Delhi High Court
M/S Sagu Dreamland Private ... vs M/S Jingal Bell Amusement Park ... on 28 January, 2019
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: January 15, 2019
Judgment delivered on: January 28, 2019
+ FAO(OS) 172/2018, CM Nos. 48857/2018 & 48859/2018
M/S SAGU DREAMLAND PRIVATE LIMITED
& ANR
..... Appellants
Through: Mr. Neeraj Kishan Kaul, Sr. Adv. with
Mr. Jai Sahai Endlaw,
Mr. Divyanshu Shrivastava and
Mr. Shivansh Soni, Advs.
versus
M/S JINGAL BELL AMUSEMENT PARK (PVT)
LTD
..... Respondent
Through: Mr. S. Khan and Ms. Jayanti, Advs.
AND
+ FAO(OS) 173/2018, CM Nos. 48874/2018 & 48876/2018
M/S SAGU DREAMLAND PRIVATE LIMITED
..... Appellant
Through: Mr. Neeraj Kishan Kaul, Sr. Adv. with
Mr. Jai Sahai Endlaw,
Mr. Divyanshu Shrivastava and
Mr. Shivansh Soni, Advs.
versus
SPLASH ISLAND PRIVATE LIMITED & ORS
..... Respondents
Through: Mr. Shailen Bhatia and
Ms. Ekta Nayar, Advs.
FAO(OS) 172/2018 and connected matter Page 1 of 5
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
CM No. 48859/2018 (for placing additional annexures on record) in
FAO(OS) 172/2018
CM No. 48876/2018 in FAO(OS) 173/2018 (for taking additional
documents on record)
For the reasons stated in the applications, the same are allowed and
disposed of.
FAO(OS) 172/2018 & FAO(OS) 173/2018
1. These two appeals have been filed by the appellant challenging
the common order dated 8th October, 2018 passed by the learned
Single Judge whereby the two applications filed by the appellant being
IA No. 13958/2018 in CS(OS) 2041/2013 and IA. No. 13957/2018 in
CS(OS) 1592/2014 seeking modification of order dated 12th July, 2018
were dismissed.
2. The facts as noted from the appeals are that Civil Suit bearing
no. 2041/2013 was filed by the respondent M/s. Jingle Bell
Amusement Park (Pvt.) Ltd. against the appellant herein seeking
permanent injunction, possession and for recovery of rent and
damages / mesne profit till recovery of possession in respect of
property bearing no. 41/24, 25, 42/20, 50/1, 51/4 min at Village
Alipur, Tehsil-Delhi against the appellant herein. This court issued
summons in the Suit on 25th October, 2013. Another Suit being CS
(OS) 1592/2014 was filed by the appellant herein against the Splash
Island Pvt. Ltd. and Ors. seeking permanent injunction against them
restraining them from infringing trade mark acquired by the appellant.
3. During the pendency of the Suit, the matter was settled between
the parties and in furtherance to the same a settlement agreement was
executed between the parties. The Suits were disposed of by this Court
in terms of the Settlement on 30th June, 2015. It is the case of the
appellant that as the respondent has not complied with the terms of
settlement and violated the same, the appellant had filed a Contempt
Petition bearing no. 225/2017 against the Directors of Splash Island
Pvt. Ltd. The said petition was disposed of on 20 th March, 2017
giving liberty to the appellant to seek compliance of the order of which
the Contempt is alleged by way of execution proceedings. The
appellant preferred an application bearing no. 14331/2017 in CS(OS)
1592/2014 for recall of order dated 30th May, 2015. On 12th July,
2018, this Court ordered for implementation of the settlement
agreement from 12th July, 2018 in the said application.
4. It appears that the appellant approached this court by way of
applications bearing IA No. 13958/2018 and IA No. 13957/2018 in
Suit Nos. 2041/2013 and 1592/20147 seeking intervention of this court
for modification of order dated 12th July, 2018 and for implementing
the agreement dated 28th May, 2015 in equitable manner. It is this
application, which was dismissed by the learned Single Judge. Mr.
Neeraj Kishan Kaul, learned Senior Counsel for the appellant submit
that the respondent(s) cannot take advantage of their own wrong
inasmuch as on one hand, they violate the terms of settlement by
continuing to use the word 'Splash' and on the other, make the
appellant herein vacate the property. It is his submission that
continued usage of the word 'Splash' in the trade name of the
respondent is inequitable. According to him, the appellant, with a
view, to mitigate the loss suffered by it because of continuous use of
the word 'Splash' is seeking further time to vacate the property in
question beyond December 31, 2018.
5. We are not impressed by the said submission of Mr. Kaul for
the simple reason that the Suits were disposed of in terms of the
settlement entered between the parties. If there is a violation of the
settlement / decree, it is for the appellant to seek execution of the
decree or any other relief as permissible in law rather than seeking a
benefit of further time on the premise that the respondent has violated
the terms of agreement. This is clearly impermissible as any direction
by us, shall also be at variance with the order disposing of the suits.
We find that the learned Single Judge has rightly dismissed the
applications seeking modification of the order dated 12th July, 2018.
We do not find any merit in the appeals. The same are
dismissed.
CM No. 48857/2018 (for stay) in FAO(OS) 172/2018
CM No. 48874/2018 (for stay) in FAO(OS) 173/2018
Dismissed as infructuous.
V. KAMESWAR RAO, J
CHIEF JUSTICE
JANUARY 28, 2019/jg
