; 537-C]

       1.4 The conditions in the Deed of Assignment clearly
  stipulate that all the goods manufactured by the
  respondent under the Trade Mark "Naturoma" would be
G marketed solely by the appellant. It was also submitted
  that the said Trade Mark would be used only in relation
  to goods connected in the course of trade with both the
  parties. One of the other conditions of the Deed of
  Assignment was that both the parties would be entitled
H to assign their respective shares in the Trade Mark
    SURESH DHANUKA v. SUNITA MOHAPATRA                 519

subject to prior written consent of the other party, which    A
presupposes that the parties were th:i absolute owners
of their respective shares in the Trade Mark and even on
termination of the joint venture, as has been done in the
instant case, neither of the parties would bl:! entitled to
use or register the Mark in their own names or jointly with   s
some other party. [Para 35] [537-D-F]

     1.5 Having regard to the arbitration clause-terms and
conditions of the Deed of Assignment, the interim order
passed on the application under Section 9 of the
Arbitration and Conciliation Act, 1996, filed by the          C
appellant in keeping with the terms and conditions
agreed upon between the parties, was justified and within
the jurisdiction of the District Judge. The interim order
passed by the District Judge, restraining the respondent
from selling her products by herself or by any other          D
person, save and excP.pt through the appellant, was
apposite to the circumstances. The said order took into
consideration the interests of both the parties flowing
from the Agreement and the Deed of Assignment,
pending decision by an Arbitral Tribunal. The cause of        E
action for the suit filed by the respondent before the
District Judge was the incorporation of a Company by the
appellant with his son under the name and style of
"Naturoma Herbals (P) Ltd." and the subsequent
application made before the Registrar of Trade Marks to       F
register "Naturoma Herbal" in the name of the said
Company. It is in that context that the interim order was
passed restraining the appellant from distributing,
manufacturing or marketing any of the products in the
name of "Naturorua" or Trade Mark "Naturoma Herbal".          G
The said order of injunction did not permit the respondent
to manufacture and market the goods under the said
Trade Mark in violation of the provisions of the Deed of
Assignment. [Para 36] [537-G-H; 538-A-E]
                                                              H
    520   SUPREME COURT.REPORTS [2011] 15 (ADDL.) S.C.R.

A      1.6 The Single Judge of the High Court, while
  referring to some of the provisions of the Agreement
  between the parties, apparently overlooked the
  provisions relating to the use of the Trade Mark contained
  in the Deed of Assignment. Although, reference was
  made to the clause of the Agreement, the High Court
8
  failed to notice that the same was not contained in the
  Deed of Assignment, whereby 50% of the right, title and
  interest of the respondent in the Trade. Mark "Naturoma
  Herbal" was assigned in favour of the appellant
C absolutely and forever. Even upon termination of the joint
  venture under the Agreement between the parties, neither
  the appellant nor the respondent would be entitled to use
  or register the Mark in their own names or jointly with
  some other party. In fact, the relevant terms and
  conditions of the Deed of Assignment had been extracted
D by the Single Judge in the impugned judgment, but the
  same appear to have been lost sight of while considering
  the terms and conditions of the Agreement executed
  between the parties. [Para 37] [538-F-H; 539-A]

E      1.7 This is not a case where money can be an
  adequate compensation, since the appellant has
  apparently acquired a 50% interest in the Trade Mark in
  question, together with the goodwill of the business in
  relation to the products in which the Trade Mark is used.
F Therefore, the High Court erred in reversing the order
  passed by the District Judge in the application filed by
  the appellant, under which the status-quo would have
  been maintained till the dispute was settled in arbitration.
  The impugned judgment and order of the Single Judge
G of the High Court impugned in the appeals is set aside
  and that of the District Judge is restored. [Paras 38, 39,
  40] [539-B·D]
       1.8 The order passed whereby the respondent had
    been allowed to continue with the running of the
H
    SURESH DHANUKA v. SUNITA MOHAPATRA                    521


business, but she was directed to maintain a separate            A
account in respect of the transaction and to place the
same before this Court at the time of hearing of the
matter, such account does not appear to have been filed,
but since the matter is disposed of by restoring the order
of the District Judge in the application filed by the            B
appellant, the respondent is directed, as and when arbitral
proceedings may be taken, to furnish such account upto
this day before the Arbitrator so that the claims of the
parties could be fully decided by the Arbitrator. [Para 41]
[539-E-G]                                                        C

    Gujarat Bottling Co. Ltd. vs. Coca Coia Company (1995)
5 SCC 545; Percept D'Mark (India) (P) Ltd. vs. Zaheer Khan
(2006) 4 SCC 227; K. T. Plantation Ltd. vs. State of Karnataka
(2007) 7 sec 125 - referred to.
                                                                 D
                     Case Law Reference:
    (1995) 5 sec 545          Referred to          Para 24
    (2006) 4 sec 221          Referred to          Para 24
    (2007) 1 sec 125          Referred to          Para 24       E
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
10434-10435 of 2011.
    From the Judgment & Order dated 27.10.2008 of the High
Couret of Orissa, Cuttack in ARBA No. 17 of 2008 and order       F
dated 28.9.2010 on Review Application No. 21 of 2009 in
ARBA No. 17 of 2008.

