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HIGH COURT OF DELHI
AAP KI PASAND & ANR .... Plaintiffs
Through: Mr.Ashwin Kumar DS, Ms.Surbhi Mehta & Ms.Manmeet Kaur, Advs.
Through: Ms.Namrata Sharma, Mr.Sandeep Bajaj & Ms. Aakanksha Nehra, Advs.
JUDGMENT
1. This application has been filed by the defendant under Order XI Rule 12 read with Section 151 of the Code of Civil Procedure, 1908 (in short, ‘CPC’) for bringing on record the following additional documents sought to be filed on behalf of the defendant/applicant:- “a. Original packaging of the tea packet sold under the label 'Mittal's Nilgiri Tea' (Document D-1) b. Original packaging of the tea packet sold under the label 'Tea for You Nilgiri Tea' (Document D-2) c. Print out of the website of Golden Tips Tea selling their packaged tea on the website www.goldentipstea.in, https://www.goldentipstea.in/collections/bro cade-bags (Document D-3) d. Print out of the photographs of the outlet of Mittal Tea House (since 1954) located at Lodi Colony, New Delhi also available at https://nicelocal.in/delhi/shops/mittal_tea_h ouse/ (Document D-4) e. Print out of the photographs of the outlet of Mittal Teas (since 1954) located at Barakhamba Road, New Delhi also available at https://nicelocal.in/delhi/shops/mittal_teas/ (Document D-5) f. Print out of the website of GetMyTea (since 1991, based out of Delhi) selling their packaged tea on the website at https://www.getmytea.com/product/getmyte a-velvet-bag-withlst-flush-darjeeling-tea/ (Document D-6) g. Copy of the Flavour License Number NO. 6(9)/LC/F-145/2012 issued in favour of the Defendant by the Tea Board of India. (Document D-7) h. Print out of the products of https://www.nathmullstea.in/collections/sho w-all (Document D-8) i. Print out of the list of entities to whom flavour license for tea has been issued by the Tea Board of India available at http://www.teaboard.gov.in/pdf/Flavour_Te a_license_issued_ p_df5337.pdf (Document D-9) J· Print out of Judgment dated 28.02.2014 passed by the Hon'ble High Court of Delhi in C.S. (OS) No. 851 of2012 in the matter of Sanjay Kapur and Anr. v. Dev Agri Farms Pvt. Ltd. (Document D-10) k. Print out of the website of Golden Tips Tea selling their packaged tea on the website www.goldentipstea.in (Document D-11) l. A copy of the trademark registration No.1747880 for the trademark in the name of the Defendant (Document D-12) m. A copy of the trademark registration No.1747881 for the trademark in the name of the Defendant. (Document D-13)”
2. At the outset, the learned counsel for the defendant/applicant submits that as the present suit had been filed before the Commercial Courts Act, 2015 (in short ‘the Act’) came into force, the provisions of Order VIII Rule 1-A of the CPC shall be applicable, and, therefore, reliance of the learned counsel for the plaintiffs/non-applicants on Order XI Rule 10 of the CPC, as applicable to commercial disputes, is not proper. In this regard, she places reliance on the judgment of the High Court of Calcutta in ITC Limited v. JP Morgan Mutual Fund India Pvt. Ltd. and Others, 2020 SCC OnLine Cal 972.
3. She submits that the approach to be adopted by the Court in allowing additional documents to be brought on record is more liberal under Order VIII Rule 1A of the CPC, and the said documents, if found to be relevant to the Suit, should be allowed to be taken on record.
4. She further submits that the dispute between the parties is with respect to the packaging of the goods, to which the plaintiffs/nonapplicants claim an exclusive right. She submits that the additional documents sought to be placed on record along with the present application are relevant to show that others are also selling their goods in the same packaging and, therefore, the plaintiffs/non-applicants cannot claim any exclusive right over the same. She submits that such a plea has also been taken by the defendant/applicant in its Written Statement and that the documents now sought to be placed on record are merely to substantiate the said plea. She places reliance on the judgment of this Court in Phonepe Private Limited v. EZY Services and Another., 2022 SCC OnLine Del 2638, to submit that as the defendant/applicant is not trying to set up a new case by way of the additional documents sought to be placed on record, and that since most of these additional documents are in public domain, they should be taken on record.
5. She also places reliance on the judgment of the Supreme Court in Sugandhi and Another v. P. Rajkumar, (2020) 10 SCC 706, to submit that procedure is a handmaid of justice, and where the documents are found to be necessary for arriving at a just decision in the suit, they should be allowed to be placed on record. She also places reliance on the judgment of the Supreme Court in Sudhir Kumar @ S. Baliyan v. Vinay Kumar G.B., 2021 SCC OnLine SC 734, to reiterate that documents which are relevant to the suit should be allowed to be taken on record.
6. The learned counsel for the defendant/applicant further submits that, in case, these documents are not taken on record, the defendant/applicant shall suffer grave prejudice in its defence. She submits that on the other hand, the plaintiffs/non-applicants can always cross-examine the witness of the defendant/applicant on these documents, and can also recall its own witness, in case, it so desires.
