Glaxo Smithkline Consumer Healthcare vs Anchor Health And Beautycare on 13 July, 2009

[Cites 10, Cited by 0]

Delhi High Court

Glaxo Smithkline Consumer Healthcare vs Anchor Health And Beautycare on 13 July, 2009

Equivalent citations: AIR 2010 (NOC) 284 (DEL.), 2010 AIHC (NOC) 546 (DEL.)

1. This is an application by the Plaintiff under Section 5 of the Limitation Act 1963 read with Order VI Rule 18 of the Code of Civil Procedure, 1908 („CPC‟) seeking condonation of delay in filing the amended plaint.

2. The background to the filing of the present application is that the Plaintiff/Applicant filed the aforementioned suit CS (OS) No. 1908 of 2002 against the Defendant/Respondent inter alia seeking an order of permanent CS (OS) 1908/2002 Page 1 of 11 injunction restraining the Defendant from manufacturing, selling or offering for sale toothbrushes, samples of which are attached to the plaint, allegedly infringing the registered design of by the Plaintiff in respect of the said toothbrushes.

3. Against the order passed by this Court on 15 th April 2004 declining an interim injunction, the Plaintiff /Applicant filed an appeal, FAO (OS) No. 75 of 2004, which came to be disposed of by the Division Bench on 24th October 2008. The Division Bench in the said order recorded the agreed terms between the parties. Inter alia it was recorded that learned counsel for the Defendant/Respondent would not object to the applications, IA Nos. 4951 of 2003 and 10921 of 2006, filed by the Plaintiff seeking to amend the plaint. When the aforesaid applications as well as the suit were listed before the learned Single Judge the following order was passed on 17 th November 2008:

"I.As.No.4951/2005 and 10921/2006 (by the plaintiff u/O 6 R- 17 of CPC) Counsels for the parties have handed over a photocopy of the order dated 24.10.2006 passed in FAO(OS) No.75/2004, which is a consent order by which the appeal preferred by the plaintiff was disposed of. As per the aforesaid order, counsel for the defendant agreed that the defendant shall not object to the amendment applications filed by the plaintiff for seeking amendment to the plaint i.e. 4951/2003 and 10921/2006. In view of the above, both the applications are allowed and disposed of.

CS (OS) 1908/2002 Page 2 of 11

CS(OS)1908/2002 Amended plaint shall be filed by the plaintiff within three weeks, with an advance copy to the other side, who shall file written statement to the same within four weeks thereafter. Replication, if any, be filed before the next date of hearing. The parties are directed to file the original documents within four weeks, if not already filed. Both the parties shall exchange the index of documents in advance and endorse the admission/denial of documents in a separate column on the index. After the admission/denial is conducted before the Joint Registrar, the exhibited documents shall also be endorsed on the list of documents of documents of both the parties. List before the Joint Registrar for admission/denial of documents on 19 th February, February, 2009.

Renotify on 6th April, 2009 before the Court for framing of issues."

4. It may be noticed at this stage that the Plaintiff filed an amended plaint on 17th February 2009. However no application seeking condonation of delay was filed. It appears that on 6th April 2009 an objection was taken by learned counsel for the Defendant which was recorded in the order passed by this Court on that date that the amended plaint has been filed by the Plaintiff beyond the time prescribed under Order VI Rule 18 CPC. The Court then recorded the statement of learned counsel for the Plaintiff that he required two weeks‟ time to file an appropriate application for condonation of delay which would be decided on its merits.

CS (OS) 1908/2002 Page 3 of 11

5. The application for condonation of delay in filing the amended plaint was not filed within two weeks from 6th April 2009. That application, being IA No. 6744 of 2009, was ultimately filed by the Plaintiff only on 18th May 2009. Notice in the application was accepted by the non-applicant/Defendant on 19th May 2009. A reply has been filed by the non-applicant/Defendant in the said application pointing out that the Plaintiff has not given any explanation in the application for the delay. It is further pointed out that it has been filed beyond the time stipulated under OVI R18 read with Section 148 CPC.