    P.K. Ghosh, Srenik Singhvi, SaurabhTrivedi for the
Appellant.
                                                                 G
    A.K. Ganguli, Shambhu Prasad Singh, Shantwanu Singh
Punam Kumari for the Respondent.

    The Judgment of the Court was delivered by
                                                                 H
    522 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.

A        ALTAMAS KABIR, J. 1. Leave granted.
      2. These appeals arising out of SLP(C)Nos.3391~3392 of
  2011, are directed against the judgment and order dated 27th
  October, 2008, passed by the Orissa High Court in ARBA
  No.17 of 2008 and the order dated 28th September, 2010,
8 passed on the Review Application No.21 of 2008.

          3. The Appellant herein, Suresh Dhanuka, filed an
    application before the learned District Judge, Khurda, being
    ARB (P) No.576 of 2007, under Section 9 of the Arbitration and
c   Conciliation Act, 1996, hereinafter referred to as the "1996
    Act".
       4. The facts leading to the filing of the said application
  reveal that on 1st April, 1999, Suresh Dhanuka, the Appellant
  herein, and Sunita Mahapatra, the Respondent herein, entered
D into an Agreement, whereby they agreed to jointly carry on
  business in the name and style of "Abhilasha". Sunita Mahapatra
  was carrying on business in the name and style of "M/s. Nature
  Probiocare Inc.", as the sole proprietress thereof. The said
  Agreement was for a period of five years from 1st April, 1999
E to 31st March, 2004, which was subsequently extended till 31st
  March, 2009. On 4th October, 1999, the Respondent herein
  applied to the Registrar of Trade Marks, Kolkata, in Form
  No.TM-1 under the Trade and Merchandise Marks Act, 1958,
  for registration of the Trade Mark "Naturoma Herbal", under
F Application No.879695.
       5. During the first five-year period of the original Agreement
  dated 1st April, 1999, the Respondent, Sunita Mahapatra,
  executed a Deed of Assignment on 1st October, 2000,
G assigning 50% of her right, title and interest in the said Trade
  Mark "Naturoma Herbal", with proportional goodwill of the
  business concerned in the goods in respect of which the Mark
  was permanently used, interalia, on the following terrns and
  conditions, namely,
H        (a) All goods manufactured by the Respondent under the
    SURESH DHANUKA v. SUNITA MOHAPATRA                      523
            [ALTAMAS KABIR, J.]
            said Trade Mark would be marketed solely by the         A
            Appellant herein;

     (b)    On the termination of the Joint.Venture, neither the
            assignor nor the assignee would be entitled to use
            or register the Mark in its own name or jointly with    B
            some other party;

      (C)   The existing goodwill and further goodwill would vest
            in the owner and the assignee.

      Soon thereafter, on 28th February, 2001, M/s. S. Majumdar     c
& Co., the authorized Trade Mark agent of the Respondent,
filed an application in Form No.TM-16, along with the Deed of
Assignment, with the Trade Mark authorities, together with the
fee of Rs.20/- for recording the name of the Appellant as the
Joint Proprietor of the Trade Mark. The application for             0
registration of the Trade Mark was advertised in the Trade Mark
Journal on 13th November, 2003. While the same was pending,
the Agreement dated 1st April, 1999, was extended by mutual
consent till 31st March, 2009. It appears that during the period
2003-2007, the sale of the product increased from                   E
Rs.19,99,808/- to Rs.1,88,70, 143/-. Meanwhile, the Agreement
dated 1st April, 1999, was extended by mutual consent till 31st
March, 2009, as indicated hereinbefore.

     6. It appears that on 19th July, 2004, one Food Ingredients
Specialties S.A. filed an opposition No.KOL-167256 to the F
Trade Mark application of the Respondent wherein a joint reply
was filed, which was affirmed by both the parties. It is alleged
that, thereafter, in 2006, the Appellant and his son floated a
company by the name of "Naturoma Herbal (P) Ltd.". It is the
case of the Appellant that the Appellant and his son floated the G
company with the name of "Naturoma Herbal (P) Ltd.".
According to the Appellant, his son floated the company with
the consent of the Respondent, who, subsequently, declined to
participate in the management thereof. On 31st August, 2006,
the Appellant resigned from the company despite the fact that H
    524    SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A the company had not started manufacturing activities until then,·
  as was certified by the Chartered Accountant. On 21st August,
  2007, the Respondent herein filed a Suit, being CS No.26 of
  2007, before the District Judge at Khurda, under Sections 134
  and 135 of the Trade Marks Act, 1999. The learned District
B Judge, by an ex-parte order dated 29th August, 2007,
  restrained the Appellant and the company from selling,
  distributing, manufacturing and marketing any of the products
  in the name of "Naturoma" or "Naturoma Herbal". At this stage,
  on 4th September, 2007, the Respondent filed an application
c under Section 9 of the 1996 Act, also before the District Judge
  at Khurda.

