Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Del) 607

IN THE HIGH COURT OF DELHI AT NEW DELHI
Amit Bansal, J.
Intiyaz Sheikh - Petitioner
Versus
Puma Se - Respondent
CM(M) 225 of 2021 & CM No. 10177 of 2021 (for stay)
Decided On : 12-10-2021

Advocate Appeared:
For the Petitioner:Mr. Shankar Datt Gahtori with Mr.Dushyant Nayak, Mr. Kapil Payla, Mr. Vijay Datt Gahtori, Mr. Rakesh Kumar and Mr. D.S. Chauhan, Advocates
For the Respondent:Mr. Ranjan Narula, Advocate

Point of Law : provisions of the Commercial Courts Act, 2015 have to be strictly construed and if the provisions are given liberal interpretation, the object behind the enactment, of speedy disposal, will be defeated

Headnote:
Constitution of India, 1950 - Article 227 - Code of Civil Procedure, 1908 - Order VIII - Rule 1 – Selling goods - Mark - Application - Permanent injunction - Condonation of delay - Respondent/plaintiff before District Judge (Commercial Court), seeking - permanent injunction to restrain petitioner/defendant from selling goods under mark ‘PUMA’logo and other ancillary reliefs - Vide order dated Commercial Court granted an ex-parte ad interim injunction in suit, in favour of respondent/plaintiff and also appointed a Local Commissioner to, inter alia inspect premises of petitioner/defendant and take into custody all infringing goods at said premises - Whether a written statement filed belatedly can be taken on record in absence of an application for condonation of delay.
Finding of the Court : No sufficient grounds have been given for delay in filing written statement - Only vague and unsubstantiated averments have been made, that petitioner was prevented from filing written statement on time on account of strike of lawyers and petitioner receiving threats of bodily harm - No documents were filed before Commercial Court in support of said ground of bodily harm - Petitioner has neither made out sufficient cause nor demonstrated any extraordinary circumstances in support of condoning delay - No ground is made out for interference of Court in exercise of its jurisdiction under Article 227 of Constitution of India.
Result: Petition is dismissed.

Judgement Key Points

Key Points: - The petition questions whether the Commercial Courts can extend the 120-day period for filing the written statement or condone delay within that period (!) . - The Court analyzes whether a belated written statement can be taken on record without a proper condonation of delay application, referencing Friends Motel Pvt. Ltd. and OK Play India Pvt. Ltd. (!) (!) (!) . - It emphasizes that a proper application for condonation of delay, with reasons and affidavits, is mandatory for allowing belated written statements in commercial suits (!) (!) . - It discusses the requirement that the condonation application should be filed within the due period (120 days) and that filed belatedly beyond this limit is not permissible without a proper condonation application (!) (!) . - It cites a prior judgment that the lack of a condonation application results in the written statement not being on record (!) . - The Court notes the controlling judgments: Friends Motel Pvt. Ltd. (supra), Red Bull (supra), and OK Play India Pvt. Ltd. (supra) and Ambalal Sarabhai Enterprises Ltd. (2020) 15 SCC 585 (!) (!) (!) . - The petition is dismissed for lack of sufficient grounds to condone delay; no interference under Article 227 (!) . - The decision reinforces strict and liberal interpretation tension: provisions of the Commercial Courts Act must be strictly construed to achieve speedy disposal (!) .

Question 1?

What is the enforceability of condonation of delay in filing written statement under Order VIII Rule 1 CPC for commercial suits?

Question 2?

What are the circumstances under which a belated written statement can be taken on record in commercial suits?

Question 3?

What is the scope of Article 227 jurisdiction of the High Court regarding condonation of delay in commercial suits?

JUDGMENT :

1. The present petition was filed impugning the order dated 29th January, 2021 of the District Judge (Commercial), South East, Saket, New Delhi in CS(COMM) No. 323/2019, of dismissal of the application of the petitioner/defendant under Order VIII Rule1 of the Code of Civil Procedure, 1908 (CPC) for condonation of delay in filing the written statement. The said application was dismissed vide the impugned order, on the ground that the Commercial Courts, under the law have no power to extend the period of 120 days for filing the written statement.

2. The suit from which the present petition arises was filed by the respondent/plaintiff before the District Judge (Commercial Court), seeking permanent injunction to restrain the petitioner/defendant from selling goods under the mark ‘PUMA’ and IMAGE logo and other ancillary reliefs. Vide order dated 15th February, 2019, the Commercial Court granted an ex parte ad interim injunction in the suit, in favour of the respondent/plaintiff and also appointed a Local Commissioner to, inter alia inspect the premises of the petitioner/defendant and take into custody all infringing goods at the said premises.

3. This petition was heard along with CM(M) 132/2021, wherein a detailed judgment dated 10th August, 2021 was passed by a Division Bench of this Court (of which I was a part) holding, inter alia that:

(i) a petition filed under Article 227 of the Constitution of India arising out of a commercial suit filed before the District Judge is maintainable, however, the exercise of such jurisdiction by the High Court is discretionary; and

(ii) exercise of such discretion is vested with the Single Judge of this Court as per current roster allocation.

4. In terms of the aforesaid judgment, this petition came up for hearing before this Bench.

5. Learned counsel for the petitioner has contended that summons were received by the petitioner without a copy of the plaint and the documents on 6th June, 2019. On 19th September, 2019, when the counsel for the petitioner appeared before the Commercial Court, upon directions of the court, the complete set of suit paper book was provided to the petitioner and it was directed that written statement be filed within four weeks. The petitioner could not file written statement in the aforesaid time period due to various factors and the written statement was filed by the petitioner on 11th December, 2019, which was within the condonable period of 120 days provided under Order VIII Rule 1 of the CPC, as applicable to commercial suits. On 26th February, 2020, an application was filed on behalf of the petitioner seeking condonation of delay in filing the written statement.

6. Counsel for the petitioner has vehemently contended that since the complete set of the plaint was only provided to the petitioner on 19th September, 2019, the time limit for filing written statement would start from the aforesaid date and in view of the fact that the written statement has been filed within 90 days from the aforesaid date, the same should have been taken on record. Counsel for the petitioner has relied upon the judgment dated 28th August, 2019 passed by a Single Bench of this Court in CS(COMM) 1092/2018 titled Redbull India AG Vs. Pepsico India Holdings Pvt. Ltd. & Anr., wherein the written statement of the defendant therein, filed within the outer limit prescribed under Order VIII Rule 1 of the CPC as applicable to commercial suits, was taken on record despite the fact that no application for condonation of delay had been filed.

7. Per contra, the counsel appearing on behalf of the respondent submits that even as per the case set up by the petitioner, the entire paper book of the suit was supplied to him on 19th September, 2019. The written statement was filed by the petitioner on 11th December, 2019, after expiry of the 30 days’ period for filing written statement, but before the maximum permissible period of 120 days provided in Order VIII Rule 1 of the CPC. However, the condonat

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