FinTree Education Pvt. Ltd. & Anr. v. Fintree Finance Pvt. Ltd.

(iii) Documents at Exhibit F[6] and Exhibit F[7]: the screenshots of the

Plaintiffs’ website and social media platform showing Plaintiffs’ virtual presence. b. Documents which came into existence after the Suit was filed

12. Mr. Kamod then submitted that, apart from documents covered by Order XI Rule 1(1)(c)(ii), certain documents were obtained or came into Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th existence only after the institution of the Suit. He submitted that; thus, such documents could not have been in the Plaintiffs’ possession at the time of institution, and therefore the embargo under Order XI Rule 1(5) would not be attracted.

13. In the facts of the present case, he submitted that the documents which have come into existence after the Suit was filed were:

(i) Exhibit C[1]: the updated status page of the Plaintiffs’ renewed registration;

(ii) Exhibit F[2]: the Chartered Accountant’s Certificate dated 3rd March

2025;

(iii) Exhibit F[3]: the tax invoices certified by the Chartered Accountant after the institution of the Suit.

14. He further submitted that with regard to such documents that came into existence after the suit was filed, the Court at this stage was not required to go into the question as to whether such documents could have been obtained earlier or not, and to assess their evidentiary value. He submitted that this was a matter which would have to be decided at the trial. In support Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th of his contention, he placed reliance upon the decision of this Court in Nitin Sukanraj Jain v. Neoliva Life Science Pvt. Ltd.[1] c. Documents not in the power, possession and custody of the Plaintiffs at the time of institution of the Suit

15. Mr. Kamod submitted that there were certain documents which were not in the power, possession and custody of the Plaintiffs at the time of institution of the Suit and thus are required to be produced on record, since the same play a crucial role in showing the Plaintiffs’ use of the mark FINTREE. He submitted that though Order XI Rule 1 of the CPC mandates parties to disclose all the documents in their custody at the time of institution of the Suit, the party not being in possession of the documents at the time of institution of the Suit, may be allowed to produce them at a later stage. In support of this contention, he placed reliance upon the decision of Sudhir Kumar v. Vinay Kumar G.B[2] wherein the Court, while discussing the legislative intent behind Order XI Rule 1, observed that the [Bombay High Court] Order dated 25th July 2023 in IA(L) No. 17260 of 2023 in COMIP Suit No. 451 of 2022.

Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th restriction of Order XI Rule 1(5) against filing additional documents is not absolute but conditional, and thus a party can be allowed to produce relevant documents belatedly on justifiable reasons.

16. He then submitted that, in the present case, the documents at Exhibit F[5], which are the testimonials and reviews of the Plaintiffs’ clients, were not in the Plaintiffs’ possession at the time of institution but were relevant to show the Plaintiffs’ continuous use and reputation pursuant to the mark FINTREE. In order to support this contention, he placed reliance upon the decision of this Court in the case of Sony Music Entertainment India Pvt. Ltd. v. Ilaiyaraja Music N Management Pvt. Ltd & Ors.[3] and the decision of Delhi High Court in the case of Vijay Kumar Varshney v. Longlast Power Products Ltd. & Anr.[4] wherein it was held that the rigors of Order XI Rule 1 will not apply to the documents which are sought to be produced in answer to a case set up by Defendant. [Bombay High Court] Order dated 8th November 2023 in IA(L) No. 25506 of 2023 in COMIP Suit No. 560 of

2022.

17. At the time of the arguments, Mr. Kamod fairly submitted that Exhibit F[4] is a chart showing the export sales summary of the Plaintiffs. However, since the same lacks particulars such as the authority/personnel issuing the same, the Plaintiffs will not press for production of the said document. d. Amendments confined only to the pleadings

18. Mr. Kamod then laid emphasis on the fact that the Suit was still at a pretrial stage. He submitted it was well settled that pre-trial amendments were to be allowed liberally, particularly where no prejudice would be caused to the Defendant and the amendment is necessary for complete and effective adjudication of the dispute. He also submitted that the law does not impose an absolute bar on the production of documents after the institution of the Suit; rather, it permits such production where necessity arises, especially when the trial has not commenced.

