Bennett, Coleman & Company Limited v. Seraphic Divine Beauty Private Limited

1. This application, though styled under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as the „Code‟), is, in fact, one under Order IX Rule 7 of the Code, filed by defendant no.2.

2. The applicant is the defendant no.2 in the suit and has been proceeded ex-parte vide order dated 08.01.2020. The defendant no.2 had put his appearance in the suit on 04.09.2019 and prayed for time to file the written statement to the plaint and reply affidavit to the application. The Court directed that the same be filed within the stipulated period of 2022:DHC:1911 30 days from the date of the service. The suit was thereafter listed on 04.11.2019, 20.12.2019 and 08.01.2020, however, on all the three dates, there was no appearance on behalf of the defendant no.2. Accordingly, the right of the defendant no.2 to file the written statement was closed vide order dated 20.12.2019, and finally vide order dated 08.01.2020, the defendant no.2 was proceeded ex-parte.

3. In the application, it has been averred by the defendant no.2 that the defendant no.2 was on, 04.09.2019, the Director of the defendant no.1 and he, alongwith defendant no.1, had put his appearance through a common advocate. The defendant no.2 submits that he resigned from the post of the Director of the defendant no.1 vide Resignation Letter dated 11.01.2020. It is pleaded by the defendant no.2 that until the date of resignation, he was under the impression that defendant no.1-company is taking care of the pending litigations, which included the present case before this Court, therefore, he did not hire a separate counsel to contest the case. It is on this basis that the defendant no.2 seeks to explain his non-appearance in the suit.

4. Pertinently, the present suit has been filed by the plaintiff claiming therein that the defendant no.2 has claimed himself to be the proprietor of “Divine MISS INDIA” and also, alongwith defendant no.1, which is a private limited company, operates a website namely “www.divinemissindia.com”. It is further alleged that it is the defendant no.2 who has filed trade mark application seeking registration of the mark “Divine MISS INDIA” in classes 35, 41, 43 and 44 of the Trade Mark Rules, 2017.

5. The defendant no.2 in the present application admits of him remaining as a Director of the defendant no.1 till at least 11.01.2020. It is, therefore, not believable that the defendant no.2 could not be aware of the fact that the present suit is not been defended for himself or for the defendant no.1, and no appearance has been marked on 04.11.2019, 20.12.2019 or 08.01.2020 on their behalf. Even the written statement has not been filed on their behalf in the suit.

6. I, therefore, find that there is no explanation, leave alone “good cause”, given by the defendant no.2 for his non-appearance on the above mentioned dates and especially on 08.01.2020, when the defendant no.2 was finally proceeded ex-parte in the present suit. As noted above, even the written statement has not been filed by the defendant no.2, though the statutory period and the maximum permissible period of condoning delay in filing of the written statement has also long passed. The right to file the written statement was closed for the defendant no.2 on 20.12.2019, and there is no application seeking recall of the said order. The defendant no. 2 has been impleaded in the suit in his own right, and if decides to let defendant no. 1, which is a company of which he was admittedly a Director during the relevant period, to file his defence and to appear for him, he does so at his own peril. He cannot later escape from the consequence of his non-appearance in law by passing of the blame to defendant no. 1.

7. It is also to be remembered that the present is a commercial Suit filed under the provisions of the Commercial Courts Act, 2015. The object of the Act is to ensure expeditious disposal of the suits. The Act gives strict timelines for the various stages of the Suit. The object of the Act would be defeated if the defendant no. 2 is allowed to appear at his own pleasure and thereafter, give such lame excuse of his/her nonappearance on given dates.

8. In view of the above, I find no merit in the present application. The same is dismissed.

9. List for further proceedings before the Joint Registrar (Judicial) on 2nd August, 2022.

NAVIN CHAWLA, J MAY 18, 2022/Arya/U.