Samsung Electronics Company Ltd. ... vs Mr. Gyanji Choudhary And Anr.
2016 Latest Caselaw 5862 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 7th September, 2016

+                           CS(OS) 1602/2006
         SAMSUNG ELECTRONICS COMPANY
         LTD. AND ANR.                            ..... Plaintiffs
                       Through: Mr. Pravin Anand, Adv.
                                     Versus

    MR. GYANJI CHOUDHARY AND ANR.            ..... Defendants
                  Through: Ms. Sunita Arora, Adv. for D-2.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

This suit has been listed today in terms of order dated 11 th August,

2016 of the Joint Registrar and owing to the witness of the plaintiffs having

not appeared inspite of earlier order dated 30th July, 2015 of this Court.

2. Issues in this suit for permanent injunction, to restrain the defendant

no.1 Gyanji Choudhary, carrying on business as proprietor of defendant no.2

Metro Technologies from importing, exporting, distributing, selling, offering

for sale, advertising or dealing in grey market ink cartridges / toners or any

other products of the plaintiffs under the trade mark "SAMSUNG" or under

any other mark deceptively similar to the plaintiffs‟ trademark and for

ancillary reliefs, were framed as far back as on 5th November, 2008 and the

onus of the main issue was on the plaintiffs; the plaintiffs were directed to

file affidavits by way of examination-in-chief of all their witnesses within 10

weeks and the suit posted before the Joint Registrar on 16th January, 2009

for fixing dates for cross-examination of the witnesses of the plaintiffs.

3. The order dated 16th January, 2009 records that neither any list of

witnesses for which time had been given on 5th November, 2008 had been

filed nor any affidavits by way of examination-in-chief had been filed by the

plaintiffs. On request, further time of four weeks was given to the plaintiffs

by way of last and final opportunity and the suit adjourned to 1st July, 2009

for recording of cross-examination of the witnesses of the plaintiffs.

4. The order dated 1st July, 2009 records that neither list of witnesses nor

affidavits by way of examination-in-chief of any witnesses had been filed

inspite of last opportunity. Accordingly, the learned Joint Registrar directed

the suit to be placed before the Bench on 29th July, 2009.

5. On 29th July, 2009, on the request of the counsel for the plaintiffs and

subject to payment of cost, again a "last opportunity" was granted to the

plaintiffs to file list of witnesses and affidavits by way of examination-in-

chief of all their witnesses within six weeks and the suit posted before the

Joint Registrar on 12th October, 2009.

6. On 12th October, 2009, though cost earlier imposed was paid but no

affidavit by way of examination-in-chief had been filed till then.

Adjournment was sought on the ground of the plaintiffs having moved an

application under Order I Rule 10 CPC but which had not been listed.

Recording that the same was not a ground for not complying with the earlier

order but ignoring that the Bench had vide order dated 29 th July, 2009

granted only one opportunity, another opportunity was given to the plaintiffs

subject to payment of further costs and the suit adjourned to 5th March, 2010

for cross-examination of the witnesses of the plaintiffs.

7. The order dated 5th March, 2010 records that neither cost had been

paid nor affidavits by way of examination-in-chief filed nor was any witness

present in the Court. Still, further time of eight weeks was granted for filing

the affidavits and the suit posted to 25th October, 2010.

8. On 25th October, 2010, the learned Joint Registrar was on leave and

the suit posted to 5th January, 2011 which was a holiday and the matter was

taken up on 6th January, 2011.

9. By 6th January, 2011 also no affidavits by way of evidence had been

filed and the suit was listed before the Bench on 8th February, 2011.

10. The order of 8th February, 2011 records that still no affidavits by way

of examination-in-chief were filed; however subject to payment of further

costs another last opportunity was granted to file the affidavits within two

weeks and it was ordered, failing which the evidence of the plaintiffs shall

be treated as "peremptorily closed". The suit was posted before the Joint

Registrar on 28th February, 2011.

11. Though by 28th February, 2011 affidavit by way of examination-in-

chief of one of the witnesses of the plaintiffs had been filed but neither the

witness nor the counsel for the plaintiffs appeared and inspite of earlier order

of the evidence of the plaintiff being peremptorily closed, another "final

opportunity" was given subject to further costs and the suit posted on 27 th

April, 2011.

