Karnataka High Court
Starlight Home Care vs Diversey Inc on 30 May, 2024
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NC: 2024:KHC:18235-DB
COMAP No. 13 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MRS JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
COMMERCIAL APPEAL NO. 13 OF 2024
BETWEEN:
STARLIGHT HOME CARE,
REPRESENTED BY ITS AUTHORIZED
REPRESENTATIVE SRI SHIVA PATEL,
S/O SRI GANESH PATEL,
AGED ABOUT 39 YEARS,
R/AT PUNYABHOOMI LAYOUT,
PUNNETHRAJAKUMAR ROAD,
BIDRAHALLI EAST TALUK, VIRGONAGAR POST,
BENGALURU - 560049.
...APPELLANT
(BY SRI NAGARAJA HEGDE, ADVOCATE)
AND:
Digitally signed DIVERSEY INC,
by BELUR
RANGADHAMA A COMPANY INCORPORATED UNDER
NANDINI THE LAWS OF THE STATE OF DELAWARE
Location: HIGH U S A HAVING ITS REGISTERED OFFICE AT
COURT OF
KARNATAKA 1300, ALTURA ROAD, SUITE 125,
FORTE MILL, SOUTH CAROLINA - 29708,
UNITED STATE OF AMERICA
REPRESENTD BY CONSTITUTED ATTORNEY
MR RITAM RAWAL, AGED ABOUT 40 YEARS,
WORKING FOR GAIN AT:
THE MILLENNIUM PLAZA, SECTOR 27,
GURGAON, HARYANA - 122009.
...RESPONDENT
(BY SRI MANU PRABHAKAR KULKARNI AND
SRI ABRAHAM JOSEPH, ADVOCATES)
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NC: 2024:KHC:18235-DB
COMAP No. 13 of 2024
THIS COMMERCIAL APPEAL IS FILED UNDER SECTION
13(1A) OF COMMERCIAL COURTS ACT, PRAYING FOR THE
FOLLOWING RELIEFS:
A) TO CALL FOR THE ENTIRE RECORDS PERTAINING TO
THE PROCEEDINGS IN COM.MISC.NO. 39/2023 FROM THE FILE
OF LXXXV ACC AND SESSIONS JUDGE, BENGALURU (CCH-86).
B) AFTER PERUSING THE RECORDS SET ASIDE THE
ORDER DATED 05/12/2023 AND CONSEQUENTLY ALSO SET
ASIDE THE ORDER DATED 19/09/2023 PASSED BY THE LXXXV
ACC AND SESSIONS JUDGE, BENGALURU (CCH-86) IN
COM.MISC.NO.39/2023, WHICH IS PRODUCED AT ANNEXURE-
A AND B RESPECTIVELY, IN THE ENDS OF JUSTICE AND
EQUITY.
C) CONSEQUENTLY RESTORE THE COM.MISC.NO.
39/2023 FOR FURTHER PROCEEDINGS.
D) ALSO GRANT SUCH OTHER AND FURTHER RELIEFS AS
THIS HON'BLE COURT DEEMS FIT CONSIDERING THE FACTS
AND CIRCUMSTANCES OF THE CASE TO MEET THE ENDS OF
JUSTICE.
THIS APPEAL COMING ON FOR ORDERS THIS DAY
ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:
JUDGMENT
1. Heard. With the consent of the learned counsel for
the parties, the appeal is heard on merits.
2. Learned counsel for the appellant has filed an I.A.
No.1/2024 to condone the delay of 51 days in filing
the instant appeal.
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3. Considering the grounds urged in the application for
condonation of delay, I.A. No.1/2024 is allowed.
Accordingly, the delay of 51 days is condoned.
4. This appeal is filed challenging the order dated
05.12.2023 and also the order dated 19.09.2023
passed in Commercial Misc. No.39/2023.
5. The suit was filed in Commercial O.S. No.987/2022
by the present respondent against the present
appellant. The said suit was decreed in terms of the
ex-parte decree dated 10.01.2023. Subsequently,
the present appellant filed an application under Order
IX Rule 13 of Code of Civil Procedure (for short
'Code') contending that the decree passed ex-parte is
untenable as there was no proper service of notice
on the present appellant. The notice was issued in
the said petition and respondent appeared in the said
petition and the petition was set-down for trial. The
petitioner in the said petition did not appear before
the Court. Accordingly, the petition was dismissed
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for non-prosecution in terms of the order dated
19.09.2023. The present appellant, the petitioner in
the said miscellaneous petition filed one more
application invoking Section 151 of the Code to recall
the order dated 19.09.2023. Said application
dismissed on merits. Aggrieved by the said order,
the present appeal is filed. As already noticed, the
appellant has also filed this appeal challenging the
order dated 19.09.2023 as well as the order dated
05.12.2023.
