There
has been long time, since it has been felt that procedure laid down by Civil
Procedure Code 1908 in India, regarding service on the parties and
communication of the court orders has to be amended. As the manner of
communication has changed with advancement of Information Technology and the
advent of Internet Era, the change in the law was badly required, so that it
can keep pace with the time and technology.
When
Civil Procedure Code 1908 in India was enacted in India, at that time, neither
there was e-mail, nor the mobile or whatsapp or facebook. There Indian Court
has been passing various orders in order to keep pace with the advancement in
the technology. Hon'ble Mr.
Justice Rajiv Sahai Endlaw, Delhi High Court, vide its order dated 27.04.2017
passed in CS(COMM) 1601/2016, titled as Tata Sons Limited & ors Vs John Doe
(s) & ors passed order to this effect. Thus Hon’ble High Court of Delhi is
trying to keep pace with the advancement in Technology and passed the order
that in a Suit proceeding, service on a party can be effected through WHATSAPP
also.
In matters pertaining to wed sites,
it is very difficult to effect services as most of the time, the addresses of
domain name are hidden. Normally the web sites keep their names , address
hidden. The exact names, details and addresses of the web sites are available
with the registrar of the web sites. The Hon’ble High Court of Delhi passed the
order to the effect that on such domain names, orders can be communicated to
the mobile numbers of registrant of such domain names. The fact of the case was
that THE POLO/LAUREN COMPANY L P filed
suit for permanent injunction seeking proprietary right in the trademark
‘POLO’; POLO WITH DEVICE OF POLO PLAYER and other POLO formative trademarks.
Plaintiff has built up reputation all over the world including India, in
respect of wide range of its products, which includes, apparels, perfumes,
leather products, etc. It is claimed by the plaintiff that the defendant nos.1 & 2, in order to
encash the goodwill and reputation of the plaintiff’s products, are selling
online through website www.varshaa.com the counterfeit T-shirts,
shirts, trousers, sweaters, shorts, scarfs, etc. with word/mark/label ‘POLO’
with or without the device of POLO player. Accordingly vide order dated
28.09.2015 passed in I.A. No. 20417/2015 (u/O 39 Rule 1 & 2) in Suit
bearing CS(OS) 2946/2015 titled as THE POLO/LAUREN COMPANY L P Vs M/S VARSHA
& CO AND OTHERS, the Hon’ble High Court of Delhi was pleased to grant
ex-parte injunction in favour of the plaintiff and against the defendant no.1
and 2 restraining them from using, selling, soliciting, exporting, displaying,
advertising or by any other mode or manner dealing in or using the impugned
trade mark/label POLO with or without the device of POLO player or any other
word/mark/trademark/label, which may be identical with and/or deceptively
similar to the plaintiff’s trade mark/label/domain names in relation to their
impugned goods or readymade garments and accessories and allied and cognate
products, through the website www.varshaa.com or otherwise.
In these circumstances, the
plaintiff moved I.A. No. 1268/2016, under Order XXXIX Rule 2A CPC complaining of non-compliance
of the ex-parte order of injunction passed by this Court on 28.09.2015. By
virtue of order dated 27.01.2016 passed in the said Suit bearing CS(OS) No.2946
of 2015, the Hon’ble Justice Shri Vipin Sanghi, High Court of Delhi passed the
following order:
“Admittedly, the plaintiff has not
been able to serve the defendants at the given address in the memo of parties.
Mr. Bansal submits that in the whois directory, the address of the defendants
has been hidden. A perusal of the whois directory qua the defendants’ domain
name varshaa.com shows that the e-mail of the registrant is varshaa.com@domainsbyproxy.com.
Moreover, it also contains the Registrar Abuse Contact E-mail, which is
abuse@godaddy.com and the Registrar Abuse Contact Phone +1.4806242505. The
defendant could be served at the aforesaid e-mail address and
the Registrar could also be informed of the injunction orders passed by this
Court through e-mail as well as telephonically. Since the defendants have not
been communicated the said order till date, it may not be correct to say that
there is a deliberate infringement of the said order, and thus, the application
under Order XXXIX Rule 2A CPC would not lie at this stage. The plaintiff is
permitted to serve the defendants at the aforesaid e-mail address and also to
communicate the orders passed by this Court on 28.09.2015 to the Registrar
godaddy.com telephonically as well as through e-mail. If so communicated, the
Registrar godaddy.com shall ensure compliance of the order dated 28.09.2015 in
respect of the defendants.”
From bare perusal of the said order
dated 27.01.2016 passed in the said Suit bearing CS(OS) No.2946 of 2015, it is
clear that Hon’ble Justice, Shri Vipin Sanghi passed the order to the effect
that the defendant namely www.varshaa.com
could not only be served through the E-mail address but also passed the
direction that on the said web site, the injunction order passed in the present
Suit can be communicated through the e-mail address and mobile number appearing
on the registrant of the said domain name.
AJAY
AMITABH SUMAN, ADVOCATE
DELHI
HIGH COURT
