TTK Prestige Limited v. Baghla Sanitaryware Private Limited & Ors.

5. It was further submitted br plaintiff’s counsel that while it had been asserted by plaintiff, in the plaint, that they had been using the trademark ‘PRESTIGE’ since 1955, much prior to the defendants’ claim of 2005; old records evidencing use of the mark ‘PRESTIGE’ prior to the rear 2007 were not readily available when the suit was filed. It was only after defendants filed their written statement that plaintiff searched for old records and discovered relevant documents as being part of a disposed of Suit No. 289/08/1991 filed before the District Court, Tis Hazari. Plaintiff applied for certified copies of evidence from the said suit and the additional documents sought to be filed by the instant application are from that set of documents.

6. Plaintiff’s counsel placed reliance on the provisions of Order XI Rule 1(5) of the CPC, which provides as under: “(5) The plaintiff shall not be allowed to rely on documents, which were in the plaintiff's power, possession, control or custody and not disclosed along with plaint or within the extended period set out above, save and except by leave of court and such leave shall be granted only upon the plaintiff establishing reasonable cause for non-disclosure along with the plaint.”

7. On this basis, it was pleaded that the test of “reasonable cause” stood satisfied, and that no prejudice would be caused to the defendants since the trial was yet to commence.

8. Defendants’ counsel vehemently refuted these arguments and focused heavilr on the chronologr of events, as noted above, to contend that plaintiff’s application was highly belated, mala fide, and was an attempt to introduce documents which ought to have been filed or disclosed at the time of filing of the suit. Adverting to the strict deadlines provided under the Commercial Courts Act and resident in the provisions of Order XI Rule 1 CPC, defendants’ counsel contended that permission to take these documents on record cannot be given for the asking.

9. Essentially, he contended that the plaintiff did not disclose these documents along with the suit, nor did the plaintiff file it along with the replication in September, 2021. The instant application was moved almost two years after the replication was filed, i.e. in July, 2023, despite there being no reason why the plaintiff did not procure these documents earlier as it was clearlr within their knowledge (even as per plaintiff’s submissions ther existed as part of a prior suit). It was the plaintiff’s dutr to file all documents in their power and possession and on which they sought to rely to prove their claim.

10. Importantlr, defendants’ counsel drew attention to the stamp on these documents dated 22nd February, 2023, which was prior to the hearing in the defendants’ application for additional documents on 27th February, 2023. No statement was made br plaintiff’s counsel on that dar reflecting their intention to file additional documents. Moreover, they chose not to move the application for another five months, for reasons best known to the plaintiff. Defendants’ counsel, therefore, contended that negligence to file documents in support of their claim cannot satisfy the test of “reasonable cause” under Order XI Rule 1(5) of the CPC.

11. Counsel for the parties relied on certain decisions. Plaintiff’s counsel relied on the decision in Sugandhi (supra) and Vijay Kumar Varshney v. Longlast Power Products Ltd. & Anr., 2023 SCC OnLine Del 3775; while defendants’ counsel relied on the decision dated 15th May, 2023 by a Single Judge of this Court in CEC-CICI JV & Ors. v. Oriental Insurance Company Limited, CS (COMM) 7/2020.

12. Essentiallr, plaintiff’s counsel relied on Sugandhi (supra) and Vijay Kumar Varshney (supra) to assert the principle that procedural and technical hurdles should not be allowed to come in the way of substantial justice, particularly when no serious prejudice is caused and that, in similar situations, for instance in Vijay Kumar Varshney (supra), this Court allowed the documents to come on record.

13. Defendants’ counsel in his reliance on Oriental Insurance Company (supra) stressed that this Court has been particular and strict in applying the deadlines imposed by the Commercial Courts Act.

14. Before proceeding ahead with the analysis, it may be useful to elaborate upon these decisions adverted to by the parties:

(i) Sugandhi (supra), a decision of the Hon’ble Supreme Court of

13th October, 2020 pertained to an application filed by the defendants in a civil suit under Order VIII Rule 1-A (3) of the CPC seeking leave to produce additional documents. After adverting to the said provision, the Hon’ble Supreme Court allowed the appeal by the defendant and observed as under in para 9:

(ii) In Vijay Kumar Varshney (supra), a Single Judge of this Court was dealing with an application by the plaintiff under Order XI Rules 1(4) and 1(5) of CPC for producing additional documents in order to rebut the defendant’s stand in the written statement. The same was allowed by the Single Judge in the interest of fairness and as a rebuttal to the claim of prior use by the defendant. However, defendants’ counsel drew attention to the fact that in Vijay Kumar Varshney (supra), the application in question was filed on 04th January, 2022 just after the plaintiff filed its replication in November, 2021. Further, as evident from para 36 of the said decision, the documents being introduced by the plaintiff in that case were necessary to demonstrate prior use of the mark considering the defendants had raised a claim of prior use as well. In the opinion of this Court, the facts in Vijay Kumar Varshney (supra) were in a different context than what the plaintiff claims here, particularly in the time frame involved as well as the issue of prior use. These aspects have been further articulated below.