7. She further submits that the order of this Court dated 14.08.2018, while dismissing the Chamber Appeal of the defendant/applicant, being O.A. 98/2018 whereby leave to confront the witness of the plaintiffs/nonapplicants with the packaging of third-parties had been refused, had clarified that it would be open for the defendant to prove its defence in accordance with the provisions of the law at the stage of the defendant’s evidence. The defendant/applicant is merely exercising this liberty.
8. On the other hand, the learned counsel for the plaintiffs/nonapplicants submits that though the Suit was filed in April 2012, that is before the coming into force of the Act, vide order dated 17.08.2016, this Court, while framing issues in the Suit, also granted an another opportunity to the parties to file additional documents on record. The Suit was also directed to be treated as a ‘Commercial Suit’ by the same order. On 26.10.2016, the parties made a statement before the learned Joint therefore, the Suit having already been converted into a ‘Commercial Suit’, and an opportunity to file additional documents being granted by this Court, the defendant/applicant consciously took a decision not to file any further documents at that stage. Thereafter, the Suit was listed for recording of the evidence on behalf of the plaintiffs/non-applicants, which was recorded and duly closed vide order dated 07.12.2021 passed by the learned Joint Registrar (Judicial). In the course of the crossexamination of the plaintiffs’/non-applicants’ witness, the defendant/applicant sought to confront the witness with certain documents/packaging of the products. This was objected to by the plaintiffs/non-applicants. On such objection, the learned Joint Registrar (Judicial), vide order dated 21.05.2018, refused permission to the defendant/applicant to confront the witness of the plaintiffs/nonapplicants with these documents. Aggrieved of this decision, the defendant/applicant challenged the same by way of a Chamber Appeal, being O.A No. 96/2018. The same was also dismissed by this Court. The said order became final, and it is only on the closure of the evidence of the plaintiffs/non-applicants, that the defendant/applicant finally filed this application to place on record the additional documents.
9. He submits that the present application does not even disclose why these documents were not filed at an earlier stage. He further submits that the plaintiffs/non-applicants would suffer grave prejudice, in case, these documents are now taken on record.
10. In support of his submission, he places reliance on the judgments of this Court in Societe DES Produits Nestle S.A. & Anr v. Essar Industries & Ors., 2016 SCC OnLine Del 4279; Entertainment Network (India) Ltd. v. HT Media Limited, 2022 SCC OnLine Del 2636; Harkesh Singh & Anr. v. Ved Raj, 2010 SCC OnLine Del 397; and Bela Creation Pvt. Ltd. v. Anuj Textiles, 2022 SCC OnLine Del 1366, to submit that the rigours of the Act cannot be withered away by allowing the defendant/applicant to file the documents at any stage of the suit.
11. He further submits that even in the case of Sudhir Kumar (supra), the Supreme Court has held that additional documents can be taken on record only where the party alleges that they were not in the power, possession or control of the said document at the time of filing the pleadings; which is not the case pleaded by the defendant/applicant herein.
12. I have considered the submissions made by the learned counsels for the parties.
13. At the outset, though it is correct that the present suit was filed in the year 2012, that is, before the coming into force of the Act, at the same time, vide order of this Court dated 17.08.2016, it was directed that the same be treated as a ‘Commercial Suit’ and the Registry was directed to re-number the same. It was further directed that the parties to the Suit shall be at liberty to file their additional documents within a period of four weeks from the date of the said order.
14. On 26.10.2016, the learned counsels for the parties submitted before the learned Joint Registrar (Judicial) that they do not wish to file any additional documents. Therefore, an opportunity to file additional documents was duly granted to the parties, but was not availed of by the defendant/applicant.
15. In light of the above facts, reliance of the learned counsel for the defendant/applicant on the judgment of the High Court of Calcutta in ITC Limited (supra) cannot be accepted. The High Court of Calcutta in the said judgment had placed reliance on Section 15(3) of the Act to hold that, as the filing of the Written Statement as well as the disclosure and discovery of the documents were all completed before the suit was renotified as a ‘Commercial Suit’, the defendant/applicant would be governed by the un-amended provision of the CPC, namely, Order VIII Rule 1-A(3). However, in the present case, as the Court, after the renumbering of the suit as a ‘Commercial Suit’, had given further time to the defendant/applicant to file additional documents; which opportunity was not availed of by the defendant/applicant, reliance on Section 15(3) of the Act by the defendant/applicant cannot be sustained.
16. Even otherwise, and even if it is to be held that the provisions of the CPC, as applicable to Ordinary Suits, would continue to apply, the Supreme Court in Sugandhi (supra) has held that Order XIII Rule 1(1) of the CPC makes it mandatory for the parties to produce their original documents before settlement of issues. Order VIII Rule 1-A(3) of the CPC provides a second opportunity to the defendant to produce the documents which ought to have been produced in the Court along with the Written Statement, with the leave of the Court. The Supreme Court further held that the discretion conferred upon the Court to grant such leave is to be exercised judiciously and on a good cause being shown by the defendant. While procedural and technical hurdles should not be allowed to come in the way of the Court while doing substantial justice, if the procedural violation causes serious prejudice to the adversary party, the same should not be allowed to be circumvented.
