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r \ i HIGH COURT OF DELHI
EFA(OS) 3/2013
S. KUMAR TRADERS ..... Appellant
Through: Mr.Rajeev Kumar, Advocate.
EFA(OS) 3/2013
S. KUMAR TRADERS ..... Appellant
Through: Mr.Rajeev Kumar, Advocate.
VERSUS
SONY KABUSHIKI KAISHA & ANR
Through
Through
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MS. JUSTICE INDERMEET KAUR
08.02.2013 CM No.2301/2013 Allowed subject to just exceptions.
EFA (OS) No.3/2013 CM No.2321/2013 ..... Respondent
CM No.2302/2013 (For Condonation ofDelay of 18 days in tiline; the appeal)
The appeal is directed against the impugned order dated 07.12.2012 passed in Execution Petition No.44/2007 by the learned single Judge. There is a delay of 18 days in filing the appeal. The only reason given by the appellant is that respondent No.2 was to also look after the interest of the appellant and was to bear the litigation costs and that they were not informed ofthe result ofthe execution petition. This is hardly a reason for condonation of delay. If the appellant chose to leave the matter to respondent No.2, the appellant must face the consequences thereof
EFA (OS) No.3/2013 Page 1 of3 2013:DHC:7971-DB...
)
Be that as it may, we have also examined the appeal on merits. The occasion to file the execution petition arose on account of the allegation that the defendants in the suit, appellant and respondent No.2, were violating the terms ofthe consent decree dated 16.01.2006 restraining them from using the word 'Sony' or any other word deceptively or confusingly similar trademark on the goods manufactured and marketed by them or in relation to their business. A period of two and a half months was provided to the
HON'BLE MS. JUSTICE INDERMEET KAUR
08.02.2013 CM No.2301/2013 Allowed subject to just exceptions.
EFA (OS) No.3/2013 CM No.2321/2013 ..... Respondent
CM No.2302/2013 (For Condonation ofDelay of 18 days in tiline; the appeal)
The appeal is directed against the impugned order dated 07.12.2012 passed in Execution Petition No.44/2007 by the learned single Judge. There is a delay of 18 days in filing the appeal. The only reason given by the appellant is that respondent No.2 was to also look after the interest of the appellant and was to bear the litigation costs and that they were not informed ofthe result ofthe execution petition. This is hardly a reason for condonation of delay. If the appellant chose to leave the matter to respondent No.2, the appellant must face the consequences thereof
EFA (OS) No.3/2013 Page 1 of3 2013:DHC:7971-DB...
)
Be that as it may, we have also examined the appeal on merits. The occasion to file the execution petition arose on account of the allegation that the defendants in the suit, appellant and respondent No.2, were violating the terms ofthe consent decree dated 16.01.2006 restraining them from using the word 'Sony' or any other word deceptively or confusingly similar trademark on the goods manufactured and marketed by them or in relation to their business. A period of two and a half months was provided to the
ORDER
debtors including the appellant to exhaust the existing stock. In the execution it was alleged that there was breach of the consent decree by judgment debtor
No.2/appellant herein by selling the tiles bearing the mark 'Sony' to an investigator was appointed by the appellant for the said purpose. These sales were made on 18.08.2006 much after the trme period provided to exhaust the exiting stock ended. Not only that, even the signboard and gate ofthe premises ofjudgment debtor No.1 contained the 'Sony' logo.
In order to establish the veracity of the investigation, the investigator appeared in the witness box and deposed stating that one Sanjay, who is the owner ofthe appellant, met him and personally showed him 'Sony' printed tiles and they were purchased by him vide invoice Ex.A-3. The signages on the shops and roads with photographs ofthe same were also exhibited by the investigator.
The judgment debtors including the appellant failed to produce any evidence to rebut the evidence produced by the decree holder/respondent No.1
It may be noticed that the invoice dated 18.08.2006 was for sale oftwo boxes oftiles without the trademark ofthe tiles sold. It was thus once again sought to be contended before us that the· invoice could not prove that the offending material had been sold.
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In our view, the learned single Judge rightly concluded that there was no other evidence produced by the judgment debtors to show as to what tiles they had sold as it was not as if the invoice mentioned some other brand or trade mark and the judgment debtors obviously being conscious ofthe decree, decided not to put the name of the brand sold on their invoice. Further the investigator produced photographs of the boxes which were lying in the premises ofthe judgment debtor No.2 at the time when he visited the premises to inspect the offending material and the learned single Judge has found no reason to disbelieve the testimony ofthe said witness.
In view of the aforesaid, that the learned single Judge has concluded that the consent decree had been breached and violated by judgment debtors including the appellant and the consequences set out in the decree requiring payment of a sum ofRs.5 lakhs must follow. This amount was directed to be paid in equal instalments by the two judgment debtors and, ifnot paid within four weeks, to carry interest.
The learned single Judge has only executed the consent decree as it stands and we can find no fault with the same.
Dismissed.
~ SANJAY KISHAN KAUL, J L INDERMEET KAUR, J FEBRUARY 08, 2013
EFA (OS) No.3/2013 Page 3 of3 2013:DHC:7971-DB
No.2/appellant herein by selling the tiles bearing the mark 'Sony' to an investigator was appointed by the appellant for the said purpose. These sales were made on 18.08.2006 much after the trme period provided to exhaust the exiting stock ended. Not only that, even the signboard and gate ofthe premises ofjudgment debtor No.1 contained the 'Sony' logo.
In order to establish the veracity of the investigation, the investigator appeared in the witness box and deposed stating that one Sanjay, who is the owner ofthe appellant, met him and personally showed him 'Sony' printed tiles and they were purchased by him vide invoice Ex.A-3. The signages on the shops and roads with photographs ofthe same were also exhibited by the investigator.
The judgment debtors including the appellant failed to produce any evidence to rebut the evidence produced by the decree holder/respondent No.1
It may be noticed that the invoice dated 18.08.2006 was for sale oftwo boxes oftiles without the trademark ofthe tiles sold. It was thus once again sought to be contended before us that the· invoice could not prove that the offending material had been sold.
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In our view, the learned single Judge rightly concluded that there was no other evidence produced by the judgment debtors to show as to what tiles they had sold as it was not as if the invoice mentioned some other brand or trade mark and the judgment debtors obviously being conscious ofthe decree, decided not to put the name of the brand sold on their invoice. Further the investigator produced photographs of the boxes which were lying in the premises ofthe judgment debtor No.2 at the time when he visited the premises to inspect the offending material and the learned single Judge has found no reason to disbelieve the testimony ofthe said witness.
In view of the aforesaid, that the learned single Judge has concluded that the consent decree had been breached and violated by judgment debtors including the appellant and the consequences set out in the decree requiring payment of a sum ofRs.5 lakhs must follow. This amount was directed to be paid in equal instalments by the two judgment debtors and, ifnot paid within four weeks, to carry interest.
The learned single Judge has only executed the consent decree as it stands and we can find no fault with the same.
Dismissed.
~ SANJAY KISHAN KAUL, J L INDERMEET KAUR, J FEBRUARY 08, 2013
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