        7. On 12th September, 2007, the Appellant came to learn
   from the market that in breach of the Agreements entered into
  by the parties, the Respondent was approaching the Dealers
D and Distributors of the Appellant to take direct supplies from
  the Respondent on a higher discount. This led to the filing of
  the application under Section 9 of the 1996 Act by the Appellant
  before the District Judge, Alipore, Kolkata. Thereafter, on 25th
  September, 2007, the Respondent cancelled the Agreement
E dated 1st April, 1999 and also revoked the Deed of
  Assignment dated 1st October, 2000. The Appellant's
  application under Section 9 of the 1996 Act was dismissed on
  26th November, 2007, on account of the earlier application filed
  under Section 9 of the above Act, by the Respondent before
F the District Judge at Khurda. Thereafter, on 19th December,
  2007, the Appellant filed a fresh application under Section 9
  of the 1996 Act, before the learned District Judge, Khurda. On
  27th December, 2007, the learned District Judge passed an
  interim order restraining the Respondent from selling the
G products in question by herself or by any other person, save
  and except through the Appellant. The said interim order was
  made absolute on 22nd May, 2008.

        8. On 1st July, 2008, a corrigendum was made by the
    Trade Mark Registrar in the Trade Mark Journal, showing the
H
    SURESH DHANUKA v. SUNITA MOHAPATRA                     525
            [ALTAMAS KABIR, J.]
Appellant as the joint proprietor of the Trade Mark "Naturoma     A
Herbal".

     9. The Respondent herein preferred an appeal before the
Orissa High Court on 8th July, 2008, which was heard on 18th
September, 2008 and judgment was reserved. While the matter
                                                                  8
was pending, the Respondent filed a letter with the Trade Mark
Authority at Mumbai on 25th September, 2008, praying for
cancellation of the order allowing the request of the Appellant
in January, 2001, resulting in issuance of the Corrigendum in
the Trade Mark Journal on 16th September, 2008. As would          C
appear from the materials on record, the Assistant Registrar
of Trade Marks, Mumbai, cancelled the Corrigendum dated 1st
July, 2008 on 26th September, 2008, without notice to the
Appellant and such cancellation was published in the Trade
Mark Journal on 29th September, 2008. On 30th September,
2008, the Respondent filed an affidavit to bring on record the    D
said cancellation of the Corrigendum and, though, the same
was relied upon by the High Court in its judgment dated 27th
October, 2008, the Appellant was not given an opportunity to
deal with the same. The High Court, by its aforesaid judgment,
allowed the appeal filed by the Respondent. The Review            E
Application filed by the Appellant on 28th January, 2009,
against the judgment and order dated 27th October, 2008, was
ultimately rejected by the High Court on 28th September, 2010,
resulting in the filing of the Special Leave Petitions on 7th
January, 2011, in which notice was issued and a limited interim   F
order was made.

    10. Appearing for the Appellant, Mr. P.K. Ghosh, learned
Senior Advocate, submitted that since the Respondent's
establishment was basically a production unit and did not         G
possess any experience and/or expertise in the field of
marketing, promotion, distribution and management of its
manufactured goods, she entered into an Agreement with the
Appellant to market and distribute her products for a period of
5 years from 1st April, 1999, as indicated hereinbefore. The      H
    526    SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R. ·


A same was extended for a further period of 5 years on 1st April,
  2004 by mutual consent. Mr. Ghosh submitted that the Appellant
  incurred huge promotional expenses between 1999 and 2007
  assessed at about Rs.72 lakhs and it was only after such
  promotional schemes that there was a substantial increase in
B the sale of the product with the Trade Mark "Naturoma Herbal".
  Mr. Ghosh submitted that the sales figures from the accounting
  year 2003-04 to the accounting year 2006-07 showed an
  increase of almost 1 crore 60 lakhs rupees.

       11. Mr. Ghosh submitted that the Respondent even went
C so far as to sell its goods by using the Trade Mark "Naturoma
  Herbal" and deleting the name "Abhilasha" from the packaging
  of the products. Mr. Ghosh contended that suppressing all the
  above facts, the opposite party filed a suit. being C.S. No.26
  of 2007, under Sections 134 and 135 of the Trade Marks Act,
D 1999, before the District Judge, Khurda, inter alia, praying for
  an order of injunction to restrain the Appellant from using the
  Mark "Naturoma Herbal" and obtained an ex-parte order of
  injunction to the above effect.

E      12. Having obtained an interim order in the aforesaid suit,
  the Respondent terminated the Agreement dated 1st April,
  1999, and a!so revoked the Deed of Assignment dated 1st
  October, 2000, unilaterally. The Appellant thereupon moved the
  learned District Judge, Alipore, by way of an application under
F Section 9 of the 1996 Act, but the same had to be dropped on
  account of lack of jurisdiction. The Appellant, thereafter, filed
  another application under Section 9 of the above Act, being
  ARBP No.576 of 2007, before the Court of District Judge,
  Khurda, in which initially on 22nd December, 2007, an interim
  protection was given directing the Respondent not to sell,
G market, distribute, advertise its products under the Trade Mark
  "Naturoma Herbal", by herself or through any other person save
  and except the Appellant herein. The said order was
  subsequently confirmed on 22nd May, 2008.

