JUDGMENT :

I.A. 1516/2023 (Order IX Rule 13 of the CPC) in CS(COMM) 413/2021

1. The plaintiff LT Foods Limited instituted the present suit against the defendant Saraswati Trading Company alleging infringement, by the defendant, of trademarks in which the plaintiff held registration, more particularly in respect of the Marks “DAWAT/DAAWAT”. The plaintiff also claimed copyright in the pictorial form of the said mark. Accordingly, the plaintiff sought a decree of injunction against the defendant from using the impugned marks or manufacturing or clearing its product in packing, the trade dress of which was similar to that of the plaintiff.

2. Along with the plaint, the plaintiff filed I.A. 11320/2021 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) seeking interim reliefs.

3. On 7th September 2021, a co-ordinate Bench of this Court issued summons in the suit. Holding that the plaintiff had made out a prima facie case of infringement and passing off, the Court also granted ex prate ad interim injunction in favour of the plaintiff and against the defendant.

4. The defendant was, thereby, restrained from manufacturing, selling, distributing, producing, advertising, promoting or exporting any goods which contained or included the marks “DAWAT/DAAWAT” or any similar infringing marks.

5. Side by side, the Court also allowed I.A. 11321/2021, filed by the plaintiff under Order XXVI Rule 9 of the CPC for appointment of a Local Commissioner. An advocate of this Court was appointed as the Local Commissioner, to visit the premises of the defendant and seize and inventorise the allegedly infringing goods as well as any material which was used for manufacturing of the goods, packing materials, etc. The commission was to be executed on 10th September 2021. The orders specifically stated that the next date of hearing before the Court was 24th November 2021.

6. The commission was duly executed, following which an undated report has been placed on record by the learned Local Commissioner. Attached to the report, however, is the attendance sheet as well as a record of on the spot proceedings which took place during the execution of the commission on 10th September 2021. The attendance sheet and on the spot proceedings are signed by learned Counsel for the plaintiff as well as by the defendant in person.

7. It is not in dispute that a copy of the order dated 7th September 2021 was, in fact, handed over to the representative of the defendant at the time of execution of the commission on 10th September 2021.

8. As already noted, the next date of hearing was 24th November 2021. On the said date, this Court observed that, as per the office report of the Registry, service of summons on the defendant could not be effected by speed post owing to the address of the defendant as provided by the plaintiff being insufficient. Learned Counsel for the plaintiff sought permission to file an application for substituted service, which was also noted by the Court.

9. Thereafter, on the next date of hearing, i.e. 15th February 2022, the following order came to be passed by this Court :

“1. On 24.11.2021, this Court had recorded that as per office report, service upon defendant could not be affected through speed post due to “insufficient address” and service report qua other modes was awaited.

2. In that eventuality, learned counsel for plaintiff had sought time to file application for substituted service.

3. It is not in dispute that Court Commissioner/Local Commissioner was appointed and he had visited the premises of defendant. Thus, it is deemed that service is affected upon the defendant, however, despite that none has appeared on behalf of said defendant. In the interest of justice, adverse orders are deferred for today.

4. Renotify on 25.04.2022.

5. It is made clear that if the defendant is not represented before this Court on the next date of hearing, this Court shall proceed in the matter in its absence.

6. Till further orders, interim orders dated