Full Judgment Text
$~A-4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18.11.2020
+ RFA 246/2020
SOLACE BIOTECH LTD ..... Appellant
Through: Ms. Sakshi Bhasin & Mr. Kapil
Kumar Giri, Advocates
versus
RAPROSS PHARMACEUTICALS LTD ..... Respondent
Through: None
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JYOTI SINGH, J. (ORAL)
CM APPL. 25961/2020
For the reasons stated in the application, the same is allowed and
the delay of 30 days in filing the Appeal is condoned.
Application stands disposed of.
RFA 246/2020 & CM APPL. 25959/2020
1. This is an appeal filed against the impugned judgment dated
07.06.2018, Decree dated 14.02.2019 as well as order dated 23.05.2020
whereby the Trial Court has dismissed the application filed by the
Appellant under Order IX Rule 13 CPC declining to set aside the ex-parte
decree.
2. Appellant is stated to be engaged in the business of Manufacturing
and Marketing Ayurvedic, Medicine and Pharmaceutical preparations
since 2000 under the Trademark Zymase, Zymase-D and Zymase-DP and
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have filed an application in 2006 for registration of the said mark before
the Registrar, Trademarks.
3. The Respondent herein filed a suit bearing No. 299/2011 against
the Appellant for permanent injunction restraining the use of the said
mark and/or any other deceptive or similar trademark, alleging
infringement and passing off. The Appellant appeared in the suit on
receipt of summons in 2008 and filed the Written Statement along with
supporting documents. After the issues were framed on 22.11.2014,
Respondent filed its list of witnesses and evidence by way of affidavit of
PW-1. The Appellant was proceeded ex-parte on 25.05.2017. After the
completion of ex-parte evidence, the suit was fixed for final arguments on
09.10.2017 and thereafter a judgement was passed on 07.06.2018.
4. As per the Appellant, Respondent sent a legal notice dated
10.01.2019 informing the Appellant about the judgement dated
07.06.2018, where upon the Appellant filed an application under IX Rule
13 CPC to set aside the ex-parte judgement. The application was
dismissed vide order dated 23.05.2020 which is assailed before this Court
along with the judgement and decree.
5. Application filed before the Trial Court under Order IX Rule 13
CPC is on record. Relevant part of the Application is extracted hereunder
for ready reference:
“3. That there was a non-communication between the
Defendant and the then counsel of the Defendant, who did not
communicate the Defendant regarding the change of the court
because of which the Defendant could not appear before this
court.
4. Further, though the Defendant was regularly appearing
before this Hon’ble Court up to the time the matter was
transferred from the court of Ms. Sarita Birbal to this Hon’ble
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Court. The defendant has not been actually served with the
proper court notice for the change in the court on the correct
address in Ambala District, Punjab. Though the Plaintiff knew
the correct and new address of the Defendant, it did not bother
to inform the Defendant and sought to have an ex-parte decree
against the Defendant.”
6. As is evident the ground taken in the application was that there was
non-communication between the Appellant and its counsel, who did not
communicate regarding the change of the Court, because of which the
Appellant could not appear before the Court which passed the judgement.
It was further averred that the Appellant was regularly appearing before
the Court upto the time the case was transferred from the Court of Ms.
Sarita Birbal and once the Court changed he was not served with a notice,
despite the fact that the Respondent knew the address of the Appellant in
Punjab and yet did not intimate about the change of Court. The Appellant
came to know of the judgement only through the legal notice dated
10.01.2019 sent by the Respondent.
7. The Trial Court has dismissed the Application by placing reliance
on the judgment of this Court in Sweety Gupta vs. Neety Gupta 2016
(160) DRJ 93 , relevant portion of which reads as under:
“10. The last corrective provision in the Code of Civil
Procedure, 1908 is Rule 13 of Order IX which provides the
circumstances under which an exparte judgment and
decree could be set aside/rescinded. Rule 13 of Order IX
reads as hereunder:-
13. Setting aside decree exparte against
defendant—In any case in which a decree is
passed exparte against the defendant, he may
apply to the court by which the decree was
passed for an order to set it aside; and if he
satisfies the court that the summons was not
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duly served, or that he was prevented by any
sufficient cause from appearing when the suit
was called on for hearing, the Court shall make
an order setting aside the decree as against
him upon such terms as to costs, payments into
Court or otherwise as it thinks fit, and shall
appoint a day for proceedings with the suit.