(iii) In Oriental Insurance Company (supra), a Single Judge of this

Court has deliberated in detail on Order XI Rule 1(5) CPC and dismissed the application, distinguishing Sugandhi (supra), as well as noting in para 71 that the plaintiffs could have collated the documents before the filing of the suit itself; and the argument that documents were scattered in various offices and could not be collated was only on after-thought. They could not justify the late filing of additional documents.

15. As is evident from the brief analysis made above of the decisions adverted to br the respective counsel, observations of the Hon’ble Supreme Court in Sugandhi (supra) do not help the plaintiff. Not only are the observations in para 9 generic in nature but are in context of a normal civil suit where provisions of Order VIII Rule 1A of the CPC applied.

16. With the advent of the Commercial Courts Act, the deadlines and indeed the elasticity of such deadlines has become strict and sacrosanct. This was the whole object of the Commercial Courts Act. The Statement of Objects and Reasons of the Commercial Courts Act itself highlights the necessity for speedy disposal of high value commercial disputes and early resolution. It was for this reason that provisions of CPC were amended as per Section 16 of the Commercial Courts Act and a detailed timeline was provided for filing of pleadings and documents. In this regard, the Hon’ble Supreme Court in Ambalal Sarabhai Enterprises Ltd. vs. K.S Infraspace LLP, (2020) 15 SCC 585 made the following observation:

17. Order XI Rule 1(1) of CPC, as applicable to commercial suits, gives the first opportunity to a plaintiff to file documents on which they choose to rely upon at the time of filing of the suit. Such filing is done along with a declaration that all documents in the power, possession, control or custody of the plaintiff, pertaining to facts and circumstances of the proceedings initiated, have been disclosed and copies have been annexed with the plaint. Order XI Rule 1(3) CPC in fact furthers includes as part of the declaration that “the plaintiff does not have any other documents in its power, possession, control or custody”. Thereafter, Order XI Rule 1(5) CPC follows, which precludes the plaintiff from relying on documents which were in their power, possession, control or custody but not disclosed with the plaint, save and except with the leave of the Court. What is underscored here is that the provision necessitates that such leave by the Court shall be granted only upon the plaintiff establishing reasonable cause for non-disclosure along with the plaint. Thus, the plaintiff has the option of disclosing documents which they choose to rely upon and if not disclosed, the same cannot be allowed unless reasonable cause is established.

18. In the facts of the matter, plaintiff itself contends that the plaint was filed on the claim of use of trademarks since 1955. This is evident, inter alia, from para 4 and 7 of the plaint. If that was so, plaintiff ought to have produced whatever document they could have gathered, from whatever source, to prove use since 1955. Had they done that, the plaintiff would have secured their case for use since 1955.

19. Defendant’s written statement claimed that they were using the word mark ‘PRESTIGE’ since 2005. In support of the same, they filed documents, inter alia, sale invoices, screen-shots from various e-commerce platforms and communications exchanged between defendants and the customers. Having had the benefit of the written statement and documents filed, it was natural for the plaintiff to establish their case by establishing prior use before 2005 at the very outset.

20. Nevertheless, plaintiff had an opportunity to file a replication, which they did on 07th September, 2021. Along with the said replication, plaintiff filed certain documents including certain correspondence and screen-shots related to e-commerce sites. At this stage itself, plaintiff should have been diligent and wise enough to file whatever documents they needed to support a prior user claim or even buttress the documents filed along with the plaint. However, they did not do so. They were obviously aware that the initial period for filing documents and the extended period was exhausted by that stage including the slim opportunity they had per Order XI Rule 1(c) (ii) CPC, in rebuttal of the case set-up by the defendants.

