METROPOL INDIA (P) LTD Vs. PARVEEN INDUSTRIES INDIA

JUDGEMENT

(1.) SUIT No.3877 of 1991 was filed by the Plaintiff Metropol India Pvt. Ltd. (MIPL') against the Defendant M/s. Parveen Industries India complaining of the violation of its trade mark "Cleanzo" by the Defendant and also complaining of the infringement of its copy right and the passing off its goods by the Defendant as those of the Plaintiff. In the said suit an application, being IA No. 90 of 2000, was filed jointly by the parties for recording a compromise and for a decree to be passed in favour of the Plaintiff and against the Defendant in terms of the settlement. Among the terms of the settlement which were set out in the application were the following :

(2.) THE application was supported by the affidavits of both the Plaintiff as well as the Defendant. On behalf of the Defendant, Parveen Sabharwal son of late Shri B.N. Sabharwal, as proprietor of the Defendant, stated on affidavit that he had read the contents of the application and that the facts stated therein were true to his knowledge and that he adopted the contents of the accompanying application as part and parcel of his affidavit. Parveen Sabharwal also made a statement before the Court on 27th January 2000 soon after the statement of the Plaintiff was recorded. The said statement reads as under :

(3.) THE present execution petition has been filed by the Plaintiff [Decree Holder (DH)} alleging that the Defendant [Judgment Debtor (JD)] has continued to trade in cleaning preparations under the mark "Parveen's Cleanjo" and written in a shade of red colour, contrary to the terms of the compromise. It is further contended by the DH that the JD also surreptitiously got the trade mark "Parveen's Cleanjo" registered under 699710 in Class 5. It was only much later that the Trade Mark Registry by an order dated 4th July 2003 treated the application of the JD for registration of the trade mark "Cleanjo" as withdrawn in view of the terms of the compromise entered into between the parties. Consequent thereto, the DH filed rectification proceedings in Application No. 699710 in Class 5 which is stated to be pending in the Trade Mark Registry. It is submitted that although in terms of the compromise the Defendant was to withdraw his trade mark application for the mark "Cleanjo" soon after 27th January 2000 when the suit was decreed, the JD filed the requisite form in the Trade Marks Registry only in April 2009. Learned counsel for the JD has today produced a copy of a receipt issued by the Trade Mark Registry indicating that the JD has on 21st April 2009 filed Form TN 35 seeking cancellation of the registered trade mark. It is apparent therefore that till 21st April 2009 the JD did not take any steps to comply with the specific term of the settlement in this regard, as recorded in the compromise decree.