Ashok M. Bhat v. Smiles Corporation And ANR.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION COMMERCIAL IP SUIT NO. 395 OF 2017 ALONGWITH LEAVE PETITION NO. 12 OF 2017 IN COMMERCIAL IP SUIT NO. 395 OF 2017 Ashok Bhat ....Plaintiff V/s Smiles Corporation and Anr.

....Defendants ---- Mr. Vinod Bhagat a/w Ms. Parveen Anand, Ms. Fatema Kalowala i/b GS Hegde and VA Bhagat for Plaintiff.

Mr. Mahesh A. Mahadgut for Defendant No. 1.

Mrs. Rekha V. Rane, 2nd Asstt. to Court Receiver present. ---- CORAM : K.R.SHRIRAM, J.

DATED : 7th APRIL 2021.

P.C. :

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Plaintiff and Defendant No.1 have settled the matter and entered into Consent Terms dated 5th April, 2021. The Consent Terms signed by plaintiff and proprietor of Defendant No.1 and their respective advocate is taken on record and marked "X" for identification. 2.

Mr. Bhagat and Mr. Mahadgut states that Ashok Bhat (Plaintiff) and Dipesh Anilbhai Shah (Proprietor of Defendant No.1) are present on line and are identified by them, though I cannot see them.

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For ease of reference, the Consent Term is scanned and reproduced herein below :-

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Order in terms of the Consent Terms.

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All statements and undertakings accepted.

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Suit stands decreed as per the Consent Terms in terms of prayer clauses (a), (b) and (c) against Defendant No.1. 7.

Mr. Bhagat states that writ of summons which was served upon Defendant No.2 came undelivered because Defendant No.2 was not found at the address that plaintiff had and Mr. Bhagat states that he made efforts to locate Defendant No.2 but was unable to locate Defendant No.2 and therefore, service was effected against Defendant No.2 by way of substituted service. Ms. Rane, Second Assistant to Court Receiver states that even after the order of 19th January, 2017 was passed ex-parte at the request of plaintiff, plaintiff never provided address of Defendant No.2 and the place where the Receiver has to go and execute the order. Mr. Bhagat repeats, plaintiff could not locate Defendant No.2.

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Therefore, it would serve no purpose passing any order against Defendant No.2. Hence, suit against Defendant No.2 stands dismissed. If and when plaintiff finds Defendant No.2 to be infringing plaintiff's trade mark and/or copyright, plaintiff may take such steps as adviced on a fresh cause of action.

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The Court Receiver stands discharged without passing of accounts. The undertaking of plaintiff to pay any outstanding charges to the Court Receiver within two weeks of receiving communication from the Court Receiver is accepted.

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Refund of court fee, if any, be paid in accordance with rules. 11.

All interim applications stand disposed.

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No order as to costs.

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All to act on authenticated copy of this order. (K.R. SHRIRAM, J.)