Madras High Court
Texmo Industries vs Mr.Sanjay B.Singhi on 24 August, 2018
Author: M.Sundar
Bench: M.Sundar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24.08.2018
CORAM
THE HON'BLE MR.JUSTICE M.SUNDAR
C.S.No.911 of 2016
and O.A.Nos.1087 and 1088 of 2016
and A.No.107 of 2017
Texmo Industries,
Registered Partnership firm,
Represented by its Constituted Attorney Mr.Palaniappan,
P.B.No.5303,
Gnanmbika Mills P.O.,
Mettupalayam Road,
Coimbatore - 641 029. .. Plaintiff
Vs.
1. Mr.Sanjay B.singhi
Proprietor
M/s.Shilpa Electricals
7, Dakshin Gangotri,
224, Shukrawar Peth,
Near Aakra Maruti Kopra,
Pune - 411 002,
Maharashtra.
2. Mr.Kamal
Proprietor
M/s.Shilpa Electricals
7, Dakshin Gangotri,
224, Shukrawar Peth,
Near Aakra Maruti Kopra,
Pune - 411 002,
Maharashtra.
3. Shilpa Electricals
7, Dakshin Gangotri,
224, Shukrawar Peth,
Near Aakra Maruti Kopra,
Pune - 411 002,
Maharashtra.
4. Shilpa Agencies
7, Dakshin Gangotri,
224, Shukrawar Peth,
Near Aakra Maruti Kopra,
Pune - 411 002,
Maharashtra. .. Defendants
This Civil Suit is preferred, under Order VII Rule 1 CPC read with Order IV Rule 1 of the original side Rules of the Madras High Court, and Sections 11, 27, 29, 134, 135 Trade Marks Act, 1999, seeking for a permanent injunction restraining the Defendants, their partners, their employees, officers, servants, agents and all others acting for and on their behalf from making, selling, distributing, advertising, exporting, offering for sale, and in any other manner, directly or indirectly, dealing in any product in the name of TESMO or any other similar mark amounting to an infringement of the Plaintiff's registered trademarks Nos.315049 and 315050, both in Class 07; seeking for a permanent injunction restraining the Defendants, their partners, their officers, employees, servants and agents, from manufacturing, selling, offering for sale, advertising and directly or indirectly dealing in any product or service under the trademark TESMO or any other similar marks amounting to passing off of the products and services of the Defendants as and for that of the Plaintiff's mark TEXMO; To declare the Plaintiff's trademark TEXMO as a well known Trade Mark; to grant order of delivery up of any brochures/ printed material and/or any material which infringes Plaintiff's registered trademarks TEXMO; To direct the defendants for rendition of accounts in respect of their alleged activities especially sale and promotion of products bearing the mark TESMO for their goods and business and for costs.
For Plaintiff : Mr.N.L.Vishal
M/s.Anand & Anand
For Defendants : Mr.G.Kalyan Jhabakh
JUDGMENT
Mr.N.L.Vishal, learned counsel of M/s.Anand and Anand (Law firm) is before this Commercial Division on behalf of the plaintiff.
2. There are four defendants in the suit. Defendant No.2 has been given up by plaintiff vide an endorsement in the suit file today, which reads as follows:
"Claims against the 2nd Defendant are hereby given up by the Plaintiff with liberty to file fresh action, if cause of action arises"
3. Mr.G.Kalyan Jhabakh, learned counsel of M/S.Surana & Surana (Law Firm) is before this Commercial Division on behalf of Defendant Nos. 1,3 &5.
4. To be noted, Commercial Division is informed that defendant Nos.3 and 4 i.e., Shilpa Electricals and Shilpa Agencies are sole Proprietary concerns and Mr.Sanjay B.singhi (Defendant 1) is the sole proprietor, carrying on business in such names and styles.
5. It is represented by both learned counsel that the parties have amicably settled the lis amongst themselves and have also reduced the same to writing vide a 'Memorandum of Compromise' dated 20.08.2018 (hereinafter referred to as 'said MOC' for brevity). Said MOC has been duly signed by all the aforesaid parties and their respective counsel.
6. With regard to plaintiff's presence for recording said MOC, a memo dated 24.08.2018 has been filed by Mr.N.L.Vishal and the same reads as follows:
"As the constituted attorney and authorized signatory of the plaintiff (Mr.SM.Palaniappan) is presently traveling officially, he is unable to be personally present before this Hon'ble Court on 24th August 2018 for recording the Memo of Compromise executed by the parties in the captioned matter.
