Gone are the days, when service on the party used to be
effected by way of publication in News Paper or by way of affixation in the
concerned locality, where the party resides. With change in technology and with
advent of internet era, e-mail, mobile, facebook, whatsapp etc, the mode of
communication is changing fast. Now messages can be communicated to the party
in a much fast manner, than it used to be in the Old days.
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 LP
filed suit for permanent injunction seeking proprietary right in the
trademark ‘Polo’; Polo With Device Of Polo Player and other
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.
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
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 [email protected]
Moreover, it also contains the
Registrar Abuse Contact E-mail, which is [email protected]
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.
Written By: Ajay Amitabh Suman,
Advocate, Delhi High Court