Shree Shakambari Rice Mill Pvt Ltd v. J Rrice India Private Limited

1. The present appeal is directed against the order dated 02.02.2018 passed by the learned Single Judge, whereby the suit bearing CS (Comm) RFA(OS)(COMM.) 14/2018 j 2018:DHC:8785-DB (p No. 1508/2016 had been decreed on the basis ofthe undertaking given by the defendants/appellants herein. The following order was passed:- "After some arguments, learned counsel for the defendants assures and undertakes to this Court that the defendants shall not use the mark BABA or BLUE BABA. Learned counsel for the defendants also wishes to withdraw the counter-claim. Learned counsel for the defendants further undertakes that the defendants shall remove the rice from the bags/packages seized by the two local commissioners bearing the impugned mark BLUE BABA / BABA in the presence ofan authorised representative ofthe plaintiffs on 9'^ February, 2018 atlL30a.m. Learned counsel for the plaintiffs states in view of the aforesaid undertaking he does not wish topressfor any other or further relief The aforesaid statements and undertakings made by learned counselfor the defendants are accepted by this Court. It is directed that the bags/packages containing the mark BLUE BABA / BABA shall be destroyed by the defendants within ten days.,, In view of aforesaid, present suit, counter-claim as well as all pending applications stands disposed of. Registry is directed toprepare a decree sheet incorporating the undertakings given by learned counselfor the defendants. No costs. "

2. It may be noted that post the passing of the aforesaid order, an application seeking review of the order dated 02.02.2018 was filed on the ground that erstwhile counsel had erred in making the statement and in giving the undertaking without instructions of the defendants/appellantsherein. Reliance was also placed on some emails exchanged between the RFA(OS)(COMM.) 14/2018 page 2of[4] previous counsel and the defendants/appellants herein. The learned Single Judge, in ourview, rightly rejected the application seeking review. We also find that this is a practice which is fast gaining pace that the counsels first make a statement and thereafter there is a change of counsel and the entire burden is shifted on the previous counsel. Such a practice should be deprecated. The learned counsel for the appellants submits that the order so passed would have far reaching consequences as the appellants have astrong case on merits and the appellants should not be made to suffer on account of any misunderstanding or miscommunication between the counsel and the client.

3. We had expressed our displeasure and indicated that the court would not be inclined to interfere as the same would amount to encouraging such a practice; however, counsel for the appellants had fairly agreed to pay cost to be deposited in Kerala ChiefMinister's Distress Relief Fund and agreed that the interim order which was grantedvon.l7>08'.2015 would continue till the disposal of the suit and subject,to the. condition that the hearing of the suit would be expedited.

4. We had adjourned the matter to enable counsels for both the parties to seek instructions. Today MrMiglani submits that the appellants have started copying the carry bag of the plaintiff No. 2/respondent No. - 2 herein and thus no concession should be given to the appellants. Counsel for the appellants submits that the question of carry bag is not the subject matter of the civil suit. Mr Miglani submits that without admitting any of the averments made in the appeal, he would have no objection to the suggestion RFA(OS)(COMM.) 14/2018 p„ge 3of[4] r so made by the counsel for the appellants. Accordingly, with the consent of the parties,we dispose of this appeal with the following directions:i. Subject to the payment of cost of Rs. 1,00,000/- to be deposited in Kerala Chief Minister's Distress Relief Fund, it is agreed that the order dated 02.02.2018 vide which the suit was decreed would be set aside. The suit and the counter claim would be heard on merits. The interim order dated 17.08.2015 would continue till the final disposal ofthe suit. ii. The suit shall be listed for framing of issues before the learned Single Judge on 08.10.2018. Parties have also given consent for the appointment of Local Commissioner for recording of evidence. The fees of the Local Commissioner will be shared by the parties equally. Counsels for the parties undertake that they would not seek any unnecessary adjournment and would cooperate for early hearing of the suit. Mr:Mi^^^ that he would seek remedies qua the carry ba:g. -- '

4. With these directions, the appeal-stands disposed of.

SEPTEMBER 19, 2018 su G.S.SISTANI, J SEHGAL, J