Super Cassettes Industries Ltd. vs Pal News Media Pvt. Ltd.
2014 Latest Caselaw 4361 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Pronounced on: 11th September, 2014

+       CS (OS) NO. 1891/ 2012
        SUPER CASSETTES INDUSTRIES LTD.                                   ..... Plaintiff
                                 Through:     Ms. Prachi Aggarwal, Adv. with
                                              Mr. K.K. Khetan, Adv.
                                 versus
        PAL NEWS MEDIA PVT. LTD.                                        ..... Defendant
                                 Through:     Mr. Niraj Jha, Adv.
+       CS (OS) NO. 2185/ 2012
        SUPER CASSETTES INDUSTRIES LTD.                                   ..... Plaintiff
                                 Through:     Ms. Prachi Aggarwal, Adv. with
                                              Mr. K.K. Khetan, Adv.
                                 versus
        LEMON ENTERTAINMENT LTD.                                        ..... Defendant
                                 Through:     Mr. Niraj Jha, Adv.
        CORAM:
        HON'BLE MR. JUSTICE G.P. MITTAL


G.P. MITTAL,J. (Oral)

I.A. No. 20056/ 2013 (O. IX Rule 13 CPC) in CS (OS) No. 1891/2012 I.A. No. 13876/ 2013 (O. IX Rule 13 CPC) in CS (OS) No. 2185/ 2012

1. These applications under Order IX Rule 13 read with Section 151 of

the Code of Civil Procedure, 1908 (CPC) have been filed by the

applicant/ judgment debtor (JD) for setting aside of the ex-parte

I.A. No. 20056/2013 in CS (OS) No.1891/2012

judgments and decrees dated 26.07.2013 and 07.05.2013 respectively.

2. A suit bearing CS (OS) No. 1891/ 2012 for permanent injunction,

restraining infringement of copyright, damages, rendition of accounts

etc. was filed by the Plaintiff against the Defendant. An application

under Order XXXIX Rules 1 and 2 CPC was also filed. By an order

dated 06.07.2012, an ex-parte injunction was granted against the

Defendant. The relevant part of the order dated 06.07.2012 passed is

extracted hereunder:-

".....After having given my thoughtful consideration to the arguments advanced by the learned counsel for the plaintiff, I am of the considered view that the plaintiff has made out a prima facie case for the grant of ex-parte ad interim injunction in their favour. The balance of convenience also lies in favour of the plaintiff and if an ex-parte interim injunction is not granted, irreparable loss and injury would be caused to the plaintiff.

Accordingly to the defendant, its principal officers, servants, agents and representatives are hereby restrained from recording, distributing, broadcasting, public performance/ communication to the public or in any other way exploiting the cinematography films, sound recordings and/ or literary works (lyrics) and musical works (musical composition) or other work or part thereof, owned by the plaintiff including all works whereon the plaintiff has shown its copyright under Section 52A of the Copyright Act or doing any other act that would lead to infringement of the plaintiffs copyright till the next date........"

I.A. No. 20056/2013 in CS (OS) No.1891/2012

3. The summons of the suit and notice of the injunction application was

served upon the Defendant on 25.07.2012. One Advocate by the name

of Umesh Misra appeared on behalf of the Defendant on 30.07.2012

but there is no vakalatnama on record filed by him. The matter was

adjourned for 21.11.2012 on which date none appeared on behalf of

the Defendant. Right of the Defendant to file written statement was

closed as the Defendant had failed to file the written statement within

the prescribed period of limitation of 30 days or even within the

extended period of 90 days. The matter was listed for ex-parte

evidence. Ex-parte evidence was recorded on 20.02.2013 and

09.04.2013 and ex-parte judgment was passed by the Court on

26.07.2013.

4. The case set up by the applicant/ JD is that after the Defendant was

served with the summons of the suit and notice of the injunction

application, a proxy counsel on behalf of the counsel for the

applicant/JD entered appearance on 30.07.2012 but the matter was not

taken up and adjourned to 21.11.2012. Thereafter, the applicant/ JD's

counsel Mrinal Kumar, Advocate could not appear and neither could

the written statement be filed on time as the said counsel of the

Defendant had to go to his hometown because his brother was

I.A. No. 20056/2013 in CS (OS) No.1891/2012

suffering from cancer. On 21.11.2012, the Defendant was proceeded

ex-parte.

5. It is the case of the applicant/ JD that it was not aware of the

proceedings which were taking place in the Court and it was only on

09.07.2013 that a demand notice dated 06.07.2013 was received by the

applicant/ JD in the matter CS (OS) No. 2185/ 2012, when the

applicant/ JD inquired about the instant case from its advocate.

6. According to the applicant/ JD, the advocate did not respond and the

applicant then searched the website of the Delhi High Court and it

transpired that the applicant was ordered to be proceeded ex-parte on

21.11.2012 and that an ex-parte judgment and decree was passed

against him on 26.07.2013. Affidavit of Mrinal Kumar, Advocate has

also been filed in support of the application.

7. The application is opposed by the non-applicant (decree holder). It is

urged that the Defendant was merely adopting dilatory tactics. It is

stated that the conduct of the applicant is evident from the fact that the

written statement was not filed by it and that this application has been

filed so that the applicant/ JD may avoid the payment of damages of

Rs. 21 lacs as awarded by the Court.

I.A. No. 20056/2013 in CS (OS) No.1891/2012

8. The applicant/ JD can succeed in the application for setting aside the

ex-parte decree only if he shows that there is sufficient cause for the

same.

