Laxmi Rajkumar Rohra vs Akash Agro Industries Limited
2024 Latest Caselaw 5577 Guj

Gujarat High Court

Laxmi Rajkumar Rohra vs Akash Agro Industries Limited on 26 June, 2024

Author: Sunita Agarwal

Bench: Sunita Agarwal

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    C/SCA/9195/2024                                      ORDER DATED: 26/06/2024

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 9195 of 2024

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                          LAXMI RAJKUMAR ROHRA
                                   Versus
                       AKASH AGRO INDUSTRIES LIMITED
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Appearance:
MR VISHAL B MEHTA(5319) for the Petitioner(s) No. 1
MR JATIN Y TRIVEDI(2616) for the Respondent(s) No. 1
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  CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
        AGARWAL
        and
        HONOURABLE MR. JUSTICE PRANAV TRIVEDI

                                 Date : 26/06/2024

                                  ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. Heard learned counsel for the parties and perused the record.

2. The instant petition under Article 227 of the Constitution of India has been filed seeking to challenge the order dated 14.06.2024 passed by the Commercial Court/4th Additional District Judge at Vadodara, whereby the right of the defendant to file written statement and reply has been closed.

3. A perusal of the order impugned indicates that the said order is based on a direction issued by this Court in the judgment and order dated 24.05.2024 in Special Civil Application No. 8316 of 2024, wherein certain observations have been made by the learned Single Judge about non-filing of written

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statement by the defendant inspite of grant of ample time till 10.05.2024.

4. The order impugned further records that when the matter was taken up on the date fixed by the Commercial Court, i.e. on 14.06.2024, the son of the defendant was present and sought adjournment, which was rejected in view of the categorical directions issued by this Court in the judgment and order dated 24.05.2024 and further that the son of the defendant did not produce any authority letter to appear in the said proceedings.

5. Later, Mr. S.A. Majmudar, learned advocate along with the husband of the defendant had appeared and submitted that the vakalatnama and written statement will be filed during the course of the day.

6. On the said request of the learned advocate, the Court had waited till 6.25 P.M., but neither the vakalatnama nor the written statement was filed. It is further observed that the defendant has not complied with the order dated 10.05.2024 and has failed to file a written statement, which request was accepted subject to the cost of Rs.5,000/- to be deposited with the DLSA, Vadodara. With these findings, the Commercial Court closed the opportunity of the defendant to file the written statement and reply.

7. Taking note of the above, we may record that there is no dispute about the fact that summons in the suit were served upon the defendant on 20.04.2024, the defendant had put in appearance on 26.04.2024. On the very first date, when the

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defendant had appeared before the trial court, on 26.04.2024, on an adjournment application moved by the defendant seeking time to engage an advocate, objection was taken by the plaintiff that the defendant is trying to delay the proceedings by moving unnecessary application.

8. Resultantly, noticing the objection of the plaintiff, the order was passed to the effect that the matter be adjourned to enable the defendant to file his objection by engaging a lawyer. On the next date fixed, i.e. 10.05.2024, further adjournment was sought by the defendant, which was granted on 14.06.2024 at the cost of Rs.5,000/- and the next date fixed for filing of the written statement as 14.06.2024.

9. Pertinent is to note that, in the interregnum, the plaintiff has approached the vacation bench of this Court by filing a writ petition, viz. Special Civil Application No. 8316 of 2024, raising a grievance that the suit for Passing Off has been filed on 08.04.2024 and the first returnable date was fixed as 26.04.2024. Though on the said date, the defendant had appeared personally but sought time and further the adjournment application was allowed by the trial court at the cost of Rs.5,000/-, fixed the matter on 14.06.2024. It was contended by the learned counsel for the petitioner before this Court that the plaintiff has a good case and if the hearing of the injunction application could not be commenced or completed, the purpose of filing the suit or injunction application would frustrate.

10. It seems that entertaining the said request of the petitioner-

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plaintiff, in absence of the defendant, noticing that the defendant was given ample time till 10.05.2024 and he did not engage any advocate nor filed his written statement, directions were issued by this Court in the following manner :-

"(i) The defendant shall engage an advocate and file written statement on 14.06.2024.

(ii) Rejoinder affidavit, if any, plaintiff wishes to file, he shall file the same within a period of one week from 14.06.2024. Once the exercise of completing pleadings is over, the learned trial Court may hear and decide the injunction application as expeditiously as possible.

6. This Court has not gone into the merits of the case. The learned trial Court shall decide the Application Exhibit-5 strictly on merits without being influenced by the order of this Court.

11. Noticing the above, we find fault in the attempt of the plaintiff in approaching this Court for seeking a direction in the absence of the defendant which has resulted in foreclosing the right of the defendant to file the written statement, though indulgence was granted by the Commercial Court when the matter was taken up on 10.05.2024. In our considered opinion when even on the objection made by the plaintiff, the Commercial Court had granted time till 14.06.2024 to file written statement on the cost of Rs.5,000/-, there was no occasion for the plaintiff to approach this Court and, moreover, the learned Single Judge of this Court could not have issued the aforesaid directions in the absence of the defendant.

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12. For this reason, it is clear that the Commercial Court has closed the opportunity of the defendant to file a written statement in view of the directions issued by this Court on 24.05.2024.

13. However, it is also pertinent to note that the defendant did not file written statement inspite of the time granted by the Commercial Court on the date fixed, i.e. 14.06.2024, uptil 6.25 P.M. and did not deposit the cost as directed in the order dated 10.05.2024.

14. Be that as it may, taking note of the manner in which the matter has been proceeded, we find it fit and proper in the interest of justice to grant one last opportunity to the defendant to file his written statement within a period of one week from today failing which, no further opportunity would be available to the defendant.

15. Mr. Vishal Mehta, learned advocate appearing for the petitioner-defendant undertakes that the defendant would be filing written statement on or before 03.07.2024, failing which no further time would be granted for the purpose. The cost imposed by the trial court of Rs.5,000/- vide order dated 10.05.2024 shall also be deposited with DSLSA, Vadodara within a period of 48 hrs.

16. With the above observations and directions, the order dated 14.06.2024 passed by the Commercial Court-4th Additional District Judge at Vadodara on Exhibits 1 and 9 filed by the defendant is modified to the above extent.

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17. Further, note of the submission of the learned counsel appearing for the respondent-plaintiff that the injunction application is pending consideration and the suit is for Passing Off, we provide that the concerned Court shall make an endeavour to decide the injunction application as early as possible, preferably within a period of four weeks from today, by giving due hearing to both the parties. In case of any adjournment on the part of the defendant or any effort to avoid the proceedings, it would be open for the Court to deal such eventuality strictly in accordance with law.

18. The instant petition under Article 227 of the Constitution of India is accordingly, disposed of.

Direct Service is permitted.

(SUNITA AGARWAL, CJ )

(PRANAV TRIVEDI,J) BIJOY B. PILLAI