TMI Blog2021 (2) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the respective vakalat. However, if this Tribunal comes to a finding at any time in future that either of the vakalt is not genuine, an appropriate action will be taken against the concern party. It is a fact, not in dispute that all the terms of the consent terms dated 14.11.2014 were adhered to by the parties concerned except consent term No. 12 in terms of which in the suit No. 3329 of 2011 (Renumbered as CS (COMM) No. 1 of 2017, before Hon'ble High Court of Delhi, the R3 group ought to have moved an application before the court to the effect that the R2 group and R3 group along with their companies can use/advertise in Google and just dial and the said suit can be continued in future. During the course of hearing in the instant company petition, it was brought to the notice of this Tribunal during hearings held on 11.02.2020 and 24.02.2020 that an Application has already been moved by Respondent No. 3 before Hon'ble High Court of Delhi for taking on record Consent terms dated 14.11.2014, more particularly with respect to para 12 of the said Consent terms. It was also submitted that the Hon'ble Delhi High Court was pleased to issue notice in the said Applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be deemed fit in the circumstances of the case. ii. In the interim it is prayed that the Respondents 1, 3 4 be restrained from proceeding with OS No. 3329 of 2011 pending before the High Court of Delhi by prejudicing the rights of the Petitioners 1, 2 3. 2. Brief facts of the present case, as stated by the Applicant are as under: a. That the Petitioner No. 1, Respondent No. 1 and Respondent No. 3 are natural brothers and were conducting a joint business of packers and movers/logistics. Respondent No. 10 (Kotak) herein had invested a sum of ₹ 100 Crores into Respondent No. 2 Company (DRS). b. That certain disputes arose between the brothers and a Company Petition bearing CP No. 105 of 2012 came to be filed by Respondent No. 10 alleging various acts of oppression and mismanagement in the administration of M/s. DRS Logistics Pvt. Ltd., i.e., Respondent No. 2 herein. The Petitioners herein were arrayed as Respondent No. 2, 5, 6, 8, 11 and 12 respectively and Respondent No. 1, 3 and 4 were arrayed as Respondent Nos. 3, 4, and 7 respectively in the said Company Petition. c. That during the course of the proceedings before the Company Law Board, parties to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch time, the liability of the R2 and R3 group shall be ₹ 42 crores and ₹ 58 crores respectively. The petitioner shall not have recourse against the non defaulting party in any manner whatsoever. The non defaulting party shall continue to use the moveable/immoveable properties and all trademarks/logo/brand/devices/Intellectual Property Rights of any kind more particularly DRS Logistics/DRS/Agarwal Packers Movers and such other marks owned by R1 Company. 10. The defaulting party shall not be entitled to use any of trademarks/logo/brand/devices/Intellectual Property Rights of any kind more particularly DRS Logistics/DRS/Agarwal Packers Movers and such other marks owned by R1 Company. 11. That a sale committee consisting of one representative R2 and R3 Group and 1 nominee of the Petitioner shall be constituted and they shall take immediate steps for the sale of the R1 Company shareholding in R 18 Company on or before 31.03.2015. The proceeds of such sale shall be paid over the petitioner directly after deducting the applicable tax,. if any, (which shall be paid to the income tax department) arid the credit for the same shall be given in the repayment of R2 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms along with Respondent No. 3 and 4 herein. e. That the Respondent No. 2 and Respondent No. 13 are the Plaintiffs in O.S. No. 3329 of 2012/C.S. No. 1 of 2017 before Hon'ble High Court at Delhi. The said suit is filed for Injunction, seeking the relief praying for a permanent injunction restraining the defendants from using or permitting third parties to use the Plaintiff's registered trademarks as key words/trademarks/meta tags against Google and Just Dial. f. That the Clause No. 12 of the consent terms emphasis the