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2016 SCC OnLine Del 5098
In the High Court of Delhi at New Delhi
(BEFORE RAJIV SAHAI ENDLAW, J.)
Samsung Electronics Company Ltd. and Anr. .….
Plaintiffs
Mr. Pravin Anand, Adv.
v.
Mr. Gyanji Choudhary and Anr. .…. Defendants
Ms. Sunita Arora, Adv. for D-2.
§
CS (OS) 1602/2006
Decided on September 7, 2016
Intellectual Property Rights — Trade Mark — Suit for permanent
injunction — Commercial dispute — Applicability of CPC to Commercial
disputes — Practice and procedure — Adjournments — Plaintiffs neither filed
the list of witnesses nor any affidavit by way of examination-in-chief despite
of final opportunities given — Held, provision of CPC applicable to
Commercial Courts — Courts owing to a large number of cases listed before
them may not be able to take up all the cases listed on a particular date;
however, that does not become an excuse for the litigants to seek repeated
adjournments and which in turn leads to large pendency — Plaintiffs failed to
lead any evidence, defendants to lead evidence, inspite of onus of one of
issues being on defendants does not arise — Suit dismissed
(Paras 33, 35 and 37)
Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC
344; Shiv Cotex v. Tirgun Auto Plast (P) Ltd., (2011) 9 SCC 678;
Gayathri v. M. Girish, 2016 SCC OnLine SC 744; Akil v. State of NCT
of Delhi, (2013) 7 SCC 125
RAJIV SAHAI ENDLAW, J.:— This suit has been listed today in terms
th
of order dated 11 August, 2016 of the Joint Registrar and owing to the
witness of the plaintiffs having not appeared inspite of earlier order
dated 30th July, 2015 of this Court.
2. Issues in this suit for permanent injunction, to restrain the
defendant no. 1 Gyanji Choudhary, carrying on business as proprietor of
defendant no. 2 Metro Technologies from importing, exporting,
distributing, selling, offering for sale, advertising or dealing in grey
market ink cartridges/toners or any other products of the plaintiffs
under the trade mark “SAMSUNG” or under any other mark deceptively
similar to the plaintiffs' trademark and for ancillary reliefs, were framed
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th
as far back as on 5 November, 2008 and the onus of the main issue
was on the plaintiffs; the plaintiffs were directed to file affidavits by
way of examination-in-chief of all their witnesses within 10 weeks and
the suit posted before the Joint Registrar on 16th January, 2009 for
fixing dates for cross-examination of the witnesses of the plaintiffs.
3. The order dated 16th January, 2009 records that neither any list of
th
witnesses for which time had been given on 5 November, 2008 had
been filed nor any affidavits by way of examination-in-chief had been
filed by the plaintiffs. On request, further time of four weeks was given
to the plaintiffs by way of last and final opportunity and the suit
adjourned to 1st July, 2009 for recording of cross-examination of the
witnesses of the plaintiffs.
4. The order dated 1st July, 2009 records that neither list of
witnesses nor affidavits by way of examination-in-chief of any
witnesses had been filed inspite of last opportunity. Accordingly, the
learned Joint Registrar directed the suit to be placed before the Bench
th
on 29 July, 2009.
5. On 29th July, 2009, on the request of the counsel for the plaintiffs
and subject to payment of cost, again a “last opportunity” was granted
to the plaintiffs to file list of witnesses and affidavits by way of
examination-in-chief of all their witnesses within six weeks and the suit
th
posted before the Joint Registrar on 12 October, 2009.
th
6. On 12 October, 2009, though cost earlier imposed was paid but
no affidavit by way of examination-in-chief had been filed till then.
Adjournment was sought on the ground of the plaintiffs having moved
an application under Order I Rule 10 CPC but which had not been
listed. Recording that the same was not a ground for not complying
with the earlier order but ignoring that the Bench had vide order dated
29th July, 2009 granted only one opportunity, another opportunity was
given to the plaintiffs subject to payment of further costs and the suit
th
adjourned to 5 March, 2010 for cross-examination of the witnesses of
the plaintiffs.
th
7. The order dated 5 March, 2010 records that neither cost had
been paid nor affidavits by way of examination-in-chief filed nor was
any witness present in the Court. Still, further time of eight weeks was
granted for filing the affidavits and the suit posted to 25th October,
2010.
th
8. On 25 October, 2010, the learned Joint Registrar was on leave
and the suit posted to 5th January, 2011 which was a holiday and the
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th
matter was taken up on 6 January, 2011.
th
9. By 6 January, 2011 also no affidavits by way of evidence had
been filed and the suit was listed before the Bench on 8th February,
2011.
