1 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 29.01.2019 CORAM THE HON'BLE MR.JUSTICE M.SUNDAR C.S.No.538 of 2008 The Board of Control for Cricket in India, a society registered under the Tamil Nadu Societies Registration Act, 1975, having its registered office at M.A.Chidambaram Stadium, Chennai through its Hony.Secretary, Shri Niranjan Shah ..Plaintiff Vs. 1.Sandeep Goyal, 1803 -B, Lady Ratan Towers, Dainik Shivner Marg, Worli, Mumbai, 400 018, Maharashtra 2. Rediff.com India Ltd having its head office at Mahalakshmi Engineering Estate, L.J.Road 1, Mahim (W), Mumbai 400 016, Maharashtra. 3.Indian Fantasy Games Pvt Ltd. 1803, Booing Lady Ratan Towers, Worli, Mumbai – 400 018. (D3 impleaded as per order dated 29.07.2009 in A.No.3891 of 2009) .. Defendants This Civil Suit is preferred, under Order VII Rule 1of CPC Read with Order IV Rule 1 of High Court O.S. Rules, praying for (a) granting a permanent injunction restraining the Defendants, their men, their directors, servants, advertisers, dealers, distributors, assigns, licensees and agents from running, displaying, offering, advertising or using http://www.judis.nic.in 2 the domain name/name/title/mark “indianfantasyleague.com and/or “Indian Fantasy League” and logo comprising of a device of a batsman playing a shot as more particularly shown at Plaint Document No.4 or any other domain name/mark deceptively similar to the Plaintiff's mark “Indian Premier League” or the Plaintiff's logo shown at Plaint Document No.2 in relation to their website and/or online cricket game or similar services. (b) Directing the Defendants to close/shut down their website www.indianfantasyleague.com. (c) Directing the defendants to pay the Plaintiff a sum of Rs.10,00,000/- as damages for the acts of passing off of the Plaintiff's mark/title/name viz., IPL and logo of batsman; (d) Directing the Defendants to render a true and faithful account of all the profits earned by them by using the impugned mark “Indian Fantasy League” and/or the impugned logo shown in Plaint Document N.4 and the Defendants be further ordered and decreed to pay to the Plaintiff such amount as may be found due on such account being taken; (e) Appointing a Commissioner for seizing and destruction of all articles, labels, advertising material, literatures, packing material, stationery, etc. bearing and/or containing the impugned mark “Indian Fantasy League” and/or the logo of the Defendants as shown in Plaint Document No.4; (f) for costs of the suit; (g) for such further and other reliefs as the nature and circumstances of the case may require. For Plaintiff : Mr.Adithya Reddy For Defendant : Mr.K.Balamurali for M/s.Sivakumar & Suresh for D2 Ms.Apoorva Vinjamur for M/s.Dua Associates for D1 and D3 http://www.judis.nic.in 3 SUMMARY JUDGMENT There is a sole plaintiff and there are three defendants in this suit. 2. Mr.Adithya Reddy, learned counsel on record on behalf of sole plaintiff, Ms.Apoorva Vinjamur, learned counsel of M/s.Dua Associates on behalf of defendants 1 and 3 and Mr.Balamurali, learned counsel of M/s.Shivakumar & Suresh (Law Firm) on behalf of second defendant are before this Commercial Division. 3. All the three learned counsel submit in unison that parties to this lis have settled the matter amicably amongst themselves and have reduced the same to writing by way of a 'Memorandum of Compromise dated 05.12.2018' (hereinafter referred to as 'said MOC' for the sake of convenience and clarity). 4. All the three learned counsel make a common request in unison that this suit may please be disposed of in terms of said MOC. 5. With regard to recording said MOC and the presence of the natural persons and the persons representing the entities which are parties to this lis, memos dated 28.01.2019 on behalf of plaintiff and 29.01.2019 on behalf http://www.judis.nic.in 4 of first and third defendants have been filed and the same read as follows: 'MEMO FOR DISPENSING WITH PRESENCE OF PLAINTIFF The parties herein beg to state as follows:- 1. The Parties to the suit have entered into a Memorandum of Compromise to amicably settle the disputes that form the cause of auction for the suit. 2. The Memorandum of Compromise was signed on behalf of the Plaintiff by its Chief Executive Officer, Mr.Rahul Johri. 3. Mr.Johri is unable to be present before this Hon'ble Court while this Hon'ble Court decrees the suit in accordance with the Memorandum of Compromise. This is due to the fact that he is travelling on work and unable to avoid the same despite best efforts. In view of the above, it is prayed that this Hon'ble Court may be pleased to dispense with the presence of Plaintiff's representative and thus render justice. Dated at Chennai on this the 28th day of January, 2019. sd/- Counsel for Plaintiff ' 'MEMO FILED ON BEHALF OF THE FIRST AND THIRD DEFENDANTS 1. We are the counsel for the First and Third Defendants in the above captioned suit. The Third Defendant is M/s.Indian Fantasy Games Private Limited and represented by its Director, Sandeep Goyal (the First Defendant herein). 