Delhi High Court
Ajanta Limited And Anr vs M/S Ajanta Transistor Clock ... on 29 November, 2013
Author: Manmohan Singh
Bench: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment pronounced on: November 29, 2013
+ I.A. No.17151/2013 in Arb.A.No.19/2012
AJANTA LIMITED AND ANR ..... Appellants
Through Mr.Dushyant Dave, Sr.Adv.,
Mr.Krishnan Venugopal, Sr.Adv.
with Mr.Vikram Bajaj and
Ms.Natasha Garg, Advs.
versus
M/S AJANTA TRANSISTOR CLOCK MANUFACTURING CO
AND OTHERS ..... Respondents
Through Mr.Puryish Malkan, Adv.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The abovementioned application has been filed by the appellants, Ajanta Limited and another, under Section 151 CPC seeking modification/ clarification of the judgment dated 20th September, 2013 passed by this Court.
2. Mr.Dushyant Dave, learned Senior counsel appearing on behalf of the appellants has referred the order dated 11th December, 2008 passed in another matter by my respected brother Judge while disposing various applications filed in the suit being CS(OS) No.2024/2007 filed by M/s Ajanta India Ltd. (plaintiff). Both parties were the defendants in the said suit wherein certain directions were issued to the parties to the suit in order to avoid confusion in view of similar names by the three groups/parties.
I.A. No.17151/2013 in Arb.A.No.19/2012 Page 1 of 6The details thereof are mentioned in the said order which read as under:-
"19. Balancing out all these factors and keeping in view that at this stage only an interim order is being passed, the following directions are issued:-
(i) The defendants will not use the words „AJANTA QUARTZ‟ or "from the house of Ajanta Quartz" on any of their packaging, advertisements, web sites except in respect of packaging or advertisements for time pieces and wall clocks.
(ii) The defendants will not describe themselves as AJANTA GROUP. They are at liberty to call themselves „OREVA/ORPAT Group‟ or „J.O. Patel Group‟.
(iii) The defendants can continue with the corporate name AJANTA Manufacturing Ltd., Ajanta Transistor Clock Manufacturing Company and Ajanta Ltd. and use the corporate name on their packaging, labels, etc., if required and mandated by any statutory provision. Size and font will be the minimum, if any, prescribed by the statute. But whenever corporate or source name with the word AJANTA is used by the defendants it will be followed in equally prominent disclaimer „J.O. Patel Group‟ or „ORPAT/OREVA Group‟. Further in all such cases, the mark ORPAT/OREVA/REVA shall be prominently displayed and should be the main mark/design.
(iv) The defendants will not set up or incorporate the new concern/company with the mark/ name AJANTA till decision of the suits.
(v) Ajanta Manufacturing Limited can go ahead with the public issue but with the following amendments/clarifications in the prospectus:I.A. No.17151/2013 in Arb.A.No.19/2012 Page 2 of 6
(a) that the right of the said company to use the word or mark AJANTA is subject matter of challenge before the High Court.
(b) It shall be stated that the plaintiff Company is owner of the trademark/label AJANTA in terms of Deed of Assignment dated 19th September, 2002, except time pieces and wall clocks. The defendant company has no connection with M/s.Ajanta India Limited, who has copyright and trademark rights on the mark AJANTA in respect of all products, except for time pieces and wall clocks.
(c) Defendants will not describe themselves either in the prospectus or otherwise as „AJANTA GROUP‟.
They are at liberty to call themselves „OREVA/ORPAT Group‟ or „J.O. Patel Group‟.
(e) The last paragraph on page 87 stating that the defendants are entitled to use the phrase „A product from Ajanta Quartz‟ shall be deleted. Other parts of the prospectus will be suitably amended or modified with the directions given in paragraph 19 and the prima facie findings.
Applications are accordingly disposed of. No order as to costs.
Opinion expressed in this Order is prima facie and tentative and will not influence final judgment/decision."
