Karnataka High Court
M/S Clasek Fine Chemicals Private ... vs M/S Hitek Fine Chemicals Private ... on 26 July, 2024
-1-
NC: 2024:KHC:29470-DB
COMAP No. 12 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MRS JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
COMMERCIAL APPEAL NO. 12 OF 2024
BETWEEN:
1. M/S CLASEK FINE CHEMICALS PRIVATE LIMITED,
29/68, 16TH CROSS, GOPALAPPA LAYOUT,
NEAR CHOWDESHWARI TEMPLE, LAKKASANDRA,
BENGALURU-560 030, REP. BY ITS DIRECTORS.
2. MOHAMMAD QUAISAR REJA,
29/68, 16TH CROSS, GOPALAPPA LAYOUT,
NEAR CHOWDESHWARI TEMPLE, LAKKASANDRA,
BENGALURU-560 030.
3. MOHAMMED NOOR,
S/O HAMZA ALI, AGED ABOUT 41 YEARS,
R/AT NO. 5 1ST CROSS, LAKKASANDRA,
Digitally
signed by ADUGODI, BENGALURU-560 030.
PRAMILA G V ...APPELLANTS
Location: (BY SRI NAVEED AHMED, ADVOCATE)
HIGH COURT
OF AND:
KARNATAKA
M/S HITEK FINE CHEMICALS PRIVATE LIMITED,
NO.10, FIRST FLOOR, BANNERGHATTA MAIN ROAD,
ADUGODI, NEAR MICO FACTORY,
BANGALORE -560030.
...RESPONDENT
(BY SRI SANJAY NAIR, ADVOCATE)
THIS COMMERCIAL APPEAL IS FILED UNDER SECTION
13(1A) OF THE COMMERCIAL COURT ACT, PRAYING THAT THIS
HON'BLE COURT BE PLEASED TO:
-2-
NC: 2024:KHC:29470-DB
COMAP No. 12 of 2024
1. CALL FOR THE RECORDS IN COM.O.S. NO. 424/2020
ON THE FILE OF THE LXXXVII ADDL. CITY CIVIL AND
SESSIONS JUDGE, (EXCLUSIVE DEDICATED COMMERCIAL
COURT) AT BENGALURU (CCH-88).
2. SET ASIDE THE EX-PARTY JUDGMENT AND DECREE
DATED 03.10.2022 IN COM.O.S.NO.424/2020 ON THE FILE OF
THE LXXXVII ADDL. CITY CIVIL AND SESSIONS JUDGE,
(EXCLUSIVE DEDICATED COMMERCIAL COURT) AT BENGALURU
(CCH-88), IN THE INTEREST OF JUSTICE AND EQUITY.
3. GRANT SUCH OTHER ORDER/JUDGMENT AS THIS
HON'BLE COURT DEEMS FIT TO PASS IN THE CIRCUMSTANCES
OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FURTHER ORDERS THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE ANU SIVARAMAN
and
HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE) Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent.
2. This appeal is arising from the judgment and decree dated 31.10.2022 in Commercial O.S.No.424/2020 passed by LXXXVII Additional City Civil Judge, Bangalore, wherein the defendants are restrained from using the Trade Marks specified -3- NC: 2024:KHC:29470-DB COMAP No. 12 of 2024 in operative portion of the judgment and decree. The defendants are also directed to pay a sum of Rs.5,50,000/- towards damages on account of loss of sales, reputation and goodwill of the plaintiff. No interest is awarded on the said amount.
3. During the course of hearing, the learned counsel appearing for the respondent made a statement that in case, the appellants use the Trade Mark as and they undertake not to use the Trade Marks which are mentioned in the operative portion of the impugned judgment and decree, the respondent will have no objection for such use of the Trade Mark by the appellant No.1 -Company.
4. It is also the submission of the learned counsel appearing for the respondent that the respondent is willing to accept Rs.4 lakhs as damages as against Rs.5,50,000/- awarded by the trial Court, provided the appellants undertake to restrict their claim to use the Trade Mark without infringing the right of the plaintiff/respondent. -4-
NC: 2024:KHC:29470-DB COMAP No. 12 of 2024
5. Learned counsel for the appellants has filed an affidavit on behalf of the appellants and affidavit is signed by the authorised signatory of the appellant No.1-Company.
6. We have gone through the affidavit filed by the authorised signatory of the appellant No.1-Company. The appellants have undertaken not to use the Trade Mark referred to in the operative portion of the impugned judgment and decree and have restricted their claim only in respect of one Trade Mark which is mentioned in the affidavit and the copy of the proposed Trade Mark annexed to the said affidavit. Since the terms and conditions mentioned in the affidavit are agreeable to the respondent, this Court is of the view that the impugned judgment and decree are to be modified as per the undertaking given by the appellants.
7. We have also noticed that the appellants have sought four months time to pay Rs.4 lakhs towards damages to the respondent toward full and final satisfaction of the claim by the respondent. It is also noticed that in the event of default, the appellants have not undertaken to pay any interest. This -5- NC: 2024:KHC:29470-DB COMAP No. 12 of 2024 Court is of the view that in the event of default, appellants have to pay interest @ 9% per annum on amount of Rs.4 lakhs which is agreed to be paid to the respondent.
8. Under these circumstances, impugned judgment and decree are modified as under:
ORDER
(i) The appeal is allowed in-part.
(ii) The impugned judgment and decree dated 31.10.2022 in Commercial O.S.No.424/2020 passed by LXXXVII Additional City Civil Judge, Bangalore are modified.
(iii) The appellants are restrained from using the Trade Marks mentioned in the operative portion in the impugned judgment and decree.
(iv) Appellants are permitted to use the proposed
Trade Mark which is annexed to the
affidavit.
(v) Appellants shall seek for cancellation of the
Trade Marks which are prohibited to be used by the appellants in terms of the impugned judgment and decree which are registered under Application No.4628575.
-6-
NC: 2024:KHC:29470-DB COMAP No. 12 of 2024
(vi) The appellant shall also pay Rs.4 lakhs towards damages within 4 months from today and in the event of default, appellants are liable to pay 9% interest on the said amount to the respondent from this date till realisation.
(vii) Appellants shall move necessary application for cancellation of the registered Trade Marks mentioned in the operative portion of the judgment and decree of the trial Court.
(viii) The respondent shall return the cheque which is issued by the appellant No.1 Company in favour of the respondent during the pendency of execution proceeding on receipt of Rs.4 lakhs agreed to be paid by the appellants.
Sd/-
(ANU SIVARAMAN) JUDGE Sd/-
(ANANT RAMANATH HEGDE) JUDGE GVP List No.: 1 Sl No.: 6