10. The order of 8th February, 2011 records that still no affidavits by
way of examination-in-chief were filed; however subject to payment of
further costs another last opportunity was granted to file the affidavits
within two weeks and it was ordered, failing which the evidence of the
plaintiffs shall be treated as “peremptorily closed”. The suit was posted
th
before the Joint Registrar on 28 February, 2011.
11. Though by 28th February, 2011 affidavit by way of examination-
in-chief of one of the witnesses of the plaintiffs had been filed but
neither the witness nor the counsel for the plaintiffs appeared and
inspite of earlier order of the evidence of the plaintiff being
peremptorily closed, another “final opportunity” was given subject to
th
further costs and the suit posted on 27 April, 2011.
th
12. On 27 April, 2011, the Joint Registrar was on leave and the suit
posted for the same purpose on 29th August, 2011.
13. On 29th August, 2011 though the witness of the plaintiffs was
present but had not brought the original documents and some of the
documents were stated to be filed in another suit. Yet again, subject to
nd
further costs, the suit was adjourned to 2 December, 2011.
nd
14. On 2 December, 2011 PW1 was examined in chief and partly
th
cross-examined but his remaining cross-examination deferred to 5
March, 2012 because he had not brought some documents.
th
15. On 5 March, 2012 again the witness was not present and
adjournment was sought and the suit adjourned to 29th May, 2012.
16. On 29th May, 2012 though the presence of the witness is not
recorded but the counsel for the defendant sought adjournment and the
th
suit adjourned to 11 September, 2012.
17. The position on 11th September, 2012 was the same and the suit
th
adjourned to 15 March, 2013.
th
18. On 15 March, 2013 the witness of the plaintiffs was present but
the defendant sought adjournment and the suit posted to 20th
September, 2013.
19. On 20th September, 2013 again witness was not present but the
th
defendants sought adjournment and the suit adjourned to 26
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February, 2014.
th
20. On 26 February, 2014, it was informed that that the witness
who was under cross-examination had left the plaintiffs' and another
witness will have to be examined and adjournment was sought to move
an application to this effect; however no application was filed till 9th
May, 2014 and it was stated on that date that the witness who was
under examination though had left the employment was ready to
rd
depose further. Accordingly, the suit posted to 23 September, 2014
for further cross-examination.
21. The witness again did not appear on 23rd September, 2014 and
an application for substituting the witness filed and of which notice was
issued.
22. The aforesaid application was allowed on 30th January, 2015 and
the plaintiffs permitted to substitute their witness and the suit posted
th
for evidence on 15 May, 2015.
th
23. On 15 May, 2015 again the witness was not present and the
Joint Registrar, observing that the plaintiffs did not appear to be
interested in pursuing the suit, posted the suit before this Bench on
30th July, 2015.
th
24. On 30 July, 2015, though observing that the evidence of the
plaintiffs was liable to be closed and there was no justification for any
adjournment but yet again citing interest of justice, another
substitution of witness as sought was permitted and it was made clear
that if the plaintiffs failed to produce the witness on the date fixed by
the Joint Registrar, no further opportunity shall be granted.
25. The plaintiffs filed affidavit of the new witness but the witness
th
did not appear on 18 February, 2016 before the Joint Registrar;
though the evidence should have been closed in terms of order dated
30th July, 2015 but the Joint Registrar still posted the suit to 11th
August, 2016 for recording of the evidence of the said witness.
26. It was in these circumstances, when the witness of the plaintiffs
failed to appear on 11th August, 2016, that the learned Joint Registrar
has posted the suit for today.
27. The counsel for the plaintiffs has in all fairness not justified any
of the aforesaid but has offered to pay exemplary cost of Rs. 2,00,000/-
to any charity and has stated that the witness to be examined is
present in Court today.
28. The Court, as would be obvious from above, has already given
enough indulgence to the plaintiffs. The counsel for the plaintiffs
forgets that in the present days of Right to Information Act, the
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happenings, proceedings and the pendency of cases in the Court are
there for all to demand and see. The issue of long delays in disposal of
cases is today in public eye and is eroding the faith in the legal system
of the country and which erosion can lead to disastrous consequences.
