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Tata Oil Mills Co. Ltd. Vs. Lokenath Chemical Works - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 2170 of 1964
Judge
Reported inAIR1987Cal13
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 3
AppellantTata Oil Mills Co. Ltd.
RespondentLokenath Chemical Works
Advocates:H.M. Dutt, Adv.
Cases ReferredPrakash Chandra Gangoly v. Nawn Estates Private Ltd.
Excerpt:
- .....the defendants by themselves or by their agents and servants from infringing the plaintiffs' design registered under no. 94985 as on 8th may, 1958 under the indian patents & design act, 1911 mentioned in paras 2 and 3 of the plaint and in annexures 'a' and 'b' thereto and from using any bottle/container which in any manner either the same or identical and/or confusingly or deceptively similar to the bottle/container the said registered design and from in any way applying the plaintiffs' registered design or any fraudulent or obvious imitation thereof to any article or goods not belonging to or manufactured by the plaintiffs or publishing or exposing or causing to be published or exposed for sale of any article or goods with any design infringing the plaintiffs said registered.....
Judgment:
ORDER

Ajit Kumar Sengupta, J.

1. This suit was instituted by the plaintiff, the Tata Oil Mills Co. Ltd., against M/s. Lokenath Chemical Works on 9th Dec. 1964, inter alia, praying for leave under Clause 12 of the Letters Patent and claiming perpetual injunction restraining the defendant by themselves or by their agents and servants from infringing the plaintiff's registered design mentioned in paras 2 and 3 of the plaint and in Annexure 'A' and 'B' thereto and from in any way applying the plaintiff's said registered design or any fraudulent or obvious imitation thereof to any article or goods not belonging to or manufactured by the plaintiff or publishing or exposing or causing to be published or exposed for sale any articles or goods with any design infringing the plaintiff's said registered design or any fraudulent or obvious imitation thereof: damages as claimed in para 9 of the plaint in the alternative an enquiry as to the damages and a decree for the sum found due; delivery up of all infringing bottles or containers manufactured or caused to be manufactured by the defendant in infringement of the plaintiff's said registered design and all materials, designs and publications, whereby the defendant's products are offered or published for sale in bottles or containers with the infringing design; further or other reliefs and costs.

2. Thereafter negotiation started for settlement of this suit. Mr. B. R. Lodge, Advocate-on-Record, for the defendant forwarded without prejudice certain Terms of Settlement by his letter No. BR/S-2170/64-80 dt. 12th June 1980 to M/s. Charu Chundra Basu. Advocate-on-Record for the plaintiff. In reply to the said letter M/s. Charu Chandra Basu. Advocate-on-Record of the plaintiff, forwarded the Terms of Settlement as modified or altered to Mr. B. R. Lodge.

3. The defendant forwarded the following Terms of Settlement as approved by the defendant:

'1) There will be a perpetual injunction restraining the defendants by themselves or by their agents and servants from infringing the plaintiffs' design registered under No. 94985 as on 8th May, 1958 under the Indian Patents & Design Act, 1911 mentioned in paras 2 and 3 of the plaint and in Annexures 'A' and 'B' thereto and from using any bottle/container which in any manner either the same or identical and/or confusingly or deceptively similar to the bottle/container the said registered design and from in any way applying the plaintiffs' registered design or any fraudulent or obvious imitation thereof to any article or goods not belonging to or manufactured by the plaintiffs or publishing or exposing or causing to be published or exposed for sale of any article or goods with any design infringing the plaintiffs said registered design or any fraudulent or obvious imitation thereof.

2) Each party will bear and pay their respective cost of the suit.'

4. It may be mentioned that, in reply to the said letter dt. 12th June, 1980 of Mr. B. R. Lodge, Advocate-on-Record of the defendant. the plaintiff instructed its Advocate-on-Record by its letter dt. 14th July, 1980 that the said Terms of Settlement were approved by them subject to the defendant paying a part of the cost of the suit. The whole matter was however left to the Advocate-on-Record for finalising the settlement as best as possible.

5. No one appears for the defendant. Mr. H. M. Dutt learned Counsel appearing for the plaintiff has submitted that the Court can pass a decree on the basis of the said Terms of Settlement forwarded by the Advocate-on-Record of the defendant duly approved by the defendant as the plaintiff have accepted the said Terms of Settlement in toto without any modification or alteration whatsoever. He has also relied on two decisions of this Court, reported in 72 Cal WN. The first decision, is in the case of Ajit Kumar Bose v. Snehalata Biswas, reported in, (1968) 72 Cal WN 1 where this court considered the scope of the words, 'Without Prejudice' and held that even though the Terms of Settlement are signed with the words, 'without prejudice', if they are acceptable to the parties, the parties will be bound by these Terms of Settlement and the dispute would come to an end.

The Court held. 'The words 'without prejudice' are often written by one party to the other on the assurance that the proposed terms were not to be used against the writer if there is no settlement. The entire object of the writer is that the writer expresses in writing that the suit may be settled on the proposed terms. If they are acceptable, the parties will be bound by these terms and the dispute comes to an end. If the proposed terms become infructuous, they cannot be used in further against the writer in deciding the issues between the parties.'

The other judgment is in the case of Prakash Chandra Gangoly v. Nawn Estates Private Ltd., reported in, (1968) 72 Cal WN 852, There this Court held :

'That the defendant company also prefixed the words, 'without prejudice' before the signatures of its two directors in the same letter is very much in my mind. It appears to be the same thing as the defendant company accepting the offer, without prejudice, by a separate letter : just what Mr. Bachawat submits, and rightly, in my judgment. What can 'without prejudice' mean in this context? It may mean only this : the defendant company saying to the plaintiff, 'we shall grant you lease and do all that is stated in the letter, your letter, but you must withdraw the suit, as you have promised.' The same approach again : if the plaintiff will not accept it, here is an end of the matter; the whole thing fails in effect and cannot be used against the defendant company. But the plaintiff Gangoly has accepted it. So, the outlook is at once changed, a completed contract comes into being that way too, and there can be no going back upon it. Thus, in all circumstances here, the words, 'without prejudice' appear to be incapable of doing to the plaintiff Gangoly the harm the terrors of which the defendant company would have shaken on him'.

6. Since the plaintiff in this case, hasaccepted the terms in toto, forwarded by theAdvocate-on-Record of the defendant, abinding agreement against has come into existence There will therefore be a decree inthe following terms :--

1) There will be a perpetual injunction restraining the defendants by themselves or by their agents and servants from infringing the plaintiffs' design registered under No. 94985 as on 8th May 1958 under the Indian Patents & Designs Act, 1911 mentioned in paras 2 and 3 of the plaint and in Annexures 'A' and 'B' thereto and from using any bottle/container which in any manner either the same or identical and/or confusingly or deceptively similar to the bottle/container the said registered design and from in any way applying the plaintiffs' registered design or any fraudulent or obvious imitation thereof to any article or goods not belonging to or manufactured by the plaintiffs or publishing or exposing or causing to be published or exposed for sale of any article or goods with any design infrining the plaintiffs' said registered design or any fraudulent or obvious imitation thereof.

2. Each party will bear and pay their respective costs of the suit.

7. The suit is disposed of accordingly.


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