Research › Search › Judgment

Delhi High Court · body

2007 DIGILAW 1515 (DEL)

Scotch Whisky Association v. Golden Bottling Ltd.

2007-07-27

G.S.SISTANI

body2007
JUDGMENT : G.S. Sistani, J. This is an application under Order IX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 filed by the Defendant for setting aside ex parte decree and order dated 20.4.2006 and order dated 10.12.2004 whereby the Defendant herein was proceeded ex parte. 2. The brief facts leading to filing of the present application are that the Plaintiffs filed the present suit for permanent injunction restraining passing off, rendition of accounts of profits, restraining passing off, rendition of accounts of profits, damages and delivery up, etc. against the Defendant. As none appeared on behalf of Defendant despite service, the Defendant was proceeded ex parte on 10.12.2004 and the suit was decreed on 20.4.2006 whereby while ranting permanent injunction, this Court also awarded damages of Rs. 5,00,000 and costs of Rs. 3,10,000. 3. Learned Counsel for the Defendant states that on 04.05.2006, while the Defendant's Company Secretary was going through a Hindi daily "Nav Bharat Times" of 24.4.2006, he came to know that the Defendant company has been fined for using the word "Scot". He then contacted the Director of the Defendant who then searched the matter on the website of this Court whereby it was revealed that the present suit was decreed ex parte on 20.04.2006. It is also stated that the Plaintiffs have misled this Court. Learned Counsel for the Defendant has vehemently denied having ever received any summons/notice of this Court. Further, the affidavit of service filed by the clerk of the counsel for the Plaintiffs does not disclose any mode and proof of service. The unsigned and unstamped slip of the courier company filed along with the affidavit of service does not bear the complete and proper address of the Defendant. The address given on the said courier slip is that of the District Headquarter, Alwar and the pin code also does not match with the pin code of the area where the plant of the Defendant is situated. The slip does not bear the signature of the person who is alleged to have received the summons and thus the same seems to be a procured one. The slip does not bear the signature of the person who is alleged to have received the summons and thus the same seems to be a procured one. It is also stated that the report of the process service of this Court discloses that on 16.5.2004 when he reached the office of the Defendant at A-18, Nariana Industrial Area, Phase-I, New Delhi, the persons present there told that there is no office of Defendant company in that building. It is stated that the premises at A-18, Nariana Industrial Area were being used as a Delhi office of the Defendant company by the earlier management of the Defendant and after the change in management, the said premises were vacated. It is also stated that the notices sent to the plant of the Defendant at Alwar were also not properly served. As per the report of the process server, the Defendant company was stated to be closed and the guard present there showed his inability to receive the notices. It is also stated that the signatures of the guard, namely, Krishan Prasad, obtained by the process server are different from the signatures on the AD card present on the Court file. 4. The long and short of the Defendant's grievance is that proper service has not been effected on the Defendant. The courier slip filed on record does not bear the signature of the person who is alleged to have received the summons. Service could also not be effected on the Delhi address of the Defendant. Summons have not been served on any of the directors, manager or responsible person or employee of the Defendant company. 5. Learned Counsel for the Plaintiff has vehemently countered the averments of the Defendant. Learned Counsel submits that apart from service through courier, notice was also sent to the Defendant's factory at Alwar through registered/AD post. The AD card clearly bears the signature of one Krishan Prasad who was the guard employed by the Defendant. The courier company in question, namely, M/s. Blue Dart Express Ltd., is approved by the Court. Further, the fact of holding of the Annual General Meeting on 30.9.2004 at the registered office of the Defendant at Alwar shows that it was still the registered office of the Defendant and service on the registered office of a company is sufficient service. 6. Further, the fact of holding of the Annual General Meeting on 30.9.2004 at the registered office of the Defendant at Alwar shows that it was still the registered office of the Defendant and service on the registered office of a company is sufficient service. 6. I have heard learned Counsel for the parties and also perused the documents on record. 7. Rule 13 of Order IX of the Code of Civil Procedure, 1908 reads as under : 13. Setting aside decree ex parte against Defendants.-In any case in which a decree is passed ex parte against a Defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. 8. I have perused the original record of the Court file in order to satisfy myself with regard to the service of the Defendant. It is not in dispute that the registered office of the Defendant is situated at plot No. C-780, Phase-II, Bhiwadi Industrial Area, Bhiwadi, District Alwar, Rajasthan. The Defendant was served on 7.5.2004 at the Bhiwadi address by Blue Dart courier agency and the original receipt of Blue Dart evidencing service on the Defendant at Alwar has been filed. The summons sent by registered AD post were also served at the same address on 17.5.2004 and has the initials of the person who had received the summons. The case as set out by the Defendant for setting aside the ex parte decree is that the business activities and production of the company were not in function and the bottling plaint situated at Bhiwadi was closed. The private security agency was given charge of the security of the company's properties. In support of this the Defendant has relied upon the report of the process server who reported that summons were not received on the ground that the company was closed and only the guard was there, owners and managers only visit occasionally. The private security agency was given charge of the security of the company's properties. In support of this the Defendant has relied upon the report of the process server who reported that summons were not received on the ground that the company was closed and only the guard was there, owners and managers only visit occasionally. In view of this it was argued that there was no proper service in accordance with law. 9. The courier receipt and the AD card show that the summons were served at the Bhiwadi address, which happens to be the registered office of the Defendant. The argument of the counsel for the Defendant to show that the Defendant was not served as no activity was being carried out at the registered office is not born out from the documents filed by the Plaintiff with their reply to the present application. Plaintiff has filed along with their reply a copy of the annual report dated 27.5.2005 which shows the registered office of the company to be Bhiwadi. The issued by the Defendant to show that the 10th Annual General Meeting of the members of the Defendant company was to be held at its registered office at Bhiwadi on 30.9.2004 at 11:00 a.m. The compliance certificate dated 3.7.2004 issued by Mr. Ajay Garg and Associates, Company Secretaries addressed to the members of the bottling plant has also been addressed at the Bhiwadi address. The aforestated documents show that the Defendant was still using Bhiwadi as its registered office. 10. The aforesaid independent documents relied upon by the counsel for the Plaintiff establishes the fact that the registered office of the Defendant continues to be in Bhiwadi and, therefore, it cannot be expected that the Defendants were not receiving their correspondence and other mail at these premises. 11. The aforesaid circumstances clearly show that the Defendants were served but did not bother to enter appearance and defend the suit. There is no merit in the application and no sufficient ground for non-appearance have been made out and the same is accordingly dismissed.