Delhi High Court - Orders
M/S Ha Tractor Spare Exports vs M/S Vraj Tractor Industries & Anr on 18 February, 2022
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~26 (Original)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 110/2022 & I.A.2637/2022, I.A.2638/022,
I.A.2639/2022, I.A.2640/2022, I.A.2641/2022
M/S HA TRACTOR SPARE EXPORTS ..... Plaintiff
Through: Mr. Sunil Dalal, Sr. Adv. with
Mr.Rajiv Kumar Chaudhary, Mr. Devashish
Bhadauria, Ms. Payal and Mr. Manash Burman,
Advs.
versus
M/S VRAJ TRACTOR INDUSTRIES & ANR...... Defendants
Through: None
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 18.02.2022 (By Video Conference on account of COVID-19) IA 2641/2022 (exemption)
1. For the reasons stated in the application, the requirement of pre- suit mediation is dispensed with.
2. The application is allowed accordingly.
IA 2640/2022 (exemption)
3. Subject to the plaintiff filing legible copies of any dim or illegible documents on which it may seek to place reliance within four weeks from today, exemption is granted for the present.
Signature Not Verified CS (COMM)110/2022 Page 1 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 11:37:224. The application is disposed of.
CS (COMM) 110/2022
5. The plaintiff's grievance against the defendants, in the present suit, is predicated on a settlement agreement, dated 25th February, 2012, which was executed between the plaintiff and the defendants during the pendency of CS (OS) 375/2012, instituted by Defendant 1 against the plaintiff. Mr. Dalal has taken me through the covenants of the settlement agreement. In the settlement agreement, the plaintiff has referred to as the "party of the second part" and Defendant 1 is referred to as the "party of the first part". Clause 4 of the settlement agreement reads as under:
"4. That the party of the Second part shall be exclusively entitled to sell its goods under the mark VRAJ Wasi&BrajBasi in territories specified in Schedule B and the party of First part shall not sell its product under the mark "VRAJ" in such territories."
6. Schedule B to the settlement agreement reads thus:
"SCHEDULE B PARTY OF THE SECOND PART:
1. Andhra Pradesh
2. Arunachal Pradesh
3. Assam
4. Bihar Signature Not Verified CS (COMM)110/2022 Page 2 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 11:37:22
5. Goa
6. Haryana
7. Himachal Pradesh
8. Jammu & Kashmir
9. Jharkhand
10. Karnataka
11. Kerala
12. Manipur
13. Meghalaya
14. Mizoram
15. Nagaland
16. Orissa
17. Punjab
18. Sikkim
19. Tamil Nadu
20. Tripura
21. Uttaranchal
22. Uttar Pradesh
23. West Bengal
24. Delhi Signature Not Verified CS (COMM)110/2022 Page 3 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 11:37:22
25. Andaman and Nicobar Islands
26. Chandigarh
27. Dadar and Nagar Haveli
28. Daman and Diu
29. Lakshwadeep
30. Pondicherry PARTY OF THE FIRST PART PARTY OF THE SECOND PART"
Sd/- Sd/-
(Kamal Kishore Baheti) (Smt. Patasi Devi)
Sd/-
(Govind Baheti)"
7. On the basis of the aforesaid settlement agreement, CS (OS) 375/2012 was disposed of, by this Court, vide order dated 5th March, 2012.
8. The plaintiff alleges that the defendant is violating the settlement agreement, as it is selling its products under the brand name "VRAJ" in territories which, as per Clause 4 of the Settlement Agreement read with Schedule B thereto, are the exclusive province of the plaintiff. Mr. Dalal submits that the plaintiff has material to indicate that the defendant is selling its product under the brand name "VRAJ" in Punjab, Karnataka and Delhi, all of which fall to the lot of the plaintiff under the settlement agreement.
Signature Not Verified CS (COMM)110/2022 Page 4 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 11:37:22
9. The plaintiff has also placed invoices on record, issued by Defendant 2, which is a proprietorship concern of the proprietor of Defendant 1, which indicates that goods under the name "VRAJ" are being sold in territories included in Schedule B to the settlement agreement.
