1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.678 OF 2010 1. Encore Hotels Pvt. Ltd., Having its Corporate head office, At 107, Parvati Industrial Estate, Sun Mill Compound, Lower Parel (W), Mumbai – 400 013. 2. M/s. Twinkle Hospitality P. Ltd., A Company incorporated under the Indian Companies Act, 1956, 107, Parvati Industrial Estate, Sun Mill Compound, Lower Parel (W), Mumbai – 400 013. …. Petitioners V/s 1. M/s. Navelcar Hotels, A Partnershuip Firm having its principal place of business at Hotel Rajdhani, Dr. Atmaram Borkar Road, Panaji – Goa – 403 001. Represented in this act by its Partner Mr. Harish Vinaeca Porob Navelcar, Indian National, Residing at “Ganesh Prasad”, Building, Dr. Atmaram Borkar Road, Panaji-Goa – 403 001. 2. Mr. Harish Vinaeca Porob Navelcar, Indian National, Residing at “Ganesh Prasad”, Building, Dr. Atmaram Borkar Road, Panaji-Goa – 403 001. 3. Mrs. Smita Harish Navelcar, Indian National, Residing at “Ganesh Prasad”, Building, Dr. Atmaram Borkar Road, Panaji – Goa – 403 001. 2 4. Navelcar Hotels & Resorts Private Ltd., a Company Incorporated under the Indian Companies Act, 1956 and having its registered office at Hotel Rajdhani, Dr. Atmaram Borkar Road, Panaji – Goa 403 001. Represented in this act by its partner, Mr. Harish Vinaeca Porob Navelcar, Indian National, Residing at “Ganesh Prasad”, Building, Dr. Atmaram Borkar Road, Panaji – Goa – 403 001. …. Respondents Mr. Shivan Dessai, Advocate for the Petitioners. Mr. J.E. Coelho Pereira, Senior Advocate with Mr. V. Korgaonkar, Advocate for the Respondents. CORAM : N.A. BRITTO, J. DATE : 12th OCTOBER, 2010 ORDER : Heard. 2. This is the defendant's writ petition and is directed against order dated 08/09/2010 of the learned District Judge, Panaji, by which the learned District Judge has rejected the defendant's application for adjournment dated 8/09/2010 which reads as follows: (1) Today the matter is fixed for Affidavit in evidence of the Defendants. (2) In the last week there is change in management of the Defendants no.1 and therefore the Defendants require 3 some time to file Affidavit in evidence in the above matter. (3)In the above mentioned circumstances, the Defendants pray that this Hon'ble Court be pleased to adjourn the mater for the next date of hearing for filing Affidavit in evidence of the Defendants. 3. The respondents/plaintiffs had failed to secure an injunction in their favour from using the trade mark. Consequently, the matter was taken up before the Hon'ble Supreme Court and the Hon'ble Supreme Court by order dated 7/12/2009 was pleased to direct the learned trial Court to dispose off the suit within a period of four months from the date the copy of the order was produced before it. That order of the Hon'ble Supreme Court came to be passed on the basis of law laid down in the case of Bajaj Auto Limited V/s. TVS Motor Company Lmited (2009 (9) SCC 797) wherein the Apex Court referring to Shree Vardhman Rice & General Mills V/s. Amar Singh Chawalwala (2009 (10) SCC 257) had observed as follows: “... Without going into the merits of the controversy, we are of the opinion that the matters relating to trade marks, copyrights and patents should be finally decided very expeditiously by the trial court instead of merely granting or refusing to grant injunction. Experience shows that in the matters of trade marks, copyrights and patents, litigation is mainly fought between the parties about the temporary injunction and that goes on for years and years and the result is that the suit is hardly decided finally. This is not proper. 4 Proviso (a) to Order 17 Rule 1(2) CPC states that when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the court finds that, for the exceptional reasons to be recorded by it the adjournment of the hearing beyond the following day is necessary. The court should also observe clauses (b) to (e) of the said proviso. In our opinion, in matters relating to trade marks, copyright and patents the proviso to Order 17 Rule 1(2) CPC should be strictly complied with by all the courts, and the hearing of the suit in such matters should proceed on day-to-day basis and the final judgment should be given normally within four months from the date of the filing of the suit.” 4. The suit was taken up before the trial Court on 7/01/2010 and on this day, the defendants sought an adjournment. On 12/01/2010, being the next date of hearing, the defendants again sought an adjournment for production of document. The suit was then adjourned on 13/01/2010, in connection with settlement of issues. The issues were settled on 14/01/2010. The plaintiffs completed their evidence by 4/06/2010 and the case was fixed for defence evidence on 15/06/2010. 