Glaverbel S.A. vs Dave Rose & Ors
2008 Latest Caselaw 1527 Del

                 THE HIGH COURT OF DELHI AT NEW DELHI

+                     CS(OS) No. 594/2007

                              Date of decision     :     03.09.2008

IN THE MATTER OF :
#GLAVERBEL S.A.                                          ..... Plaintiff

!                         Through Mr.S.C.Aggarwal, Senior Advocate with
                          Mr.Hemant Singh and Ms.Mamta Rani, Advocates

                     versus

$DAVE ROSE AND ORS.                                ..... Defendants

^                         Through Ms.Prathiba M.Singh, Advocate

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

       1.

Whether Reporters of Local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

HIMA KOHLI, J (Oral).

IA No.240/2008 in C.C. No. /2008 (to be numbered) (by plaintiff for condonation of delay in filing the written statement to the counter claim of the defendants/counter claimants)

1. Pursuant to the order dated 25.4.2008, the plaintiff has filed an

affidavit dated 27.5.2008 in support of the present application by which

condonation of delay is sought for delayed filing of the written statement to

the counter claim of the defendant. The defendant has also filed its

response thereto.

2. It is stated in the said affidavit that while the plaintiff may have

been aware of the cited references and various documents relied upon by

the defendants in their written statement-cum-counter claim, however, the

same does not constitute relevant prior art documents. It is further stated

in the affidavit that the said documents were never considered or examined

as prior art documents by the plaintiff as on the date of institution of the suit

and that only when the said documents were relied upon by the defendants,

the plaintiff got an opportunity to scrutinize and analyse them, so as to deal

with the contentions raised by the defendants.

3. It is stated by the counsel for the plaintiff that in view of the

aforesaid position, the written statement to the counter claim came to be

filed only on 2.1.2008, i.e. after a period of almost six months from

10.7.2007, the date when the plaintiff was directed to file the written

statement to the counter claim of the defendants. It is further submitted on

behalf of the plaintiff that the clients of the plaintiff are based in Belgium.

The documents which were to be examined and analyzed needed a lot of

communication, interactions and discussions amongst the plaintiff and its

attorneys located in different countries. It is thus stated that the delay in

filing the written statement on the part of the plaintiff is bonafide and the

plaintiff would not stand to gain by seeking to drag its own suit as its interim

application is still under consideration and the plaintiff does not enjoy any

ex-parte stay thereon till date.

4. In support of his submission that discretion is vested in this

Court to condone the delay in filing the written statement, counsel for the

plaintiff seeks to rely on the judgment rendered by the Supreme Court in the

case of Smt. Rani Kusum vs. Smt. Kanchan Devi and Ors., AIR 2005 SC

3304.

5. On the other hand, counsel for the defendants submits that she has

filed a response to the affidavit filed on behalf of the plaintiff wherein they

have stated that prior art documents referred to by the defendants in the

written statement were in fact well within the knowledge of the plaintiff.

She submits that the said fact is borne out by submissions made in para `F'

of her reply affidavit wherein it is submitted that the plaintiff has filed

several Information Disclosure Statements during the prosecution of its

patent application in the USA and it had dealt with the prior art documents

filed by the defendants. She submits that all the relevant documents are

enclosed with the reply affidavit.

6. Counsel for the defendants further states that considering the

long delay on the part of the plaintiff in filing the written statement, the

defendants are entitled to a decree in their favour. In this regard, she

submits that the defendants have filed an application under Order 8 Rule 10

CPC, being IA No.11961/2007, which came to be filed by the defendants as

long back as on 10.10.2007. She submits that even after the filing of the

aforesaid application, the plaintiff chose to file its written statement only on

2.1.2008. She thus urges the Court to pronounce judgment against the

plaintiff in the counter claim filed by the defendants, by invoking the

provisions of Order 8 Rule 10 CPC. In support of her submission that delay

ought to be condoned only in extraordinary circumstances and not in

ordinary course, she relies on the judgment of the Supreme Court in Kailash

vs. Nankhu and Ors., AIR 2005 SC 2441.

7. I have heard counsels for the parties. The records reflect that

the suit was instituted by the plaintiff on 22.3.2007. The same was

registered and notice was issued to the defendants on 30.3.2008. The

written statement and counter claim came to be filed by the defendants on

4.7.2007. Vide order dated 10.7.2007, the plaintiff was directed to file its

written statement to the counter claim as also replication to the written

statement filed by the defendants. As no steps were taken by the plaintiff,

the defendants filed an application under Order 8 Rule 10 CPC being IA

No.11961/2007, on which notice was issued vide order dated 12.10.2007.

