Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS)(COMM) 37/2021 & CM APPLs. 8493-8495/2021
ROHIT SHARMA .......Appellant
Through: Mr. Vishnu Shankar Jain, Advocate
versus
A.M. MARKET PLACE PVT. LTD. & ORS. ....Respondents
Through: Ms. Shwetasree Majumder,
Mr. Prithvi Singh and Ms. Vasundhara
Majithia, Advocates.
rd
% Date of Decision: 03 March, 2021
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE ASHA MENON
J U D G M E N T
:
MANMOHAN, J (Oral)
1. The appeal has been heard by way of video conferencing.
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2. Present appeal has been filed challenging the order dated 14 January,
2020 passed by the learned Single Judge disposing of IA No.7667/2019 in
CS (COMM) No. 1055/2018 filed under Order IX Rule 7 of CPC by
appellant-defendant No.1 for recall of the order whereby the Trial Court
decided to proceed ex parte against the appellant-defendant No.1. The
appeal is accompanied by an application seeking condonation of delay of
263 days in refiling the appeal.
FAO(OS)(COMM) 37/2021 Page 1 of 9
3. The learned Single Judge by the impugned order imposed cost of
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Rs.30,000/- for setting aside the order dated 19 December, 2018 to the
extent that the Court had proceeded ex parte against the appellant-defendant
No.1. However, the learned Single Judge held that appellant-defendant
No.1’s right to file written statement was closed. The relevant portion of the
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impugned order dated 14
January, 2020 is reproduced hereinbelow:-
“3. The present application seeking recall of order dated
December 19, 2018 reads as under:
“4. That the applicant/Defendant No.1 could not appear on
19.12.2018 as it had no knowledge about the pendency of the
instant suit. The non presence of the applicant was neither
deliberate nor intentional. The Hon'ble Court has passed an order
to proceed ex-parte against the applicant vide order dated
19.12.2018.
5. That the instant application is being filed for recalling/setting
aside of order dated 19.12.2018 to proceed ex-parte against the
applicant/Defendant No.1 on the ground that he had no
knowledge about the filing and pendency of the case and the
summons of the court were never delivered on the applicant or
any member of his family and further that no summons have
been issued by the Court in the State of Uttar Pradesh under
Section 28 of CPC. It is further submitted that the order to
presume service on the applicant is erroneous and subsequent
order passed on the basis of such presumed service to precede ex-
parte is also liable to be recalled in the interest of justice.
6. That it is respectfully submitted that no such summon was ever
came at the residence of the applicant and his mother never
came to know about any summons and she never refused to
receive the postal envelop.
7. That it appear that Plaintiff with a view to get favourable order
from the Court managed the postal department and got the
FAO(OS)(COMM) 37/2021 Page 2 of 9
noting of refusal even though no such postal article was ever
given or tried to be given to the mother of the applicant.”
4. The averments made in the application are not at all inspiring.
In fact, by way of this application, defendant no.1 is casting
aspersion on the postal authority. The application does not
disclose the fact as to how defendant no.1 came to know about
the pendency of these proceedings. In fact, it is argued, that the
postman had not come. No supporting affidavit of the plaintiff’s
mother has been filed. Be that as it may, as this application is
only for recall of order dated December 19, 2018, in the interest
of justice and subject to the condition that the defendant no. 1
shall pay an amount of Rs.30,000/- to the plaintiff, the order
dated December 19, 2018 is recalled. It may be clarified here
that as the defendant no.1 has not filed the written statement
within the stipulated period of 120 days, he has lost the
opportunity to file the same. The application is allowed to the
aforesaid extent. The cost shall be paid within a period of four
weeks.
4. Learned counsel for the appellant-defendant No.1 states that no
summons were served or tried to be served on the appellant-defendant No.1
and alleged refusal of the appellant-defendant No.1’s mother cannot be
deemed to be sufficient service of summons on the appellant-defendant No.1
and therefore, the right of filing the written statement could not have been
taken away. In support of his submission, he relies upon Order V Rules 15,
17, 19 and 21 of CPC.
5. Learned counsel for the appellant-defendant No.1 further submits that
as the Trial Court had issued summons by all modes, the Trial Court had to
be satisfied that the appellant-defendant No.1 had in fact been served by all
modes before proceeding ex parte against the appellant-defendant No.1.
6. Per contra , Ms. Shwetasree Majumder, learned counsel for
respondents states that the impugned order suffers from no illegality and the
FAO(OS)(COMM) 37/2021 Page 3 of 9
present appeal should be dismissed. She also states that the delay in
filing/re-filing the present appeal is much more than what has been stated in
the accompanying application.
