Full Text
CS(COMM) 866/2018
FRANKFINN AVIATION SERVICES (PVT.) LTD. ..... Plaintiff
Through: Mr. Kapil Midha with Ms. Abhivandana Chaudhary , Advs.
Through: Mr. I.V.Raghav & Mr. R.A. Sharma, Advs. for D-1 & 2.
30.09.2019
JUDGMENT
1. None appears for the defendant no.3.
2. The plaintiff and the defendants no. 1 to 3, in this suit for permanent injunction restraining infringement of trade mark, passing off and for ancillary reliefs, were vide order dated 25th April, 2019 referred to the Mediation Cell of this Court.
3. Mediation has been successful and a Settlement Agreement dated 28th August, 2019 purporting to be signed by the plaintiff and the defendants no.1 to 3 namely (i) Rahul Chauhan; (ii) Fly High Academy; and, (iii) Ajay Sharma as well as their counsels and the Mediator has been received from the Mediation Cell of this court.
4. I have perused the said Settlement Agreement. In terms of the said Settlement Agreement, the suit, insofar as against the defendant no.4 CS(COMM) 866/2018 2019:DHC:5019 Endurance Domains Technology LLP, is to be withdrawn by the plaintiff.
5. Though in the Settlement Agreement, (a) the defendants have undertaken not to do/do many things, (b) the parties have agreed that the hard drive placed before this Court by the Commissioner be released to a third neutral person to delete the data pertaining to the plaintiff and the hard drive be then returned to the defendant no.1, and (c) the defendant no.1 has also agreed to pay a sum of Rs.[8] lakhs to the plaintiff, but the plaintiff, in paragraph XIX thereof has agreed and undertaken to withdraw the suit in view of the settlement.
6. The counsel for the defendants no. 1 and 2 states that the defendant no.1 could not pay the amount of Rs.[8] lakhs as agreed and seeks one month’s time to pay the said amount.
7. However, the plaintiff in the said settlement agreement having agreed to withdrawal of the suit, I have enquired from the counsel for the plaintiff, why the suit should not be withdrawn.
8. The counsel for the plaintiff states that he cannot withdraw the suit because the defendant no.1 has not complied with his part of the Settlement Agreement of payment of Rs.[8] lakhs.
9. If the plaintiff wanted a decree against the defendant no.1 for recovery of Rs.[8] lakhs and/or decree in terms of the Settlement Agreement, the plaintiff should have in the Settlement Agreement provided for the same and not provided for withdrawal of the suit.
10. This is thus found to be yet another Settlement Agreement emanating from the Mediation Cell of this Court where the Mediation Cell as well as the counsels have not applied themselves to the legality of the settlement they are entering into and to the implementation thereof.
11. I have repeatedly emphasized that whenever the Settlement Agreement is to be worked in future i.e. things are to be done thereunder, a decree should be provided for and consequences of violation should be also provided therein, so that an executable decree can be passed.
12. The way the present Settlement Agreement has been drafted, the only remedy of the plaintiff in the event of non-compliance by the defendants of any of the terms of the Settlement Agreement would be, to file a fresh suit for enforcement of the terms of the Settlement Agreement. The plaintiff having desired the same, the suit has to be necessarily dismissed as withdrawn.
13. The counsel for the plaintiff states that he will take care in future.
14. The counsel for the defendants no. 1 and 2 states that the defendants also intend to abide by the Settlement Agreement and to make payment.
15. In view of the above and cautioning the counsels, the error is overlooked at this stage.
16. However, a copy of this order along with the Settlement Agreement be forwarded to the Coordinator of the Mediation Cell of this Court for ensuring that in future such errors do not occur.
17. A decree is accordingly passed, in favour of the plaintiff and against the defendants, in terms of the Settlement Agreement dated 28th August, 2019 (save clauses XIX and XXI thereof), which shall form part of the decree sheet leaving the parties to bear this own costs.
18. The undertaking of the defendant no.1 through counsel to pay the entire amount of Rs. 8 lakhs to the plaintiff in terms of decree aforesaid on/or before 30th October, 2019 is also accepted and the defendant no.1 Rahul Chauhan ordered to be bound thereby and cautioned through counsel of consequences of breach of undertaking to this Court.
19. It is made clear that in the event of the defendant no.1 Rahul Chauhan not making payment as aforesaid, the plaintiff, besides executing the decree, shall also be entitled to take steps against the said Rahul Chauhan for breach of undertaking given to the Court.
20. Decree sheet be prepared.
21. The sealed envelope filed by the Commissioner submitted in this Court and containing the hard drive seized from the premises of the defendant no.1 be opened and the hard drive contained therein be forwarded to Mr. Zameem Ahmad Khan, Sr. System Analyst of the Computer Branch of this Court, who is requested to delete from the said hard drive all data pertaining to the plaintiff and to thereafter return the hard drive to defendant No.1. His fee is fixed at Rs.15,000/-, to be born equally by the plaintiff and the defendant no.1. Needful, in this regard, be done within 15 days.
RAJIV SAHAI ENDLAW, J SEPTEMBER 30, 2019 ‘ak’..