Provided that where the decree is of such a
nature that it cannot be set aside as against
such defendant only it may be set aside as
against all or any of the other defendants also:
[Provided further that no Court shall set aside
a decree passed exparte merely on the ground
that there has been irregularity in the service
of summons, if it is satisfied that the defendant
had notice of the date of hearing and had
sufficient time to appear an answer the
plaintiff’s claim]
[Explanation:- Where there has been an appeal
against the decree passed exparte under this
rule, and the appeal has been disposed of an
any ground other than the ground that the
appellant has withdrawn the appeal, no
application shall lie under this rule for setting
aside that exparte decree.]
11. It would be relevant here in this context to state that
before the amendment in the Code of Civil Procedure,
Rule 13 of the Order IX provided that when a decree had
been passed exparte against the defendant who satisfied
the Court that summons were not duly served upon him,
the Court was bound to set aside the decree. It was
immaterial whether the defendant had knowledge about
the pendency of suit or whether he was aware as to the
date of hearing and yet did not appear before the Court.
The Law Commission, after considering the expression
“duly served”, recommended for amendment of Rule 13
and a second proviso was added mandating that an
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exparte decree shall not be set aside merely on the ground
of irregularity in the service of summons if the Court was
satisfied that the defendant was aware of the date of
hearing and had sufficient time to appear and answer the
plaintiff’s claim.
12. Thus, the amended provisions it makes no difference as
to whether the defendant was actually served with the
summons in accordance with the procedure laid down and
in the manner prescribed in order V of the Code, but
whether (I) he had notice of the date of hearing of the suit,
and (II) whether he had sufficient time to appear and
answer the claim of the plaintiff. If the answer to the
aforesaid two posers are found in affirmative, there can be
rescinding of an exparte decree even if it is proved that the
summons were not duly served. What is of importance now
is that the court is required to be convinced that the
defendant had otherwise knowledge of the proceedings and
he could have appeared and answered the claim of the
plaintiff.”
8. The Trial Court has also recorded that summons were duly served
on the Appellant herein being the Defendant in the Trial Court. The order
is predicated on the amendment to Rule 13 of Order IX CPC whereby a
second proviso was added mandating that an ex-parte decree shall not be
set aside merely on the ground of irregularity in the service of summons,
if the Court is satisfied that the Defendant was aware of the date of
hearing and had sufficient time to appear and answer the Plaintiff’s claim.
9. The Trial Court has noted that the plea of the Appellant in the
application that on transfer of the case from the earlier Court of Ms.
Sarita Birbal Learned ADJ he did not receive any Court notice from the
Court to which the case was transferred, is incorrect and untenable. The
record revealed that the file was transferred to the Court of Shri N.K.
Goyal and again transferred on 23.09.2010 to the predecessor of the
RFA 246/2020 Page 5 of 10
Court. On 22.03.2011 counsel for the Appellant had appeared and argued
the injunction application, which was allowed vide order dated
22.11.2014 against the Appellant. Subsequently also a proxy counsel had
appeared for the Appellant and it was only on 25.05.2017 that the
Appellant was proceeded ex-parte. Thus according to the Trial Court the
Appellant had complete knowledge of the case even after the same was
transferred and the plea of non-issuance of notice was rejected.
10. Pursuant to the directions of this Court the Appellant has filed on
record the order sheets of the Trial Court. Perusal of the order sheets
indicates that the counsel/proxy counsel of the Appellant was appearing
off and on on different dates upto 03.03.2016. On 21.07.2016 there was
no appearance on behalf of the Appellant and in the interest of justice the
Court adjourned the matter for further cross-examination of PW-1. On
27.10.2016 again there was no appearance for the Appellant and the
Court records that the case was called and re-called repeatedly. PW-1 was
present with the document proposed as Ex.PW-2/A which was allowed to
be tendered in additional evidence. PW-2 was examined in chief and last
and final opportunity to cross-examination of PW-2 was granted to the
Appellant subject to cost of Rs. 10,000/- and the case was adjourned to
27.01.2017 for further cross-examination of PW-1. Again there was no
appearance on 27.01.2017 and the opportunity to cross-examine was
closed. Subject to payment of cost imposed earlier Appellant was granted
opportunity to lead defence evidence on 13.04.2017.
11. On account of the Court being on leave the case was adjourned to
25.05.2017 on which date the Appellant was proceeded ex-parte and the
relevant order is as under:-
RFA 246/2020 Page 6 of 10
“M/s. Rapross Pharmaceuticals Vs. M/s Solace Biotech
TM no. : 54/10 (1034/16)
25.05.2017
Present: Ms. Renu Narula, Ld. proxy counsel for the
plaintiff.
None for the defendant.
