Win Medicare Pvt. Ltd. vs K. Pharmaceuticals
2009 Latest Caselaw 3455 Del

.*         HIGH COURT OF DELHI : NEW DELHI

+ I.A. No.1556 /2009 & IA No.10416/2009 in C.S. [OS] No.1446/2004

                                   Reserved on:      19th August, 2009

%                                  Decided on:        31st August, 2009

Win Medicare Pvt. Ltd.                            ...Plaintiff
                    Through : Mr. Pravin Anand, Adv. with
                              Ms. Divya Vijen, Adv.

                       Versus

K. Pharmaceuticals                                   ...Defendant
                       Through : Ms. Neelam Nagpal, Adv.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                     No

2. To be referred to Reporter or not?                                  No

3. Whether the judgment should be reported                             No
   in the Digest?

MANMOHAN SINGH, J.

1. By this order I propose to dispose of I.A.No.1556/2009 under

Order IX Rule 13 read with Section 151 CPC for setting aside the ex

parte judgment and decree dated 9th November, 2005 and I.A.

No.10416/09 under Section 151 CPC seeking condonation of delay in

moving the application under Order IX Rule 13 read with Section 151

CPC.

2. The brief facts of the case are that the plaintiff filed a suit for

permanent injunction restraining infringement of copyright, passing of,

rendition of accounts of profits, delivery up etc. against the defendant

M/s. K. Pharma Works, Jind-126102. The said suit was for the first

time listed before court on 16th December, 2005 when the summons in

the main suit and notices in the application were issued to the defendant

returnable on 17th February, 2006. On the next date of hearing, Mr.

Manoj Sharma, appeared on behalf of the defendant and sought time to

file written statement and reply to the injunction application. The next

date of hearing in the mater was fixed for 25 th March, 2006. On 25th

March, 2006 another opportunity was granted to the defendant to file the

written statement and reply subject to payment of costs of Rs.10,000/-

and the next date of hearing in the matter was fixed for 4th May, 2006.

3. On 4th May, 2006 no one appeared on behalf of the defendant

and the defendant was proceeded ex parte. The plaintiff was directed to

produce the ex parte evidence before the Joint Registrar on 23 rd May,

2006. After producing the evidence before the Joint Registrar, the

matter was listed before court on 9th November, 2006 and the suit was

decreed in terms of Paras 19(a) and (c) of the plaint. The plaintiff has

given up the other prayers 19(b) and (e) of the plaint. The court also

granted the damages to the tune of Rs.5,05,000/- in order to grant the

relief as prayed in Para 19(f) of the plaint.

4. In the application filed by the defendant under Order IX Rule

13 CPC, it is contended that the defendant came to know about the

disposal of the suit on 14 th December, 2008 when the legal notice sent

by the plaintiff's counsel was received by the defendant's staff. The

defendant thereafter contacted his counsel but could not get any

satisfactory reply. The defendant then filed a complaint before the Delhi

Bar Council against his counsel. It is stated that there was no fault on

the part of the defendant who had engaged counsel and has also signed

the written statement but for the reasons best known to the counsel, he

did not appear before the court nor informed the defendant about the

matter and in fact the defendant was misled by the counsel. On merit,

the defendant has also denied any infringement of copyright and passing

of his goods as that of the plaintiff.

5. It is also contended that the defendant's business is on a very

small scale, therefore, the damages granted by this court is too high. The

defendant is a small firm and will not be able to pay the damages to the

tune of Rs.5,05,000/-.

6. In the present case, the counsel for the defendant two times

appeared before the court. One Mr. Manoj Sharma appeared before the

court for the first time on 14th February, 2005 and another counsel Mr.

Vivek Malik appeared on 23rd March, 2005. The third counsel Mr.

