ABRO INDUSTRIES INC Vs. K V INTERNATIONAL

JUDGEMENT

(1.) The decree-holder has filed the present execution petition praying for execution of the decree for a sum of Rs.35 lakhs together with interest thereon at the rate of 18% per annum from November 9, 2002 upto the date of payment and also the cost of taking out the execution.

(2.) The decree-holder/plaintiff No.1 filed a suit in this court against the judgment debtors/defendants seeking for a decree restraining passing of the goods of the defendants as that of the plaintiff and also for restraining infringement of copyright and also for a decree of rendition of accounts and for payment of damages. The subject-matter of the suit included misuse of the decree-holder's mark `ABRO' by the judgment debtors by use of the marks `ABRO' and `AMBRO'. During the pendency of the aforesaid suit in this court the parties arrived at a settlement out of court. The terms and conditions of settlement between the parties were recorded in a settlement deed executed between the parties. After arriving at the aforesaid settlement which is recorded in the settlement deed, a joint application was filed in this court by the plaintiff and the defendants who are the decree-holder and the judgment debtors, respectively, herein enclosing therewith a copy of the settlement deed. By order dated July 19, 2002, this Court passed a decree in the suit in terms of the settlement deed and also passed an order that the settlement deed would form part of the decree. Since the aforesaid decree based on the settlement deed is sought to be executed through this Court it would be necessary to extract a part of the said settlement deed which was made a part of the decree dated July 19, 2002.

(3.) Article 1(a) of the said settlement deed stipulated that the judgment debtors (parties of the second part) acknowledges the violation on their part of the rights and entitlements of the Abro Industries Inc./decree-holder and Elegant Industries (parties of the first part) resulting from use by the judgment debtors of the trade names, trademarks, labels and packages identical/deceptively similar to those of Abro Industries Inc. and Elegant Industries or which are imitation thereof, and wrongdoing on their part in representing themselves as connected or concerned with Abro Industries Inc. as agent, licensee or otherwise, which resulted in loss and damage to the business and reputation of Abro Industries Inc. and Elegant Industries and led to the disputes and the litigation. It was also stated in Article 1(b) of the said settlement deed that particulars of disclosure made by the judgment debtors were attached as Annexure `C' and that the said judgment debtors represented and confirmed that they never ever directly/indirectly manufactured, advertised and/or supplied any products with the trade mark ABRO. It was also confirmed by them that on their failure to make full, complete and correct disclosure therein in respect of the trademark AMBRO, and failure of their representation that they had never ever manufactured, advertised and supplied any products with the trademark ABRO would be a material default/breach of the settlement deed and the consequences attributable to such breach/default would immediately follow including execution of money decree as agreed to in the said settlement deed. In Article 4(c) of the settlement deed it was agreed to by the parties, which was also made a part of the decree, that the judgment debtors further jointly and severally agreed that a money decree in the sum of Rs.35 lakhs could be passed in favour of the decree-holder No.1. It was agreed that the execution of the said decree would be in the manner as provided as under:-