A perusal of order sheet starting from
03.03.2016 till today reveals that the defendant has not
been appearing in the matter. The defendant is accordingly
proceeded exparte. Plaintiff has already closed its
evidence.
Now list for exparte final arguments on
09.10.2017.
(Vinod Yadav)
Addl. District Judge (Central)-10
Delhi: 25.05.2017”
12. The case thereafter fixed on 09.10.2017 on which date ex-parte
arguments were heard on behalf of the Respondent and finally on
12.02.2018 final arguments were heard and the judgement was
pronounced subsequently.
13. The record shows that the Appellant had complete knowledge of
the pendency of the case even after it was transferred and therefore the
plea set up by the Appellant that there was no notice issued, is completely
untenable.
14. In the Application filed before the Trial Court, there are no
pleadings or averments as to why the Appellant or his counsel did not
appear on 25.05.2017 or on any subsequent dates till the pronouncement
of the judgement. Learned counsel for the Appellant argued before this
Court that the counsel who had been appearing for the Appellant was
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negligent and did not pursue the case properly and did not communicate
about the case proceedings and the hearing dates. The Appellant is
situated in Ambala and the Director managing the day to day business,
due to his business commitments could not attend the hearings
personally.
15. This contention of the Appellant, in my view, cannot be accepted
for twofold reasons. Firstly, there is no such pleading in the Application
filed under Order IX Rule 13 CPC. It is not averred that the counsel was
negligent and therefore the Appellant had no notice of the proceedings.
Learned counsel for the Appellant during the hearing, on a pointed query
by the Court if any complaint had been made against the counsel
answered in the negative. The record also shows that the Appellant had
complete knowledge of the proceedings as it was being represented by the
counsel/proxy counsel, who could not have been appearing without the
instructions of the Appellant. Therefore it cannot be contended that the
counsel did not inform the Appellant of the dates of hearing.
16. Supreme Court in the case of Sunil Poddar v. Union Bank of
India (2008) 2 SCC 326, delineated the scope and conditions required to
be satisfied for setting aside an ex-parte decree. Relevant para reads as
follows:-
“19. It is, therefore, clear that the legal position under the
amended Code is not whether the defendant was actually served
with the summons in accordance with the procedure laid down
and in the manner prescribed in Order V of the Code, but
whether (i) he had notice of the date of hearing of the suit; and
(ii) whether he had sufficient time to appear and answer the
claim of the plaintiff. Once these two conditions are satisfied,
an ex parte decree cannot be set aside even if it is established
that there was irregularity in service of summons. If the Court
is convinced that the defendant had otherwise knowledge of the
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proceedings and he could have appeared and answered the
plaintiff's claim, he cannot put forward a ground of non service
of summons for setting aside ex parte decree passed against
him by invoking Rule 13 of Order IX of the Code. Since the said
provision applies to Debt Recovery Tribunals and Appellate
Tribunals under the Act in view of Section 22(2)(g) of the Act,
both the Tribunals were right in observing that the ground
raised by the appellants could not be upheld. It is not even
contended by the appellants that though they had knowledge of
the proceedings before the DRT, they had no sufficient time to
appear and answer the claim of the plaintiff-bank and on that
ground, ex parte order deserves to be set aside.”
17. This Court in the case of Pranesh Gupta and Ors. v. Jagdish
Bansilal Khurana, (2019) 173 DRJ 661 relying on the principles culled
out in the case of Sunil Poddar (supra) and the judgement of the
Division Bench of this Court in Sweety Gupta (supra), held as follows:-
“12. This Court is satisfied that the defendant had full
knowledge of these proceedings and could have appeared and
answered the claim of the plaintiff. No case for setting aside of
the ex parte decree is made out. The defendant has also failed
to show sufficient cause for condonation of delay of 475 days in
filing and 75 days in re-filing the application under Order IX
Rule 13 of the Code of Civil Procedure. The defendant has
raised the plea of medical illness. However, it is not disputed
that the defendant appeared before the learned Metropolitan
Magistrate on 25th June, 2012, 13th March, 2013, 21st June,
2013, 09th July, 2013 and 10th July, 2013. No case for
condonation of delay in filing as well as re-filing of the
application under Order IX Rule 13 of the Code of Civil
Procedure is also made out.”
18. Having perused the application under Order IX Rule 13 CPC as
well as the impugned order dated 25.05.2017, this Court finds no
infirmity with the order, more particularly, in view of the amendment to
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the provision of Rule 13 Order IX CPC and the judgements referred to
above.
19. Appeal along with the accompanying application is accordingly
dismissed.
JYOTI SINGH, J
NOVEMBER 18, 2020/ rd
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