Full Text
HIGH COURT OF DELHI
CS(COMM) 413/2021
LT FOODS LIMITED ..... Plaintiff
Through: Mr. R. Abhishek, Adv.
Through: Mr. Neeraj Lalwani, Adv.
JUDGMENT
30.01.2023
1. The plaintiff LT Foods Limited instituted the present suit against the defendant Saraswati Trading Company alleging infringement, by the defendant, of trademarks in which the plaintiff held registration, more particularly in respect of the Marks “DAWAT/DAAWAT”. The plaintiff also claimed copyright in the pictorial form of the said mark. Accordingly, the plaintiff sought a decree of injunction against the defendant from using the impugned marks or manufacturing or clearing its product in packing, the trade dress of which was similar to that of the plaintiff.
2. Along with the plaint, the plaintiff filed I.A. 11320/2021 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) seeking interim reliefs.
3. On 7th September 2021, a co-ordinate Bench of this Court issued summons in the suit. Holding that the plaintiff had made out a prima facie case of infringement and passing off, the Court also granted ex prate ad interim injunction in favour of the plaintiff and against the defendant.
4. The defendant was, thereby, restrained from manufacturing, selling, distributing, producing, advertising, promoting or exporting any goods which contained or included the marks “DAWAT/DAAWAT” or any similar infringing marks.
5. Side by side, the Court also allowed I.A. 11321/2021, filed by the plaintiff under Order XXVI Rule 9 of the CPC for appointment of a Local Commissioner. An advocate of this Court was appointed as the Local Commissioner, to visit the premises of the defendant and seize and inventorise the allegedly infringing goods as well as any material which was used for manufacturing of the goods, packing materials, etc. The commission was to be executed on 10th September
2021. The orders specifically stated that the next date of hearing before the Court was 24th November 2021.
6. The commission was duly executed, following which an undated report has been placed on record by the learned Local Commissioner. Attached to the report, however, is the attendance sheet as well as a record of on the spot proceedings which took place during the execution of the commission on 10th September 2021. The attendance sheet and on the spot proceedings are signed by learned Counsel for the plaintiff as well as by the defendant in person.
7. It is not in dispute that a copy of the order dated 7th September 2021 was, in fact, handed over to the representative of the defendant at the time of execution of the commission on 10th September 2021.
8. As already noted, the next date of hearing was 24th November
2021. On the said date, this Court observed that, as per the office report of the Registry, service of summons on the defendant could not be effected by speed post owing to the address of the defendant as provided by the plaintiff being insufficient. Learned Counsel for the plaintiff sought permission to file an application for substituted service, which was also noted by the Court.
9. Thereafter, on the next date of hearing, i.e. 15th February 2022, the following order came to be passed by this Court:
10. A reading of the above order reveals that the Court deemed service to have been effected on the defendant, as the order passed on 7th September 2022 was, in fact, provided to the defendant and the defendant was, therefore, aware of the next date of hearing. Nonetheless, in the interests of justice, the Court re-notified the matter for 25th April 2022 observing, in the process, that if the defendant remained unrepresented on the said date, the matter would proceed in its absence.
11. As the defendant remained absent on 25th April 2022 as well, the court proceeded to decree the suit ex parte against the defendant after observing thus, in para 2:
12. Additionally, in para 6 of the order, the Court recorded thus:
13. The present application has been moved by the defendant, thereafter, under Order IX Rule 13 of the CPC, for setting aside the ex parte judgment and decree dated 11th November 2022.
14. I have heard Mr. Neeraj Lalwani, learned Counsel for the defendant/applicant and Mr. R. Abhishek, learned Counsel for the plaintiff/non-applicant at some length.
15. Order IX Rule 13 allows a defendant, against whom a decree is passed ex parte, to apply to the Court which passed the decree, to set it aside. This liberty is, however, subject to the applicant-defendant satisfying the Court either that there was no due service of summons in the suit or that the defendant was prevented by sufficient cause from not appearing when the suit was called out for hearing.
16. Mr. Lalwani, to a query from the Court, submitted that he was predicating his case on the first of the aforesaid two eventualities, i.e., non-service of summons on the defendant in the manner envisaged by the CPC. In other words, Mr. Lalwani’s contention is that, as summons in the suit were not duly served on the defendant, a case for setting aside the ex parte judgment and decree dated 11th November 2022 is clearly made out.
17. Order IX Rule 13 is, however, conditioned by provisos. Proviso 2 to Order IX Rule 13 proscribes a Court from setting aside an ex parte decree on the sole ground that there has been irregularity in service of summons, if the Court is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the claim of the plaintiff.
