Point of Law: Delay/Laches/Limitation - Delay of 582 days in filing application - “Sufficient Cause” is an elastic expression and no hard and fast guidelines are prescribed. Court, in its discretion, has to consider “sufficient cause” in facts and circumstances of every individual case. Although in interpreting the words “sufficient cause” the Court has wide discretion but the same has to be exercised in the particular facts of the case.

JUDGMENT :

MANOJ KUMAR OHRI, J.

I.A. No. 9702/2020 (Under Order IX Rule 13 CPC by the Defendant) and I.A. No. 9703/2020 (Condonation of Delay of 582 days in filing I.A. No. 9702/2020 by the Defendant)

1. The present applications have been preferred by the defendant through its proprietor - Pooja Sharma seeking setting aside of the ex-parte judgment and decree dated 01.02.2019 as well as for seeking condonation of delay of 582 days in filing the application.

2. Briefly, the present suit was filed for permanent injunction restraining infringement and passing off of trademark, copyright, damages, delivery up etc. In the plaint, it was averred that the plaintiffs’ predecessor had started the business of selling sweets in the year 1912 and the trademark/label HIRA SWEETS was conceived and adopted by the plaintiffs’ predecessor in the year 1960. It was also averred that the plaintiff No. 1 was the registered proprietor of the original artistic work HIRA SWEETS and it became the registered proprietor of the mark and device HIRA SWEETS under Classes 29, 30, 32 and 43 of the Trade Marks Act, 1999 in 2016. The defendant was served with the summons in suit and after availing various opportunities, filed the written statement however, thereafter, stopped appearing before the Court. Later, on the defendant’s continued absence, his right to file the affidavit of admission/denial of documents was closed.

3. On 01.02.2019, while directing that the defendant be proceeded ex-parte, this Court while relying on the decision in Satya Infrastructure Ltd. and Others vs. Satya Infra and Estates Pvt. Ltd. 2013 SCC Online Del. 508 and after considering the averments in the plaint as well as in the written statement, came to the conclusion that the defendant had no real prospect of defending the claim. The suit was decreed in favour of the plaintiffs.

4. The defendant filed the present applications on 19.10.2020. It is claimed that the defendant came to know of the ex-parte decree only on 18.07.2019 when it received certified copies of the judgment. It is claimed that after becoming aware of the ex-parte judgment, the defendant approached the plaintiffs and keeping in view their long-standing relations, the plaintiffs assured the defendant of an amicable settlement. It is averred that the settlement talks continued till February, 2020. However, on account of financial hardship, the defendant’s shop was closed from March, 2020 onwards.

5. Insofar as its non-appearance before the Court is concerned, it has been averred that the defendant’s counsel, who was engaged to pursue the matter, despite assuring of his regular appearance before the Court rather failed to appear resulting into passing of the decree against the defendant. It is averred that the defendant has also filed a complaint against its counsel before the Delhi High Court Bar Association.

6. In support of the applications, the defendant has also placed reliance on the medical documents of the son of the defendant’s proprietor, namely, Master Sparsh Sharma. It is stated that Master Sparsh Sharma, aged about 10 years, underwent a heart surgery on 04.07.2018. Reliance is also placed on the medical documents of the mother of the defendant’s proprietor namely, Smt. Savita Pandit. It is stated that Smt. Savita Pandit used to have dialysis and expired on 20.04.2019. It is averred that for the said reasons, the defendant could not appear before the Court and also could not file the captioned applications within time.

7. In support of his submissions, learned counsel for the defendant/applicant has placed reliance on the decisions in Rafiq and Another vs. Munshilal and Another, (1981) 2 SCC 788, Smt. Lachi Tewari and Others vs. Director of Land Records and Others, 1984 Supp SCC 431 and M/s N.K. Electronics vs. Narinder Kumar, 2013 (4) RCR (Civil) 143.

8. The applications are contested by learned counsel for the plaintiffs. He submits that the ‘case history’ as available on the website of the Delhi High Court show