Dhiraj Kumar v. R H Agro Overseas Pvt Ltd

1. This petition filed under Article 227 of the Constitution of India impugns the order dated 09.05.2023 passed by District Judge (Comm.)-04, South District, Saket Courts, Delhi (‘Trial Court’), in C.S. (COMM.) NO. 03/2023, titled as R.H. Agro Overseas Pvt. Ltd. & Anr. v. Dhiraj Kumar & Anr., taking on record the replication, documents filed along-with the replication and the affidavit of admission/denial of documents.

1.1. The Petitioner herein is the defendant and the Respondents herein are the plaintiffs in the suit.

1.2. The suit has been filed by the Respondents inter-alia for permanent injunction against the Petitioner for infringement of trade mark and passing of action with respect to the Respondents trademark ‘NAFIS’.

3. The learned counselfor thePetitioner states thattheTrialCourtissued summons in thecommercialsuit on 19.01.2023and at paragraph‘35’ therein granted liberty to theRespondentsto file its replicationwithin a periodof 15 days after the filing of the written statement along-with the affidavit of admission/denial in respect of documents filed by the defendants.

3.1. He statesthatadmittedly,thewritten statementwasfiled on 13.03.2023 and therefore, 15 days for filing replication expired on 28.03.2023.

3.2. He statesthathowever, theRespondents havefiled their replicationand affidavit of admission/denial of documents filed by the defendant belatedly on 08.05.2023.

3.3. He statesthatno leaveofthe TrialCourthasbeen soughtfor condoning thedelay in filing replication andaffidavit ofadmission/denialofdocuments. 3.[4] He further states that the Respondents herein filed additional documents along-with the replication on 08.05.2023, again without seeking priorleaveoftheTrialCourtas mandated by Order XIRule[1] (5) of theCode of CivilProcedure, 1908(‘CPC’)as amended by theCommercialCourts Act,

2015. He, therefore,statestheimpugned order dated 09.05.2023suffers from infirmity.

4. In reply, learned counsel for the Respondents states that the Respondents filed the replication in terms of the permission granted by the Trial Court vide order dated 13.01.2023. She states that no outer limit was stipulated in thesaidorder for filingthereplication andtherefore, theplaintiff bona fide filed the replication before the next date of hearing.

4.1. Shestates thattheRespondentsfiled thereplicationandtheaffidavit of admission/denialofdocumentsbeforethenextdateofhearingi.e., 09.05.2023 along-with theadditionaldocuments. Shestatesthattheadditionaldocuments have been filed to answer the case set up by the defendant in the written statement.

4.2. She states however, without prejudice to Respondents rights and contentions, Respondentswill file an appropriateapplicationbeforetheTrial Court withina period ofone(1)week from todayseekingenlargementoftime for filing the replication and affidavit ofadmission/denialofdocuments;and file a separate application under Order XI Rule 1 (5) for seeking permission to file the additional documents along-with the replication.

5. In response, learned counsel for the Petitioner states that he has no objection to the said course being adopted by the Respondents, however, he reserves his right to file a reply and raiseobjectionsin accordance with law.

6. Accordingly, the aforesaid petition is disposed of reserving liberty to the Respondent as well as thePetitioner as recorded hereinabove;and to that extent, the order dated 09.05.2023 taking the replication, affidavit of admission/denial of documents on record is set aside.

7. Pending applications stand disposed of.