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IN THE HIGH COURT OF DELHI
Manoj Kumar Ohri, J.
Hira Sweets & Confectionary Pvt. Ltd. - Appellant
Versus
Hira Confectioners - Respondent
CS(COMM) 17 of 2018
Decided On : 27-04-2021
The failure to demonstrate 'sufficient cause' for non-appearance and to justify extensive delays in filing applications leads to the dismissal of motions to set aside ex-parte judgments.
Headnote:(A) Trade Marks Act, 1999 - Applications under Order IX Rule 13 CPC - Setting aside ex-parte judgment - The defendant's non-appearance was due to alleged negligence of counsel and personal distress - The ex-parte decree was passed based on merits, and the defendant failed to act expeditiously after knowing of the decree - Delay of 582 days in application was not adequately explained, leading to dismissal. (Paras 1-22)
(B) Sufficient Cause - Definition - The court has to exercise discretion judiciously in context-specific factors, but must ensure the party's absence does not stem from negligence. (Paras 12-13)
(C) Reason for Delay - The claim of ongoing settlement talks was unsupported by evidence and deemed insufficient justify delay in filing the application. (Paras 19-21)
Facts of the case:
The defendant sought to set aside an ex-parte decree obtained by the plaintiffs for trademark infringement after not appearing in court. The defendant's claims regarding financial hardship and family health issues were considered but found insufficient. The decree had been issued based on thorough evaluation of case merits.
Findings of Court:
The defendant's lack of diligence post-awareness of the ex-parte decree and absence of genuine efforts to contest the decree led to the dismissal of the applications.
Issues: Whether the defendant had shown 'sufficient cause' for its non-appearance and whether the delay in filing the application can be justified.
Ratio Decidendi: The court emphasized that 'sufficient cause' must be established clearly, and a lack of action post-awareness of the decree undermines the claim for setting it aside. The delay in filing the application was not justified due to lack of credible evidence and support.
Result: Applications dismissed.
| Table of Content |
|---|
| 1. applications for setting aside ex-parte judgment. (Para 1 , 4) |
| 2. overview of plaintiff's claims and defendant's situation. (Para 2 , 6) |
| 3. court's reason for original ex-parte ruling. (Para 3 , 5 , 10) |
| 4. citations supporting both parties' positions. (Para 7 , 9) |
| 5. criteria for 'sufficient cause' under order ix rule 13 cpc. (Para 11 , 12) |
| 6. interpretation of sufficient cause in case law. (Para 13 , 14 , 15) |
| 7. defendant's failure to demonstrate sufficient cause. (Para 16 , 18) |
| 8. court's decision on the lack of sufficient cause. (Para 20 , 21) |
| 9. conclusion and dismissal of applications. (Para 22 , 24) |
JUDGMENT
I.A. 9702/2020 (Under Order IX Rule 13 CPC by the Defendant) & I.A. 9703/2020 (Condonation of Delay of 582 days in filing I.A. 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 Ors. v. Satya Infra & Estates Pvt. Ltd. reported as 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 reason
