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Astral Poly Technik Ltd vs M/S M.K. Ploymers & Ors on 17 December, 2020

Author: Mukta Gupta

Bench: Mukta Gupta

                                      $~10
                                      *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      +     CS(COMM) 511/2020
                                            ASTRAL POLY TECHNIK LTD.                   ..... Plaintiff
                                                     Represented by: Mr. Sachin Gupta, Advocate.

                                                               versus

                                            M/S M.K. PLOYMERS & ORS.                      ...... Defendants
                                                      Represented by: Mr. Pradeep Kumar Kar, Advocate.
                                                                      Defendant No. 3 in person through
                                                                      video conferencing.

                                            CORAM:
                                            HON'BLE MS. JUSTICE MUKTA GUPTA
                                                               ORDER

% 17.12.2020 The hearing has been conducted through Video Conferencing.

CS(COMM) 511/2020

1. The present suit has been filed by the plaintiff alleging infringement and its trademark passing off the goods of the defendant No.1 as that of plaintiff, injunction, damages etc. impleading M/s M K Polymers, the partnership firm, Smt. Geetaben Dharmeshbhai Patel, Sh. Krunal Boghani, Sh. Dhaval Sakhiya, as defendant Nos. 1 to 4, respectively.

2. Learned counsel for the plaintiff states that during the course of settlement proceedings, it was informed that the defendant No. 2 has already retired from the partnership firm and the defendant No. 1 partnership firm is now being run by defendant Nos. 3 and 4.

3. During the pendency of the present suit, a settlement has been arrived at between the plaintiff and defendants before the Delhi High Court Signature Not Verified Digitally Signed By:SANDEEP KUMAR CS(COMM) 511/2020 Page 1 of 5 Signing Date:18.12.2020 22:43:59 This file is digitally signed by PS to HMJ Mukta Gupta Mediation and Conciliation Centre on 16th December, 2020 on the following terms and conditions:

"

i. The Second Party hereby acknowledges and recognizes the First Party to be the proprietor of the trade mark ASTRAL(which includes both word and label mark) having the exclusive right to the use of the aforementioned trade mark in respect of goods falling under class 17 namely, "PVC pipe and fittings: PVC suction & hose pipe, oil hose, non-toxic hose, duct hose, flexible pipe (not of metal) and plastic sheets, flexible pipes not of metal, canvas hose pipes, compressed air pipe fittings, CPVC pipes not of metal" and various other classes apart from said class 17 as referred to in the plaint.

                                             ii.    The Second Party undertakes to never use the impugned
                                                    mark                     which is the subject matter of

registration No. 2655818 as the same is deceptively to the First Party's trade mark ASTRAL and the pyramid logo along with its trade mark ASTRAL i.e. , as a trade mark/ or in any other manner whatsoever for any goods/services including but not limited to pipes and fittings including and not limited to, for use in plumbing, industrial, sewerage, fire, agricultural, surface drainage; pipes and fittings made of PVC, CPVC, UPVC or any other material; any flexible and/ or rigid pipes; parts and fittings thereof.

iii. The Second Party undertakes to take appropriate steps to give its no-objection to the Registrar Trade Marks to allow the rectification filed by the First Party against its registration under No. 2655818within a period of 4 weeks from the date of settlement.

Signing Date:18.12.2020 22:43:59 This file is digitally signed by PS to HMJ Mukta Gupta iv. The First Party agrees to forego the costs and damages considering the request of the Second Party, who claims to be a small time trader and not in a position to pay any costs and damages.

v. The Second Party agrees to let the First Party's representative visit its factory on 24.12.2020 and inspect the stocks under the impugned mark and prepare an inventory thereof, which shall be signed by both the parties.

vi. The Second Party agrees and undertakes to dispose off the pending stock, if any, under the impugned mark within4 months from the date of the present settlement and submit an affidavit to the First Party within 15 days of the expiry of said four months confirming that all the said pending stock under the impugned mark has been destructed.

vii. The Second Party undertakes to restrain themselves from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in pipes and fittings including but not limited to, for use in plumbing, industrial, sewerage, fire, agricultural, surface drainage; pipes and fittings made of PVC, CPVC, UPVC or any other material; any flexible and/ or rigid pipes; parts and fittings thereof under the impugned mark ASTRO or or any other trade mark as may be deceptively similar to the First Party's trade mark ASTRAL/ amounting to infringement of the First Party's registered trade marks.

viii. The Second Party agrees that the above-mentioned undertakings shall be binding on the Second Party, assignees in business, franchisees, licensees, distributors, dealers, stockists, servants agents and all others acting for and on behalf of the First Party.

Signing Date:18.12.2020 22:43:59 This file is digitally signed by PS to HMJ Mukta Gupta ix. The Second Party have no objection if the Court fees is refunded in full to the First Party in view of the present compromise.

x. The parties have agreed to request the Hon'ble Court to pass a decree as per paragraph 5(vii) of the Plaint in terms of the present Settlement Agreement."

4. The settlement agreement is duly confirmed by the consent E-mail of Ms. Prakshi Agrawal, the authorised representative on behalf of the plaintiff, who had also instituted the present suit on behalf of the plaintiff. The consent E-mail by Mr. Krunal Bhogani and Mr. Dhawal Sakhiya, defendant Nos. 3 & 4, the partners of defendant No. 1 have also been received by the Delhi High Court Mediation and Conciliation Centre and duly forwarded to this Court.

5. Copy of the deed of retirement, noting that Smt. Geetaben Dharmeshbhai Patel has already retired from the partnership firm on 8 th December, 2014, has also been placed on record.

6. Considering that the parties have settled the disputes of their own free will and volition, without any coercion, the suit is decreed in terms of the settlement arrived at between the parties. Decree sheet will incorporate the terms of settlement.

7. Since the parties have arrived at a settlement before the Delhi High Court Mediation and Conciliation Centre, Court fee be returned to the plaintiff under Section 16 of the Court Fees Act, 1870. Registry will issue necessary certificate in this regard. I.A.10727/2020 (under Order XXXIX Rule 1 and 2 CPC)

1. Application is disposed of as infructuous.

Signing Date:18.12.2020 22:43:59 This file is digitally signed by PS to HMJ Mukta Gupta

2. Order be uploaded on the website of this Court.

MUKTA GUPTA, J.

DECEMBER 17, 2020 PB Signature Not Verified Digitally Signed By:SANDEEP KUMAR CS(COMM) 511/2020 Page 5 of 5 Signing Date:18.12.2020 22:43:59 This file is digitally signed by PS to HMJ Mukta Gupta