Active participation in litigation negates claims of non-service of summons, thus preventing the condonation of delay in filing a written statement.

ORDER

I.A.9531/2021 (by the defendants under Order VIII Rule 1 read with Section 151 CPC for condonation of delay in filing the written statement)

1. This order will dispose of the application filed by the defendants under Order VIII Rule 1 read with Section 151 CPC for condonation of delay in filing the written statement. The suit has been instituted by `HT Media Limited & another' against the defendants seeking a restraint on the defendants from infringing the trademark/domain name of the plaintiffs. A prayer was also made seeking a restraint on the defendants from pursuing the civil action before United States District Court for the Eastern District of New York, particularly, in respect of the civil action titled Brainlink International, Inc. v. HT Media Ltd. & Anr., (Civil Action No. 1 20-cv-01279). A decree for rendition of accounts and damages has also been sought.

2. By way of the present application, the defendants have claimed that they have not been served with the summons in the present suit, having merely received an intimation about the suit having been filed and the order dated 28th April, 2020 having been passed by the court, through email, in compliance of requirements of Order XXXIX Rule 3 CPC. It has been submitted that pursuant thereto, the defendants entered appearance and filed reply to the interim application filed by the plaintiffs and was under bona fide belief that the defendants were not required to file a written statement of defence until and unless served with the summons of the suit. It was also submitted that during this time, the entire world was affected by the Covid-19 pandemic. Even the Supreme Court of India took cognizance of the situation and extended the limitation. Hence, it was prayed that the delay in filing the written statement be condoned and the same be taken on record.

3. The plaintiffs have filed their reply to the said application seeking condonation of delay, opposing the same by submitting that the defendants had filed their written statement on 13th July, 2021, i.e., nearly 441 days, after the ad-interim order was passed in this suit on 28th April, 2020. It was submitted that no cogent reasons have been given to explain the delay and in the light of the fact that throughout, the defendants have appeared in the court, through their counsel, on various dates i.e., on 29th May, 2020, 2nd June, 2020, 9th July, 2020, 17th August, 2020, 16th October, 2020, 4th December, 2020, 22nd February, 2021 and 6th July, 2021, prior to the filing of the written statement, no ground was made out to condone the delay. Thus, it has been prayed that the application be dismissed and the right of the defendants to file the written statement be closed.

4. Both sides have filed their written arguments. I have heard learned counsel and I have perused the material placed on the record. Mr. Manish Dhir, learned counsel for the defendants, has stressed that the 30 days' time-line provided for filing of the written statement, extendable for a period of 120 days, is to be calculated from the date when the summons were served. However, in the present case, summons were never served as the defendants had appeared in response to the information furnished in compliance of Order XXXIX Rule 3 CPC. Thus, according to the learned counsel, in actual fact, there is no delay in filing of the written statement.

5. Learned counsel for the defendants has also relied on the judgment dated 23rd September, 2021 of the Supreme Court in Cognizance For Extension of Limitation, In re., (2020) 9 SCC 468 [Misc. Appl. No.665/2021 in SMW(C) 3/2020], to contend that the limitation period has been extended for all purposes. He has further relied on the judgment of the Division Bench of this court in Rohit Sharma v. A.M. Market Place Pvt. Ltd., 2021 SCC OnLine Del 3092 (of which I was a Member). Learned counsel submitted that the delay be condoned and the written statement be taken on record.

6. Per contra, Mr. Vivek Ayyag