12. On 27th April, 2011, the Joint Registrar was on leave and the suit

posted for the same purpose on 29th August, 2011.

13. On 29th August, 2011 though the witness of the plaintiffs was present

but had not brought the original documents and some of the documents were

stated to be filed in another suit. Yet again, subject to further costs, the suit

was adjourned to 2nd December, 2011.

14. On 2nd December, 2011 PW1 was examined in chief and partly cross-

examined but his remaining cross-examination deferred to 5th March, 2012

because he had not brought some documents.

15. On 5th March, 2012 again the witness was not present and

adjournment was sought and the suit adjourned to 29th May, 2012.

16. On 29th May, 2012 though the presence of the witness is not recorded

but the counsel for the defendant sought adjournment and the suit adjourned

to 11th September, 2012.

17. The position on 11th September, 2012 was the same and the suit

adjourned to 15th March, 2013.

18. On 15th March, 2013 the witness of the plaintiffs was present but the

defendant sought adjournment and the suit posted to 20th September, 2013.

19. On 20th September, 2013 again witness was not present but the

defendants sought adjournment and the suit adjourned to 26 th February,

2014.

20. On 26th February, 2014, it was informed that that the witness who was

under cross-examination had left the plaintiffs‟ and another witness will

have to be examined and adjournment was sought to move an application to

this effect; however no application was filed till 9 th May, 2014 and it was

stated on that date that the witness who was under examination though had

left the employment was ready to depose further. Accordingly, the suit

posted to 23rd September, 2014 for further cross-examination.

21. The witness again did not appear on 23rd September, 2014 and an

application for substituting the witness filed and of which notice was issued.

22. The aforesaid application was allowed on 30th January, 2015 and the

plaintiffs permitted to substitute their witness and the suit posted for

evidence on 15th May, 2015.

23. On 15th May, 2015 again the witness was not present and the Joint

Registrar, observing that the plaintiffs did not appear to be interested in

pursuing the suit, posted the suit before this Bench on 30th July, 2015.

24. On 30th July, 2015, though observing that the evidence of the

plaintiffs was liable to be closed and there was no justification for any

adjournment but yet again citing interest of justice, another substitution of

witness as sought was permitted and it was made clear that if the plaintiffs

failed to produce the witness on the date fixed by the Joint Registrar, no

further opportunity shall be granted.

25. The plaintiffs filed affidavit of the new witness but the witness did not

appear on 18th February, 2016 before the Joint Registrar; though the

evidence should have been closed in terms of order dated 30 th July, 2015 but

the Joint Registrar still posted the suit to 11th August, 2016 for recording of

the evidence of the said witness.

26. It was in these circumstances, when the witness of the plaintiffs failed

to appear on 11th August, 2016, that the learned Joint Registrar has posted

the suit for today.

27. The counsel for the plaintiffs has in all fairness not justified any of the

aforesaid but has offered to pay exemplary cost of Rs.2,00,000/- to any

charity and has stated that the witness to be examined is present in Court

today.

28. The Court, as would be obvious from above, has already given

enough indulgence to the plaintiffs. The counsel for the plaintiffs forgets

that in the present days of Right to Information Act, the happenings,

proceedings and the pendency of cases in the Court are there for all to

demand and see. The issue of long delays in disposal of cases is today in

public eye and is eroding the faith in the legal system of the country and

which erosion can lead to disastrous consequences. Supreme Court in

Ravinder Kaur Vs. Ashok Kumar (2003) 8 SCC 289 also noticed that the

Courts have to watch out for their process being abused, "bringing bad name

to the judicial system". The Courts are being blamed for being not able to

deliver justice and perform their duty.

