IMPORTANT POINT
The main legal point established in the judgment is that claims for relief based on an International Distribution Agreement and trademark infringement notice may not be maintainable if the contentions raised need to be decided after the trial of the suit.

JUDGMENT :

KRISHNA RAO, J.

1. The defendant has filed the present application being GA No. 1 of 2018 (Old G.A. No. 2940 of 2018) in RVWO No. 33 of 2018 praying for the following reliefs :

“a) Leave be granted to the petitioner to file Memorandum of Review from the judgment and decree dated 18th September, 2018 passed by the Hon’ble Justice Soumen Sen in G.A. No. 971 of 2018, C.S. No. 24 of 2018 (SPX Flow Technology Singapore Pte Limited Vs. Sanjay Jain], without a certified copy thereof on the petitioner’s following undertakings:

(i) to have the order admitting the review drawn up, completed and to include a copy thereof in the paper book to be filed herein;

(ii) to have the order impugned drawn up, completed and to include a certified copy in the paper book to be filed herein.

(iii) to prepare and include a List of Dates pertaining to the question of limitation in the paper book to be filed herein;

b) Direction upon the department not to draw up and/or issue certified copy of the judgment and decree dated 18th September, 2018, pending disposal of the present application;

c) A Special Officer be appointed and directed to do the following :

i. Make an inventory and submit a detailed report of the entire stock of unsold Power Team products manufactured by the respondent and lying at the petitioner’s godown mentioned in paragraph 19 above;

ii. Supervise and ensure repurchase and in the alternative sale of the entire unsold stock of Power Team produces in accordance with clause 20(a) of the Distribution Agreement;

d) Direction upon the respondent to immediately repurchase and take delivery of the entire unsold stock of Power Team products lying at the petitioner’s godown;

e) The respondent be directed to adjust against the amount payable under the decree dated 18th September, 2018 the repurchase price and/or sale proceeds of the entire stock of unsold Power Team products lying at the petitioner’s godown and the balance amount be made over to the petitioner;

f) Ad interim orders in terms of prayers above;

g) Such further and/or other order or orders be passed, direction or directions be given as Your Lordships may deem fit and proper.”

2. By an order dated 10th October, 2018, this Court directed that the present application shall not be treated as “Review” application and shall be a substantive application for appointment of the Special Officer and for other directions made in prayers (c), (d) and (e) of the application.

3. By an order dated 26th November, 2019, this Court has passed an order for appointment of the Special Officer in terms of prayer c (i) of the application. As per the order, the Special Officer has verified the stocks of the materials, made inventory and submitted report before this Court.

4. The plaintiff has filed suit against the defendant for a decree of US$ 1,60,708.16 along with interest. The plaintiff had also filed an application being G.A. No. 971 of 2018 praying for judgment and decree on admission. The defendant has contested the said application by filing affidavit-in-opposition and after hearing of both the parties, this Court has disposed of the said application by an order dated 18th September, 2018, by passing a judgment upon admission by directing the defendant to pay a sum of US$ 1,60,708.16 together with interest @ of 10% per annum from the date of filing of the suit till realisation. The balance claim of the plaintiff is relegated to the suit.

5. Now in the present application, the defendant is praying for a direction upon the plaintiff to immediately repurchase and to take delivery of the entire unsold stock of Power Team product lying at the godown of the defendant and for adjustment of the amount payable under the decree passed by this Court dated 18th September, 2018.

6. On 15th July, 2005, an International Distribution Agreement was entered between the plaintiff and defendant wherein the plaintiff has appointed the defendant as distributor of “Power Team” brand range of the product compris