A.No.3614 of 2023

in

C.S.(COMM.DIV).No.2 of 2023

P.T.ASHA, J.,

The application is filed for condoning the delay of 123 days in

representing the Written Statement of the defendant in the above suit.

2. The suit in question has been filed questioning the

infringement of Trademark "VARAM" of the plaintiff by using the

very same name with an extra 'M'. The sole defendant in the above suit

was served on 13.01.2023. The respondent/plaintiff had obtained an

interim order of injunction by orders of this Court dated 11.01.2023

and the interim order was being extended periodically. Ultimately, the

interlocutory application for interim injunction was dismissed by orders

of this court dated 15.06.2023 and thereafter when the matter was listed

on 04.07.2023, the defendant had sought time to bring up the Written

Statement.

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3. The present application has been filed to condone the delay in

representing the Written Statement. In the affidavit that has been filed

in support of the said application, the applicant/defendant would

contend that the Written statement had been filed on 08.02.2023 within

the period of 30 days from the date of summons. The Written

Statement was returned by the Registry for certain compliances and the

same was represented on 11.07.2023, as a result of which there was a

delay of 123 days in representing the same. The delay, according to the

applicant, had occurred only on account of the fact that the Written

Statement had been misplaced in the office of their counsel and

ultimately it was found along with a disposed of bundle. Thereafter, the

defects were rectified and it has been filed with the requisite

application for condoning the delay in representation.

4. The learned Counsel appearing for the applicant/defendant

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would submit that the delay is one for representation and had occurred

only on account of the fact that the Written Statement had got

misplaced in a disposed of bundle. As soon as they had retrieved the

Written Statement, they had taken steps to file the same. He would

submit that the provisions of Rule 8 of Order 15(A) of the Schedule to

the Commercial Courts Act can be invoked and the applicant may be

put on terms for allowing the Application.

5. Per contra, Mr.Abishek Jenasenan, learned Counsel appearing

on behalf of the respondent/plaintiff would submit that in the normal

course he would not object to an application for condoning the delay in

representation as the same is one between the Court and the counsel.

However, in the instant case, he is compelled to bring to the notice of

the Court the fact that the Written Statement had been originally filed

on 08.02.2023 and on the very next day it has been returned. In fact,

the learned counsel for the plaintiff was not served with the copy of the

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said Written Statement. He would further submit that the Written

Statement must have been filed only to get over the limitation without

it being a Written Statement as contemplated under the Act and the

Code and therefore the time line of 120 days has to be scrupulously

followed and since the application itself been moved much beyond the

120 days period, the application should be rejected. He would also rely

upon a judgment of the Hon'ble Delhi High Court reported in 2021

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Distributors and Another.

6. Heard the counsels on either side.

7. It has to be first verified as to whether the applicant is seeking

to condone the delay in representation or whether it is a case of

condone delay in filing the Written Statement. A perusal of the original

Written Statement would indicate that the same had been filed on

08.02.2023 and on the very next day the sa