A party should not to suffer in person or in purse without an opportunity of being heard. The question as to setting aside a Court’s decree if an adequate opportunity of being heard was not provided to a party because of the negligence of their Counsel was examined by High Court of Delhi, consisting Justice Suresh Kumar Kait in the matter of Inter Ikea Systems B V vs. Italica Floor Tiles Pvt. Ltd. & Anr. [CS(COMM) 628/2019] on 03.01.2022.
Facts of the case are that the defendants were in the business of making Floor tiles in Gujrat under the name and style of “Italica”. According to the defendants “Italica” came into existence in the year 2004 for manufacturing and distributing, and has established a large distribution network which consists of more than 300+ dealers all over the world. It is further claimed on behalf of applicants/defendants that the trademark “Italica” is registered under Clause-19 in favor of defendant under the name Italica Floor Tiles Private Limited since the year 2005 and under Clause-11 since the year 2017. It is next submitted that defendant No.2- Ikaa Granito Private Limited was incorporated in the year 2016 and its first invoice was issued in July, 2017, which bore the trademark “Italica”, since permitted by defendant No.1 for promotion of defendant No.2 Company. With regard to defendants being proceeded ex parte, the defendants received summon of the suit on or about 20.11.2019, and the matter was listed on 05.12.2019 and thereby, they had engaged the services of an Advocate and had also made payment of Rs.25,000/- to the said counsel, which was duly encashed on 07.12.2019. Thereby, defendants were under the bonafide impression that the Advocate so engaged by them was keeping track of the matter. Though it was fairly conceded that the defendants were unable to keep track and follow up the matter but it is only in January 2020 that the defendants received copy of the contempt petition and they thereafter engaged services of another counsel and since defendants are based in Gujarat, they took some time to track the matter in Delhi High Court. However, in compliance of order dated 05.12.20219, the defendants have removed the name of Ikaa Granite Private Limited from the Linkedin Account and also from the Italica Granite Private Limited Website.
The Counsel for the defendants contended that defendant No.2 is not using the mark IKAA but it is a part of corporate name of the company, which had been duly approved by the Registrar of Companies as the name of the company and thereby, there is no deliberate attempt to pass of the plaintiff’s trademark and also the spellings and pronouncement of plaintiff’s and defendants’ trade name and trade mark were different. It was also contended that there cannot be any confusion between the two trade names i.e. “IKEA” and “Italica”. It was submitted that the mark in question “IKAA: is the name of the company duly registered by the ROC and “ITALICA” is the Trade mark of the defendants, hence, name of company cannot be changed. It was strenuously submitted that defendants have a good prima facie case in their favour and for the negligence and default of the counsel, defendants be not made to suffer.
The Counsel for the plaintiff contended that IKEA retailers specifically deals in products sold under and marked with the IKEA trademark. Learned counsel submitted that defendants were provided with the papers of the suit on advance service on 20.11.2019, however, they chose not to appear before the Court and thereby, the order dated 05.12.2019 was passed by this Court. They were also served with the injunction order by email on 10.11.2019 and were further served on 28.01.2020 with the injunction application and were also in touch with the plaintiff showing intention to settle the matter, however, did not appear before the Court. It was submitted that defendants cannot take the plea of ignorance and seek setting aside of the decree passed in favour of plaintiff though they themselves chose not to appear before the Court. Next submitted that the plea of negligence of the counsel cannot be permitted as the same has been repeatedly rejected by various judgments of this Court.
The High Court of Delhi held that this case has to be tested to find out whether “sufficient cause” is made out in favour of defendants or not. Pertinently, it was found that defendants had engaged the services of an Advocate to represent their case, however, according to them, due to the callousness and carelessness of the said Advocate, they were proceeded ex parte. The defendants have been able to show that a sum of Rs.25,000/- was paid to the counsel while engaging his services, who has failed to appear before this Court and inform the defendants about the status of their case. Defendants have also claimed to have filed a complaint against the erring Advocate before the Bar Council of Gujarat on 06.03.2020. The Court observed that it can’t be ignored that defendants are based in Gujarat and it might have taken time to search and follow up their case before this Court in the absence of any material information given by their Advocate, but also the defendants are not poor or illiterate persons but rather into a business acclaimed to be known worldwide. Hence, a plea of ignorance was not granted by the Court, however, at the same time, Court held that a litigant must be given a fair opportunity to present his/her case. It is the right of every party to be heard in a suit and thereby, plaintiff and defendants will now be given the opportunity to prove their mettle on merits of the case. The above captioned applications were accordingly disposed of.
Judgment reviewed by Shristi Suman.judgment