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Aura Synergy India Ltd. and Ors. Vs. New Age False Ceiling Co. Pvt. Ltd. and Ors. - (High Court of Delhi) (20 Mar 2020)

Written statement is not liable to be struck off the record, if sufficient cause is shown for delay


Intellectual Property Rights

Present is an application filed by the Plaintiffs under Order VIII Rule 1 of the Code of Civil Procedure, 1908 [CPC] for a direction that, the written statement filed by the Defendants be taken off the record. The suit has been filed by the Plaintiffs alleging infringement of their registered trademark and passing off.

In the present application, the Plaintiffs submits that the Defendants, having notice of the proceedings on 21st November, 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.

The present application does not deserve acceptance. The written statement was filed on 27th February, 2016. The Plaintiffs did not object to the filing of the written statement at that time, or for more than three years thereafter. To the contrary, the Plaintiffs continued with the proceedings in the suit, took several opportunities to file affidavits of admission/denial of documents, and were subjected to costs on more than one occasion.

The irony in the Plaintiffs seeking to ventilate this grievance three years after the written statement was filed cannot be missed. The application is predicated on the need to dispose of commercial disputes expeditiously, and should itself have been moved without delay. Although, the CPC does not provide for any specific period within which an application to take a written statement off the record can be made, it seems reasonable to suggest that such an application ought generally to be made at least within the period stipulated for responding to the written statement by filing of a replication.

A Plaintiff is entitled under Chapter VII Rule 5 of the Delhi High Court (Original Sides) Rules, 2018 to file a replication within 30 days after filing of the written statement, extendable by 15 days. The written statement having been filed on 27th February, 2016, the right to apply accrued on that date, and the present application (filed on 18th March, 2019) is therefore barred by limitation. Even on this basis, the Plaintiff's application is highly belated.

The Defendants were granted an opportunity to file their written statement "as per the statutory period" by the order of the Joint Registrar dated 20th January, 2016. The Plaintiffs were represented and do not have appeared to have objected. Certainly, no appeal was filed against that order. These facts demonstrate that any delay in filing of the written statement by the defendants was not unreasonable or unjustifiable. Sufficient cause having been shown for the delay, the written statement is not liable to be struck off the record. The Plaintiffs have failed to make out a case for the relief sought in this application. The application is therefore dismissed.


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