H         13. Mr. Ghosh submitted that the Respondent had nq
    SURESH DHANUKA v. SUNITA MOHAPATRA                        527
            [ALTAMAS KABIR, J.]
authority to terminate the Agreement dated 1st April, 1999, on        A.
the ground that the same had been misused by the Appellant.
Learned counsel submitted that even if it be accepted that the
Appellant was a Director of the Naturoma Herbals Pvt. Ltd.,
between June, 2005, to August, 2006, then there was no
substance in the applications made against the Appellant as           B
the said Company had not conducted any business within that
period and, in any event, its product was sold under different
designs containing the word "SAFFIRE" in bold and prominent
fonts.

     14. Mr. Ghosh submitted that the Respondent did not also         C
have any right to revoke the Deed of Assignment whereby 50%
of the right, title and interest in the Trade Mark "Natural Herbal"
had been assigned to the Appellant to be held by him absolutely
and forever. Mr. Ghosh urged that the Deed of Assignment did
not contain any clause for revocation of the right and ownership      D
of the Trade Mark to the extent of 50% and such revocation was
made with the intention to defraud the Appellant and to grab
the market created by him.

      15. Mr. Ghosh reiterated the conditions contained in the        E
Deed of Assignment dated 1st October, 2000, whereby 50%
of the right, title and interest in the Trade Mark "Naturoma
Herbal" with proportional goodwill of the business concerned
in the said goods in respect of which the Mark was used, stood
assigned to the Appellant absolutely and forever. Mr. Ghosh           F
submitted that it was not within the powers of the Respondent
to terminate the Deed of Assignment, even if the joint venture
for marketing of the goods manufactured by the Respondent
under the name of "Abhilasha", was discontinued. Mr. Ghosh
reiterated that all goods manuiactured by the Respondent under        G
the aforesaid Trade Mark would have to be marketed solely by
the Appellant and on termination of the joint venture, neither the
assignor nor the assignee would be entitled to use or register
(emphasis added)· the Mark on its own name or jointly with
some other party. Mr. Ghosh contended that the said condition         H
    528    SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A amounted to a negative covenant which could be enforced
   under Section 42 of the Specific Relief Act, 1963. Learned
   counsel urged that while Section 41 of the aforesaid Act
   indicates the circumstances in which an injunction cannot be
   granted to prevent the breach of a contract. the performance
B of which could not specifically be enforced, Section 42, on the
   other hand, specifically provides that notwithstanding anything
   contained in Clause (e) of Section 41, where a contract
  comprises an affirmative agreement to do a certain act,
   coupled with a negative agreement, express or implied, not to
C do a certain act, the Court while not being in a position to
  compel specific performance of the affirmative agreement,
  would not be precluded from granting an injunction to perform
  the negative covenant, if the plaintiff had not failed to perform
  the contract so far as it was binding on him. Mr. Ghosh urged
  that in the instant case, the conditions in the Deed of
0
  Assignment made it very clear that except for the Appellant. no
  other person would be entitled to market, sell, distribute and
  advertise the goods manufactured by the manufacturer under
  the Trade Mark "Naturoma Herbal". It was further stipulated that
  if the joint venture agreement was to be terminated at any point
E of time, neither the assignor nor ttie assignee would be entitled
  to use or register the Mark in its own name or in the name of
  some other party.

        16. It was submitted by Mr. Ghosh that the corrigendum
F which had been published by the Registrar of Trade Marks in
  the Trade Mark Journal on 1st July, 2008, .showing the Appellant
  as the joint proprietor of the Trade Mark "Naturoma Herbal" was
  cancelled on 25th September, 2008, on the basis of a letter
  written by the Respondent to the Trade Mark Authority at
G Mumbai, seeking cancellation of the order. without any
  opportunity being given to the Appellant who had been shown
  as the joint proprietor of the Trade Mark in question. Mr. Ghosh
  submitted that what is more interesting is the fact that such
  letter seeking cancellation of the order by which the name of
H the Appellant was shown as the Joint Proprietor of the Trade
    SURESH DHANUKA v. SUNITA MOHAPATRA                        529
            [ALTAMAS KABIR, J.]
Mark was written at a time when the Respondent's appeal               A
against the order of the Registrar of the Trade Marks was
pending before the Orissa High Court. In fact, after the hearing
of the appeal was concluded and judgment was reserved, the
Respondent filed an affidavit before the High Court to bring on
record the cancellation of the corrigendum published on 1st           B
July, 2008 and, although, the same was relied upon by the High
Court, no opportunity was given to the Appellant to deal with
the said document or to make any submissions in respect
thereof. Mr. Ghosh submitted that the appeal was ultimately
allowed by the High Court on the basis of documents submitted         c
on behalf of the Respondent after the judgment had been
reserved in the appeal.

