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BOGSTRA v. CO OPERATIVE CONDENSED FABRIK
Civil Appeal
1943 Present: Moseley
A.C.J. and Jayetilleke J.
BOGSTRA, Appellant, and CO-OPERATIVE CONDENSED
FABRIK, Respondent.
87-D. C. Colombo, 11,015.
Enemy property-Plaintiff
company carrying on business in Holland-Occupation of Holland by the
Enemy-Company under enemy control-Vesting of property in Custodian of Enemy
Property-Defence (Enemy Property) Regulations of 1939, Regs. 7 (1) and 7 (I)
(c).
The plaintiff, a company incorporated under the Laws of Netherlands, carrying on
the business of manufacturing and selling condensed milk, instituted this action
against the defendants to restrain them from importing or selling condensed milk
bearing a certain mark and also from passing off the condensed milk imported by
them as that of the plaintiff. After the defendant filed answer Holland was
occupied by the enemy on May 9, 1940.
The Custodian of Enemy Property (the respondent) thereupon filed a petition and
moved to be substituted in place of the plaintiff on the ground that all movable
and immovable property belonging to the plaintiff vested in him.
The respondent also produced a letter dated June 26, 1940, written from London
by the Acting Under Secretary for the Minister of Trade, Industry and Shipping,
Netherlands, to the local agents informing them that the Royal Netherlands
Government was unable to obtain information as regards the actual position of
the plaintiff and that the latter does not figure among the firms which have,
since the outbreak of the War, transferred their seats to territories of the
Kingdom outside Europe.
Held, that the plaintiff was a body of persons over whom some degree of control
was exercised by the Enemy within the meaning of Regulation 7 (1) (c) of the
Defence (Enemy Property) Regulations of 1939.
Held, further, that the action instituted for the vindication of rights based
upon a trade mark arises out of movable property within the meaning of
Regulation 7 (1).
APPEAL
from an order of the District Judge of
Colombo.
H. V. Perera, K.C. (with him E. F. N. Gratiaen), for appellants.
N. Nadarajah, K.C. (with him N. K. Choksy), for 1st respondent.
Cur. adv. vult.
March 23, 1943. JAYETILEKE J.-
The plaintiff, a company incorporated under the laws of the Netherlands and
carrying on the business of manufacturing and selling condensed milk at
Leeuwarden, instituted this action against the defendants on October 25, 1939,
to restrain them from importing or selling condensed milk bearing a certain mark
and also from passing off the condensed milk imported by them as that marketed
by the plaintiff. The plaintiff also claimed an account of the profits earned by
the defendants or in .the alternative Rs. 5,000 as damages.
On March 9, 1940, the defendants filed answer and on May 9, 1940, Holland was
occupied by the enemy. On February 27, 1942, the respondent, who is the
Custodian of Enemy Property in Ceylon, filed a petition and an affidavit and
moved to be substituted in place of the plaintiff, or alternatively, to be added
as a plaintiff, on the ground that under Regulation 7 (1) of the Defence (Enemy
Property) Regulations of 1939 all movable and immovable property belonging to
the plaintiff became vested in him.
The Regulation, omitting immaterial words, reads thus :
" All movable or immovable property belonging to or held or managed for and on
behalf of an enemy shall be and is hereby vested in the Custodian and shall be
deemed for all purposes to have been so vested in him from the commencement of
the War.
" The motion was opposed on the ground that the plaintiff was not an " enemy" as
denned in Regulation 49 of the Regulations. The learned District Judge held
against the defendants on that point and made order adding the respondent as a
plaintiff. The defendants appealed from that order.
On appeal a further point was raised, namely, that the subject-matter of the
action is not movable or immovable propert