29. The plaintiffs in the present case are enjoying interim order since 6 th

September, 2006 and evidently do not feel the need to pursue the suit

further. The costs offered today cannot entitle the plaintiffs to "buy" further

time from the Court. The legislature, vide amendment of the year 2002 to

the CPC amended Order XVII thereof titled "Adjournments" by introducing

a proviso to Rule 1 thereof to the effect that no adjournment shall be granted

more than three times to a party during the hearing of the suit. Though

Supreme Court in Salem Advocate Bar Association, T.N. Vs. Union of

India (2005) 6 SCC 344 held that the same does not forbid grant of

adjournment where the circumstances are beyond the control of the party

and that in such a case there is no restriction on the number of adjournments

to be granted but clarified that such circumstances are where the litigant may

be suddenly hospitalized on account of some serious ailment or there may be

a serious accident or some Act Of God leading to devastation. Example was

given of Bhopal gas tragedy, Gujarat earthquake, riots and devastation on

account of tsunami.

30. Though the counsel for the plaintiffs, by way of explanation for the

delay, has also stated that since the institution of the suit five officials of the

plaintiffs‟ have left the plaintiffs‟ but the same in my view would not

constitute a ground for the plaintiffs having not been able to lead evidence in

the last eight years. It is not that owing to such leaving of the officials of the

plaintiffs‟, which is bound to happen in any organization, the business of the

plaintiffs has come to a standstill or the plaintiffs have stopped selling their

goods. The said reason thus cannot be cited for not proceeding with the

matters which are not considered as important and urgent by the plaintiffs.

The reason cited on 11th August, 2016 for non appearance of the witness also

was that he had to travel to Kolkata in connection with the audit of the

plaintiffs companies. The date of 11th August, 2016 was fixed as far back as

on 18th February, 2016 and the witness had ample time to arrange his affairs

so as to be able to appear before the Court especially when plethora of last

and final opportunities had been granted.

31. The time has come when the Courts have to take a call whether they

should allow their process to be abused in this fashion, at the cost of a

stigma on the very functioning of the Courts. The Courts, in the past, in the

name of "interest of justice" and "litigants should not suffer for default of

others" have been indulgent on these issues but now, neither are the litigants

illiterate or ignorant nor found to be suffering - rather they are commercial

giants and who are found to be taking advantage of this indulgence. In the

process, the Courts and the justice delivery system is a sufferer.

32. I am of the view that no amount of cost offered by the plaintiffs entitle

the plaintiffs to determine the pace at which this Court has to perform its

functions. Supreme Court in Shiv Cotex Vs. Tirgun Auto Plast Pvt. Ltd.

(2011) 9 SCC 678, dealing with the judgment of the High Court in a second

appeal setting aside the concurrent judgment and decree of the Courts below

and remanding the suit to the trial court for fresh disposal after giving the

plaintiff an opportunity to lead evidence negated the reasoning of the High

Court "that the stakes in the suit being very high, the plaintiff should not be

non-suited on the basis of no evidence" and held it to be a case of misplaced

sympathy and non-existent justification. It was further held that the plaintiff

alone was to be blamed for the said lapse as the trial court had given more

than sufficient opportunity to the plaintiff to produce evidence in support of

its case. It was also noticed that the suit had been fixed for plaintiff‟s

evidence on three occasions but no evidence was led and it was held that the

Court is not obliged to give adjournment after adjournment merely because

the stakes are high in the dispute and that the Court cannot be a silent

spectator and leave control of the case to a party to the case who has decided

not to take the case forward. The practice, of the litigants seeking and the

Courts granting adjournments at the drop of the hat and allowing the civil

disputes to drag on and on, was deprecated and it was held that "it is high

time that Courts become sensitive to delays in justice delivery system and

realize that adjournments do dent the efficacy of the judicial process and if

this menace is not controlled adequately, the litigant public may lose faith in

the system sooner than later". A direction was issued to the Courts to ensure

that on every date of hearing effective progress takes place in the suit. It

was held that no litigant has a right to abuse the procedure provided in the

CPC and that "adjournments have grown like cancer corroding the entire

body of justice delivery system". A directive was also issued that ordinarily

the cap provided in the proviso to Order XVII Rule 1 CPC should be

maintained and it was explained that "justifiable cause" is a cause which is

not only "sufficient cause" but a cause which makes the request for

adjournment by a party during the hearing of the suit beyond three

adjournments unavoidable and sort of a compelling necessity like illness of

the litigant or the witness or the lawyer, death in the family of any one of

them, natural calamity like floods, earthquake, etc. in the area, an accident

involving the litigant or the witness or the lawyer on way to the court and

such like cause. Absence of the lawyer or his non-availability because of

professional work in other Court or elsewhere or change of lawyer or

continuous illness of lawyer or similar grounds were held to be not justifying

more than three adjournments to a party during the hearing of the suit. The

past conduct of a party in the conduct of the proceeding was held to be an

important circumstance to be kept in view whenever a request for

adjournment is made. It was reiterated that a party to the suit is not at liberty