Supreme Court in Ravinder Kaur v. Ashok Kumar (2003) 8 SCC 289
also noticed that the Courts have to watch out for their process being
abused, “bringing bad name to the judicial system”. The Courts are
being blamed for being not able to deliver justice and perform their
duty.
29. The plaintiffs in the present case are enjoying interim order since
th
6 September, 2006 and evidently do not feel the need to pursue the
suit further. The costs offered today cannot entitle the plaintiffs to
“buy” further time from the Court. The legislature, vide amendment of
the year 2002 to the CPC amended Order XVII thereof titled
“Adjournments” by introducing a proviso to Rule 1 thereof to the effect
that no adjournment shall be granted more than three times to a party
during the hearing of the suit. Though Supreme Court in Salem
Advocate Bar Association, T.N. v. Union of India (2005) 6 SCC 344 held
that the same does not forbid grant of adjournment where the
circumstances are beyond the control of the party and that in such a
case there is no restriction on the number of adjournments to be
granted but clarified that such circumstances are where the litigant
may be suddenly hospitalized on account of some serious ailment or
there may be a serious accident or some Act of God leading to
devastation. Example was given of Bhopal gas tragedy, Gujarat
earthquake, riots and devastation on account of tsunami.
30. Though the counsel for the plaintiffs, by way of explanation for
the delay, has also stated that since the institution of the suit five
officials of the plaintiffs' have left the plaintiffs' but the same in my
view would not constitute a ground for the plaintiffs having not been
able to lead evidence in the last eight years. It is not that owing to
such leaving of the officials of the plaintiffs', which is bound to happen
in any organization, the business of the plaintiffs has come to a
standstill or the plaintiffs have stopped selling their goods. The said
reason thus cannot be cited for not proceeding with the matters which
are not considered as important and urgent by the plaintiffs. The reason
cited on 11th August, 2016 for non appearance of the witness also was
that he had to travel to Kolkata in connection with the audit of the
th
plaintiffs companies. The date of 11 August, 2016 was fixed as far
th
back as on 18 February, 2016 and the witness had ample time to
arrange his affairs so as to be able to appear before the Court especially
when plethora of last and final opportunities had been granted.
31. The time has come when the Courts have to take a call whether
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they should allow their process to be abused in this fashion, at the cost
of a stigma on the very functioning of the Courts. The Courts, in the
past, in the name of “interest of justice” and “litigants should not suffer
for default of others” have been indulgent on these issues but now,
neither are the litigants illiterate or ignorant nor found to be suffering -
rather they are commercial giants and who are found to be taking
advantage of this indulgence. In the process, the Courts and the justice
delivery system is a sufferer.
32. I am of the view that no amount of cost offered by the plaintiffs
entitle the plaintiffs to determine the pace at which this Court has to
perform its functions. Supreme Court in Shiv Cotex v. Tirgun Auto Plast
Pvt. Ltd. (2011) 9 SCC 678, dealing with the judgment of the High
Court in a second appeal setting aside the concurrent judgment and
decree of the Courts below and remanding the suit to the trial court for
fresh disposal after giving the plaintiff an opportunity to lead evidence
negated the reasoning of the High Court “that the stakes in the suit
being very high, the plaintiff should not be non-suited on the basis of
no evidence” and held it to be a case of misplaced sympathy and non-
existent justification. It was further held that the plaintiff alone was to
be blamed for the said lapse as the trial court had given more than
sufficient opportunity to the plaintiff to produce evidence in support of
its case. It was also noticed that the suit had been fixed for plaintiff's
evidence on three occasions but no evidence was led and it was held
that the Court is not obliged to give adjournment after adjournment
merely because the stakes are high in the dispute and that the Court
cannot be a silent spectator and leave control of the case to a party to
the case who has decided not to take the case forward. The practice, of
the litigants seeking and the Courts granting adjournments at the drop
of the hat and allowing the civil disputes to drag on and on, was
deprecated and it was held that “it is high time that Courts become
sensitive to delays in justice delivery system and realize that
adjournments do dent the efficacy of the judicial process and if this
menace is not controlled adequately, the litigant public may lose faith
in the system sooner than later”. A direction was issued to the Courts
to ensure that on every date of hearing effective progress takes place in
the suit. It was held that no litigant has a right to abuse the procedure
provided in the CPC and that “adjournments have grown like cancer
corroding the entire body of justice delivery system”. A directive was
also issued that ordinarily the cap provided in the proviso to Order XVII
Rule 1 CPC should be maintained and it was explained that “justifiable
cause” is a cause which is not only “sufficient cause” but a cause which
makes the request for adjournment by a party during the hearing of the
suit beyond three adjournments unavoidable and sort of a compelling
necessity like illness of the litigant or the witness or the lawyer, death
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in the family of any one of them, natural calamity like floods,
earthquake, etc. in the area, an accident involving the litigant or the
witness or the lawyer on way to the court and such like cause. Absence
of the lawyer or his non-availability because of professional work in
other Court or elsewhere or change of lawyer or continuous illness of
lawyer or similar grounds were held to be not justifying more than
three adjournments to a party during the hearing of the suit. The past
conduct of a party in the conduct of the proceeding was held to be an
important circumstance to be kept in view whenever a request for
adjournment is made. It was reiterated that a party to the suit is not at
liberty to proceed with the trial at its leisure and pleasure and has no
right to determine when the evidence would be led by it or the matter
should be heard. It was yet further held that if the parties to the suit do
not cooperate in ensuring the effective work on the date of hearing,
they do so at their own peril.
