ANJANA SRIVASTAVA Vs. SANDIP KUMAR

JUDGEMENT

(1.) The petitioner, the plaintiff in a suit which remains pending in this Court, complains of three-fold violation by the respondents of an order dated July 21, 2011 by which an interlocutory application in the suit was disposed of. Two of the alleged violations are common to both the respondents, the third count of perceived breach is directed only against the first respondent. The facts need to be noticed to the extent necessary. The petitioner is the daughter of one of the erstwhile partners of a firm by the name of Macrotech India in which there were two other partners. The business of such firm was to supply a specialised kind of paint, primarily to the Indian Navy and related organisations. The firm was the registered owner of a trademark relating to one of the products which goes by the name of 'MAS'. The registration was in favour of the three original partners of the firm carrying on business under the name and style of Macrotech India. Disputes arose several years back between the predecessor-in-interest of the petitioner and the first respondent as to the affairs of the firm, following which an arbitral reference was commenced. It is not in dispute that the third partner took little interest in the matter whereupon the reference remained a fight between the predecessor-in-interest of the petitioner and the first respondent. Ultimately, a partial award was rendered finding the predecessor-in-interest of the petitioner to be entitled to the firm. A challenge to the partial award under section 34 of the Arbitration and Conciliation Act, 1996 has stood abated. It appears that a recent application for setting aside the abatement has been filed. The deemed decree that the partial award has metamorphosed into upon the challenge thereto failing, has been put into execution.

(2.) The suit is primarily for the protection of the trademark of the firm to which the petitioner now appears to be entitled. The order dated July 21, 2011 proceeded upon a concession by the defendants (the defendants to that suit are the respondents herein and a company by the name of Macrotech Environment Coatings Private Limited, which is primarily controlled by the first respondent herein) that the defendants did not intend to carry on any business using 'Macrotech' as part of their business name. Since the company defendant to the suit also agreed to remove the word 'Macrotech' from its name and since the defendants submitted that they would not use the mark 'MAS' in connection with their business, without prejudice to their contentions in the application to revive the challenge to the partial award, the order dated July 21, 2011 recorded and directed, in its material part, as follows -

(3.) There appear to be several parts to the directions contained in the order of July 21, 2011. In its first part, the order directed the name of the defendant company to be changed. It then restrained the defendants from using the mark 'MAS' in connection with their products, but the injunction was not absolute since it carved out an exception to allow the defendants to complete the third defendant's "obligations under the existing contracts." The third direction contained in the order was for the defendants to indicate to Advocates representing the plaintiff "the existing contracts under which any product bearing the mark "MAS" is being supplied." The ancillary direction as to the manner of disclosure is disregarded here. The defendants were also restrained from representing to any person that there was any continuing connection between firm Macrotech India and the defendants or any of them in any manner. The final direction in the order of July 21, 2011 was that for the period that the third defendant company continued to execute its pending orders in respect of the goods under the mark 'MAS', the third defendant ought to furnish accounts on a monthly basis to be deposited in the department.