      17. Mr. Ghosh also submitted that the review application
filed by the Appellant on the ground that the affidavit filed by
the Respondent was taken on record without any opportunity            D
to the Appellant to meet the same, was also rejected on 20th
September, 2010, on the basis of an order of the Registrar of
Trade Marks which was not on record at the time when the
hearing of the appeal was concluded and judgment was
reserved. Mr. Ghosh submitted that the manner in which the            E
entire proceedings had been conducted clearly indicates that
the High Court had not applied its judicial mind in allowing the
appeal filed by the Respondent against the orders passed on
the Appellant's application under Section 9 of the Arbitration
and Conciliation Act, 1996, before the District Judge at Khurda.      F

      18. Mr. Ghosh lastly contended that on the application
made by the Respondent to the Registrar of Trade Marks for
registration of the Trade Mark "Naturoma", certain objections
had been filed in her counter' statement. In such objection, it had   G
been clearly indicated that with a view to effectively market the
products under the Trade Mark "Naturoma", the Respondent
joined hands with the Appellant by a Deed of Assignment dated
1st October, 2000, whereby she had transferred 50% of her
right, title and interest in favour of the Appellant and pursuant     H.
to such assignment, the Trade Mark application was now jointly
     530 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


  A held by Nature Pro Biocare Inc. and Abhilasha. Mr. Ghosh
    submitted that the Respondent had at all times in no uncertain
    terms reiterated the assignment effected in favour of the
    Appellant with regard to the Trade Mark and the goodwill of the
    Company. Learned counsel submitted that having done so,
  B there was no reason for the Registrar of Trade Marks to cancel
    the corrigendum by which the name of the Appellant had been
    brought on the Trade Mark Journal as joint owner of the Trade
    Mark "Naturoma Herbal" and that too not by any order of
    cancellation, but merely by a notification which was issued
  c without any foundation, since the judgment in the appeal
    preferred by the Respondent had not yet been delivered. Mr.
    Ghosh submitted that the order of the High Court and that of
    the Registrar of Trade Marks canceling the corrigendum issued
    by the Registrar of Trade Marks in favour of the Appellant, were
    liable to be set aside.
  0
          19. On behalf of the Respondent, Mr. Shambhu Prasad
    Singh, learned Senior Advocate, submitted that since the
    arbitral proceeding was at its last stages and the Appellant
    could be adequately compensated in terms of money, the
· E prayer for injunction made on behalf of the Appellant was liable
    to be rejected.

        20. Apart from the above, Mr. Singh submitted that although
   a Deed of Assignment had been executed on 1st October,
F 2010, the same had never been acted upon, but the Appellant
   sought to take shelter under Clause 19 of the said Deed after
   having acted contrary thereto by forming a Company in the
   name of "Naturoma Herbals Private Limited" and applying for
   registration of the Respondent's Trade Mark "Naturoma· in his
G newly-formed Company's name. Referring to the Certificate of
   Incorporation and Memorandum of Association of the said
   Company, Mr. Singh pointed out that the name of the Appellant
   was shown in the Subscribers' List at Serial No.1 holding 5000
  'Shares, while his son, Rahul Dhanuka, was shown to be holding
   the remaining 5000 shares .
.H
     SURESH DHANUKA v. SUNITA MOHAPATRA                      531
             [ALTAMAS KABIR. J.)
     21. On the question of grant of injupction to implement a      A
negative covenant, as envisaged in Section 42 of the Specific
Relief Act, 1963, Mr. Singh urged that the covenant contained
in the Deed of Assignment, which had not been acted upon,
was contrary to the provisions of Section 27 of the Indian
Contract Act, 1872, and was, therefore, void.                       B

     22. Mr. Sinsh submitted that prior to the Agreement
entered into between the parties on 1st April, 1999, regarding
marketing and distribution of the goods manufactured by the
Respondent, the Respondent had obtained Drug Licence on             C
2nd May, 1997, and Sales Tax Licence on 13th September,
1997, for marketing and selling "Naturoma Herbals". Mr. Singh
urged that even eight years after the Assignment Deed was
signed by the parties, the Respondent's name continued to be
shown in the Trade Mark Journal as the proprietor of the
aforesaid Trade Mark. Learned counsel submitted that as per         D
the prayer of the Respondent in the application before the
District Judge, Khurda, under Section 9 o( the Arbitration and
Conciliation Act, 1996, the Court had initially passed an interim
order dated 29th August, 2007, whereby the Appellant and
others were restrained from selling, distributing, manufacturing    E
and marketing any product in the name of "Naturoma Herbals"
or "Naturoma" or in any other name similar or identical to the
said name. The said ad-interim order was made absolute an
25th January, 2008, till the disposal of the suit. The appeal
preferred from the said order was dismissed by the High Court.      F
The review petition filed thereafter was also dismissed.

