Delhi High Court
Hell Energy Magyarorszag Kft. vs Shri Brahm Shakti Prince ... on 28 September, 2021
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 29.09.2021
+ CS(COMM) 254/2021 & IA No. 6945/2021; IA No. 6946/2021; IA
No. 6949/2021 & IA No. 6950/2021
HELL ENERGY MAGYARORSZAG KFT. ...... Plaintiff
Through: Mr. Nihit Nagpal & Mr. Anuj Jhawar,
Advocates
Versus
SHRI BRAHM SHAKTI PRINCE BEVERAGES PVT. LTD.
...... Defendant
Through: Mr. Gautam Panjwani &
Mr. Varshesh Khurana, Advocates
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (oral)
1. Plaintiff has preferred the present suit under Section 26 and Order VII
Rule 1 CPC as well as under Sections 27 to 29, 134 and 135 of the Trade
Marks Act, 1999 seeking permanent injunction from infringement/
unauthorized use of trade name /trade mark/ trade dress/copy right/passing
of/dilution and damages/rendition of accounts of profit against the
defendant.
2. Plaintiff claims to be in the business of production and sale of energy
drinks and beverages under the brand name "HELL ENERGY" and having
obtained registration in respect of trade mark for the goods "beer; mineral
and aerated waters; other non-alcoholic beverages; fruit drinks and fruit
juices; syrups and other preparations for making beverages", in Hungary and
other countries. Plaintiff claims to have obtained amassed an enviable
position in the industry all over the world. Plaintiff had filed an application
for opposition against application of defendant seeking registration of trade
mark 'Hellxxx' in Class 32 before the Registrar of Trade Marks, Delhi and
approached this Court submitting that defendant has no legitimate right to
use the mark "HELL" with or without the suffix "xxx" or any other trade
mark which is identical/ deceptively or confusingly similar to that of the
plaintiff.
3. During pendency of the present suit, vide order dated 06.07.2021, at
the request of counsel for defendant, the matter was referred to Delhi High
Court Mediation and Conciliation Centre for parties to explore settlement of
disputes.
4. Today, learned counsel appearing from both the sides submit that the
subject matter of this suit has been amicably resolved through mediation and
parties have finally resolved their disputes in terms of Settlement-Agreement
dated 21.09.2021.
5. Learned counsel for the plaintiff submits that the present suit be
decreed in terms mentioned in the aforesaid Settlement-Agreement dated
21.09.2021. Learned counsel also prays for refund of full court fees in terms
of Section 16 of the Court Fees Act and submits that in terms of Clause-10
of the aforesaid Agreement, the court fee be refunded in favour of plaintiff's
counsel.
6. This Court has gone through the Mediation report dated 21.09.2021
placed on record and find it to be valid and lawful. The present suit is
accordingly decreed in terms mentioned in Settlement-Agreement dated
21.09.2021, which shall form part of the decree.
7. A Division Bench of this Court in Nutan Batra Vs. M/s. Buniyaad
Associates 2018 SCC OnLine Del 12916, relying upon decision of Hon'ble
Supreme Court in Afcons Infrastructure Limited v. Cherian Varkey
Construction Company Private Limited, (2010) 8 SCC 24, had allowed an
appeal against the order of refusal of refund of entire court fee in a suit.
Further, a Coordinate Bench of this Court in Munish Kalra Vs. Kiran
Madan and Others 2019 SCC OnLine Del 8021 taking into account the fact
that the dispute stands amicably settled between the parties, had relied upon
decisions in Afcons Infrastructure Limited (Supra) and Nutan Batra
(Supra) and directed refund of the entire court fees.
8. Concurring with afore-noted decisions, the plaintiff is entitled to
refund of entire court fees. Registry is directed to issue necessary certificate/
authorization in favour of the plaintiff's counsel to seek refund before the
appropriate authorities.
9. With aforesaid directions, the present suit stands decreed accordingly.
Pending applications are disposed of as infructuous.
(SURESH KUMAR KAIT)
JUDGE
SEPTEMBER 28, 2021
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