2. The First Defendant is residing and carrying out business in Mumbai. The First Defendant is unwell and is running a high http://www.judis.nic.in 5 temperature. Hence, the First Defendant is unable to travel to Chennai to attend the hearing in the above suit that is scheduled on 29/01/2019 before the Hon'ble High Court for filing the memo of compromise executed between the Plaintiff and the Defendants. In the above circumstances, it is prayed that this Hon'ble Court may be pleased to dispense with the appearance of the First Defendant and pass appropriate orders as it may deem fit in the interest of justice. Dated at Chennai on this the 29th Day of January, 2019. sd/- COUNSEL FOR THE FIRST and THIRD DEFENDANTS'. 6. With regard to the second defendant, Mr.Balamurali, learned counsel submits that the individual, who has signed the said MOC is in difficulty, as he is traveling and requests for dispensing with the presence of said individual also. 7. All the three learned counsel submit that presence of the parties for recording said MOC is not necessary for one more reason. All three learned counsel draw my attention to Order XIII-A of amended 'The Code of Civil Procedure, 1908' ('CPC' for brevity) as amended by 'The Commercial Courts Act, 2015' ('said Act' for brevity). Learned counsel submit that in the light of said MOC, this Commercial Division has powers to pass a summary Judgment in terms of Order XIII-A of amended CPC as amended by said Act. The grounds on which summary judgment can be passed are adumbrated in http://www.judis.nic.in 6 Order XIII-A of amended CPC. A perusal of Rule 3 of Order XIII-A of amended CPC reveals that when the plaintiff does not have a real chance of succeeding on the claim or the defendant has no real chance of successfully defending the claim and when there is no other reason which impedes the passing of a summary judgment, this Commercial Division has powers to pass a summary Judgment without resorting to oral evidence. Therefore, the procedure of presence of parties for recording said MOC is not of great relevance. In the light of said MOC, this Commercial Division is convinced that parties to this lis i.e., plaintiff, defendants 1/3 and defendant No.2 have no real chance of carrying their respective cases or defence any further beyond the four corners of said MOC. Therefore, this shall also be treated as a summary Judgment under Order XIII-A of amended CPC as amended by said Act. 8. Be that as it may, all the three learned counsel submit that said MOC has been signed by the parties in the presence of one another. To be noted, said MOC has been counter signed by their respective counsel on record. On this basis also the request to dispense with the presence of parties for recording said MOC is made. http://www.judis.nic.in 7 9. Considering the nature of the matter and contents of said MOC, I accede to the request to dispense with the presence of the parties for recording said MOC. 10. To be noted, said MOC reads as follows: 'MEMO OF COMPROMISE The parties herein beg to state as follows:- 1. The primary cause of action for the above suit was the conduct of the Defendants in running a website and offering online games with the domain name “indianfantasyleague.com” (the “domain name”) with the trademark “Indian Fantasy League” (the “trademark”) and logo shown in Plaint Document 3 and Plaint Document 4, filed along with the Plaint (the “logo”). 2. During the pendency of these proceedings, the Plaintiff and the Defendants have decided to settle their dispute amicably and based on a joint-representation of the Defendants that the Defendants have stopped the usage of the domain name, the trademark and the logo since January 2011 and on an undertaking from the Defendants that they shall not use the same in future, the Plaintiff has agreed to withdraw the above suit without prejudice to the Plaintiff's contentions therein or the contention of the Defendants. Neither the Plaintiff nor the Defendants shall have any claim against the other save and except as provided in paragraph 3 below. Each of the Plaintiff and the Defendants hereby waive and release the other in respect of any claims, liabilities, obligations, costs, expenses, damages etc. arising out of or relating to the subject matter http://www.judis.nic.in 8 of the present suit. 3. It is expressly agreed that any breach of the aforesaid undertaking or misrepresentation in this regard on the part of the Defendants, jointly and/or severally, will constitute fresh cause of action enabling the plaintiff to pursue all available legal remedies for reliefs with respect to the rights of the Plaintiff including but not limited to exemplary damages. It is reiterated that the Plaintiff hereby agrees to withdraw the above suit subject to the aforesaid terms and the Defendants have agreed to give the undertaking as above only with a view to resolve the present dispute amicably. Dated at Chennai on this the 5th day of December 2018. sd/- sd/- Plaintiff Defendant 1 sd/- sd/- Counsel for Plaintiff Defendant 2 sd/- Defendant 3 sd/- Counsel for Defendants' http://www.judis.nic.in 9 11. In the light of the narrative supra, suit is disposed of by way of a decree in terms of said MOC and said MOC together with aforesaid memos dated 28.01.2019 and 29.01.2019 filed on behalf of plaintiff and on behalf of defendants 1 and 3 respectively shall all form part of the decree. To be noted, though a summary judgment, this is a consent decree too. Suit is decreed on above terms. There shall be no order as to costs. 29.01.2019 Speaking order/Non-Speaking Order Index : Yes/No vsm/mp http://www.judis.nic.in 10 M.SUNDAR, J. vsm/mp C.S.No.538 of 2008 29.01.2019 http://www.judis.nic.in