     23. Mr. Singh then submitted that in addition to the
aforesaid proceeding before the District Judge, Khurda, the
Appellant had also filed an application before the learned          G
Arbitrator under Section 17 of the Arbitration and Conciliation
Act, 1996, for the self-same reliefs.

    24. On the question of enforcement of a negative covenant,
Mr. Singh submitted that even in such a case, the balance of
convenience and inconvenience would have to be taken into           H
    532    SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.


A consideration. In this regard, reference was made to the
  decision of this Court in (i) Gujarat Bottling Co. Ltd. vs. Coca
  Cola Company ((1995) 5 SCC 545], (ii) Percept D'Mark (India)
  (P) Ltd. vs. Zaheer Khan ((2006) 4 SCC 227] and (iii)K. T.
  Plantation Ltd. vs. State of Karnataka ((2007) 7 SCC 125].
B
        25. Mr. Singh urged that the impugned decision of the High
  Court was without any illegality or irregularity and no
  interference was called for therewith.

       26. In a short reply, Mr. Pradip Ghosh submitted that in the
C instant case there was no violation of Section 27 of the Indian
  Contract Act, 1872, as the injunction sought for was not on trade
  or business but in respect of use of the Trade Mark.

         27. From the submissions made on behalf of the
0   respective parties and the materials on record, it is clear that
    the Respondent who was a manufacturer of herbal produ..;ts
    entered into an Agreement with the Appellant resulting in the
    formation of a Joint Venture Company under the name and style
    of "Abhilasha". The said Agreement was initially for a period
E   of 5 years from 1st April, 1999, and, thereafter, extended till
    31st March, 2009. There is also no dispute that a Deed of
    Assignment was executed by the Respondent in favour of the
    Appellant on 1st October, 2010, assigning 50% of the right, title
    and interest in the Trade Mark "Naturoma Herbal" registered
    in the name of the Respondent, with proportional goodwill of
F   the business concerned in the goods in respect of which the
    Mark is permanently used, on certain conditions which have
    been extracted hereinbefore. It is also on record that an
    application was filed with the Trade Mark authorities for bringing
    on record the name of the Appellant as the Joint Proprietor of
G   the Trade Mark and objections filed thereto were jointly resisted
    by the Appellant and the Respondent, accepting the fact that
    the Appellant was the owner of 50% of the Trade Mark and all
    rights, title and interest accrued therefrom. However, in 2006,
    it came to light that the Appellant had floated a Company by
H   the name of "Naturoma Herbals (P) Ltd." and it had also applied
    SURESH DHANuKA v. SUNITA MOHAPATRA                     533
            [ALTAMAS KABIR, J.]

for registration of the Trade Mark in the name of that Company.    A
It is at that stage that the Respondent filed a Suit on 21st
August, 2007, under Sections 134 and 135 of the Trade Marks
Act, 1999, being C.S. No.26 of 2007, in which an ex-parte
interim order was passed on 29th August, 2007, restraining the
Appellant and the Company from selling, distributing,              B
manufacturing and marketing any of the products in the name
of "Naturoma" or "Naturoma Herbal". The said ad-interim order
was made absolute on 25th January, 2008, till the disposal of
the suit.

      28. Thereafter, on 25th September, 2007, the Respondent
                                                                   c
cancelled the Agreement dated 1st April, 1999 and also
revoked the Deed of Assignment dated 1st October, 2000.
Immediately thereafter, on 19th December, 2007, the Appellant
filed a fresh application under Section 9 of the Arbitration and
Conciliation Act, 1996, before the District Judge, Khurda, who     D
on 27th December, 2007, passed an ad-interim order
restraining the Respondent from selling her products by herself
or by any other person, save and except through the Appellant.
The said interim order was made absolute on 22nd May, 2008.
                                                                   E .
     29. At this point of time, there were two apparently
conflicting orders in existence; one by tl'ie District Judge,
Khurda, in the Suit filed by the Respondent restraining the
Appellant from selling, distributing, manufacturing or marketing
any of the products in the name of "Naturoma" or "Naturoma         F
Herbal", and on the other the District Judge passed an order
under Section 9 of the Arbitration and Conciliation Act, 1996,
restraining the Respondent from selling her products by herself
or by any other person, save and except through the Appellant.

     30. The corrigendum by which the Trade Mark Registrar         G
had on 1st July, 2008, altered the entries in the Trade Mark
Journal, showing the Appellant as the Joint Proprietor of the
Trade Mark "Naturoma Herbal", was cancelled on 26th
September, 2008, without notice to the Appellant. After the
interim order passed on 27th December, 2007, on the                H
    534 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.

