Delhi High Court
Sh. Sikender vs Crompton Greaves Consumer ... on 12 November, 2020
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 12.11.2020
+ CM(M) 493/2020
SH. SIKENDER ..... Petitioner
versus
CROMPTON GREAVES CONSUMER ELECTRICALS
LIMITED & ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Rakesh Chander Agarwal, Advocate.
For the Respondent: Mr. Anmol Saxena, Advocate.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
CM(M) 493/2020 & CM APPL.25043/2020 (stay)
1. The hearing was conducted through video conferencing.
2. Petitioner impugns order dated 05.03.2020 of the Trial Court,
whereby, the written statement sought to be filed by the petitioner has been
struck off the record on the ground that the written statement was filed after
120 days.
3. Subject suit for permanent injunction for passing of and
infringement of trademark was filed by the respondent on 24.09.2019. On
15.10.2019, the suit was taken ex-parte prior to the issuance of summons by
the Trial Court. The Trial Court appointed a Local Commissioner to
Digitally Signed By:KUNAL
MAGGU
Signing Date:13.11.2020 10:41:56
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
inspect the premises of the petitioner and also directed issuance of
summons returnable for 05.03.2020. It was directed that copy of the order
be provided dasti to the Local Commissioner.
4. On 05.03.2020, when the petitioner entered appearance and filed his
written statement, the same was not taken up on record on the ground that
the summons of the suit were delivered to the petitioner on 18.10.2019 and
since 120 days had elapsed, the written statement could not taken on record.
5. It is the case of the respondent that when the Local Commissioner
visited the premises of the petitioner, the Local Commissioner delivered a
copy of the order dated 15.10.2019 along with paper book of the suit to the
petitioner. Accordingly, the petitioner was deemed to have been served
with the summons on 18.10.2019.
6. The case of the petitioner is that no summons were ever served on
the petitioner and petitioner was only provided with a copy of the order and
the paper book of the suit and since the summons had never been served,
the time to file the written statement would not commence.
7. In view of the above contentions, a report was called for from the
learned District Judge with regard to the issuance and service of the
summons. Report has been received from the District Judge (Commercial
Court) dated 20.10.2020. The Court has reported that by order dated
15.10.2019, summons of the suit were directed to be issued. The Local
Commissioner executed the commission on 18.10.2019 and on 02.11.2019,
counsel for the respondent/plaintiff filed his affidavit of service wherein it
was stated that he collected dasti summons and served the same upon the
petitioner on 18.10.2019 which was duly acknowledged. It is stated that on
Digitally Signed By:KUNAL
MAGGU
Signing Date:13.11.2020 10:41:56
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
the basis of the affidavit of service, summons were presumed to have been
delivered on the petitioner on 18.10.2019.
8. The Trial Court has recorded that perusal of the judicial record
reveals that no served summons were filed by the counsel for the
respondent along with affidavit of service. In fact, no process fee had been
filed by the plaintiff/respondent and summons were never issued to the
petitioner through official process serving agency.
9. Learned counsel for the respondent submits that process fee had
been filed.
10. However, the report of the Trial Court is that the summons were
never issued. Since the summons were never issued to the petitioner, the
time for the petitioner to file the written statement within the statutory
period would not commence till service of summons.
11. Order V rule 10 Code of Civil Procedure stipulates that service of
the summons shall be made by delivering or tendering a copy thereof
signed by the Judge or such officer as he appoints in this behalf, and sealed
with the seal of the court.
12. Order VIII rule 1 Code of Civil Procedure stipulates that the
Defendant shall, within 30 days from the date of service of the summons on
him, present a written statement of his defence.
13. Since the summons were never issued by the court and the petitioner
was never served with the summons of the Suit, it cannot be held that the
petitioner was deemed served on 18.10.2019 with the summons of the Suit
Digitally Signed By:KUNAL
MAGGU
Signing Date:13.11.2020 10:41:56
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
and as such, the written statement which was tendered on 05.03.2020 was
beyond time.
14. In view of the above, the impugned order dated 05.03.2020 cannot
be sustained and is, accordingly, set aside.
15. The written statement sought to be filed by the petitioner is,
accordingly, directed to be taken on record of the Trial Court. After taking
the written statement on record, the Trial Court shall thereafter proceed in
accordance with law.
16. Petition is, accordingly, allowed in the above terms.
17. Copy of the Judgment be uploaded on the High Court website and be
also forwarded to learned counsels through email by the Court Master.
NOVEMBER 12, 2020 SANJEEV SACHDEVA, J
st
Digitally Signed By:KUNAL
MAGGU
Signing Date:13.11.2020 10:41:56
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