7. Having heard learned counsel for the parties, this Court finds that the
respondent-plaintiff has filed a suit for permanent injunction restraining
infringement of trademarks, passing off, dilution, damages, rendition of
accounts, delivery up, transfer of domain name etc. During the hearing it
transpires that in the plaint, it has been averred that the respondent-plaintiff
runs and operates an e-commerce marketplace under the flagship brand
LIMEROAD from the website and domain name www.limeroad.com. It is
further averred that the defendants have opened a website called
www.limeroadwinner.in wherein they are posing as the respondent-
plaintiff’s Prize Department and are offering lottery and LIMEROAD lucky
draws. The website of the defendants allegedly contains hoax pictures of
winners of the LIMEROAD Lottery and luck draw. It is the case of the
respondent-plaintiff that executives of appellant-defendant posed as
executives of the respondent-plaintiff and made calls to various individuals
stating that they were calling from respondent-plaintiff’s Gift Department
asking them to deposit a sum of money with a particular bank account in
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order to avail free gifts such as LED Televisions, Cars, Laptops, etc. On 02
August, 2018, summons in the suit were issued to the appellant-defendant by
all modes and an injunction order was passed.
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September, 2018, the learned Joint Registrar of this Court
8. On 25
noted that affidavit of compliance had been filed and summons issued to
appellant-defendant No.1 had been deemed to have been served through
FAO(OS)(COMM) 37/2021 Page 4 of 9
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speed post. The relevant portion of the order dated 25
September, 2018
passed by the learned Joint Registrar is reproduced hereinbelow:-
“Notice. Notice accepted by Learned counsel for the
defendant no.4, 5, 7, 8 and 9. Time sought to file reply.
Affidavit of compliance have been filed. Summons issued
to D-1 through speed post, received back with remarks "refused
by mother." In these circumstances it appears that defendant
no.1 is having knowledge of the pendency of the present suit. So,
he is deemed to be served….”
9. In pursuance to the aforesaid order, the Trial Court vide order dated
th
19
December, 2018 proceeded ex parte against the appellant-defendant
No.1.
10. It is pertinent to mention that Chapter VI(1)(e) of the Delhi High
Court (Original Side) Rules, 2018 provides that Court may at the first
instance issue summons by all or any of the modes of service, viz.,
registered post (acknowledgement due); speed post; authorized courier; fax;
electronic mail service; SMS with a hyperlink (if required) or any other web
based or virtual communication mode; or dasti service in addition to service
of summons in the ordinary way.
11. Since in the present case, the appellant-defendant No.1 had been
served by one of the modes of service i.e. by way of speed post, as held by
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the learned Joint Registrar vide order dated 25
September, 2018, which has
not been challenged, this Court is of the view that the appellant-defendant
No.1 is deemed to have been served in accordance with the Delhi High
Court (Original Side) Rules, 2018.
12. Neither the Code of Civil Procedure nor the Delhi High Court
(Original Side) Rules, 2018 stipulate that the defendant has to be served by
all modes before he/she is proceeded ex parte in the event the summons are
FAO(OS)(COMM) 37/2021 Page 5 of 9
issued by the Court by all modes. This court is of the view that the intent
behind incorporating different modes of service was to make use of the
latest technology to expedite the disposal of suits and to ensure that suits do
not drag on for a long period of time on account of lack of service on the
defendant. However, if the submission of the appellant-defendant is
accepted that the defendant has to be served by all modes before it is
proceeded ex parte , it would negate the intent of the legislature and of this
Court in amending the Code of Civil Procedure and the Delhi High Court
(Original Side) Rules, 2018 respectively.
13. Further, even if it is assumed that there is any conflict between the
provisions of CPC and Delhi High Court (Original Side) Rules, 2018, it is
settled law that the High Court (Original Side) Rules will prevail. [See: M/s.
Print Pak Machinery Ltd. vs. M/s. Jay Kay Papers Conveters , AIR 1979
Del 217 and Iridium India Telecom Ltd. vs. Motorola Inc., (2005) 2
(F.B.)
SCC 145 ].
14. This Court is also of the opinion that the order of the learned Joint
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Registrar dated 25 September, 2018 is the foundational order and as it has
not been challenged till date by way of a chamber appeal, the order dated
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19 December, 2018 as well as the impugned order dated 14
January, 2020
are its logical sequitur and/or its logical consequence.
15. This Court is in agreement with the finding of the learned Single
Judge in the impugned order that the application under Order IX Rule 7 CPC
filed by the appellant-defendant No.1 does not disclose as to how the
appellant-defendant No.1 came to know about the pendency of the said
proceeding. In fact, no supporting affidavit of appellant-defendant No.1’s
mother has been filed to dispute the report of the Postal Authority.