A application filed by the Appellant under Section 9 of the
   Arbitration and Conciliation Act, 1996, and the same was made
   absolute on 22nd May, 2008, the Respondent preferred an
  appeal before the Orissa High Court on 8th July, 2008, being
  Arb. A. No.17 of 2008. The same was heard on 18th
B September, 2008, and judgment was reserved. After reserving
  judgment, 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. What is also relevant is
c the fact that the said affidavit was relied upon by the High Court
  while allowing the Appeal filed by the Respondent herein. The
  questions which, therefore, arise for determination are :

         (i)    Whether the High Court was justified in interfering
                with the order passed by the District Judge, Khurda
D               in Arb.(P) No.576 of 2007, on account whereof
                pending arbitration, the Respondent was restrained
                from marketing the products manufactured by her
                under the Trade Mark "Naturoma Herbal" or
                "Naturoma" by herself or through anyone, except
E               through the Appellant?

         (ii)   Whether, pending arbitration proceedings, an order
                could have been passed by which the right
                acquired by the Appellant under the Deed of
F               Assignment of 50% of the right, title and interest in
                the Trade Mark "Naturoma Herbal", could have been
                suspended and he could have been restrained from
                objecting to the use of the said Mark by the
                Respondent?
G        (iii) 'Whether the High Court was justified in relying upon
                an affidavit filed on behalf of the Respondent after
                hearing had been concluded and judgment had
                been reserved in the appeal, without giving the
                Appellant an opportunity of dealing with the same?
H
     SURESH DHANUKA v. SUNITA MOHAPATRA                         535
             [ALTAMAS KABIR, J.]

      (iv)   Whether the invocation of Section 42 of the Specific      A
             Relief Act, 1963, to enforce the negative covenant
             contained in the Deed of Assignment, was contrary
             to the provisions of Section 27 of the Indian
             Contract Act, 1872 and was, therefore, void?
                                                                       B
       31. As far as the first two questions are concerned, the
 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 "Naturoma Herbal" with
 proportional goodwill of the business concerning the goods in         C
 respect of which the Mark was used, absolutely and forever,
 from the date of the Deed, namely, 1st October, 2000. It is no
 doubt true that on behalf of the Respondent it has been claimed
 that the Deed of Assignment had never been acted upon and
 that, in any event, the same had been revoked on 25th
 September, 2007, when the Agreement dated 1st April, 1999,            D
was cancelled. However, in view of the provisions of the Deed
 of Assignment, it is yet to be adjudicated upon and decided
 as to whether by virtue of the revocation of the Deed of
Assignment by the Respondent, the Appellant was no longer
entitled to the benefits of the Trade Mark which had been              E
transferred to him to the extent of 50% absolutely and forever.
In such circumstances, the order passed by the District Judge,
Khurda, in ARBP No.576 of 2007, restraining the Respondent
from marketing her products through any person, other than the
Appellant, was more apposite in the facts of the case, as the          F
rights of both the parties stood protected till such time as a final
decision could be taken in arbitral proceedings, which, in effect,
is the object and intention of Section 9 of the Arbitration and
Conciliation Act, 1996.
                                                                       G
     32. As far as the third question is concerned, it was
inappropriate on the part of the High Court to allow the
Respondent to file an affidavit, on which reliance was placed,
after the hearing had been concluded and judgment had been
reserved, without giving the Appellant an opportunity of dealing       H
    536     SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A with the same. However innocuous the 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 has been
B submitted that the additional affidavit which was filed on behalf
  of the Respondent after the judgment had been reserved by the
  Appeal Court, only sought to bring on record the proceedings
  whereby the corrigendum which had been issued by the Trade
  Mark Registrar on 1st July, 2008, showing the Appellant as the
C Joint Proprietor of the Trade Mark "Naturoma Herbal", had been
  subsequently cancelled on 26th September, 2008. Since what
  was produced was a record of the official proceedings, the
  Appellant could not have been prejudiced since he himself had
  knowledge of the same.

D      33. Coming to the last question, as to whether the
  invocation of Section 42 of the Specific Relief Act, 1963, to
  enforce the negative covenant contained in the Deed of
  Assignment, was contrary to the provisions of Section 27 of the
  Indian Contract Act, 1872, or not, we are inclined to accept Mr.
E Ghosh's submissions that the injunction sought for by the
  Appellant was not to restrain the Respondent from carrying on
  trade or business, but from using the Trade Mark which was
  the subject matter of dispute. Accordingly, the provisions of
  Section 27 of the Indian Contract Act, 1872, would not be
F attracted to the facts in this case. For the sake of reference,
  Section 27 of the above Act is reproduced hereinbelow :-

          27. Agreement in restraint of trade, void. - Every agreement
          by which any one is ~estrained from exercising a lawful
          profession, trade or business of any kind, is to that extent
G
          void.

          Exception 1.- Saving of agreement not to carry on
          business of which goodwill is sold.- One who sells the
          goodwill of a business may agree with the buyer to refrain
H         from carrying on a similar business, within specified local
    SURESH DHANUKA v. SUNITA MOHAPATRA                        537
            [ALTAMAS KABIR, J.]
     limits, so long as the buyer, or any person deriving title to    A
     the goodwill from him, carries on a like business therein,
     provided that such limits appear to the Court reasonable,
     regard being had to the nature of the business."

