Party should not suffer because of the negligence of the Counsel: High Court of Delhi
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. &amp; 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.
IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 04th January 2022 IN THE MATTER OF: BAIL APPLN. 2115 2021 Petitioner Through Mr. Sudhir Mendiratta Advocate STATE OF NCT OF DELHI Through Ms. Meenakshi Chauhan APP for the Respondent State with SI Sunil PS Model Town HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This petition under Section 438 Cr.P.C. is for grant of bail to the petitioner in the event of arrest in FIR No. 82 2021 dated 12.03.2021 registered at Police Station Model Town for offences under Sections 420 467 468 471 IPC. Facts in brief leading to the present petition are as under: Complaint was given by one Parv Mittal S o Prem Mittal R o 73 B Block Shalimar Bagh Delhi and one Mool Chand Mittal S o Late Ram Kishan Dass R o H.No. 54 A Kamla Nagar Malka Ganj Delhi stating that they are the owners of property bearing No. R 5 2 Model Town Delhi admeasuring 31 Sq. Yards and property bearing No. R 5 3 admeasuring 75 Sq. Yards situated at Rishab Nagari Model Town Delhi 110009. It BAIL APPLN. 2115 2021 is stated that they purchased the abovementioned properties on 07.12.2019 from one Kamal Kishore Jain R o R 5 1 Model Town Mohan Park Delhi 110009. It is stated that the said Kamal Kishore Jain gave the possession of property bearing No. R 5 2 Model Town Delhi on 17.12.2019 but he could not give the possession of property bearing No. R 5 3 Model Town Delhi stating that 5 6 persons are staying in the said property and they will vacate the premises by 13.04.2020. It is stated that in March 2020 when Kamal Kishor Jain asked the occupants of the property in question to vacate it they threatened him with dire consequences. It is stated that the occupants told Kamal Kishor Jain that they are the owners of the said property and they have valid documents of the same. It is stated that the occupants of the property in question also the complainants herein. The complainants thereafter approached the Police and gave a complaint stating that Sunil and his family members are trying to grab the property on the basis of forged documents. On the basis of this complaint FIR No. 82 2021 was registered at Police Station Model Town for offences under Sections 420 467 468 471 IPC. The petitioner approached the Trial Court by filing an application for anticipatory bail being Bail Application No.1037 2021. The learned ASJ directed the petitioner to place BAIL APPLN. 2115 2021 on record the documents of ownership of the property in question. When the petitioner was not able to produce any document of ownership the learned ASJ vide order dated 05.04.2021 dismissed the anticipatory bail of the petitioner. The petitioner once again approached the Trial Court by filing another application being Bail Application No.1183 2021 stating that the father of the petitioner had purchased the property in question from one Mrs. Chander Kala Jain in the year 1971 but the documents of ownership were misplaced in the floods. The learned ASJ dismissed the said application vide The petitioner has thereafter approached this Court by filing the order dated 09.04.2021. instant petition. 3. Mr. Sudhir Mendiratta learned counsel appearing for the petitioner submits that the father of the petitioner purchased the property bearing No. R 5 3 Model Town Delhi from one Chandra Kala Jain. He states that the family of the petitioner is in possession of the property from the past 25 years. He states that electricity connection Aadhaar Cards ration cards and Voter ID cards of the family members of the petitioner are issued on the same address i.e. R 5 3 Model Town Delhi which shows that the aforementioned property was in continuous possession of the petitioner s family. The learned counsel for the petitioner further submits that the petitioner has also filed a document i.e. electricity connection of the said premises which is in the name of the petitioner to show that the petitioner and his family members are the owners of the said premises. He therefore BAIL APPLN. 2115 2021 states that the present FIR is only a ruse to evict the petitioner and his family members from the premises by putting pressure. Per contra Ms. Meenakshi Chauhan learned APP for the State submits that the property in question belonged to one Narayan Singh Nambardar S o Pirthi Singh R o Dheerpur who sold the property in question to late Chandra Kala Jain through a registered sale deed bearing No. 212 Additional Book No.1 Volume No.2798 on pages 67 to 71. She further submits that late Chandar Kala Jain sold the property in question to Kamal Kishor Jain vide a registered sale deed dated 28.08.2001 and Kamal Kishor Jain sold the property in question to the complainants herein through a registered sale deed dated 28.08.2001 vide Registration No. 11220 in Volume 1788 Book No.1 on pages 182 to 187. She further states that the electricity connection of the property in question was obtained by the petitioner herein on the basis of a GPA executed between one Neeraj Khandelwal S o Kailash Khandelwal R o F 152 JJ Colony Wazirpur Delhi and the petitioner herein. She states that during investigation Neeraj Khandelwal was not found at the given address and statement of one Anju D o Lt. Sh. Gyan Singh Age 55 years and one Rajender Singh Rawat S o Lt. Sh. Gyan Singh who are residing at the given address were recorded wherein they stated that they are residing at the given address from the last twelve years and they don t know any Neeraj Khandelwal. She states that Police has not been able to find the said Neeraj Khandelwal who purportedly executed the GPA in favour of the petitioner herein. She further states that the GPA has only been signed by the petitioner herein and there is no signature of Neeraj Khandelwal on it. She therefore states that the said GPA is a forged document. She further contends that though the GPA was BAIL APPLN. 