HILTON INTERNATIONAL CO. Vs. K.V.KUMAR AC

JUDGEMENT

(1.) THIS application under Order 9 Rule 13 seeks for recall and setting aside an ex parte judgment and decree, dated 23.05.2007. It is submitted that the applicant (defendant) had contested the suit by filing written statement as well as reply to the applications, which were pending consideration. The applicant states that in the meanwhile, this Court had issued warrant of arrest against him; the application for discharge of the warrant was rejected by the Court on 14.09.2006. The applicant further contends that an appeal by Special Leave Petition (SLP No.19526/2006) was preferred before the Supreme Court, which, by order dated 04.12.2006 issued notice to the plaintiff and stayed operation of the order rejecting the application for discharge of the warrant of arrest. The applicant further contends that the Special Leave Petition was later listed on 09.07.2007 when the Court heard it to enable it to apply for recall of the ex parte judgment.

(2.) IT is contended that during the pendency of the suit - for infringement of the plaintiff's registered trademark, the parties were negotiating with each other for settling the disputes in the case. A draft had been exchanged by the counsel for this purpose. It is further contended that the plaintiff had agreed to delete Clause 8 from the proposed settlement but it (the joint compromise application) could not be filed within the time, which eventually led to issuance of warrant of arrest against the defendant. That order was stayed by the Supreme Court.

(3.) IT is submitted that the defendant's counsel had actually appeared on 23.02.2007 but was not aware of the previous order setting down the applicant/defendant ex parte. Advertence is also made to defendant's affidavit dated 18.04.2007, which was filed in Court stating that plaintiff's trademark would not be used.