requirement that R3 Group together, not one individual shall move an application in Suit No. 3329 of 2012 renumbered as C.S. No. 1 of 2017, pending before the Hon'ble Delhi High Court to the effect that both R2 R3 groups along with their companies can use/advertise in Google and Just Dial and the said suit can 'be continued in the future. Since R3 group was not coming forward; to file an Application, the Petitioners having no other option had approached this Tribunal for execution of the Orders passed on 18-11-2011 of the Company Law Board. g. That subsequent to the filing of the Execution Application; and after service of notice, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation vide Order dated 25.02.2020. j. It is stated by the Petitioner that throughout the proceedings the Respondent No. 3 maintained a stand that Respondents No. 1,3, 5, 6, 8, 9 and 11 to 13 are in favour of executing the consent terms dated 14.11.2014 and would not act against the interests of the Petitioners herein. But, Respondents No. 1, 3, 5, 6, 8, 9 and 11 to 13 and their associates are in complete violation of the submissions made before this Tribunal that they are implementing the terms of consent terms dated 14.11.2014 and had proceeded to pursue the suit pending before the Hon'ble High Court of Delhi and have also concluded their arguments on 10.08.2020 and the matter was posted to 21.08.2020 for the Defendants arguments. k. That the Respondent No. 1, 2 and 3 and their associates have objected the Application being I.A. No. 7203 of 2020 filed by the Petitioners herein for taking the consent terms on record before the Hon'ble High Court of Delhi in the said suit and are making submissions before this Tribunal that they are willing to implement the consent terms and contrary to their submissions are proceeding with the suit without pursuing the Application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unconditional withdrawal and closure of all ongoing proceedings in courts and CLB and etc. as per Annexure-I attached. 7. This MOU is self- binding decisions for both the groups and no group shall go back to the decision consented by each group with their free will. 9. That it is agreed that this MOU is signed for withdrawal of notices, cases and complaints pending in courts and Company Law Board and it shall not be used for any other purpose. NOTE: IN GOOGLE/JUST DIAL/SOCIAL 'MEDIA BOTH (AGARWAL PACKERS AND MOVERS LTD. AND DRS DILIP ROADLINES PVT. LTD.) CAN GIVE THEIR ADVERTISEMENT AS BEING GIVEN TODAY) o. That there is non-compliance of the orders of this Tribunal vide Order dated 04.03.2020 by the Respondents No. 1, 3, 5, 6, 8, 9 and 11 to 13. This Tribunal had directed that the Respondents to bring to the notice of the present proceedings to the Hon'ble High Court at Delhi. Respondent No. 1 herein is maintaining stoic silence and is proceeding with the suit keeping the Hon'ble High Court in dark about the consent terms and present proceedings pending before this Tribunal and R1, R3, R5, R6, R8, R9 and R11 to R13 are guilty of suppression of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners that no Application was moved before Hon'ble High Court of Delhi as stated by the 3rd respondent. This Tribunal noted about the Application moved by 3rd respondent coming up on 25/02/2020 and the matter was adjourned to 04/03/2020 to inform the status of the same. On 25/02/2020 the Hon'ble High Court of Delhi took note of the Application filed by Respondent no. 3 herein before the Hon'ble High Court of Delhi being I.A. No. 2645/2020 in O.S. 3329/2012 renumbered as CS (COMM) 1 of 2017 and the Hon'ble High Court of Delhi was pleased to issue notice on the said Application and the same is pending adjudication. Again, on 04/03/2020 when it Was reported that the said IA was pending for hearing, this Tribunal adjourned; the matter to 23/03/2020 by directing the parties to place the status; of the proceedings pending before Hon'ble High Court, at New Delhi. b. The 3rd respondent filed counter dated 11/02/2020 and while denying the allegations as fabricated by the Petitioners categorically contended that the present execution proceedings have become infructuous since the 3rd Respondent had already filed an application