6. Learned counsel for the Plaintiff/applicant submits that the delay was occasioned on account of the fact that the parties were before the Division Bench in FAO (OS) 75 of 2004 and that the delay is condonable with reference to Section 148 CPC read with Section 151 thereof. In response to the objections that the application for condonation of delay does not offer any explanation whatsoever, learned counsel for the Plaintiff seeks further time to file a fresh application/affidavit. Learned counsel for the Plaintiff refers to the decision in Machipeddi Ramaswamy v. Buchi Reddy AIR 2003 AP 446 to contend that it is open to the Court to exercise the inherent power under Section 151 CPC to condone the delay notwithstanding the limited time stipulated under Section 148 CPC as long as the condonation of delay would not be totally derogatory to the main provisions of the Act and the Rules made CS (OS) 1908/2002 Page 4 of 11 thereunder.

7. On behalf of the non-applicant/Defendant reference was made to the judgment of the Supreme Court in Union of India v. Pramod Gupta AIR 2005 SC 3708 and of the Rajasthan High Court in Darshan Singh v. Kewal Krishan AIR 2003 Raj 313. It is pointed out by learned counsel for the Defendant that when Section 148 CPC as amended in 2002 is read along with Order VI Rule 18 CPC the discretion of the civil court to enlarge the time for filing the amended plaint is limited to a period up to 30 days in total.

8. In order to appreciate the contentions, a reference may be made to Section 148 and Order VI Rule 18 CPC which read as under:

"148. Enlargement of time - Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period not exceeding thirty days in total, even though the period originally fixed or granted may have expired."

"Order VI Rule 18 CPC: Failure to amend after order: If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after CS (OS) 1908/2002 Page 5 of 11 the expiration of such limited time, as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court."

9. It may be recalled that in the present case this Court had on 17th November 2008 while allowing the applications for amendment of plaint directed that the amended plaint shall be filed by the Plaintiff within three weeks thereafter. Therefore, in terms of the said order the amended plaint ought to have been filed by 8th December 2008. Admittedly the amended pliant was filed only on 17th February 2009. Under Order VI Rule 18 CPC the Plaintiff "shall not be permitted to amend after the expiration of such limited time as aforesaid or of such 14 days as the case may be, unless the time is extended by the Court". There is, therefore, a power of the Court to extend the time. Under Section 148 CPC, after the amendment in 2002, the discretion vested in the Court to enlarge the time cannot exceed 30 days in total "even though the period originally fixed or granted may have expired." A collective reading of Section 148 and O VI Rule 18 CPC would show that the Court cannot enlarge the time for filing the amended plaint beyond 30 days of the period fixed by the Court in the order by which the amendment is allowed and where no such time is fixed within 14 days from the date of such order. In the instant case the amended plaint was filed on 17th February 2009 i.e. more than 30 days beyond the date fixed by the Court. The application seeking condonation of delay was itself filed much later i.e. 18th May 2009. Clearly the Court cannot condone the delay in filing the amended plaint in the facts and circumstances. CS (OS) 1908/2002 Page 6 of 11

10. The legislative intent in curtailing the discretion of the Court to condone the delay is evident from the amendment made in 2002 to Section 148 CPC. Although discretion is vested in the Court, the period up to which delay can be condoned by it is limited to 30 days after the date of the order. In Union of India v. Pramod Gupta it has been explained by the Supreme Court in para 146 that the consequence of failure to amend the pleadings within the period specified under Order VI Rule 18 CPC would be that "the party shall not be permitted to amend the pleadings thereafter unless the time is extended by the Court." In Darshan Singh v. Kewal Krishan in similar circumstances after noticing the amended Section 148 CPC the learned Single held as under:

"20. From the above, a clear picture emerges that in both the eventualities i.e. where the Court has fixed a time for filing the amended pleadings and where no time has been fixed and a parte is to file it within fourteen days from the date of the order, the Court has been clothed with the competence to extend the time. However, the time is not to be extended in a routine manner. The Court has to examine the facts and circumstances and if it comes to the conclusion that there was "sufficient cause" or "good cause" or "sufficient grounds" on which the party could not file the amended pleadings, the period may be extended.

