Appeal No. 326 of 2014 in Notice of Motion No. 1364 of 2013 in Suit No. 2578 of 2002. Case: Reckitt & Colman (Overseas) Limited Vs Ind Swift Limited. High Court of Bombay (India)
| Case Number | Appeal No. 326 of 2014 in Notice of Motion No. 1364 of 2013 in Suit No. 2578 of 2002 |
| Counsel | For Appellant: Ashish Kamath, Shriraj Dhru, Jawahar Lal and Ankit Diwanjee i/by Dhru & Co. and For Respondents: Darius Dalal i/by Jehangir Gulabbhai & Bilimoria and Daruwalla, Adv. |
| Judges | Mohit S. Shah, C.J. and M. S. Sonak, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Sections 35A, 35A(2), 35B |
| Judgement Date | July 22, 2014 |
| Court | High Court of Bombay (India) |
Judgment:
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This appeal is directed against the order dated 12 June 2014 of the learned Trial Judge on the Appellant-Plaintiff's Notice of Motion No. 1364 of 2013 for restoration of the suit filed in the year 2002 for infringement of trademark and passing off. The suit came to be dismissed on 29 January 2013 on the ground that the Plaintiff had failed to file its affidavit of documents and compilation and failed to complete discovery and inspection though the matter had appeared on board several times but the matter got repeatedly adjourned often at the instance of Plaintiff-Appellant.
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The Plaintiff offered the following explanation in paragraph 3 of the affidavit in support of Notice of Motion No. 1364 of 2013:
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I say that the draft of the affidavit of evidence and was ready and was in the process of being approved by the plaintiffs. The said affidavit of evidence and list of documents was prepared by the plaintiffs' advocates on record, who sent the same to the plaintiffs' Trade Mark Attorneys who after checking the same sent it to the plaintiffs' for approval. The plaintiffs who are based in United Kingdom have several meetings firstly with their in house Counsel and then with their Attorneys to finalise the same. Further it took a long time to locate the documents required for the same as the documents required are quite old. I say that the affidavit and the compilation of documents are now ready and executed.
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The learned Trial Judge has held that it was unlikely that in their own jurisdiction in England the Plaintiff or, for that matter, any other litigant would have been shown the kind of indulgence that the Plaintiff are seeking with the Trial Court, except perhaps on the stringent terms. The learned Trial Judge accordingly directed that upon the Plaintiff paying to the Defendant's Advocate a sum of Rs. 10 lakhs as costs as a condition precedent within a period of ten days and further conditional upon the Plaintiff's filing in the registry of this Court its affidavit of evidence and compilation of documents on or before 25 June 2014, the suit was directed to be restored to the file. The learned Trial Judge further directed that if costs are not paid as directed or if the affidavit of evidence and compilation of documents are not filed by the stipulated date, the suit shall not restore to the file. It is the aforesaid order which is under challenge in this appeal.
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Learned counsel for the Appellant-Plaintiff has placed heavy...
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