as required under consent term No. 12 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75. That it is made clear between the R2 and R3 shall withdraw all the objections filed before the govt. agencies. Both the group shall use all the trademarks/logos of the R1 Company b. The aforesaid Consent Terms were binding on DRS Logistics Pvt. Ltd. i.e. Respondent No. 2 herein which was R1 Company in CP No. 105/2012. That the said Consent Terms were not possible to be executed between R2 and R3 group without taking interest of DRS Logistics Pvt. Ltd., the Respondent No. 2 herein. c. That the trademark Agarwal Packers Movers is of the Company DRS Logistics Pvt. Ltd. i.e. Respondent No. 2, therefore it is clear that the said Consent terms cannot come into effect without being binding on Respondent no. 2 herein. d. That all the terms entered into between the parties have been adhered to by the parties except Consent term No. 12, for execution of which present Execution proceedings have been initiated, which is reproduced herein below for ready reference - 12. That the R3 group shall withdraw Suit no. 1486/2011 pending before Delhi High Court. That in Suit no. 3329/2012, the R3 group shall move an application before the Court to the effect that the R2 group ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No. 13 Company herein is being represented by Respondent No. 1 herein being a signatory before the Hon'ble High Court of Delhi in Suit No. 3329 of 2011 which is renumbered as CS (COMM) 1 of 2017 and the said matter is being heard as of now by Hon'ble Delhi High Court on the issue of grant of injunction in favour of Respondent No. 2 and 13 Company herein, which is Plaintiff no. 1 and 2 respectively in the said Suit before Delhi High Court, and against Google and JustDial praying that only Plaintiffs therein are authorized to use the said trademarks and no other third parties. i. That the Counsels representing R1, R3, R5, R6, R8, R9 and R11 to R13 herein submitted before this Hon'ble Tribunal on 11.02.2020 that R3 group had already moved an Application before Hon'ble Delhi High Court on behalf of all the aforesaid Respondents for taking on record Consent terms dated 14.11.2014 particularly with respect to para 12 of the said Consent terms. Further, on 24.02.2020, Counsel appearing for R3 reiterated before this Tribunal that an aforesaid Application as stated has been filed before Hon'ble Delhi High Court and was coming up for hearing next day i.e. 25. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 (now re-numbered as CS (Comm) no. 1 of 2017) before the Hon'ble High Court of Delhi as to be filed by R3 group , which is defined in the consent term itself and it does not include Respondent no. 2/DRS Logistics Pvt. Ltd. and/or Respondent no. 13/Agarwal Packers and Movers Limited. b. The Petitioners in the present execution petition are duly aware that the consent terms cannot be executed against Respondent No. 2 '/DRS Logistics Pvt. Ltd. and/or Respondent no. 13/Agarwal Packers and Movers Limited, therefore, there is no prayer in the present execution petition against Respondent No. 2/DRS Logistics Pvt. Ltd. and/or Respondent no. 13/Agarwal Packers and Movers Limited. c. That Respondent No. 2/DRS Logistics Pvt. Ltd. is not a signatory to the consent terms dated 14.11.2014. Since, Respondent no. 2/DRS Logistics Pvt. Ltd. is not even a signatory to the consent terms dated 14.11.2014, no execution of the said consent terms can be enforced/executed against Respondent no. 2/DRS logistics Pvt. Ltd. and no direction can be issued against it. d. That clause no. 12 of consent terms dated 14.11.2014 is very clear about who has to file the application before the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 13/Agarwal Packers and Movers Limited. j. That merely because Respondent no. 2/DRS Logistics Pvt. Ltd. had withdrawn suit no. 1486/2011 before the Hon'ble High Court of Delhi, does not oblige or bind the Respondent no. 2/DRS Logistics Pvt. Ltd. to make an application before the Hon'ble High Court of Delhi in suit no. 3329/2012 (now re-numbered as CS( Comm) no. 1 of 2017) under clause 12 of the consent terms dated 14.11.2014. k. That in the present execution petition no reliefs has been or can be sought