33. Recently also in Gayathri v. M. Girish 2016 SCC OnLine SC 744
Supreme Court reiterated that in a democratic set up, intrinsic and
embedded faith in the adjudicatory system is of seminal and pivotal
concern; delay gradually declines the citizenry faith in the system. It
was observed that it is the faith and faith alone that keeps the system
alive and fragmentation of faith has the effect potentiality to bring in a
state of cataclysm where justice may become a casualty. Timely
delivery of justice was held to keep the faith ingrained and establish
the sustained stability. The dilatory conduct of the defendant in that
case was labelled as causing colossal insult to justice and to the
concept of speedy disposal of civil litigation. Supreme Court again
called upon the Courts to “awaken”. I may in this context also notice
that this Court in relation to trial before Sessions Courts had as far back
th
as on 12 July, 1987 issued a Circular calling upon the Sessions Courts
to expedite trials, as was noticed by the Supreme Court in Akil v. State
of NCT of Delhi (2013) 7 SCC 125. This Court cannot be seen as itself
doing what it has instructed the subordinate Courts not to do.
34. I am conscious that the Courts owing to a large number of cases
listed before them may not be able to take up all the cases listed on a
particular date; however that does not become an excuse for the
litigants to seek repeated adjournments and which in turn leads to
large pendency.
35. Another aspect may be noticed. With the Delhi High Court
(Amendment) Act, 2015 the minimum pecuniary jurisdiction of this
Court has been enhanced from above Rs. 20,00,000/- as existing at the
time of institution of this suit to above Rs. 2,00,00,000/-. This suit,
valued at less than Rs. 2,00,00,000/-, would have in accordance with
the Office Order dated 24th November, 2015 of Hon'ble the Chief Justice
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in exercise of powers under Section 4 of the Act aforesaid would have
been transferred to the subordinate Courts but for the fact that it raises
a commercial dispute within the meaning of Commercial Courts,
Commercial Division and Commercial Appellate Division of the High
Courts Act, 2015 and as per first proviso to Section 7 of the said Act,
this suit has to be proceeded with and decided by this Court. The
Commercial Courts Act has also amended several provisions of the CPC
in relation to commercial disputes and Order XVA introduced in the CPC
to be applicable to commercial disputes requires commercial disputes
to be adjudicated within a specified time. The plaintiffs, owing to the
aforesaid statutory scenario, are entitled on the one hand to have their
suit adjudicated in this Court without even paying court fees as
plaintiffs in other suits not qualifying as commercial suits are liable to
pay and on the other hand are not wanting this Court to proceed. It
appears that the plaintiffs are not sure of getting the final relief and for
this reason want to perpetuate the interim relief. This Court cannot
become privy to such actions of the plaintiffs.
36. The evidence of the plaintiffs is thus closed.
37. The onus of the main Issue being on the plaintiffs and the
plaintiffs having failed to lead any evidence, the need to call upon the
defendants to lead evidence, inspite of onus of one of the Issues being
on the defendants, does not arise.
38. In the absence of the plaintiffs having proved the onus of the
main Issue and on which the grant of relief to the plaintiffs depends,
the suit is but to be dismissed.
39. The suit is dismissed. The interim order stands vacated.
40. I refrain from imposing exemplary costs on the plaintiffs for
abusing the process of this Court.
41. Decree sheet be drawn up.
———
§
2016:DHC:6356
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