6. Learned counsel appearing for the appellant would
contend that there was no proper service of notice on
the appellant in the suit as such, he could not appear
before the Trial Court when the case was scheduled
for his appearance and consequently, there was an
ex-parte decree against him. It is also his
submission that there were restrictions owing to the
Covid-19 pandemic when the notice was allegedly
served on the appellant. Therefore, he would urge
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that the appellant should be permitted to contest the
suit on merit as the decree for injunction is granted
restraining the appellant from selling some of his
products on the ground of infringement and passing
off respondent's trade mark.
7. Learned counsel appearing for the respondent would
contend that the notice is duly served on the
appellant and despite proper service of notice, the
appellant has not chosen to contest the matter and
there were no Covid-19 related restrictions when the
notice was served on the appellant. He would also
contend that the appellant did not appear before the
Trial Court to pursue his application under Order IX
Rule 13 of the Code despite sufficient time being
granted to the appellant. It is also his further
submission that after the dismissal of the application
under Order IX Rule 13 of the Code, one more
application is filed under Section 151 of the Code to
recall the order dated 19.09.2023 which dismissed
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the Misc. Petition for non-prosecution. He would
further submit that Trial Court has appropriately
considered the application to recall the order dated
19.09.2023 and in terms of order dated 05.12.2023
has rightly rejected the application by taking note of
all the relevant factors.
8. It is also the submission of the learned counsel for
the respondent that the present appeal is not
maintainable as the appellant is challenging the order
dated 05.12.2023 which is passed on an application
under Section 151 of the Code and to substantiate
his contention he would refer to the proviso to
Section 13 of the Commercial Courts Act, 2015 (for
short 'Act of 2015').
9. This Court has considered the contentions raised at
the bar and also perused the records.
10. As can be noticed from the records, the application
under Section 151 of the Code is dismissed vide
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order dated 05.12.2023. This order is not appealable
in view of the proviso to Section 13 of the Act of
2015. However, what is required to be noticed is the
appellant has also challenged the order dated
19.09.2023 dismissing the Misc. Petition filed under
Order IX Rule 13 of the Code which is an appealable
order under Section 13 of the Act of 2015 read with
Order XLIII of the Code. It is also required to be
noticed that in the year 2022, there were certain
restrictions on account of Covid pandemic. Though
this aspect is not specifically pleaded in the petition
under Order IX Rule 13 of the Code, this Court can
certainly take cognizance of the situations prevailed
on account of Covid 19 pandemic and admittedly, the
appellant/defendant did not contest the matter which
was filed before the Trial Court alleging infringement
and passing off. Considering the nature of the
controversy between the parties, and attending
circumstances under which ex parte decree is
passed, this Court is of the view that an opportunity
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should be given to the appellant to contest the suit
on merit subject to certain terms. The appellant
shall pay a cost of Rs.30,000/- to the respondent and
the payment of cost is condition precedent to contest
the suit.
11. Accordingly, the present appeal is allowed.
12. The impugned orders are set-aside.
13. Consequently, ex-parte judgment and decree dated
10.01.2023 in Com. O.S. No.987/2022 passed by
LXXXV Additional City Civil & Sessions Judge,
Bengaluru are also set-aside, subject to appellant
depositing Rs.30,000/- on or before the date of
appearance before the Trial Court.
14. At this juncture, the learned counsel Sri Manu
Prabhakar Kulkarni appearing for the respondent
would bring it to the notice of this Court that the
respondent had the benefit of an ex-parte order
before the Trial Court. This is made clear that ex-
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parte injunction order granted in favour of the
plaintiff/respondent will enure to the benefit of the
plaintiff/respondent till the court passes appropriate
orders on merit of the said application.
15. The appellant/defendant shall also file written
statement on the date of appearance and the parties
shall appear before the Trial Court on 15.07.2024
without awaiting any notice from the Trial Court.
Sd/-
JUDGE
Sd/-
JUDGE
CHS