21. Section 148 of the Code empowers the Court to enlarge the time allowed by the Court or prescribed by the Code. However, by the Code of Civil Procedure CS (OS) 1908/2002 Page 7 of 11 (Amendment) Act, 1999 (for short, "the Act, 1999"), the said provision stood amended to the effect that the period can be extended by the Court not exceeding thirty days in total Section 32 of the Amendment Act, 1999, providing for repeal and saving, does not save anything, so far as Section 148 of the Code is concerned. Therefore, being procedural law, it may be held that the Court may have the power to extend the period but not beyond the period of thirty days in total from the date of expiry of the period.

22. The provisions of Order 6, Rules 17 and 18 of the Code were sought to be repealed by the provisions of Section 16 of the Act, 1999, but by virtue of the provisions of Section 7 of the Code of Civil Procedure (Amendment) Act, 2002 (for short, "the Act, 2002"), they have been substituted and in language, there is not much substantial difference which may have any bearing on the instant case. Clause (b) to Sub-section (2) of Section 16 of the Act, 2002, which provides for repeal and savings, provides that the amendment shall not apply in respect of pleadings filed before commencement of the Amendment Acts, 1999 and 2002, i.e. 1-7-2002. Thus, the case is not affected by the said amendment at all.

23. In view of the amendment under Section 148 of the Code w.e.f. 1-7-2002, the Court can extend the period maximum to thirty days in total and as the old proceedings have not been saved in the repeal and savings clauses, it is evident that the Court has no power even in the old cases to extend the period beyond thirty days. Thus, in the instant case, even if CS (OS) 1908/2002 Page 8 of 11 the revision is allowed, no useful purpose would be served for the reason that the application for extension of time under Section 148 of the Code had been filed after expiry of more than three months."

11. The reliance is placed by learned counsel for the Plaintiff on the decision in Machipeddi Remaswamy v. Buchi Reddy, is to no avail. In the considered view of this Court the exercise of the power under Section 151 CPC is not warranted in the facts and circumstances of the present case.

12. In the present case a further reason that weighs with this Court is that the application seeking condonation of delay gives no explanation whatsoever for the delay. The entire application is in three paragraphs and reads as under:

"1. The Plaintiffs have filed the present suit for design infringement, which is pending adjudication before this Hon‟ble Court.

2. During the course of proceedings, this Hon‟ble Court, vide order dated November 17, 2008 in the IA Nos. 4951/2003 and 10921/2006, was pleased to allow the Plaintiffs to amend their plaint. The Plaintiffs filed the amended plaint on February 17, 2009.

3. The Plaintiffs pray that this Hon‟ble Court may pass the following orders:

CS (OS) 1908/2002 Page 9 of 11

(a) Condone the delay in filing of the amended plaint;

(b) take on record the amended plaint; and

(c) pass any further order as this Hon‟ble Court deems fit and proper under the facts and circumstances of the present case."

13. This Court is unable to appreciate how the Plaintiff can file the above application seeking condonation of delay, albeit belatedly, while offering no explanation whatsoever for the delay. In the circumstances, the Court declines to permit the Plaintiff to file a further application/affidavit giving the explanation. To permit the Plaintiff to do so, would be placing a premium on the repeated failure of the Plaintiff to file the application in the first place and thereafter not filing any application for delay despite time being granted by this Court on 6th April 2009.

14.This Court finds no merit in this application and it is dismissed as such. CS (OS) 1908/2002

15. In view of order passed today in application IA No. 6744 of 2009, this Court will proceed on the unamended plaint which is already on record. List before the Joint Registrar on 26th August 2009 for admission/denial of documents.

16. It is made clear that no further adjournment for this purpose will be CS (OS) 1908/2002 Page 10 of 11 granted by the Joint Registrar. If for some reason the parties fail to carry out admission/denial of documents, the each party will file an affidavit within four weeks indicating in a separate column alongside the index of documents filed by the other party, which of the documents is admitted or denied.

17. To be listed before this Court on 7th October 2009 for framing of issues.

S. MURALIDHAR, J.

JULY 13, 2009 rk CS (OS) 1908/2002 Page 11 of 11

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Delhi High Court