5. In the meantime, the Hon'ble Supreme Court at the request of the plaintiffs, as well as of the Court was pleased to extend the time by three months by order dated 7/05/2010 requiring the trial Court to decide the suit by 7/08/2010 and thereafter by another 5 order dated 9/08/2010 at the defendants' and the Court's request the suit is required to be decided on or before 8/02/2011. 6. The defendants' Director was examined on 3/06/2010 and the defendants fifth witness Vithal Naik was examined on 9/08/2010 and, on this day, it appears that the defendants sought an adjournment and the suit was fixed on 16/08/2010. On this day, the defendants sought an adjournment stating that they are collecting necessary material to prepare an affidavit in evidence as the suit related to matters of the year 1980 and, therefore, the finalisation of the affidavit was consuming time. This application was granted inspite of the objection of the plaintiffs and the suit was again adjourned to 27/08/2010 with a direction that copy of the affidavit be furnished on or before 24/08/2010. On 27/08/2010, the defendants again sought adjournment on the ground of death of a family member of the advocate of the defendants on record. The suit was then adjourned to 8/09/2010 and on this day application which has been rejected came to be filed. 7. The learned trial Court has come to the conclusion that the defendants are trying to delay the proceedings, more so, after obtaining the last extension from the Hon'ble Supreme Court. The 6 learned trial Court noted that on 16/08/2010 the defendants had sought adjournment on the ground that they required time to collect necessary material and the adjournment filed on 8/09/2010 was on the ground that there was a change in the management of the defendant and the said grounds were completely different. The learned trial Court also noted that the suit was proceeding under the directions of the Hon'ble Supreme Court and that ample opportunity was given to the defendants to produce their witnesses. The grounds made in the application found no favour with the learned trial Court which observed that only because there was a change in the management of the defendants' Company, the defendants could not go on asking time befitting the directions of the Hon'ble Supreme Court. 8. Shri Shivan Dessai, learned Counsel appearing on behalf of the petitioners-defendants submits that the application dated 8/09/2010 came to be filed on account of the change in the management of the defendants' company. Learned Counsel further submits that the plaintiffs are based at Panaji while the defendants are based in Mumbai and, therefore, it becomes all the more difficult for the defendants to make timely arrangement to give evidence. Learned Counsel submits that the Managing Director 7 who had filed the written statement is no longer with them. Learned Counsel also submits that the plaintiffs had taken much time to cross-examine the defendant's directors. 9. The defendants have filed the application dated 8/09/2010 in a most casual manner, without the same being signed by any responsible officer of the defendants. The defendants do not seem to have taken the directions of the Hon'ble Supreme Court seriously as can be seen from the number of adjournments sought by them particularly referred to in para 6 and 9 hereinabove. The application was not even supported by an affidavit of any of the Directors of the defendants company. The learned trial Court had granted to the defendants three consecutive adjournments on 9/08/2010, 16/08/2010 and 27/08/2010 with a rider that they should file the affidavit on or before 24/08/2010 and when such was the case some seriousness if there was any, was expected of the defendants in filing the application dated 8/09/2010. The learned trial Court could not be faulted in observing that the grounds for adjournment made in application dated 16/08/2010 were different from the grounds made in application dated 8/09/2010. After the defendants examined the Director and four more witnesses, one wonders in what way, a change in the 8 management of the company, if any, would have made any difference, assuming there was one. On facts of the case, the rejection of further adjournment by application dated 8/09/2010 cannot be said either to be arbitrary or illegal, to call for interference from this Court in writ jurisdiction. 10. In the circumstances, therefore, I find there is no merit in this writ petition and, consequently, the same is hereby dismissed. Order dated 7/10/2010 shall stand vacated. Expedite authenticated copy. N.A. BRITTO, J. NH/-