19. He further submitted that Order XI Rule 1 does not require an overly technical or exhaustive recital of every document within the Plaint. The object of the provision is to promote discipline and expedition in commercial litigation, not to defeat substantive justice on technical Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th grounds. In this context, he relied upon the decisions in Board of Mumbai Port Authority v. DSV Gerimal[5], and M/s. MLI Logistics India Pvt. Ltd. v. Sarr Freights Corporations[6], to submit that procedural provisions should not be interpreted in a manner that confers an unwarranted technical advantage.

20. Mr. Kamod then, without prejudice to the above, submitted that intellectual property matters warrant a liberal approach in procedural application, particularly where statutory and proprietary rights are sought to be protected against continuing infringement. In support, he relied upon the decision of this Court in Ultra Media and Entertainment Pvt. Ltd. v. Y-Not Films LLP & Ors.[7]

21. Lastly, Mr. Kamod submitted that certain proposed amendments were confined solely to the pleadings and are clarificatory and corrective in nature. They do not introduce a new cause of action or alter the nature of

[Bombay High Court] Order dated 9th May 2025 in Com. Suit No. 193 of 2023 & IA No. 4654 of 2024 a/w. IA No. 5949 of 2025.

Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th the Suit. Relying upon Valo Automotive Pvt. Ltd. v. Sprint Cars Pvt. Ltd.,[8] he submitted that where a trial has not commenced, the governing consideration is whether the amendment is necessary to determine the real controversy between the parties. Pre-trial amendments, particularly those necessary to meet a defence raised for the first time, ought to be permitted to avoid multiplicity of proceedings and to ensure effective adjudication.

22. In these circumstances, he submitted that the present Interim Application deserves to be allowed. Submissions on behalf of the Defendant:

23. Mr. Kirpekar, Learned Counsel appearing on behalf of the Defendant, opposed the present application for amendment filed nearly six years after the institution of the Suit. He submitted that most of the documents now sought to be brought on record were admittedly in the Plaintiffs’ knowledge and possession or, at the very least, could have been within the

Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th Plaintiffs’ power, possession, control or custody had the Plaintiffs exercised the required diligence at the relevant time.

24. Mr. Kirpekar then submitted that the Plaintiffs’ conduct reflected a consistent lack of diligence. He submitted that it was only after this Court had declined ad-interim relief for infringement that the Plaintiffs sought to amend the Plaint and introduce a cause of action for passing off. He pointed out that although the first application for amendment was allowed by an Order dated 20th February 2023, the Plaintiffs once again failed to incorporate all necessary pleadings and documents. He submitted that the present Application, was therefore yet another attempt to fill in the lacunae in the Plaint in the guise of an Application under Order XI Rule 1.

25. On the aspect of the Plaintiffs’ lethargy in proceeding expeditiously, Mr. Kirpekar pointed out that even six years after the institution of the Suit, the writ of summons had not been served upon the Defendants, which he submitted was contrary to Practice Note 60 of the Bombay High Court original side practice notes. Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th

26. It was in the context of the aforesaid facts that Mr. Kirperkar submitted that the real question which the Court must consider is as follows: “Whether the scheme of the Commercial Courts Act, 2015, permits a Plaintiff to repeatedly amend pleadings and introduce documents through successive applications, without proceeding with the Suit to trial?”

27. Mr. Kirperker then submitted that the aforesaid question would have to be answered in the negative since the Commercial Courts Act provides for a stringent procedural framework mandating complete and candid disclosure at the threshold. He submitted that the legislative intent behind the Commercial Courts Act was expedition, finality and procedural discipline. He thus submitted that any attempt to introduce documents belatedly must therefore be strictly scrutinised since the same militated against the scheme of the amended Order XI.

28. He submitted that the provisions of Order XI, as amended, were mandatory in nature, which required a Plaintiff to, along with the Plaint, file a list and copies of all documents in the Plaintiff’s power, possession, Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th control or custody. He submitted that while sub-rule (4) of Order XI provides a limited window in urgent cases to bring additional documents within thirty days, any subsequent production of documents would have to satisfy the test of “reasonable cause” for non-disclosure as contemplated under sub-rule (5). He submitted that it was well settled that where a statute prescribes a manner of doing something, it must be done in that manner alone. He submitted that this would equally apply to intellectual property rights Suits which are governed by the provisions of the Commercial Courts Act.

