Title: Flipkart Internet Private limited v GoDaddy operating company LLC and ors.
Decided on: 4th October, 2023
+ CS(COMM) 370/2020 and O.A. 76/2023
CORAM: JUSTICE PRATHIBA M. SINGH
Introduction
This Judgement is given upon a clubbed hearing of CS(COMM) 370/2020 filed by the plaintiff, Flipkart Internet Private limited disputing that the defendants have registered various domain names which include the trademark of the plaintiff i.e. “Flipkart” and some other similar variations of it, and O.A. 76/2023 which is filed by two of the defendants of CS(COMM) 370/2020 aggrieved by the order dated 1st August 2023 passed by the Joint Registrar, which was related to not admitting their written submissions on record due to delay, which they claim to be reasonable.
Facts of the case
Background
Flipkart Internet Private Limited being the plaintiff had filed a lawsuit against the defendants because of a dispute related to domain names. They had claimed that the defendants have registered various domain names which include the trademark of the plaintiff i.e. “Flipkart” and some other similar variations of it.
Initially, the case was filed against Defendant No. 1, Go Daddy Operating Company LLC, and Defendant No. 2 that is Endurance Digital Domain Technology LLP. The lawsuit also included 30 other defendants and additional John Doe parties from 31 to 40. Some of the disputed domain names were flipppsales.com, flipkartpk.com, flipkartupi. club etc.
As the case took progress more defendants and more domain names were added. The aggrieved plaintiff had submitted multiple applications to include all of these parties in the suit and there also were several amended memos of parties on record.
However, in between Defendant no. 2 and 31 requested their removal from the case and also requested substitution with correct entities and their request was granted vide order dated 11 November 2022.
On the aforementioned date in the original application, I. A No. 6653/21 (under order 1 rule 10(2) of the CPC for deletion of applicant/Defendants), it was passed by the Joint Registrar that,
“This IA belongs to defendants no 2 and 31. They are seeking their deletion and consequent substitution of the correct entities i.e. “Endurance Digital Domain Technology LLP (earlier known as Endurance Domains Technology LLP)” in place of defendant no. 2 and “PDR Ltd” in place of defendant no. 31. The counsel for the plaintiff states that the aforesaid IA be allowed with consequent deletions and substitutions without prejudice to her rights and contentions. In the given circumstances, this IA stands allowed without prejudice to the rights and contentions of all concerned. Defendant no. 2 now stands substituted with “Endurance Digital Domain Technology LLP” and Defendant no. 31 stands substituted with “PDR Ltd”.
Then in CS(COMM) 370/2020 it was provided that the plaintiff i.e. Flipkart Internet Private Limited is required to submit the Amended Memo of Parties before the upcoming hearing due to the approval of the mentioned IA.
The Amended memos were given to Defendants 2 & 31 on 14 February 2023 and they had filed written statements on 25 May 2023, there written submission was not being taken for record hence they applied, upon which the joint registrar vide order dated 1 August 2023 stated that,
“It is inadmissible to accept the premise that defendants did not have enough time to provide a written declaration, given the particular amendment made to the Commercial Courts Act in 2015. When the defendants were added to the lawsuit on November 11, 2022, they were notified and given enough time to reply. The court rejects the argument that the parties’ modified memo should be received before the deadline for filing the written statement begins, noting that the memo’s filing was only directed and the written statement should not be delayed. Defendants 2 and 31 failed to provide their written statements within the allotted 120 days, and the court sees no justification for their tardiness. Consequently, the court declined to grant a stay of the proceedings. As a result, the court rejects the application, closing defendants 2 and 31’s opportunity to submit a written statement.”
Hence aggrieved by this order Defendants have filed Original Appeal O.A. 76/2023 which had been clubbed with CS(COMM) 370/2020 filed by the plaintiff, Flipkart Internet Private Limited, and the judgement had been pronounced.
Court Judgement and Analysis
The Counsel for the defendant submitted that the written statement by PDR Ltd. and Endurance Digital Domains Technology LLP was filed on 25th May 2023 and it was within 120 days period from the date when the amended memo of parties dated 14th February 2023.
Whereas the counsel for the plaintiff submitted that vide order dated 11th November 2022, PDR Ltd. and Endurance Digital Domains Technology LLP were well aware that they had to file a written statement. The use of the word `notice’ was only a typographical error instead of `summons’.
The Hon’ble court upon listening to both parties, relied on the judgment given in the case of M/S SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. & Ors., CA No. 1638/ 2019, in which it was held that the period for filing written statement in a commercial suit is 120 days. However, the question before the court was from which date, this 120-day period will begin, from 11 November 2022 or 14 February 2023, on which the court analyzed that the written statement filed on 25th May 2023 was beyond the period of 30 days as provided in Rule 4 of Chapter VII of the Delhi High Court (Original Side), Rules 2018 and Order VIII Rule 1 of the CPC, it was within 120 days. Accordingly, the written statement was taken on record subject to payment of Rs.20,000/- to the Plaintiff. The same had to be paid within 2 weeks by PDR Ltd. and Endurance Digital Domains Technology LLP, which pronouncing this decision they also considered the fact that there is a large number of applications pending for impleadment of infringing domain names which are filed repeatedly in these domain name suits, hence they thought that the period of 120 days for filing of written statement for PDR Ltd. and Endurance Digital Domains Technology LLP shall commence from the date when the amended memo was filed i.e. 14th February 2023.
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Written by- Aditi
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