SNS PRODUCTS PRIVATE LIMITED v. IJAZ UDDIN

1. The present suit has been filed seeking relief of permanent injunction restraining the defendant from infringing the trademark of the plaintiff, passing off his goods as that of the plaintiff, damages and other ancillary reliefs.

2. Summons in the suit were issued on 17th January, 2022, when this Court granted ex parte ad interim injunction against the defendant restraining him from using the impugned mark ‘SHAN E DELHI’, ‘SHAN- A-DELHI’ or any other mark identical or deceptively similar to the plaintiff’s trademark, ‘SHAN-E-DELHI’ /. A Local Commissioner was also appointed by this Court to seize and inventorize the infringing goods. Vide order dated 2nd February, 2022 one more Local Commissioner was appointed to visit another premises of the defendant.

3. The counsel appearing on behalf of the defendant entered appearance on 26th April, 2022 and the Court directed for the written statement along with an affidavit of admission/denial of documents to be filed within the period permissible in law. The replication was directed to be filed within fifteen days of the receipt of the written statement.

4. The written statement was filed on behalf of the defendant on 26th April, 2022 and copy of the same was supplied to the counsel for the plaintiff on the same date. The written statement was filed belatedly and therefore, it was accompanied by an application under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (CPC) seeking condonation of delay of 27 days in filing the written statement.

5. The aforesaid application was allowed by the Joint Registrar on 11th July, 2022 while noting that the counsel for the plaintiff does not have any objection to the same. Subsequently, replication was filed on behalf of the plaintiff on 23rd July, 2022.

6. Counsel for the defendant contends that the replication cannot be BANSAL taken on record as it was filed beyond the maximum permissible period of 45 days from the date when the written statement was supplied to the plaintiff. He places reliance on Chapter VII Rule 5 of the Delhi High Court (Original Side) Rules, 2018 (hereinafter ‘Delhi High Court (OS) Rules’), the judgment of the Division Bench in Ram Sarup Lugani v. Nirmal Lugani, 2020 SCC OnLine Del 1353 and the judgment of a Co-ordinate Bench in Atlanta Limited v. National Highways & Infrastructure Development Corporation Limited, 2019 SCC OnLine Del 11276.

7. Counsel for the plaintiff submits that the copy of the written statement was supplied to him only on 17th May, 2022. The time for counting the period for filing replication can only be counted from the date when the written statement was permitted to be taken on record. In the present case, the said date would be 11th July, 2022. He further submits that the aforesaid judgments relied upon by the defendant are not applicable to the facts and circumstances of the case.

8. I have heard the counsels for the parties.

9. To appreciate the submissions of the parties, a reference may be made to the relevant portion of Chapter VII Rule 5 of the Delhi High Court (OS) Rules, which is reproduced below: “5. Replication. – The replication, if any, shall be filed within 30 days of receipt of the written statement. …”

10. The Division Bench in Ram Sarup Lugani (supra) while considering the aforesaid Rule came to the conclusion that the Rule 5 of the Delhi High Court (OS) Rules is mandatory in nature and the replication cannot be permitted to be taken on record after the exhaustion of the maximum prescribed period of 45 days. The issue before the Division Bench was not BANSAL with regard to the date from which the period of 45 days for filing the replication would begin. The issue before the Division Bench was in the context of whether delay in filing the replication can be condoned beyond the period of 45 days in terms of Rule 5 of Chapter VII of the Delhi High Court (OS) Rules. Therefore, the observations of the Division Bench would not be of any assistance to the defendant.

11. I do not agree with the submission of the defendant that in all cases the period for filing replication would commence from the date of written statement being supplied by the defendant to the plaintiff in terms of Rule 5 of the Delhi High Court (OS) Rules. Undoubtedly, the language used in Rule 5 of the Delhi High Court (OS) Rules is that the replication has to be filed within 30 days from the receipt of the written statement. This may be ordinarily so. However, where the written statement was filed beyond the statutory time limit and was taken on record only upon an application for condonation of delay being allowed by the Court, the aforesaid rule has to be interpreted in a manner that the period of 30 days will begin from the time the written statement is permitted to be taken on record.

12. This issue may be examined from a different point of view as well. There would be no requirement for the plaintiff to file a replication in the event that the application seeking condonation of delay in filing written statement is not allowed and the written statement is not taken on record. The plaintiff would be required to file replication only once the condonation in delay is allowed and the written statement is taken on record. Therefore, it is axiomatic that the period for filing replication would only commence from the date when the delay is condoned and the written statement is taken on record.

BANSAL

13. In the present case, the replication was filed by the plaintiff within 12 days after the written statement was taken on record. It was the defendant who had filed the written statement in a belated manner and sought condonation of delay for the same, which the counsel for the plaintiff fairly did not oppose. Therefore, there is no basis for the defendant to object to the replication being taken on record.

14. Reliance has been placed by the counsel for the defendant on the judgment in Atlanta Limited (supra). In the said case, the written statement was already taken on record and the plaintiff had filed an application under the provisions of Order VIII Rule 10 of the CPC for taking the written statement off the record as the filing of the written statement was delayed and the said application was dismissed. The counsel for the plaintiff therein filed an application contending that the maximum permissible period of 45 days for filing replication should be counted from the date when the application of the plaintiff for taking the written statement off the record was dismissed. The said application was rejected by the Court. In the present case the written statement though filed by the defendant earlier, was permitted to be taken on record only on a subsequent date and the replication was filed within 12 days from the said date. Therefore, reliance placed on the judgment in Atlanta Limited (supra) is misplaced.