We therefore most humbly pray that this Hon'ble Court may kindly dispense with the personal presence of the said constituted attorney and authorized signatory of the plaintiff before this Hon'ble Court 24th August 2018 to record the Memo of Compromise"
7. The aforesaid memo is self-explanatory and Mr.G.Kalyan Jhabakh, learned counsel, on instructions from the first defendant, who is present in court, has no objection to the said MOC being recorded without insisting on the presence of plaintiff's representative, which is a partnership firm.
8. On the side of defendants, the first defendant viz., Sanjay B.Singhi is present in court, he has produced his photo identity card i.e., Aadhar Card together with a self attested photo copy of the said photo identity card.
9. First defendant submits that he has singed the said MOC after understanding the contents and requests for a decree in terms of said MOC.
10. Both learned counsel, on instructions from their respective clients, also make a similar request. Said MOC reads as follow:
"1. The Plaintiff has filed the above suit against the defendants for the following reliefs:
A. A permanent injunction restraining the Defendants, their partners, their employees, officers, servants, agents and all others acting for and on their behalf from making, selling, distributing, advertising, exporting, offering for sale, and in any other manner, directly or indirectly, dealing in any product in the name of TESMO of any other similar mark amounting to an infringement of the Plaintiff's registered trademarks Nos.315049 and 315050, both in Class 07;
B. A permanent injunction restraining the Defendants, their partners, their officers, employees, servants and agents, from manufacturing, selling, offering for sale, advertising and directly or indirectly dealing in any product or service under the trademark TESMO or any other similar marks amounting to passing off of the products and services of the Defendants as and for that of the Plaintiff's mark TEXMO;
C. To declare the Plaintiff's trademark TEXMO as a well-known Trade Mark;
D. To grant order of delivery up of any brochures/printed material and/or any material which infringes Plaintiffs registered trademarks TEXMO;
E. To direct the defendants for rendition of accounts in respect of their alleged activities especially sale and promotion of products bearing the mark TESMO for their goods and business;
F. Costs and such other relief as this Hon'ble Court may deem fit, in the circumstances of the case, in the interests of justice and equity.
2. The Plaintiff and the Defendants above named have arrived at a settlement on the following terms and conditions;
3. The Defendants undertake not to, at any time, resort to any proceedings in relation therto including applying for opposition or rectification or domain cancellation thereto before the appropriate Forum in relation to the Plaintiff's Trademark and Copyright and Domain.
4. The Defendants undertake not to use directly/indirectly, having prefix/suffix or otherwise, the Trade Mark "TESMO","TEXMO" or any other similar mark thereto irrespective of goods and services or as a trade name. The defendants also undertake not to infringe the Plaintiff's registered trademarks.
5. The Defendants do not have any stationeries, product catalogues, name plates, dyes, negatives, plates and all other materials including promotional material bearing the marks "TESMO" and undertake to destroy, if any, all such stationeries, product catalogues, name plates, dyes, negatives, plates and all other materials including promotional material bearing the marks "TESMO".
6. The Defendants undertake that the Plaintiff would be entitled to impound the goods of the defendants where ever found, if any is in violation of this compromise, the cost of which will be borne by the defendants.
7. Subject to the above undertaking tendered by the Defendants, suits may be decreed in respect of relief claimed in Para 60 (A), & (B), of the Plaint and all other claims are given up.
8. The above said terms of compromise shall be binding on the plaintiff and the defendants themselves as also, on their Proprietors, Directors, Associates, Assignees, Successors in interest and any other entity or person with who/whom they may be directly or indirectly associated or have nexus.
It is therefore most humbly prayed that this Hon'ble Court may be pleased to record the Memorandum of Compromise in the present suit and the Decree may be passed incorporating the terms of the compromise as stated above, thereby rendering justice"
11. In the light of the aforesaid narrative, this suit shall be decreed in terms of said MOC i.e., Memorandum of Compromise dated 20.08.2018.
12. Said MOC i.e., Memorandum of Compromise dated 20.08.2018, memo filed by the plaintiff dated 24.08.2018 and self attested photo copy of the photo identity card of the first defendant shall all form part of the decree.
13. This suit is decreed on above terms. Consequently, connected miscellaneous applications are closed. There shall be no order as to costs.
24.08.2018 Speaking/Non-Speaking order Index : Yes/No vsm/kan M.SUNDAR, J.
vsm/kan C.S.No.911 of 2016 24.08.2018