10. In these circumstances, the plaintiff has moved the present plaint, seeking an injunction against the defendants from marketing or selling any products using the mark "VRAJ", in any of the states enlisted in Schedule B to the settlement agreement.
11. Clearly, on the basis of the averments in the plaint, a prima facie case is made out in favour of the plaintiff.
12. Accordingly, let the plaint be registered as a suit.
13. Issue summons in the suit. Written statement, accompanied by affidavit of admission/denial of the documents filed by the plaintiff be filed within four weeks with advance copy to learned Counsel for the plaintiff who may file replication thereto, accompanied by affidavit of admission/denial of the documents filed by the defendants within two weeks thereof.
14. List before the Joint Registrar for completion of pleadings, admission/denial of documents, marking of exhibits on 20th April, 2022. Signature Not Verified CS (COMM)110/2022 Page 5 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 11:37:22
IA 2637/2022 (under Order XXXIX Rules 1 and 2 of the CPC)
15. This is an application by the plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) seeking interim injunction.
16. Issue notice, returnable before the Court on 4th May, 2022.
17. Reply, if any, be filed within four weeks with advance copy to learned Counsel for the plaintiff who may file rejoinder thereto before the next date of hearing.
18. Till the next date of hearing, the defendants shall stand restrained from selling its goods, under the mark "VRAJ" in any of the territories enlisted in Schedule B to the settlement agreement dated 25th February, 2012 and reproduced supra.
19. As this order has been passed ex parte, the plaintiff would comply with requirement of Order XXXIX Rule 3 of the CPC by electronic mode within a period of two weeks from today.
IA 2638/2022 (under Order XI Rule 16 of the CPC)
20. Issue notice, returnable on 4th May, 2022.
Signature Not Verified CS (COMM)110/2022 Page 6 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 11:37:2221. Reply, if any, be filed within four weeks with advance copy to learned Counsel for the plaintiff who may file rejoinder thereto before the next date of hearing.
22. Re-notify on 4th May, 2022 before the Court.
IA 2639/2021 (under Order XXVI Rule 9 of the CPC)
23. This application seeks appointment of a local commissioner to visit the premises of the defendants at Jodhpur and obtain copies, from the records of the defendants, about sales of their products under the brand name "VRAJ" in any of the territories enlisted in Schedule B to the settlement agreement. The defendants are directed therefore, to provide to the Local Commissioner, copies of their bill books and record of invoices for the past three years. If the data is retained in an electronic format, the defendants may provide the said data to the Local Commissioner on a pen drive which would be carried by the Local Commissioner for the said purpose. This is intended for the Court to appraise itself regarding the sales effected by the defendants, of their goods under the brand name "VRAJ" in territories enlisted in Schedule B to the settlement agreement dated 25th February, 2012 over the past three years.
24. The Local Commissioner would retain the said data, whether in Signature Not Verified CS (COMM)110/2022 Page 7 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 11:37:22 electronic or physical form, in sealed cover, to be submitted to the Registry with a report regarding execution of the Commission, within a week thereof.
25. This Court appoints Chittaranjan Hati, Advocate (Cell: 98113 41053) as the Local Commissioner to execute the local commission in the aforesaid terms.
26. The defendants are directed to cooperate with the execution of the local commission.
27. Should the defendants obstruct the execution of the commission, the Local Commissioner would be at liberty to seek police assistance for the said purpose, in which event - which, hopefully, would not be required - this order would operate as a direction to the local jurisdictional police authorities to provide such assistance as may be necessary for execution of the commission.
28. The Local Commissioner shall be entitled to fees of₹ 1 lakh, apart from out of pocket expenses and transport, to and fro, which would be arranged by the plaintiff. Fees would be payable in advance of execution of the commission.
29. Should the Local Commissioner have to stay overnight, arrangement for stay would also be made by the plaintiff at its own cost.
Signature Not Verified CS (COMM)110/2022 Page 8 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 11:37:2230. Let the commission be executed on 26th February, 2022 or on any other date as may be mutually convenient, depending on the arrangements that the plaintiff is able to make.
31. The application stands allowed in the aforesaid terms.
C.HARI SHANKAR, J FEBRUARY 18, 2022/kr Signature Not Verified CS (COMM)110/2022 Page 9 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 11:37:22