Bombay High Court
Ipca Laboratories Ltd vs M/S. Epsilon Biotech And Anr on 17 February, 2021
Bench: K.R. Sriram
1/3 28.NMCD-657-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL NOTICE OF MOTION NO.657 OF 2017
IN
COMMERCIAL IP SUIT NO.724 OF 2017
IPCA Laboratories Limited ....Applicant/Plaintiff
V/s.
M/s. Epsilon Biotech and Anr. ....Defendants
----
Mr. Minesh Andharia a/w. Mr. Jay Shah i/b. Krishna and Saurastri Associates
LLP for applicant/plaintiff.
None for defendants.
----
CORAM : K.R.SHRIRAM, J.
DATED : 17th FEBRUARY 2021
P.C. :
1 An ad-interim order was passed on 17 th April 2017 after notice
to defendants. Defendants did not appear on that day. The Court was
pleased to grant ad-interim in terms of prayer clauses - (b) and (c) of the
notice of motion.
2 Mr. Andharia, counsel for plaintiff states that plaintiff has filed
an affidavit of service of one Abhijit M. Nakashe affirmed on 7 th July 2017
confirming service of the ad-interim order upon defendants. Defendant no.1
has been served on 1st May 2017 and defendant no.2 has been served on
27th April 2017. No reply is filed. Defendants have not even entered
appearance.
3 Therefore, the ad-interim order dated 17th April 2017 is
confirmed as order in the notice of motion and notice of motion accordingly
Gauri Gaekwad
2/3 28.NMCD-657-2017.doc
stands disposed.
4 Mr. Andharia relies upon a copy of an affidavit of one Pravin V.
Kajrekar affirmed on 4th January 2018 confirming service of the writ of
summons on defendants. From the affidavit, it appears that the writ of
summons have been served but the dates are not clear. In any event, it has
been served before 4th January 2018.
5 Therefore, the time to file written statement under Order 8
Rule 1 of the Code of Civil Procedure, as amended for commercial suit has
expired long ago. Defendants have, therefore, forfeited their right to file
written statement.
6 Oder 8 Rule 10 of the Code of Civil Procedure provides that
where any party from whom a written statement is required under Rule 1
fails to present the same within the time permitted or fixed by the Court, as
the case may be, the Court shall pronounce judgment against him, or make
such order in relation to the suit as it thinks fit, and on the pronouncement
of such judgment, a decree shall be drawn up.
7 In this case, an ad-interim order was passed against defendants
after notice on 17th April 2017. Despite service of the said order, defendants
have not filed affidavit in reply or taken out an application for recalling the
ad-interim order. Despite service of writ of summons also no written
statement has been filed within the time permitted. Leave under Clause 14
has also been granted.
Gauri Gaekwad
3/3 28.NMCD-657-2017.doc
8 Therefore, plaintiff shall be entitled to a decree in terms of
prayer clauses - (a), (b) and (d). Since there is no evidence to prove prayer
clause - (c), Mr. Andharia states that plaintiff will not press for prayer
clause - (c).
9 Suit accordingly stands disposed.
(K.R. SHRIRAM, J.)
Gauri Gaekwad