to proceed with the trial at its leisure and pleasure and has no right to

determine when the evidence would be led by it or the matter should be

heard. It was yet further held that if the parties to the suit do not cooperate

in ensuring the effective work on the date of hearing, they do so at their own

peril.

33. Recently also in Gayathri Vs. M. Girish 2016 SCC Online 744

Supreme Court reiterated that in a democratic set up, intrinsic and embedded

faith in the adjudicatory system is of seminal and pivotal concern; delay

gradually declines the citizenry faith in the system. It was observed that it is

the faith and faith alone that keeps the system alive and fragmentation of

faith has the effect potentiality to bring in a state of cataclysm where justice

may become a casualty. Timely delivery of justice was held to keep the

faith ingrained and establish the sustained stability. The dilatory conduct of

the defendant in that case was labelled as causing colossal insult to justice

and to the concept of speedy disposal of civil litigation. Supreme Court

again called upon the Courts to "awaken". I may in this context also notice

that this Court in relation to trial before Sessions Courts had as far back as

on 12th July, 1987 issued a Circular calling upon the Sessions Courts to

expedite trials, as was noticed by the Supreme Court in Akil Vs. State of

NCT of Delhi (2013) 7 SCC 125. This Court cannot be seen as itself doing

what it has instructed the subordinate Courts not to do.

34. I am conscious that the Courts owing to a large number of cases listed

before them may not be able to take up all the cases listed on a particular

date; however that does not become an excuse for the litigants to seek

repeated adjournments and which in turn leads to large pendency.

35. Another aspect may be noticed. With the Delhi High Court

(Amendment) Act, 2015 the minimum pecuniary jurisdiction of this Court

has been enhanced from above Rs.20,00,000/- as existing at the time of

institution of this suit to above Rs.2,00,00,000/-. This suit, valued at less

than Rs.2,00,00,000/-, would have in accordance with the Office Order dated

24th November, 2015 of Hon‟ble the Chief Justice in exercise of powers

under Section 4 of the Act aforesaid would have been transferred to the

subordinate Courts but for the fact that it raises a commercial dispute within

the meaning of Commercial Courts, Commercial Division and Commercial

Appellate Division of the High Courts Act, 2015 and as per first proviso to

Section 7 of the said Act, this suit has to be proceeded with and decided by

this Court. The Commercial Courts Act has also amended several provisions

of the CPC in relation to commercial disputes and Order XVA introduced in

the CPC to be applicable to commercial disputes requires commercial

disputes to be adjudicated within a specified time. The plaintiffs, owing to

the aforesaid statutory scenario, are entitled on the one hand to have their

suit adjudicated in this Court without even paying court fees as plaintiffs in

other suits not qualifying as commercial suits are liable to pay and on the

other hand are not wanting this Court to proceed. It appears that the

plaintiffs are not sure of getting the final relief and for this reason want to

perpetuate the interim relief. This Court cannot become privy to such

actions of the plaintiffs.

36. The evidence of the plaintiffs is thus closed.

37. The onus of the main Issue being on the plaintiffs and the plaintiffs

having failed to lead any evidence, the need to call upon the defendants to

lead evidence, inspite of onus of one of the Issues being on the defendants,

does not arise.

36. In the absence of the plaintiffs having proved the onus of the main

Issue and on which the grant of relief to the plaintiffs depends, the suit is but

to be dismissed.

37. The suit is dismissed. The interim order stands vacated.

I refrain from imposing exemplary costs on the plaintiffs for abusing

the process of this Court.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

SEPTEMBER 07, 2016 „gsr‟..