29. Mr. Kirpekar then placed reliance upon the decision of the Hon’ble Supreme Court in Sudhir Kumar v. Vinay Kumar G.B to submit that strict adherence to amended Order XI was mandatory even in commercial intellectual property suits and that only documents brought on record in compliance with the scheme provided for in amended Order XI can be permitted. He further submitted that Order XI Rule 1(1)(c)(ii) must be construed narrowly and harmoniously with the overall scheme of the Act. The exception therein, he submitted, cannot be expanded to permit the Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th introduction of documents which were admittedly within the Plaintiff’s possession when the Suit was filed.

30. He submitted that the central question was whether the Plaintiffs had satisfied the test of “reasonable cause” under Order XI Rule 1(5). He submitted that in the facts of the present case, no such cause has been made out. To amplify this contention, he pointed out that the Suit was instituted in 2019, alleging infringement of the trade mark FINTREE prior to which the Plaintiffs had issued a cease-and-desist notice dated 16th April 2019, to which the Defendant replied on 23rd April 2019. He thus submitted that the Plaintiffs were therefore fully aware of the Defendant’s stand well before filing their first amendment application.

31. He then submitted that even after ad-interim relief was refused in 2019, the Plaintiffs had filed a first amendment application, which was allowed in February 2023. Despite that opportunity, he submitted that the present second amendment application has been filed seeking further amendments and additional documents. He submitted that the explanation that the Plaintiffs realised only on 6th March 2025 that a specific prayer had not Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th been incorporated, according to him, demonstrates callousness rather than a new development.

32. Mr. Kirperkar then, in dealing with the documents which were sought to be added, submitted as follows: i. Exhibit C-1: He fairly stated that the Defendant has no objection to this document being taken on record. ii. Exhibit D-1: The Shops and Establishments Certificate dating back to 2014 were admittedly within the Plaintiffs’ possession prior to the institution of the Suit. In respect of the other documents, he submitted that even assuming they were produced in answer to the Defendant’s Affidavit dated 3rd September 2019, no explanation has been offered as to why they were not placed on record at least at the time of the first amendment in 2021. No reasonable cause has been demonstrated. iii. Exhibit F-1: Advertisement material prior to 2021 was within the Plaintiffs’ possession. No satisfactory explanation has been furnished for its earlier non-production. Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th iv. Exhibits F-2 and F-3: He submitted that reliance on Nitin Sukhraj Jain v. Neoliva Life Science Pvt. Ltd. is misplaced. In that case, documents were produced within a reasonable time. Here, the Chartered Accountant’s certificate and invoices are sought to be introduced after six years without explanation. The mere fact that a document was created subsequently does not justify its belated production, especially when viewed against the Plaintiffs’ overall conduct. v. Exhibits F-4 to F-7: He submitted that Exhibit F-4 is not even a document in the eyes of law and that Exhibits F-5 to F-7 do not satisfy Order XI requirements. In particular, WHOIS search details reflecting registration of the Plaintiffs’ domain name in 2012 were clearly within the Plaintiffs’ knowledge and ought to have been disclosed earlier.

33. Mr. Kirpekar also then placed reliance upon the decision of the Himachal Pradesh High Court in Mohan Meakin Limited v. The Devicolam Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th to submit that there is an absolute statutory bar against reliance on documents which were within a party’s possession but not disclosed at the prescribed stage, except upon strict proof of “reasonable cause”. Inadvertence, oversight or internal miscommunication, he submitted, do not constitute reasonable cause.

34. In dealing with the decision in the case of Board of Mumbai Port Authority v. DSV Gerimal, Mr. Kirpekar pointed out that the amendment was necessitated since a new case was raised in the Written Statement, which was not a mere denial. He submitted that a mere denial does not amount to “setting up a case” under Order XI Rule 1(1)(c)(ii). He then pointed out that the decision in the case of Valo Automotive Pvt. Ltd. v. Sprint Cars Pvt. Ltd. was rendered prior to the decision of the Hon’ble Supreme Court in Sudhir Kumar, and to the extent it adopts a liberal approach, it cannot override the subsequent binding precedent. Similarly, he pointed out that the decisions in the case of Sugandhi by LRs v. P. 2024:HHC:11877. Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th Rajkumar10 and Menkabai v. Manohar Mukundrao Deshpande & Ors.11 relied upon by the Plaintiffs in oral pleadings, were not rendered in the context of Order XI as amended. Mr. Kirpekar then pointed out that in Sony Music Entertainment India Pvt. Ltd., the amendment was the first amendment and arose from a new factual dispute in the Written Statement. Similarly, in Vijay Kumar Varshney, the delay was justified by specific circumstances, like COVID-19 and a plea of prior use. He therefore submitted that none of these cases would apply to the facts of the present case. He also pointed out that in the case of Nitin Sukhraj Jain, the documents were produced within a reasonable time and shortly after the institution of the Suit. In contrast, the present application is filed six years later and constitutes a second amendment.

