IMPORTANT POINT
The Court applied the provisions of the Code of Civil Procedure, 1908 and the Commercial Courts Act, 2015 to address the delay in filing the written statement and to grant a decree based on the deceptive similarity of marks and packaging.

JUDGMENT

Sanjeev Narula, J. (Oral)

1. The Plaintiff has filed the present suit to restrain the use of the marks "BETSONE", "BETASON" and "BETASONE" for pharmaceutical preparations in a silver-coloured aluminium strip, by the Defendant, alleging that the same is deceptively similar to Plaintiff's trademark "BETNESOL" and its variants, which is also packed in a similar trade dress.

2. The Defendant has submitted a written statement in response to the suit. However, Mr. Urfee Roomi, counsel representing the Plaintiff, objects to its admissibility on the grounds that it was filed after the expiry of the statutory period. Consequently, before delving into the substantive arguments and evidence presented by the Plaintiff, it is would be appropriate to first address the question of whether the Defendant's written statement can be considered in these proceedings. To take an informed decision, a detailed understanding of the procedural timelines and sequence of events is first warranted.

Proceedings this far

3. On 02nd June, 2022, while issuing summons in the suit, the Court granted an ex-parte ad-interim injunction in the Plaintiff's favour, restraining the Defendant from using the impugned packaging of aluminium strip with red lettering that bear the trademarks "BETSON", "BETASONE", "BESTASON" or any other mark incorporating the above-noted terms.

4. Alleging contravention of the order dated 02nd June, 2022 by the Defendants despite service and knowledge of proceedings, the Plaintiff filed I.A. No. 10240/2022 for appropriate directions. Notice on this application was issued on 07th July, 2022, whereafter Defendant entered appearance to contest the suit from 08th August, 2022. In the hearings held on 16th August, 2022 and 07th October, 2022, the Defendant's counsel submitted that they had not received a coloured copy of the plaint and the accompanying documents, resulting in directions to Plaintiff to provide the same. Thereafter, parties explored amicable settlement of their disputes, which could not fructify.

5. In the meantime, the Defendant filed a written statement on 14th April, 2023, which, according to the Plaintiff, was filed after the expiry of the maximum condonable timeframe of 120 days. The order dated 19th April, 2023 notes that no application seeking condonation of delay was placed on record by the Defendant till that date. Thereafter, on 27th July, 2023, the counsel who had been representing the Defendant, informed the Court that he was not receiving any instructions from his client and thus, sought a discharge. However, despite court directions, neither a formal application seeking discharge was filed by the Defendant's counsel, nor did Mr. Amardeep Kapur Singh, Director of the Defendant-company, appear before the Court. Since then, none has been appearing on Defendant's behalf. Noticing this, the Court issued bailable warrants compelling the presence of Mr. Amardeep Kapur Singh on 07th December, 2023.

Delay in filing the written statement

6. As per the affidavit of service filed by the Plaintiff, which is accompanied with proof of service, the Defendant was served with the summons through speed post on the two addresses mentioned in the memo of parties on 17th and 23rd June, 2022. The Plaintiff also effected service of notice in I.A. 10240/2022 filed under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 ["CPC"] through e-mail, speed post, and courier modes, that were delivered between 18th to 21st July, 2022. As noted above, the Defendant joined the proceedings on 16th August, 2022, but maintained that they had not received adequate copies of the paper-book. This request was also reiterated on the next date (07th October, 2022). Mr. Roomi submits that the Plaintiff responded to the Defendant's request and immediately served the copies on both occasions. Yet, it is only on 25th March, 2023 that the Plaintiff received an advance copy of the written statement from the Defendant along with copies of applications for cond