Delhi High Court
Shri Dhiraj Kumar vs R H Agro Overseas Pvt Ltd & Anr. on 18 August, 2023
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 18.08.2023
+ CM(M) 1127/2023 & CM APPL. 36463/2023
SHRI DHIRAJ KUMAR ..... Petitioner
Through: Mr. T.K. Tiwari, Advocate
versus
R H AGRO OVERSEAS PVT LTD & ANR. ..... Respondents
Through: Ms. Tanvi Bhatnagar and Ms. Shilpi
Sinha, Advocates
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CORAM:
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMEET PRITAM SINGH ARORA, J (ORAL):
1. This petition filed under Article 227 of the Constitution of India
impugns the order dated 09.05.2023 passed by District Judge (Comm.)-04,
South District, Saket Courts, Delhi ('Trial Court'), in C.S. (COMM.) No.
03/2023, titled as R.H. Agro Overseas Pvt. Ltd. & Anr. v. Dhiraj Kumar &
Anr., taking on record the replication, documents filed along-with the
replication and the affidavit of admission/denial of documents .
1.1. The Petitioner herein is the defendant and the Respondents herein are
the plaintiffs in the suit.
1.2. The suit has been filed by the Respondents inter-alia for permanent
injunction against the Petitioner for infringement of trade mark and passing
of action with respect to the Respondents trademark 'NAFIS'.
3. The learned counsel for the Petitioner states that the Trial Court issued
summons in the commercial suit on 19.01.2023 and at paragraph '35' therein
granted liberty to the Respondents to file its replication within a period of 15
days after the filing of the written statement along-with the affidavit of
admission/denial in respect of documents filed by the defendant s.
3.1. He states that admittedly, the written statement was filed on 13.03.2023
and therefore, 15 days for filing replication expired on 28.03.2023.
3.2. He states that however, the Respondents have filed their replication and
affidavit of admission/denial of documents filed by the defendant belatedly
on 08.05.2023.
3.3. He states that no leave of the Trial Court has been sought for condoning
the delay in filing replication and affidavit of admission/denial of documents.
3.4 He further states that the Respondents herein filed additional
documents along-with the replication on 08.05.2023, again without seeking
prior leave of the Trial Court as mandated by Order XI Rule 1 (5) of the Code
of Civil Procedure, 1908 ('CPC') as amended by the Commercial Courts Act,
2015. He, therefore, states the impugned order dated 09.05.2023 suffers from
infirmity.
4. In reply, learned counsel for the Respondents states that the
Respondents filed the replication in terms of the permission granted by the
Trial Court vide order dated 13.01.2023. She states that no outer limit was
stipulated in the said order for filing the replication and therefore, the plaintiff
bona fide filed the replication before the next date of hearing.
4.1. She states that the Respondents filed the replication and the affidavit of
admission/denial of documents before the next date of hearing i.e., 09.05.2023
along-with the additional documents. She states that the additional documents
have been filed to answer the case set up by the defendant in the written
statement.
4.2. She states however, without prejudice to Respondents rights and
contentions, Respondents will file an appropriate application before the Trial
Court within a period of one (1) week from today seeking enlargement of time
for filing the replication and affidavit of admission/denial of documents; and
file a separate application under Order XI Rule 1 (5) for seeking permission
to file the additional documents along-with the replication.
5. In response, learned counsel for the Petitioner states that he has no
objection to the said course being adopted by the Respondents, however, he
reserves his right to file a reply and raise objections in accordance with law.
6. Accordingly, the aforesaid petition is disposed of reserving liberty to
the Respondent as well as the Petitioner as recorded hereinabove; and to that
extent, the order dated 09.05.2023 taking the replication, affidavit of
admission/denial of documents on record is set aside.
7. Pending applications stand disposed of.
MANMEET PRITAM SINGH ARORA, J
AUGUST 18, 2023/rhc/sk
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