Rohit Sharma v. A.M. Market Place Pvt. Ltd.

1. The appeal has been heard by way of video conferencing.:

2. Present appeal has been filed challenging the order dated 14th 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. 2021:DHC:826-DB

3. The learned Single Judge by the impugned order imposed cost of Rs.30,000/- for setting aside the order dated 19th 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 impugned order dated 14th “3. The present application seeking recall of order dated December 19, 2018 reads as under:

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 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 respondentplaintiff’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 order to avail free gifts such as LED Televisions, Cars, Laptops, etc. On 02nd

8. On 25 August, 2018, summons in the suit were issued to the appellant-defendant by all modes and an injunction order was passed. th September, 2018, the learned Joint Registrar of this Court noted that affidavit of compliance had been filed and summons issued to appellant-defendant No.1 had been deemed to have been served through speed post. The relevant portion of the order dated 25th “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….” September, 2018 passed by the learned Joint Registrar is reproduced hereinbelow:-

9. In pursuance to the aforesaid order, the Trial Court vide order dated 19th

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. December, 2018 proceeded ex parte against the appellant-defendant No.1.

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 the learned Joint Registrar vide order dated 25th

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 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. 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.