Rohit Kishore also appeared on behalf of the defendant on 23 rd May,

2005 after passing of the ex parte order before the Joint Registrar but the

defendant have shown no interest in the matter except that the written

statement was filed by one counsel Mr. Rohit Kishore, Advocate on 23rd

March, 2005. There is no representation by the defendant thereafter.

7. In another I.A. No.10416/09 under Section 5 of the

Limitation Act, 1963 almost same reasons have been assigned and the

statements made in the application under Order IX Rule 13 CPC have

been referred.

8. The learned counsel for the defendant has argued that it is

not the fault of the defendant as he has given the instructions to the

counsel to appear in the matter from time to time but he has misled the

defendant. It is submitted by the counsel that a complaint against the

counsel is also pending before the Bar Council of Delhi.

9. Learned counsel for the defendant has referred various

judgments in support of its contention which are given as under:-

(i) N.Balakrishnan Vs. M. Krishnamurthy, 1998 VI AD

(SC) 465.

ii) Sushila Narahari & Ors Vs. Nandkumar & Anr, 1995

SCALE (5) 494.

iii) Kamta Prasad Vs. Smt. Jaggiya, AIR 1999 All. 184.

iv) Malkiat Singh & Anr Vs. Joginder Singh & Ors, AIR

1998 SC 258.

v) Concord of India Ins. Co. Ltd. Vs. Nirmala Devi & Ors,

1979 SCC (4) 365.

vi) Collector Land Acquisition, Anantnag & Anr Vs. Mst.

Katiji & Ors, 1987 SCCF (4) 365.

vii) Nahar Enterprises Vs. Hyderabad Allwyn Lts. & Anr.

Appeal (Civil) 714 of 2007.

10. On the other hand, the learned counsel for the plaintiff

opposed the applications filed by the defendant and has referred to Paras

6 and 7 of the judgment reported in Mahabir Singh vs. Subhash and

others in Civil Appeal No.4881/07 arising out of SLP (c) No.9325/05.

11. Learned counsel for the defendant however has agreed

during the course of hearing to deposit the partial decretal amount

before this court if the application of the defendant under Order IX Rule

13 is allowed and the defendant may be permitted to contest the matter

on merit. Learned counsel for the defendant further agreed that as far as

the decree for permanent injunction for infringement of copyright and

passing of is concerned, the defendant at this stage have no objection if

the said interim order granted by the court may continue during the

final disposal of the suit which may be decided on merit.

12. After careful consideration of the matter, I am of the view

that since the defendant is agreed to deposit a partial decretal amount as

well as to suffer an injunction pending the final disposal of the suit,

there is no need to go into the merit of these applications and the

decisions referred by the learned counsel for the parties. Keeping in

mind the interest of justice, equity and fair play, this Court is of the

view that the defendant may be given an opportunity to contest the

matter on merit. Hence, the decree passed by this court is set aside

subject to the following conditions:-

(a) The defendant shall deposit a sum of

Rs.2,52,500/- i.e. 50% of the decretal amount within four

weeks from today with the Registrar General of this court by

way of bank draft in his name who shall keep the said amount

in FDR initially for a period of one year.

(b) Till the final disposal of the suit, the defendant,

their officers, servants, or agents are restrained from

manufacturing, selling, packaging of Povidone Iodine solution

IP under the label being a colourable imitation or a substantial

reproduction of the plaintiff's get up, layout and colour

combination that comprises of (i) a white background with

dark blue lettering printed on it; and (ii) a sky blue stripe

followed by a navy blue stripe on which the trademark

STANDARDISED is printed in bold.

13. In failure to comply the above said conditions mentioned in

para 11 of this judgment within the time granted, the applications of the

defendant I.A. No.1556/08 and I.A. No.10416/0 would be treated as

dismissed and the judgment and decree passed by this Court on 9 th

November, 2005 shall be restored without any further orders.

It is ordered accordingly.

C.S. [OS] No.1446/2004

List this matter before the Court on 6th November, 2009.

MANMOHAN SINGH, J AUGUST 31, 2009 SD