Prateek Jalan JUDGMENT
Prateek Jalan, J.
I.A. 4491/2019 (Application under Order VIII Rule 1 of the CPC, 1908)
1. This is an application filed by the plaintiffs under Order VIII Rule 1 of the Code of Civil Procedure, 1908 [hereinafter referred to as "the CPC"] for a direction that the written statement filed by the defendants be taken off the record.
Facts
2. The facts, insofar as relevant for the purposes of the present application, are broadly undisputed. The suit has been filed by the plaintiffs alleging infringement of their registered trademark and passing off. It was filed on 31.10.2015, and an ex-parte ad interim order of injunction was granted in favour of the plaintiffs on 02.11.2015. In that order, the Court directed issuance of summons and notice in the application, returnable before the Joint Registrar on 20.01.2016. The requirement of Order XXXIX Rule 3 of the CPC was directed to be complied with within one week of the order.
3. A Vakalatnama on behalf of the defendants was filed on 27.11.2015. They also filed I.A. No. 24550/2015 [under Order VII Rule 10 of the CPC], which was listed on 30.11.2015, and I.A. No. 26213/2015 [under Order XXXIX Rule 4 of the CPC], which was listed on 23.12.2015. Process fee in terms order dated 02.11.2015 was filed by the plaintiffs on 04.01.2016. When the matter was listed before the Joint Registrar on 20.01.2016, the defendants were directed to file the written statement as per the statutory period.
4. By a judgment dated 10.02.2016, the ad interim order of injunction granted on 02.11.2015 was vacated, and the plaintiffs' application for injunction was dismissed with costs. That order came to be affirmed by the judgment of Division Bench dated 18.11.2016 in FAO(OS) 177/2016.
5. On 27.02.2016, the defendants filed the written statement. Various other applications were thereafter filed by the parties, including an application by the plaintiffs for placing additional documents on record [I.A. 12412/2016, allowed on 06.12.2016], and an application for amendment of the plaint [I.A. 2894/2017, dismissed on 17.07.2018]. In the meantime, by the order dated 06.12.2016, the Court listed the matter before the Joint Registrar for completion of pleadings, and admission/denial of documents. As the parties had not filed original documents, the Joint Registrar closed the admission/denial of documents on 19.01.2017. The plaintiffs' appeal against this order was allowed on 28.08.2017. The Court accepted the contention of the plaintiffs that pleadings have not been completed, and admission/denial therefore ought to have been deferred. The suit was renumbered as a commercial suit within the meaning of the Commercial Courts Act, 2015 on 18.11.2017. After several opportunities, the plaintiffs filed an affidavit of admission/denial of defendants' documents on 12.12.2018, and thereafter moved the present application on 18.03.2019 for taking the written statement off the record.
Submissions
6. In the present application, the plaintiffs contend that the defendants, having notice of the proceedings on 21.11.2015, when the Vakalatnama was signed and affidavits affirmed in respect of applications under Order VII Rule 10 of the CPC, they ought to have filed their written statement within 30 days from the said date. Mr. Chattopadhyay, learned counsel for the plaintiffs, contends that the summons of the suit must be deemed to have been served prior to 27.11.2015, when the Vakalatnama and the applica........