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HT Media Limited and Ors. vs. Brainlink International, Inc. and Ors. - (High Court of Delhi) (17 Dec 2021)

Extension of limitation will not be applicable in circumstances where the Defendant was not prevented from filing written statement



Present order will dispose of the application filed by the Defendants under Order VIII Rule 1 read with Section 151 of Code of Civil Procedure, 1908 (CPC) for condonation of delay in filing the written statement.

By way of the present application, the Defendants have claimed that they have not been served with the summons in the present suit. 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.

There is no dispute on the dates i.e., the suit came up for hearing for the first time on 28th April, 2020; the Defendants filed an application under Order XXXIX Rule 4 of CPC on 27th May, 2020, and appeared before the court on 29th May, 2020, through counsel; and, simultaneously, an application under Order XXXIX Rule 2A of CPC was filed by the Plaintiffs alleging violation of the interim directions issued on 28th April, 2020 and the reply was filed thereto by the Defendants. It appears that, the Defendants stated before the court on 9th July, 2020 that the interim order must not be read to mean that the Defendant is restrained from approaching the statutory authority for filing objections to the trademark. In fact, the Defendants have already filed their objections before the Trademark Registry on 15th May 2020.

It is thus, more than apparent that the conditions that prevailed due to the pandemic did not actually impact the Defendants to prevent them from interacting with their counsel and filing appropriate applications and replies before this court. A co-ordinate Bench of this Court in Flight Center Travels Pvt. Ltd. v. Flight Centre Limited has held that, when the Defendant had knowledge of the case and had entered appearance through counsel, a technical process of service of summons need not be insisted upon.

The Defendants were fully aware of the present case. They participated on various dates from 29th May, 2020, including in mediation, and chose not to file their written statement. They have been assisted by counsel throughout and the very number of the case would have flagged to them that this was a commercial suit, which entailed strict timelines. The plea of the learned counsel for the Defendants that since the summons had not been served to them, the time had not begun to run, cannot be accepted. Since the delay has not been condoned, the delayed filing of the written statement cannot be accepted and the written statement cannot be taken on record. Application dismissed.


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