MODICARE LTD Vs. SHANKAR NARAYAN SAGARI

JUDGEMENT

(1.) This is a suit filed by the plaintiff for permanent injunction restraining the defendant from operating any business, making, selling/transferring, offering for sale, advertising and in any other manner dealing with the goods or services using the plaintiff's trade mark MODICARE or any other mark/name which is identical with or deceptively similar to the plaintiff trademark MODICARE whether as a domain name or otherwise and from doing any other thing as is likely to lead to passing off of the business and goods of the defendant as those of the plaintiff. A prayer is also made for transfer of domain name modicarenetwok.com to the plaintiff from the register of the Registrar, Domain People, Inc. and for delivery-up of all impugned materials, including brochures stationary and other printed matters for purposes of destruction and/or erasure. A prayer is also made for rendition of accounts of profit illegally earned by the defendant on account of the infringing activities and a decree for the amount ascertained be passed in favour of the plaintiff.

(2.) Summons in the suit were issued to the defendant on 29th March, 2001 and an interim order was also passed on the said date. Since the service of summons was awaited, fresh summons were issued on 16th August, 2001. On 29th January, 2002, Mr. G. Venktakesh, Advocate, entered appearance on behalf of the defendant and prayed time for filing his power of attorney, written statement and reply to the application. He undertook to file memo of appearance on behalf of the defendant in the registry within three days. Four weeks time was granted to the defendant for filing written statement, reply to the application and vakalatnama. Six months have elapsed. Till date written statement and reply to the application have not been filed by the defendant. However, vakalatnama filed by the counsel is on record. There is no appearance on behalf of the defendant today.

(3.) Order VIII Rule 1 provides that the defendant shall within thirty days from the date of service of summons on him, present a written statement of his defendant. If the defendant fails to file written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.