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Anay Kumar Gupta vs Jagmeet Singh Bhatia on 20 September, 2021

Author: Jayant Nath

Bench: Jayant Nath

                          $~OS-15
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +     CS(COMM) 409/2021

                                ANAY KUMAR GUPTA                           ..... Plaintiff
                                            Through      Mr.Shailen Bhatia and Mr.Arnav
                                            Chatterjee, Advs.

                                                     versus

                                JAGMEET SINGH BHATIA                 ..... Defendant
                                             Through Mr.Manish Kaushik, Adv.

                                CORAM:
                                HON'BLE MR. JUSTICE JAYANT NATH
                                             ORDER

                          %                  20.09.2021

                          IA No. 12200/2021 and 12230/2021
                          1.    Issue notice.

2. Learned counsel for the plaintiff accepts notice.

3. IA No. 12200/2021 is filed by the defendant seeking an order referring the dispute between the parties to arbitration in view of Section 8 of the Arbitration and Conciliation Act, 1996 and in view of the arbitration clause in the Agreements dated 20.12.2018 and 08.01.2019. An order is also sought to vacate the interim order passed by this court on 03.09.2021. IA No. 12230/2021 also seeks somewhat similar reliefs.

4. Learned counsel for the plaintiff and learned counsel for the defendant submit that they have no objection in case this court were to refer the disputes between the parties to an arbitrator appointed by this court, preferably a retired judge of this court.

5. In view of the request of the learned counsel for the parties, Mr.Justice Manmohan Sarin (Retd.), (Mobile No. 9818000210) is appointed as an Arbitrator to adjudicate the dispute between the parties. The Ld. Arbitrator may fix his own fees.

6. The interim order passed by this court on 03.09.2021 shall continue to operate until the same is upheld/modified/vacated by the learned Arbitrator as per law.

7. Learned counsel for the defendant at this stage states that there are sufficient reasons to vacate the interim order urgently as the license of the defendant is expiring and this would cause multi-fold loss to the defendant. He pleads that there is urgency and the application for vacation of the aforesaid interim order being IA No. 12008/2021 be adjudicated expeditiously by the learned Arbitrator.

8. This court on 03.09.2021 passed the following order:-

1. This application is filed under Order 39 Rules 1 and 2 CPC seeking an ex-parte injunction to restrain the defendant, his agents, officers, dealers, distributors etc. from manufacturing, exporting, selling, exhibiting, advertising etc. any goods - whisky and other cognate/allied goods under the trademark/label 'EVERSHINE PREMIUM CLASSIC WHISKY'/ or any other trademark/ lable which is identical/deceptively similar to the Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:22.09.2021 11:18:37 trademark/label of the plaintiff.

2. It is the case of the plaintiff that the plaintiff entered into a Trade Mark License Agreement dated 12.11.2018 with one M/s MKP Impex LLP under which the plaintiff firm acquired and M/s MKP Impex LLP transferred to the plaintiff firm, the exclusive rights to use all intellectual property rights, labels and trade marks for 'EVERSHINE PREMIUM CLASSIC WHISKY' for purposes of manufacturing, bottling, producing and marketing of goods being IMFL (whisky) in the territory of NCT of Delhi.

3. Thereafter, on 20.12.2018, the plaintiff entered into the Brand Usership Agreement with the defendant. Under the said agreement the plaintiff gave license to use the trade mark/label 'EVERSHINE PREMIUM CLASSIC WHISKY, shape of bottle, packaging and the logo AWB to the defendant for the purposes of manufacturing whisky which would inturn be sold/marketed by the plaintiff in the territory of Delhi. The plaintiff and the defendant entered into another MOU dated 08.01.2019. The agreements expired on 31.03.2020.

4. It is the case of the plaintiff that with the expiry of the aforesaid agreements, the defendant also became liable to return huge amounts of money to the plaintiff and also was not entitled to manufacture 'EVERSHINE PREMIUM CLASSIC WHISKY'. It is stated that the defendant continued to illegally manufacture and sell the whisky under the impugned trademark/lable and the packaging, bottle shape and logo AWB etc. Hence, the present suit.

5. As the agreement has expired, the plaintiff has made out a prima facie case. The defendant, his agents, officers, dealers, distributors etc. are restrained from manufacturing, exporting, selling, exhibiting, advertising etc. any goods - whisky and other cognate/allied goods under the trademark/label 'EVERSHINE Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:22.09.2021 11:18:37 PREMIUM CLASSIC WHISKY' or any other trademark/lable which is identical/deceptively similar to the trademark/label of the plaintiff.

6. Issue notice to the defendant through speed post, courier and email, returnable for 24.11.2021.

7. The plaintiff to comply with Order 39 Rule 3 CPC within five days from today."

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9. It is for the defendant to make the above request before the learned Arbitrator. Liberty is granted to the defendant to place a copy of the aforesaid application IA No.12008/2021 before the learned Arbitrator for appropriate directions and expeditious disposal. Needful be done within three days from today.

10. Learned Arbitrator is requested to expeditiously deal with the said application of the defendant.

11. Parties to appear before the learned Arbitrator on 25.09.2021.

12. In the meantime, the plaintiff will file a reply to the said application (IA No. 12008/2021) of the defendant before the ld. Arbitrator.

13. With the above directions, the applications stand disposed of.

CS(COMM) 409/2021 Suit and all pending application stand disposed of accordingly. The next date of hearing i.e. 24.11.2021 stands cancelled. As the matter has been referred for arbitration at an initial stage, full court fees be refunded to the plaintiff. A copy of the order be sent to the ld. Arbitrator by e-mail.

JAYANT NATH, J SEPTEMBER 20, 2021/rb Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:22.09.2021 11:18:37