HOECHST AG Vs. UNISULE PRIVATE LIMITED

JUDGEMENT

(1.) This order will govern the disposal of IAS.9808/96 & 78/97.

(2.) In IA 4949/96 under Order IX Rule 13 read with Section 151 CPC, the defendant has filed I.A.No.9808/96 under Section 151 Civil Procedure Code wherein it is alleged that the plaintiffs filed suit for permanent injunction, infringement of trade mark, passing off, copyright and damages etc against the defendant. By an order dated 12.2.96 defendant was proceeded ex parte on the basis of the service report dated 11.7.95, 28.11.95 and 8.2.96. Defendant was, however, not served with the summons of the suit on any of the said dates and it came to know for the first time on 19.5.96 in regard to the suit having been decreed from a news item in 'Times of India'. Immediately thereafter defendant engaged and instructed the counsel to have the inspection of the record. It is alleged that the plaintiff has taken out execution being No.149/96 and in case the ex parte decree is executed, the defendant will suffer irreparable injury. Defendant has got a prima facie case and balance of convenience also lies in its favour. It was prayed that till the disposal of I.A.No.4949/96, execution of ex parte decree be stayed.

(3.) In the reply, plaintiffs have inter-alia alleged that defendant was served with the process through the process server on 11.7.95, 13.1.96 & 8.2.96. Defendant also filed caveat petition in the court. Despite service of the summons/notice the defendant failed to appear in court, therefore, it was proceeded ex parte. It is stated that the story set up by the defendant is an afterthought and it was fully aware about the pendency of the suit from the very beginning. Preliminary decree for Rs.5,00,000.00 as well as of the costs of the suit to the tune Rs.10,407.45 stand passed against the defendant and the execution can be stayed only on deposit of the said amounts.