21. Further, as rightlr pointed out br defendants’ counsel, certified copies of the documents (as evident from the stamp on the documents sought to be additionally filed by the instant application) are dated 22nd February, 2023. Having received the documents of the prior suit from the Trial Court, it was imperative for the plaintiff to assert, on 27th February, 2023, when the defendants’ application for additional documents was being heard br the Court, that they also wanted to file additional documents. Aside from the fact that there is no record of such assertion in the order dated 27th February, 2023, no attempt was made by the plaintiff for the next five months to move an appropriate application.

22. This lack of diligence stares in the face of the plaintiff and the relief they seek through this application. Besides, plaintiff being a company of repute, having been in business for decades, should have been diligent about protecting their trademarks. It would not pass muster with this Court that they had to scramble for some documents for more than two years after the institution of this suit to prove use of their house mark PRESTIGE.

23. Plaintiff’s claim that the instant application was necessitated in rebuttal of the defendants’ documents filed in February, 2023, does not find favor with this Court. Strict deadlines of the Commercial Courts Act ought to hang like Damocles’ sword over contesting parties, since that is what is intended by the modified provisions of the Code of Civil Procedure, 1908. A party intending to injunct a defendant from using a mark similar to theirs, cannot possibly be tardy or dilatory in marshalling their documents.

24. Moreover, no prejudice is caused to plaintiff since they had indeed filed three volumes of documents along with their plaint in support of their use of the trademark since 1955 as well as additional documents along with the replication in September, 2021. Plaintiff, therefore, is fairly secure in having to rely upon documents already filed in support of their plaint.

25. In any event, the issue is of compliance and deadlines and lack of “reasonable cause”. Reliance, therefore, on decisions relied upon by the Single Judge of this Court in Oriental Insurance Company (supra) in para 70 on Sudhir Kumar @ S. Baliyan v. Vinay Kumar G.B, 2021 SCC OnLine SC 734, in para 73 on Bela Creation Private Limited v. Anuj Textiles, 2022 SCC OnLine Del 1366, in para 74 on Nitin Gupta v. Texmaco Infrastructure & Holding Ltd., 2019 SCC OnLine Del 8367, and in para 75 on Rishi Raj v. Saregama India Ltd., 2021 SCC OnLine Del 4897 is apposite. For ease of reference, the relevant paragraphs are extracted below:

73. In Bela Creation Pvt. Ltd. (supra), on which reliance placed by Mr. Sarvaria, this Court has held as under:—

74. In Nitin Gupta (supra), this Court has held as under:—

38. Unless, the Commercial Divisions, while dealing with the commercial suits, so start enforcing Rules legislated for commercial suits, and refuse to entertain applications for late filing of documents, especially with respect to documents of suspicious character and continue to show leniency in the name of ‘interest of justice’ and ‘a litigant ought not to suffer for default of advocate’, the commercial suits will start suffering from the same malady with which the ordinary suits have come to suffer and owing whereto the need for the Commercial Courts Act, 2015 was felt. Commercial Division is thus not required to entertain or allow applications for late filing of documents, without any good cause being established for non-disclosure thereof along with pleadings.

75. In Rishi Raj (supra), this Court has held as under: […..]

23. The suit was filed in 2017 and the application for filing additional documents had been filed three years later in 2020 merely stating inadvertent error. In my opinion, there is no reasonable cause given by the plaintiff for not filing the additional documents along with the plaint. The application is belated. The plaintiff cannot be permitted to rely on the documents as sought.”

26. Plaintiff’s counsel placed heavy reliance on the fact that this Court permitted the defendants’ documents to come on record br order dated 27th February, 2023 and urged that the same facility be given to the plaintiff. Notwithstanding the reasons which persuaded the Court to allow defendants’ documents on 27th February, 2023, it cannot give a carte blanche to the plaintiff to introduce documents at a belated stage, particularly in light of the circumstances and chronology of events adverted to above.

27. Even if deadlines as per Order XI Rule 1 CPC are stretched to the maximum, plaintiff had multiple opportunities to file relevant documents, first along with the suit, in the extended period, then with their replication, and possiblr when defendants’ application for additional documents was being allowed, or, at the very most, immediately thereafter. Equity claimed by the plaintiff cannot be countenanced in the abstract and in complete by-pass of statutory provisions. This contention, therefore, by the plaintiff’s counsel is unmerited.

28. Therefore, in the opinion of this Court, the instant application filed by the plaintiff under Order XI Rule 1(5) CPC for placing additional documents on record cannot be allowed and is, therefore, dismissed.

29. List before the Joint Registrar for further proceedings on 15th February,

2024.

30. Order be uploaded on the website of this Court.

JUDGE FEBRUARY 07, 2024/MK/rj