18. Mr. Abhishek, learned Counsel for the plaintiff invokes the second proviso to Order IX Rule 13 to contest the defendant’s application. He submits that, as the order dated 7th September 2021 was provided to the defendant in person at the time of execution of the commission on 10th September 2021, the defendant was well aware of the fact that summons stood issued to the defendant and that the next date of hearing was 24th November 2021. This fact, he submits, was in fact noted by the Court in the subsequent orders dated 15th February 2022 and 25th April 2022, passed in the present proceedings. The order dated 15th February 2022, he points out, was never challenged.
19. Though Mr. Lalwani, learned Counsel for the applicantdefendant also sought to refer the order dated 15th February 2022, to point out that the plaintiff had, on the said date, sought permission to effect substituted service, which was not effected, Mr. Abhishek submits that this aspect stood clarified in the subsequent orders dated 15th February 2022 as well as in the impugned judgment and decree dated 25th April 2022, which noted the fact that the defendant was deemed to have been served in the suit, as consequent on the execution of the commission on 10th September 2021, the defendant was well aware of the proceedings pending before this Court.
20. Mr. Lalwani has sought to rely on the judgements of the Supreme Court in G.P. Srivastava v. R.K. Raizada[1], Parimal v. Veena[2] and Auto Cars v. Trimurti Cargo Movers Pvt Ltd[3]. He submits that these decisions advocate a liberal approach by the Court dealing with an application under Order IX Rule 13 of the CPC, where the absence of the defendants, when the matter is called out for hearing, is not deliberate or intentional. The Court is required, in such circumstances, he submits, to keep in mind the cause of substantial justice and ought to give an opportunity to the defendant to prosecute the matter, if necessary by compensating the plaintiff with costs.
21. Mr Lalwani submits that the absence of the defendant on 24th November 2021 and in the proceedings which followed thereafter was not deliberate or intentional. Though he acknowledges the fact that a copy of the order dated 7th November 2021 was indeed served on the defendant on 10th September 2021 by the learned Local Commissioner, he submits that the defendant, as an ordinary businessman, was not aware of the fact that the said order constituted summons or that, in the absence of any fresh summons being served on the defendant, he would have to appear before the Court. He submits that the defendant regarded the said order as a mere authorization, authorizing the execution of the commission, in which his client did not create any hindrance.
22. In these circumstances, Mr. Lalwani exhorts the Court to adopt a compassionate attitude and allow the defendant an opportunity to contest the suit, if necessary by burdening it with costs.
23. Mr. Abhishek, learned Counsel for the plaintiff submits, per contra, that the allowing of the present application would do violence to the very purpose of insertion, in the CPC, of the second proviso to Order IX Rule 13 of the CPC. He cites the decision in Sunil Poddar v. Union Bank of India[4], specifically paras 20 and 23 of the said decision, to underscore the intent and purpose of engrafting, in the CPC, the second proviso to Order IX Rule 13 of the CPC.
24. In view of the said decision, he submits that the defendant, having remained recalcitrant even after having been informed of the proceedings pending before this Court and having been aware of the listing of the matter before this Court, cannot now seek to put the clock back and seek re-adjudication of the suit.
25. Having heard learned Counsel for both sides and examined the material on record and the decisions cited at the bar, I regret my inability to come to the aid of the defendant.
26. As already noted, Order IX Rule 13 of the CPC envisages two circumstances in which an order decreeing a suit ex parte can be set aside. The first is where there is no due service of summons, which is what Mr Lalwani urges. The second is where there is sufficient cause for the absence of the defendant on the date when the matter is called out for hearing.
27. The submission of Mr. Lalwani, to an extent, stands defeated even by Parimal[2], on which Mr. Lalwani places reliance. The Supreme Court, in para 12 of the report in the said decision, held thus: “12. It is evident from the above that an ex-parte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein. (Emphasis supplied)”
28. Thus, the decision in Parimal[2] itself recognizes that there is a complete statutory embargo on a Court setting aside a judgment and decree passed ex parte under Order IX Rule 13, where the Court finds that the defendant had (i) notice of the next date of hearing and (ii) sufficient time to appear. The Supreme Court has in fact held that if, despite the exercise of such knowledge, the Court sets aside the ex parte judgment and decree, it would amount to “utter disregard of the terms and conditions incorporated in the second proviso” to Order IX Rule 13 of the CPC.
29. The reliance, by Mr. Abhishek, on the decision in Sunil Poddar[4] is also well taken. Paras 20 to 23 of the said decision may be reproduced thus:
21. The Commission again considered the question and in its Fifty-fourth Report, reiterated: “9.12. Under Order 9, rule 13, if the court is satisfied either that the summons has not been served, or that the defendant was prevented by sufficient cause from appearing, etc., the ex parte decree should be set aside. The two branches of the rule are distinctive, and the defendant, whatever his position may be in respect of one branch, is entitled to benefit of the other branch, if he satisfies the court that he has made good his contention in respect of the other branch.