9. It is borne out from the record that the Defendant is a large company.

Mohd. Waris, who has signed the application on behalf of the

Defendant has himself stated in the application that when he searched

the website of the Delhi High Court after 09.07.2013, he came to

know about passing of the order dated 21.11.2012, proceeding the

applicant/ JD ex-parte and the order dated 26.07.2013 whereby ex-

parte judgment and decree was passed against the applicant/ JD.

10. First of all, I shall refer to the Affidavit of Mrinal Kumar, Advocate

filed in support of the application. It may be mentioned that this

Affidavit is not on record and the learned counsel for the applicant/ JD

has not even bothered to find out whether the Affidavit has come on

record or not. A copy of the same has been obtained from the counsel

for the applicant/ JD during hearing of this application which is now

taken on record. The Affidavit is completely bereft of any detail. The

Affidavit runs into just two paragraphs which are extracted

hereunder:-

I.A. No. 20056/2013 in CS (OS) No.1891/2012

"2. That I depose that the defendant approached me in respect of the present case for filing of written statement after receiving the summon issued by this Hon'ble Court, but unfortunately as I had to go back to my home town due to the reason that my deceased cousin brother was seriously ill, as he was suffering from cancer, I asked the defendant to engage another counsel for the respective matter.

3. That I depose that I came back to Delhi alongwith my deceased brother for his treatment and that during the treatment at Delhi, I had to take him to the hospital for treatment and had to look after his all basic and medical needs as no one in the family was so close and efficient to look after him..."

11. Mrinal Kumar, Advocate, who is alleged to have been engaged by the

applicant/ JD thus, states that he had to proceed to his hometown

because his cousin was suffering from cancer and was seriously ill. He

had to take his cousin for treatment to the hospital. It is further stated

that said Mrinal Kumar, Advocate had asked the Defendant to engage

another counsel in the respective matters.

12. However, the Affidavit is completely silent as to when the said

counsel had gone to his hometown or when had he asked the

applicant/ JD to engage another counsel. Obviously, this must

happened immediately after 30.07.2012. Further, the application under

Order IX Rule 13 CPC is completely silent that the Affidavit given by

the counsel is false or that no such information (to engage another

I.A. No. 20056/2013 in CS (OS) No.1891/2012

counsel) had been given by the counsel to the applicant/ JD. The

application simply states that the applicant/ JD came to know of the

order only when he searched the website of Delhi High Court and

found the order.

13. Even if it is assumed that the Affidavit filed by Mrinal Kumar,

Advocate is false, though the same has not been stated by the

applicant/ JD, there is no Vakalatnama in his favour available on

record. It is evident that the applicant acted negligently and

carelessly.

14. As stated earlier, the applicant/ JD was served with the summons in

the month of July, 2012. He ought to have enquired from his counsel

immediately after 30.07.2012 (which was the next date of hearing, on

which some proxy counsel appeared) as to the progress of the case.

Even thereafter, the applicant/ JD was expected to consult his counsel

to know if anything was required to be done by the applicant. A

prudent litigant is expected to follow his counsel and make enquiries

from him after each date of hearing. A litigant is not expected to be

complacent by merely engaging a counsel. In this case, the counsel

Mrinal Kumar was not even engaged and there is no vakalatnama in

his favour on record. It is evident that the applicant acted negligently I.A. No. 20056/2013 in CS (OS) No.1891/2012

and carelessly. Even if the said counsel did not give the information,

still the applicant/ JD was aware that he can open the court's website

and know about the progress of its case which the applicant did after

passing of more than a year. All the more, the applicant/ JD knew that

he had not even signed the written statement and therefore, his written

statement could not have been filed.

15. Similarly, none appeared on behalf of the Defendant on the 1 st two

dates in CS (OS) No. 2185/ 2012. Thus, on 16.01.2013, though one

Vinod Kumar, Advocate appeared as proxy counsel on behalf of

alleged Mrinal Kumar, Advocate, yet because of non-filing of the

written statement, the Defendant was proceeded ex-parte and the ex-

parte judgment and decree against it was passed on 07.05.2013 after

recording ex-parte evidence on 27.02.2013 and 26.04.2013.

16. The Defendant in its application under O. IX Rule 13 in this case also

has taken the same ground that Mrinal Kumar, Advocate had gone to

attend his brother and hence, written statement could not be filed.

Two different dates of appearance by proxy counsel i.e. in July, 2012

and January, 2013 on behalf of Mrinal Kumar, Advocate demolish the

applicant's case because the Court can accept either the version that

counsel Mrinal Kumar had gone to his home town in July/ August, I.A. No. 20056/2013 in CS (OS) No.1891/2012

2012 or that he had gone there in January, 2013. It is not the

applicant's case that the counsel remained with his brother from

July/August, 2012 to January, 2013.

17. Therefore, the said reason in either case does not appear to be

believable. It is evident that the applications under Order IX Rule 13

CPC are frivolous. They do not disclose sufficient cause for setting

aside the ex-parte judgments and decrees dated 26.07.2013 and

07.05.2013 respectively. The same are accordingly dismissed.

I.A. No. 20057/ 2013 (delay) in CS (OS) No. 1891/ 2012 I.A. No. 13877/ 2013 (delay) in CS (OS) No. 2185/ 2012

Since the applications under Order IX Rule 13 CPC are bereft of any

merit and I have discussed in detail as to how there was no good cause

for non-appearance and for setting aside ex parte judgment, the

application for condonation of delay have been moved on similar

grounds' I do not find sufficient cause for condonation of delay.

The applications are dismissed.

(G.P. MITTAL) JUDGE SEPTEMBER 11, 2014 vk

I.A. No. 20056/2013 in CS (OS) No.1891/2012