           It is obvious that what is declared to be void by virtue   8
     of Section 27 is any Agreement to restrain any person from
     exercising his right to carry on a profession or trade or
     business and any restraint thereupon by an Agreement
     would be void.

    34. As will be seen from the materials on record, the             C
Appellant did not ask for any injunction against the Respondent
from carrying on any trade or business, but he objected to the
use by the Respondent of the Trade Mark, in which he had
acquired a 50% interest, while selling her products.
                                                                      D
      35. The conditions in the Deed of Assignment clearly
stipulate that all the goods manufactured by the Respondent
under the Trade Mark "Naturoma" would be marketed solely by
the Appellant. It was also submitted that the said Trade Mark
would be used only in relation to goods connected in the course       E
of trade with both the parties. One of the other conditions of
the Deed of Assignment was that both the parties would be
entitled to assign their respective shares in the Trade Mark
subject to prior written consent of the other party, which
presupposes that the parties were the absolute owners of their        F
respective shares in the Trade Mark and even on termination
of the joint venture, as has been done in the instant case, neither
of the parties would be entitled to use or register the Mark in
their own names or jointly with some other party.

     36. Accordingly, having regard to the arbitration clause,        G
which is Condition No.10 of the terms and conditions of the
Deed of Assignment, the interim order passed on the
application under Section 9 of the Arbitration and Conciliation
Act, 1996, filed by the Appellant in keeping with the terms and
conditions agreed upon between the parties, was justified and         H
    538    SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.

A within the jurisdiction of the District Judge, Khurda. As we have
  mentioned hereinbefore, the interim order passed by the
  learned District Judge, Khurda, restraining the Respondent from
  selling her products by herself or by any other person, save and
  except through the Appellant, was apposite to the
B circumstances. The said order took into consideration the
  interests of both the parties flowing from the Agreement and
  the Deed of Assignment, pending decision by an Arbitral
  Tribunal. The cause of action for the suit filed by the Respondent
  before the District Judge, Khurda was the incorporation of a
c Company by the Appellant with his son under the name and
  style of "Naturoma Herbals (P) Ltd." and the subsequent
  application made before the Registrar of Trade Marks to
  register "Naturoma Herbal" in the name of the said Company.
  It is in that context that the interim order was passed restraining
D the Appellant from distributing, manufacturing or marketing any
  of the products in the name of "Naturoma" or Trade Mark
  "Naturoma Herbal". The said order of injunction did not permit
  the Respondent to manufacture and market the goods under
  the said Trade Mark in violation of the provisions of the Deed
E of Assignment referred to hereinabove.

       37. The learned Single Judge of the High Court, while
  referring to some of the provisions of the Agreement between
  the parties, apparently overlooked the provisions relating to the
  use of the Trade Mark contained in the Deed of Assignment.
F Although, reference was made to Clause 19 of the Agreement,
  the High Court failed to notice that the same was not contained
  in the Deed of Assignment, whereby 50% of the right, title and
  interest of the Respondent in the Trade Mark "Naturoma Herbal"
  was assigned in favour of the Appellant absolutely and forever.
G As has been emphasized hereinbefore, even upon termination
  of the joint venture under the Agreement between the parties,
  neither the Appellant nor the Respondent would be entitled to
  use or register the Mark in their own names or jointly with some
  other party. In fact, the relevant terms and conditions of the
H Deed of Assignment had been extracted by the learned Single
       SURESH DHANUKA v. SUNITA MOHAPATRA                   539
               [ALTAMAS KABIR, J.]
Judge in the impugned judgment, but the same appear to have         A
been lost sight of while considering the terms and conditions
of the Agreement executed between the parties.

     38. In our view, this is not a case where money can be an
adequate compensation, since the Appellant has apparently 'B
acquired a 50% interest in the Trade Mark in question, together
with the goodwill of the business in relation to the products in
which the Trade Mark is used.

     39. We are, therefore, of the view that the High Court erred
in reversing the order passed by the District Judge in ARBP C
No.576 of 2007 filed by the A~ellant, under which the status-
quo would have been maintained till the dispute was settled in
arbitration.

     40. We, accordingly, a))pw the Appeals, set aside the D
impugned judgment and order of the learned Single Judge of
the High Court impugned in the Appeals and restore that of the
District Judge, Khurda in ARBP No.576 of 2007.
     41. However, before parting with the matter, we have to
refer to the order passed by us on 28th January, 2011, whereby E
the Respondent had been allowed to continue with the running
of the business, but she was directed ·to maintain a separate
account in respect of the transaction and to place the same
before us at the time of hearing of the matter. Such account
does not appear to have been filed, but since we are disposing F
of the matter by restoring the order of the District Judge,
Khurda, in ARBP No.576 of 2007, we further direct the
Respondent, as and when arbitral proceedings may be taken,
to furnish such account upto this day before the learned
Arbitrator so that the claims of the parties can be fully decided G
by the learned Arbitrator.
    42. Having regard to the facts of tile case, the parties will
bear their own costs in these appeals all throughout.
                                              Appeals al.lowed.     H
N.J.