2115 2021 the petitioner. in question: executed on 24.12.2013 the stamp paper was purchased on 12.09.2013. She further states that the custody of the petitioner is required to verify as to how the petitioner and his family members got the possession of the property in question and to discover further documents which might be in possession of Heard Mr. Sudhir Mendiratta learned counsel for the petitioner Ms. Meenakshi Chauhan learned APP for the State and perused the material on The petitioner has produced the following documents to substantiate that he and his family members are in continuous possession of the property a) Copy of Aadhaar Card of Usha Aunt of the petitioner. b) Copy of Ration Card of the father of the petitioner dated c) Copy of the Voter ID card of Sunita S o the petitioner. d) Copy of the Voter ID card of Kamlesh Paswan. e) Copy of Voter ID card of Parmanand Manjhi B o the petitioner. f) Copy of Ration Card of the father of the petitioner dated There is no document of the petitioner showing that he is in possession of the property in question. The fact that these documents at best show that the father of the petitioner was in possession of the property in question up to 1998 but it is not known as to on what basis they continued beyond 1998 in the said property. The material on record also indicates that the petitioner got electricity connection on the basis of a GPA which was executed by Neeraj BAIL APPLN. 2115 2021 Khandelwal in favour of the petitioner herein. A copy of the said GPA has been filed by the petitioner. The GPA does not indicate as to on what basis Neeraj Khandelwal executed the GPA in favour of the petitioner herein. Moreover the GPA has not been signed by Neeraj Khandelwal it has only been signed by the petitioner. There is no document to show that Neeraj Khandelwal was the owner of the property in question or whether he was given a Power of Attorney by the owners of the property in question to execute a GPA in favour of the petitioner herein. Neeraj Khandelwal has not been produced by the petitioner before the investigating authorities. The learned APP for the State has contended that investigation has revealed that no person by the name Neeraj Khandelwal resides at the address mentioned in the GPA. It is also stated by the learned APP for the State that the GPA is forged and sanction has been obtained from the Electricity Department on the basis of forged documents. The Status Report also reveals that notice was sent to the petitioner to join investigation on 18.03.2021 but the petitioner has not joined the investigation. It is further stated that the notices were sent to the father and brother of the petitioner to give information about the petitioner but they have refused to give the whereabouts of the petitioner. It is also stated that Non Bailable Warrants issued against the petitioner have been returned un executed and proceedings under Section 82 Cr.P.C have been initiated against the petitioner. 10. There is no document showing semblance of title in favour of the petitioner or any of his family members. Rather the electricity connection has been obtained on that basis of a forged document. The petitioner has BAIL APPLN. 2115 2021 premises. only been able to show that his family members were in possession of the 11. Undoubtedly the petitioner or his family members cannot be dispossessed of the property in question by the complainants on the basis of this FIR. They can be evicted only by following the procedure established by law i.e. by filing a proper suit for eviction. However that does not mean that the petitioner who is accused of forging documents will not even co operate in the investigation and will not even present himself before the investigating agencies. It is well settled that the power exercisable under Section 438 Cr.P.C is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty. It is also well settled that ordinarily arrest is a part of the process of investigation intended to secure several purposes and it may be necessary to curtail the freedom of an accused in order to enable the investigation to proceed without hindrance and prevent the disappearance of the accused. 13. The GPA which has been placed on record is only signed by the petitioner herein and not by the alleged executant Neeraj Khandelwal. There is discrepancy in the date on which stamp paper was purchased. These documents have been used to obtain the electricity connection. The petitioner is accused of the offence of forgery and if convicted the petitioner can be punished with life imprisonment. In view of the fact that the petitioner has been evading avoiding to join investigation since March 2021 his family members have refused to disclose his whereabouts and the fact BAIL APPLN. 2115 2021 that proceedings under Section 82 Cr.P.C have been initiated against the petitioner indicates that there is all likelihood of the petitioner fleeing from justice and not being available during trial. This Court is therefore not inclined to grant protection to the petitioner under Section 438 Cr.P.C. Accordingly the petition is dismissed along with all the pending application(s) if any. JANUARY 04 2021 SUBRAMONIUM PRASAD J BAIL APPLN. 2115 2021 