35. Mr. Kamod submitted that the Defendant’s reliance on Sudhir Kumar v. Vinay Kumar G.B. was misplaced since in the said decision the Written Statement had already been filed and the defence had been crystallised. The Plaintiff in that case had failed to disclose documents admittedly in its possession at the time of filing the suit and later sought to introduce them without establishing “reasonable cause” under Order XI Rule 1(5). It was in those circumstances that the Hon’ble Supreme Court declined to permit the belated production of documents. In contrast, in the present case, the documents are either produced in answer to the Defendant’s case within the meaning of Order XI Rule 1(1)(c)(ii) or came into existence subsequent to the filing of the Suit. Further, the Written Statement has not yet been filed, issues have not been framed, and the trial has not commenced. He therefore submitted that the factual matrix in Sudhir Kumar was entirely distinguishable, and the ratio thereof does not apply to the present case.

36. He similarly submitted that Mohan Meakin Ltd. v. The Devicolam Distilleries Ltd. was also inapplicable since the documents were sought to Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th be introduced after the Written Statement had been filed, on the ground of inadvertence, without establishing reasonable cause. It was in that context that the Court refused to permit the party to fill lacunae in its case. In the present matter, however, no plea of inadvertence has been taken. The amendment is sought on the basis that the documents fell within the statutory exception under Order XI Rule 1(1)(c)(ii) or came into existence subsequently. Moreover, in Mohan Meakin, the trial had already commenced, whereas in the present case, the proceedings are still at the pre-trial stage. Reasons and Conclusions:

37. Having heard Learned Counsel for the parties at length and having perused the pleadings and the case law upon which reliance is placed, I find as follows:

Suit which is governed by the provisions of Order XI of the CPC, as amended by the Commercial Courts Act, 2015. A plain reading of Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th Order XI makes it clear that a Plaintiff is required to, at the threshold, disclose all documents in its power, possession, control or custody pertaining to the Suit. The Hon’ble Supreme Court has in the case of Sudhir Kumar, inter alia held that the disclosure regime under Order XI of the CPC, as amended by the Commercial Courts Act, 2015, is mandatory and must be strictly enforced in Commercial Suits. A Plaintiff is therefore required to disclose, at the time of filing the Plaint, all documents in its power, possession, control or custody relating to the Suit. If such documents are not disclosed at the threshold, they can be brought on record later only with the leave of the Court and upon establishing “reasonable cause” for the earlier non-disclosure. Further, the Hon’ble Supreme Court clarified that mere oversight, inadvertence, or the Plaint being voluminous does not constitute reasonable cause and that the scheme of Order XI is designed to ensure procedural discipline, early crystallisation of disputes, and expeditious disposal of commercial litigation. Thus, documents which were in the Plaintiff’s power, possession or Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th custody at the time of institution of the Suit cannot be permitted to be brought on record subsequently unless the Plaintiff satisfies the statutory test of “reasonable cause” or unless they are in answer to a case set up by the Defendant.

38. In the aforesaid backdrop and as per the reasons mentioned above, the Interim Application is partly allowed in the following terms: i. The documents at Exhibits C[1], F[2] and F[3] of the captioned Interim Application are allowed to be placed on record along with the Plaint. Pursuant to the said documents, the Plaintiffs are allowed to carry out Note: This Judgment is modified as per Order of Speaking to the minutes dated 27th necessary amendments in paragraphs 5 and 8 of the Plaint respectively. ii. The Plaintiffs are allowed to carry out amendments to paragraphs 11, 14A and prayer clause (a[1]) of the Notice of Motion No. 1468 of 2019, as specified in paragraphs 5(h), 5(i) and 5(j) of the captioned Interim Application, respectively. iii. iii. No orders as to costs.

39. The Interim Application is disposed of in the aforesaid terms. [ARIF S. DOCTOR, J.]