Mandatory compliance with the requirements of Order XXXIX Rule 3 CPC is essential for obtaining and maintaining an ex parte ad interim injunction.

16.09.2009 IA No.9768/2009

1. This is an application filed by Defendants 2 to 5 and 7 (hereinafter „applicants/„defendants under Order XXXIX Rules 3 and 4 CPC seeking vacation of an ex parte ad interim injunction granted by this Court by an order dated 22nd July 2009 in IA No.9150/2009 in the above suit.

2. Notice in this application was directed to issue by this Court on 3rd August 2009. Replies have been filed by the Plaintiffs and a rejoinder thereto has been filed by the applicants.

3. This Court has heard the submissions of Mr. Samdarshi Sanjay, the learned Advocate for the Plaintiffs and Ms. Vibha Mahajan Seth, the learned Advocate for the Applicants/Defendants 2 to 5 and 7.

4. It is stated in the application that despite this Court in its order dated 22nd July, 2009 directing that the Plaintiffs should comply with the requirements of Order XXXIX Rule 3 CPC within one week, the Plaintiffs did not serve upon the Applicants within one week a copy of the plaint, the applications, the affidavits and documents filed by the Plaintiffs along with the Plaint. It is stated that this Court had appointed Local Commissioners to visit the Defendants premises to examine the records including electronic records and seize any incriminating evidence to establish if the Defendants were carrying on business by using the words `AGI, `AGI Logistics and `AGI Freight and whether they were dealing with the customers of the Plaintiffs. It is stated that even at the time of the visit of the Local Commissioner to the premises of Applicants/Defendants on 23rd July 2009 in Gurgaon, the complete set of papers were not served on the Applicants/Defendants or their counsel. It is further stated that at the time of the visit of the Local Commissioner, counsel for the Defendants had asked for copy of the plaint and entire documents from the counsel for the Plaintiffs assisting the Local Commissioner but this was declined.

5. It is stated in the application that a copy of the court notice was delivered to Defendant No.4 on 26th July 2009 by speed post. The cover in which the said notice was dispatched, has been placed on record. It has a postal receipt affixed to it showing that the weight of the envelope at the time of dispatch was 25 gms. and the postage paid was Rs.24/-. It is obvious that the entire papers i.e. the plaint, affidavits, applications and documents were not sent by post by the counsel for the Plaintiffs to the Applicants/Defendants.

6. In reply to this application, the Plaintiffs state in para 6 as under:-

“It is submitted the plaintiffs/Non Applicants through their counsel had issued notices on the defendants/applicants informing them of the order dated 22.07.2009 of this Hon’ble Court, but due to inadvertence and under bona fide mistake the copies of the plaint and the documents were not enclosed with the notices as issued on 24.07.2009. However, the plaintiffs/Non-applicants had no intention of purposefully disobeying the orders of this Hon’ble Court as the Court on its own had permitted the plaintiffs to comply with the provisions of Order 39 Rule 3 within one week from the date of the order i.e. on or before 29.07.2009, so under the mistaken impression, that it would suffice if the plaintiffs/non-applicants filed the process fee for service of summons of the suit by way of ordinary process as well as through registered covers on all the defendants, it was for the said purposes that 18 sets of plaint and 9 sets of the documents were filed in the Registry of this Hon’ble Court vide Diary No.117266 on 27.07.2009. Further, in compliance of the orders of the Court on 04.08.2009, the plaintiffs/non-applicants have supplied the copies of the plaint as well as the entire set of documents to the defendants/applicants, counsel, during the course of the proceedings. In view of the submissions made hereinabove, the averments of the present application of the defendants/applicants, deserve no consideration at all.”

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