Delhi High Court
Bennett, Coleman & Company ... vs Seraphic Divine Beauty Private ... on 18 May, 2022
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 18th May, 2022
+ CS(COMM) 252/2019
BENNETT, COLEMAN & COMPANY LIMITED & ANR.
..... Plaintiffs
Through: Ms.Mamta Rani Jha, Mr.Amitesh
Mishra & Ms.Soumya
Khandelwal, Advs.
versus
SERAPHIC DIVINE BEAUTY PRIVATE LIMITED & ORS.
..... Defendants
Through: Ms.Siddhi Mittal & Mr.Aabhash
Dahiya, Advs. for D-2.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J.
I.A. No.3328/2022
1. This application, though styled under Order IX Rule 13 of the
Code of Civil Procedure, 1908 (hereinafter referred to as the „Code‟), is,
in fact, one under Order IX Rule 7 of the Code, filed by defendant no.2.
2. The applicant is the defendant no.2 in the suit and has been
proceeded ex-parte vide order dated 08.01.2020. The defendant no.2 had
put his appearance in the suit on 04.09.2019 and prayed for time to file
the written statement to the plaint and reply affidavit to the application.
The Court directed that the same be filed within the stipulated period of
Signature Not Verified
Digitally Signed By:SHALOO
BATRA
Signing Date:19.05.2022
30 days from the date of the service. The suit was thereafter listed on
04.11.2019, 20.12.2019 and 08.01.2020, however, on all the three dates,
there was no appearance on behalf of the defendant no.2. Accordingly,
the right of the defendant no.2 to file the written statement was closed
vide order dated 20.12.2019, and finally vide order dated 08.01.2020, the
defendant no.2 was proceeded ex-parte.
3. In the application, it has been averred by the defendant no.2 that
the defendant no.2 was on, 04.09.2019, the Director of the defendant no.1
and he, alongwith defendant no.1, had put his appearance through a
common advocate. The defendant no.2 submits that he resigned from the
post of the Director of the defendant no.1 vide Resignation Letter dated
11.01.2020. It is pleaded by the defendant no.2 that until the date of
resignation, he was under the impression that defendant no.1-company is
taking care of the pending litigations, which included the present case
before this Court, therefore, he did not hire a separate counsel to contest
the case. It is on this basis that the defendant no.2 seeks to explain his
non-appearance in the suit.
4. Pertinently, the present suit has been filed by the plaintiff claiming
therein that the defendant no.2 has claimed himself to be the proprietor of
"Divine MISS INDIA" and also, alongwith defendant no.1, which is a
private limited company, operates a website namely
"www.divinemissindia.com". It is further alleged that it is the defendant
no.2 who has filed trade mark application seeking registration of the
mark "Divine MISS INDIA" in classes 35, 41, 43 and 44 of the Trade
Mark Rules, 2017.
Signature Not Verified
Digitally Signed By:SHALOO
BATRA
Signing Date:19.05.2022
5. The defendant no.2 in the present application admits of him
remaining as a Director of the defendant no.1 till at least 11.01.2020. It
is, therefore, not believable that the defendant no.2 could not be aware of
the fact that the present suit is not been defended for himself or for the
defendant no.1, and no appearance has been marked on 04.11.2019,
20.12.2019 or 08.01.2020 on their behalf. Even the written statement has
not been filed on their behalf in the suit.
6. I, therefore, find that there is no explanation, leave alone "good
cause", given by the defendant no.2 for his non-appearance on the above
mentioned dates and especially on 08.01.2020, when the defendant no.2
was finally proceeded ex-parte in the present suit. As noted above, even
the written statement has not been filed by the defendant no.2, though the
statutory period and the maximum permissible period of condoning delay
in filing of the written statement has also long passed. The right to file
the written statement was closed for the defendant no.2 on 20.12.2019,
and there is no application seeking recall of the said order. The defendant
no. 2 has been impleaded in the suit in his own right, and if decides to let
defendant no. 1, which is a company of which he was admittedly a
Director during the relevant period, to file his defence and to appear for
him, he does so at his own peril. He cannot later escape from the
consequence of his non-appearance in law by passing of the blame to
defendant no. 1.
7. It is also to be remembered that the present is a commercial Suit
filed under the provisions of the Commercial Courts Act, 2015. The
object of the Act is to ensure expeditious disposal of the suits. The Act
gives strict timelines for the various stages of the Suit. The object of the
Signature Not Verified
Digitally Signed By:SHALOO
BATRA
Signing Date:19.05.2022
Act would be defeated if the defendant no. 2 is allowed to appear at his
own pleasure and thereafter, give such lame excuse of his/her non-
appearance on given dates.
8. In view of the above, I find no merit in the present application. The
same is dismissed.
9. List for further proceedings before the Joint Registrar (Judicial) on
2nd August, 2022.
NAVIN CHAWLA, J
MAY 18, 2022/Arya/U.
Signature Not Verified
Digitally Signed By:SHALOO
BATRA
Signing Date:19.05.2022