Finally, the plaintiff filed the present application on 2.1.2008, praying inter

alia for condonation of delay in filing the written statement to the counter

claim of the defendant.

8. It is the admitted case of the parties that the delay in filing the

written statement is for a period of almost six months from the date the

plaintiff was directed to file the written statement, and approximately four

months from the date of expiry of 90 days. Having regard to the fact that

the relief sought by the plaintiff in the present suit against the defendants is

for its claim of infringement of the registered patent granted in favour of the

plaintiff and for damages, whereas the claim of the defendants in its counter

claim is for cancellation of the patent of the plaintiff, it cannot be denied

that the issues in both the suits are completely interlinked. Any relief

granted to the defendants/ counter claimants in their counter claim without

giving an opportunity to the plaintiff to place its defence on the record,

would automatically result in defeating the suit instituted by the plaintiff,

without putting it to trial. This fact itself ought to be given sufficient

weightage while considering the request of the plaintiff for seeking

condonation of delay in filing its written statement to the counter claim.

9. It is not a run of the mill case of a nature where a suit is filed by

one party against other, and in the absence of the written statement, or in

the case of extraordinary delay by the defendant, the automatic

consequence is one of granting a decree in favour of the plaintiff. In any

case, in a matter of such a nature where infringement of patent is claimed

by the plaintiff and denied by the defendants and the defendants take a step

further and seek cancellation/revocation of the patent which is the basis of

the plaint instituted by the plaintiff, it is all the more incumbent that the

matter is put to trial and decided on merits rather than permitting the

defendant to steal a march over the plaintiff, merely on technicalities. It

should be the endeavour of the Court to view matters of such a nature

through the equitous prism of fair play and natural justice rather than adopt

a rigid posture resulting in road rolling the bonafide defence of the parties,

under the garb of strict compliance of the provisions of law. In this regard,

this Court draws strength from the observations made in the case of Rani

Kusum (supra) wherein the Supreme Court emphasized the fact that

ordinarily, the courts should not interpret procedural law to be mandatory in

nature as procedural law shall remain subservient to and is in aid to justice.

10. In the present case, it is pertinent to note that the plaintiff would

not seek to gain in any way by delaying its suit, particularly, since there is

no exparte stay operating in its favour. Instead, the matter is still under

consideration. Hence, it cannot be said that mere inconvenience caused to

the defendants is sufficient to non-suit the plaintiff in the counter claim.

However, while observing so, the fact can also not be lost sight of that the

plaintiff has taken an undoubtedly long time in filing its written statement to

the counter claim filed by the defendants, thus delaying the proceedings,

which for all practical purposes, is an independent suit under the provisions

of Order 8 Rule 6A CPC and ought to be tried in its own right.

11. In these circumstances, equities ought to be balanced while

allowing the application of the plaintiff by subjecting the plaintiff to costs. As

a result, the application of the plaintiff for seeking condonation of delay in

filing the written statement to the counter claim of the defendants is

allowed. Subject to the plaintiff paying a sum of Rs.30,000/- as costs to the

defendants within four weeks from today, the written statement filed to the

counter claim of the defendants is taken on record.

The application is disposed of.

IA No.11961/2007 (by defendant u/O 8 R 10 CPC)

In view of the order passed in IA No.240/2008, condoning the delay on

the part of the plaintiff in filing the written statement to the counter claim of

the defendants, the prayer made in the present application is declined. The

application is disposed of.

CS (OS) No.594/2007

Counsels for the parties state that pleadings are complete, but the

original documents are yet to be filed. The parties are directed to file their

original documents within four weeks. Both the parties shall exchange the

index of documents in advance and endorse the admission/ denial of

documents in a separate column on the index. After the admission/denial is

conducted before the Joint Registrar, the exhibited documents shall also be

endorsed on the list of documents of both the parties.

List before the Joint Registrar on 19.11.2008, for admission/ denial of

documents.

List on 19.1.2009, for framing of issues.

CC No. /2008

The Registry is directed to register the counter claim and assign a

number to it.

Counsel for the claimants/ defendants seeks time to file replication to

the written statement filed by the plaintiff. Replication be filed within four

weeks, with an advance copy to the other side. The parties are directed to

file the original documents within four weeks. Both the parties shall

exchange the index of documents in advance and endorse the admission/

denial of documents in a separate column on the index. After the

admission/denial is conducted before the Joint Registrar, the exhibited

documents shall also be endorsed on the list of documents of both the

parties.

List before the Joint Registrar on 19.11.2008, for admission/ denial of

documents.

List on 19.1.2009, for framing of issues.

IA No.3756/2007 (u/O 39 R 1 & 2 CPC)

List on 19.1.2009.

HIMA KOHLI,J SEPTEMBER 03, 2008 `ns'/sk