9.13. In the earlier Report, several points were considered with reference to this rule, and amendments suggested on one point,-the broad object being to ensure that a decree shall not be set aside merely on the ground of irregularity in service, if the defendant had knowledge of the decree. After consideration of the points discussed in the earlier Report, we have reached the same conclusion.”
22. Accepting the recommendations of the Law Commission, the rule was amended by the Code of Civil Procedure (Amendment) Act, 1976. Rule 13 of Order 9 with effect from 1-2- 1977 now reads thus;
23. 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 5 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 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 9 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.” (Italics in original; underscoring supplied)
30. Sunil Poddar[4], therefore, forebears a defendant, who had knowledge of the proceedings and was in a position to answer the plaintiff’s claim, from putting forward a ground of non-service of summons for setting aside the ex parte decree.
31. Thus, the aspect of service of summons and of whether the summons were duly served as envisaged in the CPC, stands relegated to the background. The fact of the matter is that, on 10th September 2021, the defendant was provided a copy of the order dated 7th September 2021, which noted the fact that summons stood issued in the suit to the defendant and, more importantly, renotified the matter for 24th November 2021. The defendant was, thereby, put on notice regarding the next date of hearing, which was more than 2½ months away. The defendant, therefore, clearly had adequate time to appear and prosecute the proceedings. Both the ingredients of the second proviso to Order IX Rule 13, i.e. (i) notice of the next date of hearing and (ii) sufficient time to appear and answer the plaintiff’s claim, therefore, stand satisfied in the present case.
32. The defendant, however, continued to remain absent on 24th November 2021 as well as on 15th February 2022 and 25th April 2022, when the matter was listed thereafter. Having thus remained absent for three dates of hearing, despite having been made aware of the proceedings, as well as of the listing of the matter on 24th November 2021 by the learned Local Commissioner on 10th September 2021, and having in its possession a copy of the order dated 7th September 2021, it is clearly not open to the defendant to cite non-service of summons as a ground to seek setting aside of the ex parte judgment and decree dated 11th November 2022.
33. G.P. Srivastava[1], which was also cited by Mr. Lalwani, was a case in which the applicant sought setting aside of the ex parte decree against him not on the ground that summons had not been properly served, but that his absence on the date of hearing was sufficiently explained. The said decision can, therefore, be of no assistance to the case at hand.
34. Auto Cars[3], similarly, was a case in which the Court proceeded on the aspect of service of summons, and no contention, relatable to the second proviso to Order IX Rule 13 was either raised before the Court or considered by it. The said decision cannot be of assistance where the Court is concerned with the applicability of the second proviso to Order IX Rule 13 of the CPC.
35. As I have had occasion to observe in a judgment delivered this morning in Jindal Stainless (Hisar) Ltd v. Suncity Sheets Pvt Ltd[5], a civil court is bound by the CPC. A Court cannot be more compassionate than the statute. The circumstances in which an ex parte judgment and decree can be set aside stand clearly delineated in Order IX Rule 13 of the CPC. If the circumstances are found to exist, the Court can grant the defendant the benefit of the provision. Where the circumstances are not made out, as understood by the Supreme Court in the judgments laid down by it, the Court is powerless to come to the aid of the defendant.
36. Needless to say, there is a public purpose involved in Order IX Rule 13 and the limited circumstances in which the provision empowers a Court to set aside an ex parte judgment and decree. Finality of litigation is an avowed socio-legal objective. Undoing final judgements and decrees, save and except in the manner in which the CPC so provides (such as in appeal, revision and the like) is, therefore, impermissible. A repeat consideration of a case by the Court 2023/DHC/000608 which has already passed a final judgement is, therefore, envisaged only in specific and exceptional circumstances, and the Court cannot breach that protocol.
37. For the aforesaid reasons, this Court regrets that it is in no position to come to the assistance of the defendant, as it cannot be held that a case for setting aside the impugned judgment and decree dated 25th April 2022, within the parameters of Order IX Rule 13 of the CPC, has been made out.
38. The application is accordingly dismissed.
39. Needless to say, this order only examines the prayer of the defendant for setting aside the judgment and decree dated 25th November 2022 under Order IX Rule 13 of the CPC. The Court has not addressed itself, even tangentially, to the merits of the disputes between the parties. I.A. 1517/2023 (Stay)
40. In view of the order passed today, this application does not survive for consideration and is accordingly disposed of.
C.HARI SHANKAR, J JANUARY 30, 2023