against the DRS Logistics Pvt. Ltd/Respondent no. 2. l. That the interim relief sought in the execution petition is contrary to and/or beyond the main relief, which is also impermissible in Law and cannot be granted. i. Cotton Corporation of India Limited v/s. United Industrial Bank Limited Ors. - reported as - 1983 (4) SCC 625. m. That Respondent No. 2/DRS Logistics Pvt. Ltd. has not authorised Mr. Shivkant Arora and/or Mr. T. Sujan Kumar Reddy to represent it before this Tribunal in the present proceeding and they are appearing without any authority. They are appearing on an alleged authority by Mr. Bhoopal Rao, who himself does not have any authority to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties to the consent terms. 10. In view of the above background, the instant Company Petition is filed seeking to pass an order for implementation of consent term No. 12 of the consent terms entered into between the parties on 14.11.2014. The consent terms dated 14.11.2014 are extracted as under:- CONSENT TERMS RECORDED ON 14.11.2014 R2 Group R3 Group Dayanand Agarwal Ramesh Agarwal Anjani Kumar Agarwal Rajinder Agarwal Sanjay agrawal Dinesh Agarwal 1. It is made clear that the Petitioner shall be paid the amounts mentioned below on or before 31.03.2015 and this is the essence of the present compromise for payment of the amount mentioned in Point No. 2 and 3 below. 2. R2 Group lead by Dayanand Agarwal and his family agrees and undertakes to pay the Petitioner including the co-investors for whom the Petitioner is acting a sum of ₹ 42 crores on or before 31.03.2015. 3. R3 Group lead by Ramesh Agarwal and his family agrees to pay the Petitioner including the co-investors for whom the Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner directly after deducting the applicable tax, if any, (which shall be paid to the income tax department) and the credit for the same shall be given in the repayment of R2 and R3 group respectively in their ratio of 42:58. That in case the shares are not sold, R2 R3 group shall be liable to pay their respective amounts to the petitioner and the share shall be divided to R2 R3 group. It is agreed between the parties the said share of R1 Company in R18 Company can be sold separately severally by R2 group and R3 group in 42:58 ratio. 12. That the R3 group shall withdraw Suit No. 1486 of 2011 pending before the Delhi High Court. That in the suit No. 3329 of 2011 the R3 group shall move an application before the court to the effect that the R2 group and R3 group along with their companies can use/advertise in Google and just dial and the said suit can be continued in future. 13. That the R2 group shall also withdraw Suit No. 185 of 2010, Suit No. 34 of 2013. 14. Without prejudice to the rights and contentions of the R2 group, the R2 group submits that they shall not use the mark Agarwal Packers Movers or any variation as their company name till the said i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;ble High Court of Delhi for taking on record Consent terms dated 14.11.2014, more particularly with respect to para 12 of the said Consent terms. It was also submitted that the Hon'ble Delhi High Court was pleased to issue notice in the said Application and the same is pending before Hon'ble Delhi High Court. 13. It is the contention of the Petitioner herein that R3 Group represented by Ramesh Agarwal, i.e. Respondent No. 1 herein, who is the authorized signatory of Respondent No. 2 and 13 herein are the Plaintiffs in C.S. No. 1 of 2017 (Old Case number is C.S/O.S. No. 3329 of 2011 on the file of Hon'ble High Court of Delhi, had not moved any Application in the said suit as per the consent terms along with Respondent No. 3 and 4 herein. However, this Tribunal notes that only R3 herein has moved IA No. 2645/2020 in CS No. 1 of 2017 before Hon'ble High Court of Delhi to give effect to consent term 12 of Consent terms dated 14.11.2014. Admittedly, the said IA No. 2645/2020 is pending adjudication before Hon'ble High Court of Delhi. This Tribunal observes that though in terms of consent term No. 12, R3 group in CS No. 1 of 2017 ought to have moved the said IA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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