FAO(OS)(COMM) 37/2021 Page 6 of 9
16. As admittedly, the appellant-defendant No.1 did not file its written
statement within one hundred and twenty days, the learned Single Judge was
right in law in not extending the time to file the written statement by the
appellant-defendant No.1. In fact, the Supreme Court in SCG Contracts
(India) Private Limited vs. K.S. Chamankar Infrastructure Private Limited
& Ors., (2019) 12 SCC 210 has upheld the view of a learned Single Judge of
this Court in OKU Tech Pvt. Ltd. Vs. Sangeet Agarwal & Ors., 2016 SCC
OnLine Del 6601 that in the event the defendant fails to file the written
statement within one hundred and twenty days from the date of service of
summons, no further time can be granted. The relevant portion of the
judgment of the Supreme Court is reproduced hereinbelow:-
“8. The Commercial Courts, Commercial Division and
Commercial Appellate Division of High Courts Act, 2015 came
into force on 23-10-2015 bringing in their wake certain
amendments to the Code of Civil Procedure. In Order 5 Rule 1,
sub-rule (1), for the second proviso, the following proviso was
substituted:
“Provided further that where the defendant fails to file
the written statement within the said period of thirty days,
he shall be allowed to file the written statement on such
other day, as may be specified by the court, for reasons to
be recorded in writing and on payment of such costs as
the court deems fit, but which shall not be later than one
hundred twenty days from the date of service of summons
and on expiry of one hundred and twenty days from the
date of service of summons, the defendant shall forfeit the
right to file the written statement and the court shall not
allow the written statement to be taken on record.”
Equally, in Order 8 Rule 1, a new proviso was substituted
as follows:
“Provided that where the defendant fails to file the
written statement within the said period of thirty days, he
shall be allowed to file the written statement on such
FAO(OS)(COMM) 37/2021 Page 7 of 9
other day, as may be specified by the court, for reasons to
be recorded in writing and on payment of such costs as
the court deems fit, but which shall not be later than one
hundred and twenty days from the date of service of
summons and on expiry of one hundred and twenty days
from the date of service of summons, the defendant shall
forfeit the right to file the written statement and the court
shall not allow the written statement to be taken on
record.”
This was re-emphasised by re-inserting yet another
proviso in Order 8 Rule 10 CPC, which reads as under:
“ 10. Procedure when party fails to present written
statement called for by court .—Where any party from
whom a written statement is required under Rule 1 or
Rule 9 fails to present the same within the time permitted
or fixed by the court, as the case may be, the court shall
pronounce judgment against him, or make such order in
relation to the suit as it thinks fit and on the
pronouncement of such judgment a decree shall be drawn
up:
Provided further that no court shall make an order to
extend the time provided under Rule 1 of this Order for
filing of the written statement.”
A perusal of these provisions would show that ordinarily
a written statement is to be filed within a period of 30
days. However, grace period of a further 90 days is
granted which the Court may employ for reasons to be
recorded in writing and payment of such costs as it
deems fit to allow such written statement to come on
record. What is of great importance is the fact that
beyond 120 days from the date of service of summons, the
defendant shall forfeit the right to file the written
statement and the Court shall not allow the written
statement to be taken on record. This is further buttressed
by the proviso in Order 8 Rule 10 also adding that the
court has no further power to extend the time beyond this
period of 120 days.
FAO(OS)(COMM) 37/2021 Page 8 of 9
xxx xxx xxx
10. Several High Court judgments on the amended Order 8
Rule 1 have now held that given the consequence of non-filing
of written statement, the amended provisions of the CPC will
have to be held to be mandatory. See Oku Tech (P)
Ltd. v. Sangeet Agarwal [Oku Tech (P) Ltd. v. Sangeet
Agarwal, 2016 SCC OnLine Del 6601] by a learned Single
Judge of the Delhi High Court dated 11-8-2016 in CS (OS) No.
3390 of 2015 as followed by several other judgments including
a judgment of the Delhi High Court in Maja Cosmetics v. Oasis
Commercial (P) Ltd. [Maja Cosmetics v. Oasis Commercial (P)
Ltd.
11. We are of the view that the view taken by the Delhi High
Court in these judgments is correct in view of the fact that the
consequence of forfeiting a right to file the written statement;
non-extension of any further time; and the fact that the Court
shall not allow the written statement to be taken on record all
points to the fact that the earlier law on Order 8 Rule 1 on the
filing of written statement under Order 8 Rule 1 has now been
set at naught
.”
(emphasis supplied)
17. Consequently, the impugned order is in conformity with law and
suffers from no infirmity. Accordingly, the present appeal and applications,
being bereft of merit, are dismissed.
18. The order be uploaded on the website forthwith. Copy of the order be
also forwarded to the learned counsel through e-mail.
MANMOHAN, J
ASHA MENON, J
MARCH 03, 2021
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FAO(OS)(COMM) 37/2021 Page 9 of 9