The main legal point established in the judgment is that the period for filing replication in a trademark infringement case begins from the time the written statement is permitted to be taken on record, especially when the written statement was filed beyond the statutory time limit and was taken on record only upon an application for condonation of delay being allowed by the Court.

JUDGMENT

Amit Bansal, J. (Oral)

CS(COMM) 34/2022

1. The present suit has been filed seeking relief of permanent injunction restraining the defendant from infringing the trademark of the plaintiff, passing off his goods as that of the plaintiff, damages and other ancillary reliefs.

2. Summons in the suit were issued on 17th January, 2022, when this Court granted ex parte ad interim injunction against the defendant restraining him from using the impugned mark 'SHAN E DELHI', 'SHANA-DELHI' or any other mark identical or deceptively similar to the plaintiff's trademark, 'SHAN-E-DELHI' /[IMG]. A Local Commissioner was also appointed by this Court to seize and inventorize the infringing goods. Vide order dated 2nd February, 2022 one more Local Commissioner was appointed to visit another premises of the defendant.

3. The counsel appearing on behalf of the defendant entered appearance on 26th April, 2022 and the Court directed for the written statement along with an affidavit of admission/denial of documents to be filed within the period permissible in law. The replication was directed to be filed within fifteen days of the receipt of the written statement.

4. The written statement was filed on behalf of the defendant on 26th April, 2022 and copy of the same was supplied to the counsel for the plaintiff on the same date. The written statement was filed belatedly and therefore, it was accompanied by an application under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (CPC) seeking condonation of delay of 27 days in filing the written statement.

5. The aforesaid application was allowed by the Joint Registrar on 11th July, 2022 while noting that the counsel for the plaintiff does not have any objection to the same. Subsequently, replication was filed on behalf of the plaintiff on 23rd July, 2022.

6. Counsel for the defendant contends that the replication cannot be taken on record as it was filed beyond the maximum permissible period of 45 days from the date when the written statement was supplied to the plaintiff. He places reliance on Chapter VII Rule 5 of the Delhi High Court (Original Side) Rules, 2018 (hereinafter 'Delhi High Court (OS) Rules'), the judgment of the Division Bench in Ram Sarup Lugani v. Nirmal Lugani, 2020 SCC OnLine Del 1353 and the judgment of a Co-ordinate Bench in Atlanta Limited v. National Highways & Infrastructure Development Corporation Limited, 2019 SCC OnLine Del 11276.

7. Counsel for the plaintiff submits that the copy of the written statement was supplied to him only on 17th May, 2022. The time for counting the period for filing replication can only be counted from the date when the written statement was permitted to be taken on record. In the present case, the said date would be 11th July, 2022. He further submits that the aforesaid judgments relied upon by the defendant are not applicable to the facts and circumstances of the case.

8. I have heard the counsels for the parties.

9. To appreciate the submissions of the parties, a reference may be made to the relevant portion of Chapter VII Rule 5 of the Delhi High Court (OS) Rules, which is reproduced below:

"5. Replication. - The replication, if any, shall be filed within 30 days of receipt of the written statement. ..."

10. The Division Bench in Ram Sarup Lugani (supra) while considering the aforesaid Rule came to the conclusion that the Rule 5 of the Delhi High Court (OS) Rules is mandatory in nature and the replication cannot be permitted to be taken on record after the exhaustion of the maximum prescribed period of 45 days. The issue before the Division Bench was not with regard to the date from which the period of 45 days for filing the replication would begin. The issue before the Division Bench was in the context of whether delay in filing the replication can be condoned beyond the period of 45 days in terms of Rule 5 of Chapter VII of the Delhi High Court (OS) Rules. Therefore, the observations of the Division Bench would not be of an