Rakesh Kumar Aggarwal v. Lock & Locking Devices

1. This is an application under Section 151 CPC on behalf of the appellant for re-calling the order dated 09.08.2018 passed by this Court.

2. This appeal had been filed against judgment dated 09.01.2009 passed by Ld. AJD dismissing the suit filed by the appellant seeking permanent injunction against the respondent herein from using the trade mark “VIJAYAN” in relation to locks and locking devices. The present appeal was dismissed by this Court by order dated 04.07.2018. Appeal against the same filed in Supreme Court was also dismissed by order dated 23.07.2018.

3. In view thereof, decree for permanent injunction against the appellant herein became final, wherein the appellant was restrained from manufacturing, selling, directly or indirectly dealing in locks and locking devices bearing the trade mark “VIJAYAN” or any other deceptively similar mark.

4. The appellant subsequently again approached this Court by way of CM No. 30627/2018 with prayer to grant time to exhaust his products in the market under the trademark/label used “VIJAYAN”. Thus, CM No. 30627/2018 was filed by the appellant, with the following prayers:- “Under the facts and circumstances of the present case, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to grant the Appellant 6 months time to exhaust his products in the market under the trademark/label VIJAYAN. May also pass any such order and further orders, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case.”

5. During the hearing of the said application, this Court vide its order dated 09.08.2018 made the following observations:-

6. After noting the aforesaid, this Court vide its order 09.08.2018 recorded the statement on behalf of the counsel for the appellant that he was willing to pay damages in the sum of Rs. 1,00,000/- to the respondent as penalty for his misconduct. An undertaking was also given before this Court. Para 14 of the order dated 09.08.2018 is reproduced as below:-

7. By the present application, it is prayed by the appellant that the direction for payment of Rs. 1,00,000/- as penalty, may be set aside. He submits that the appellant herein was not owner of the brand “Vijayan” and that his wife was the owner of the said brand. It is submitted that the appellant was not obliged to disclose his relationship with the distributor in CM No. 30627/2018, which was for a limited purpose to grant of 6 months time to appellant to exhaust his products under the trademark/label “VIJAYAN”.

8. On the other hand, learned counsel for the respondent vehemently opposes the present application and submits that attempt has been made by the appellant to mislead the Court and thus, upon his own undertaking, damages of Rs. 1,00,000/- was imposed upon the appellant.

9. I have heard learned counsels for the parties.

10. The circumstances under which the said penalty came to be imposed upon the appellant, are pertinent to note. After suffering orders against himself right up to Supreme Court by which the appellant was injuncted against using the trademark “VIJAYAN”, appellant filed an application seeking 6 months time for disposal of the products bearing the impugned mark. It was put forth before this Court that stocks bearing the impugned mark in possession of the appellant had already been seized by the police from his premises. However, the appellant had effected sale of goods for the period till the dismissal of his suit, with the impugned mark to his distributor. It was thus, submitted that the distributor may be in possession of such of those goods with the impugned mark, which had not been sold till date.

11. It was only during the course of hearing that it came to the fore that the son of the appellant was the sole proprietor of Vijayan Lock Industries, i.e., the distributor was an alter ego of the appellant. Thus, it was in these circumstances that this Court held that appellant was liable to be proceeded against. Since this Court wanted to proceed against the appellant, an apology was tendered to the court with an undertaking that penalty in the sum of Rs.1,00,000/- shall be paid to the respondent.