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1985 Supreme(Cal) 43
High Court Of Calcutta
AJIT KUMAR SENGUPTA
TATA OIL MILLS CO.LTD. - Appellant
Versus
LOKENATH CHEMICAL WORKS - Respondent
Suit 2170 Of 1964
Decided On : 02/02/1985
H.M.DUTT
A court can pass a decree on the basis of terms of settlement forwarded by the Advocate-on-Record of the defendant and approved by the defendant, even if the terms are marked 'without prejudice', if the plaintiff accepts the terms without modification.
Headnote:
DESIGN - INFRINGEMENT - SUIT FOR INJUNCTION - TERMS OF SETTLEMENT - COURT CAN PASS DECREE ON BASIS OF TERMS OF SETTLEMENT FORWARDED BY ADVOCATE-ON-RECORD OF DEFENDANT DULY APPROVED BY DEFENDANT - INDIAN PATENTS AND DESIGNS ACT, 1911.
Fact of the Case:
The plaintiff, Tata Oil Mills Co. Ltd., filed a suit against the defendant, Lokenath Chemical Works, for infringement of its registered design. The parties negotiated a settlement, and the defendant's Advocate-on-Record forwarded terms of settlement to the plaintiff's Advocate-on-Record. The plaintiff accepted the terms without modification, subject to the defendant paying a part of the costs of the suit.
Finding of the Court:
The court held that the terms of settlement forwarded by the defendant's Advocate-on-Record and approved by the defendant were binding on the parties, as the plaintiff had accepted them without modification. The court also held that it could pass a decree on the basis of the terms of settlement.
Issues: Whether the court can pass a decree on the basis of the terms of settlement forwarded by the defendant's Advocate-on-Record and approved by the defendant.
Ratio Decidendi: The court relied on two decisions of the Calcutta High Court, Ajit Kumar Bose v. Snehalata Biswas and Prakash Chandra Gangoly v. Nawn Estates Private Ltd., to hold that the words 'without prejudice' used in the terms of settlement did not prevent the court from passing a decree on the basis of the terms of settlement, as the plaintiff had accepted them without modification.
Final Decision: The court passed a decree in terms of the settlement, granting a perpetual injunction restraining the defendant from infringing the plaintiff's registered design and ordering each party to bear its own costs.
( 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 CI. 12 of the Letters Patent and claiming perpetual injunction restraining the defendant by themselves or by their agents and servants from infringing the plaintiffs 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 plaintiffs 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 plaintiffs 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 relief's and costs.
( 2 ) THEREAFTER negotiation started for settlement of this suit. Mr. B. R. Lodge, Advocate-an-Record, for the defendant forwarded without prejudice certain Terms of Settlement by his letter No. BR/ S-2170/6480 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-an-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 and 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 plaintiff's 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 to 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