3. As far as the present matter is concerned, the final judgment in appeal was passed on 20th September, 2013. The main dispute of the parties herein was with regard to compliance of terms and conditions of Memorandum of Understanding dated 21st July, 2004 relied upon by the appellants. The respondents challenged the MoU on various grounds. While passing the judgment, this Court has discussed the said terms and conditions as well as I.A. No.17151/2013 in Arb.A.No.19/2012 Page 3 of 6 the rival submissions of the parties in paras 30 to 36, 40 and 41. Ultimately, it was found prima-facie that none of the parties have fully and sincerely complied with the terms thereof nor the same was fully acted upon by the parties.
4. It is pertinent to mention that during the course of hearing of appeal, none of the parties relied upon the order dated 11 th December, 2008 passed in the said suit in which both parties herein were the defendants; neither was it read in Court nor any arguments were addressed by any party.
5. Now, it is confirmed by both parties that at the time of passing an order dated 11th December, 2008 in CS(OS) No.2024/2007, the existence of MoU between the parties was not discussed and even at that time, copy of the MoU was not placed or discussed. In fact, it was not brought to the knowledge of the Hon‟ble Judge.
6. Mr.Dave submits that since by virtue of MoU relied upon by his clients, two items Clocks and Timepieces have come to the share of the appellants bearing the trade mark Ajanta and that also the order dated 11th December, 2008 allows the appellants to use the expression of Quartz in respect of these two items, therefore, his clients are entitled to use the trademark Ajanta Quartz. However, in the judgment passed by this Court, the findings that have been arrived are different than the directions issued on 11th December, 2008. Similarly, in the said order, in order to present themselves as distinct and separate entities before the public and to avoid confusion they were granted liberty to present themselves as OREVA/ORPAT Group or J.O. Patel Group whenever corporate or source name with the word „Ajanta‟ is used by the defendants. Thus, if the word ORPAT is used with or without the mark Ajanta as per complaint made by I.A. No.17151/2013 in Arb.A.No.19/2012 Page 4 of 6 the respondents in the appeal, such use is with consonance with the directions/order passed on 11th December, 2008.
7. Mr. Malkan, learned counsel appearing on behalf of the respondents argues that no clarification is necessary in the judgment passed by this Court, as the Court has, merely as a temporary arrangement, interpreted the clauses of the MoU relied upon by the appellants. He states that clarification, if any, sought by the appellants, ought to be filed in the suit i.e. CS(OS) No.2012/2007 and not in the present case. The Court dealing with that suit was not aware about the dispute between the parties as well as the factum of MoU as the same was not pointed out to that Court who has in order to avoid confusion and deception passed the directions, even otherwise no dispute with regard to MoU was pending in that court, where both the parties in the present appeal were defendants. He also states that in the said order dated 11th December, 2008, the defendants were directed equally prominent disclaimer J.O. Patel Group or ORPAT/OREVA Group and further in all such cases the mark ORPAT/OREVA/ REVA shall be prominently displayed and the purpose of those directions was to avoid confusion and deception. However, in the present case the appellants have been using the mark ORPAT independently as well as with the mark Ajanta which is contrary to the terms of MoU even strictly not as per directions dated 11th December, 2008. Thus, the application for modification or clarification is not maintainable.
8. After hearing, I am of the considered view that the present application is not maintainable. It is evident that on one hand, the appellants are insisting for specific performance of MoU dated 21 st April, 2004 and on the other hand, they are trying to take the aid of order dated 11th December, I.A. No.17151/2013 in Arb.A.No.19/2012 Page 5 of 6 2008 which does not discuss MoU between the parties. The said document was admittedly not brought to the notice of the Court at the time of passing of the order, as they themselves have informed by both parties. Similarly, the said order was not relied upon by either party during the course of the hearing of the appeal before this Court. I find some force in the submission of the learned counsel appearing on behalf of respondents. The present application which is in the nature of review is not maintainable and this Court is not inclined to modify or clarify the judgment dated 20th September, 2013. The application is accordingly dismissed.
9. No costs.
(MANMOHAN SINGH) JUDGE NOVEMBER 29, 2013 I.A. No.17151/2013 in Arb.A.No.19/2012 Page 6 of 6