17. On facts of that case, the Supreme Court found that the defendants had given cogent reasons for not producing the documents along with the Written Statement and that the said documents were missing and were traced only at a later stage. The said reasoning, however, is not available to the defendant/applicant herein. It is not the case of the defendant/applicant that these documents were not available with the defendant/applicant at the time of filing of the Written Statement or at the time opportunity to file additional documents was granted by this Court to the parties vide order dated 17.08.2016, and have been traced only later. The defendant/applicant, in its application, merely places reliance on the order of this Court dated 14.08.2018 passed in the Chamber Appeal, being O.A. 96/2018, and contends that the said order granted liberty to the defendant/applicant to place the additional documents on record in order to prove its defence. It is further contended that the Written Statement was filed in the year 2012 in extreme urgency, and since substantial time has passed, the defendant took time to collate the requisite information and documents to place them before this Court. Both the above reasons cannot be accepted as being reasonable.
18. As far as the reliance on the order dated 14.08.2018 of this Court is concerned, it is to be noted that in the course of cross-examination of the witness of the plaintiff/non-applicant, the defendant/applicant sought to confront him with the packaging of some third-parties. The same was disallowed by the learned Joint Registrar (Judicial) on 21.05.2018. The defendant/applicant challenged the order dated 21.05.2018 by way of a Chamber Appeal, being O.A. 96/2018. The same was dismissed by this Court observing as under: -
19. The above observation of this Court cannot, in any manner, be read to have allowed the defendant/applicant to produce additional documents four years thereafter.
20. The submission of the learned counsel for the defendant/applicant that the Written Statement had been filed in a hurry and that the defendant/applicant took some time to collate the relevant documents, also cannot be accepted. It cannot take ten years for the defendant/applicant to collect these documents in support of its defence.
21. The prejudice to the plaintiffs/non-applicants is also writ large inasmuch as the plaintiffs/non-applicants have already closed their evidence, as recorded in the order of the learned Joint Registrar (Judicial) dated 07.12.2021. Allowing the defendant/applicant to produce any additional document at this stage, would, therefore, re-open the entire trial and delay the adjudication thereof. The suit has already been pending for more than ten years (sic).
22. Coming back to the provisions of the Act, Order XI Rule 1(7) of the CPC, as applicable to the commercial disputes, casts an obligation on the defendant to file all documents in its power, possession, control or custody, pertaining to the suit, along with the Written Statement. Order XI Rule 1(9) of the CPC states that the Written Statement shall contain a declaration on oath made by the deponent that all documents in the power, possession, control or custody of the defendant, save and except for those which are handed over to the witness merely to refresh his memory, pertaining to the facts and circumstances of the proceedings initiated by the plaintiff, have been disclosed and copies thereof annexed with the Written Statement.
23. Order XI Rule 1(11) of the CPC further states that the Written Statement shall set out the details of documents in the power, possession, control or custody of the plaintiff, which the defendant wishes to rely upon, and which have not been disclosed with the Plaint, and call upon the plaintiff to produce the same.
24. Order XI Rule 1(10) of the CPC reads as under: - “(10) Save and except for sub-rule (7) (c) (iii), defendant shall not be allowed to rely on documents, which were in the defendant’s power, possession, control or custody and not disclosed along with the written statement or counter-claim, save and except by leave of Court and such leave shall be granted only upon the defendant establishing reasonable cause for non-disclosure along with the written statement or counterclaim.” (Emphasis Supplied)
25. A reading of the above provisions collectively would show that a duty is cast on the defendant to file all documents in its power, possession, control or custody, pertaining to the suit, along with the Written Statement. The defendant shall not be allowed to rely on documents which were in its power, possession, control or custody and not disclosed along with the Written Statement, save and except by leave of the Court. Such leave shall be granted only upon the defendant establishing reasonable cause for nondisclosure along with the Written Statement or counter claim.
26. In Sudhir Kumar (supra), the Supreme Court, on analysing the scheme of Order XI of the CPC, as applicable to commercial disputes, has held that the rigour of establishing a reasonable cause for nondisclosure of the documents along with the Plaint (herein, the Written Statement) may not arise in the case where the additional documents sought to be produced/relied upon are discovered subsequent to the filing of the Plaint (herein the Written Statement). The Supreme Court, however, disallowed the plaintiff therein to file additional documents that were in its power, possession, control or custody at the time of the filing of the Suit, but were not filed as they were voluminous, on record. The Supreme Court held that the documents being voluminous, is not a reasonable cause for non-disclosure of the documents along with the plaint.
27. In Societe DES Produits Nestle S.A. (supra), this Court has held as under: -
28. In Bela Creation Pvt. Ltd. (supra), this Court held that the mistake of a counsel in not filing the documents would not be a reasonable cause for non-disclosure of such documents along with the Written Statement.
29. In Phonepe Private Limited (supra), it was reiterated that the requirement of establishing a reasonable cause for non-disclosure of the documents along with the Written Statement shall not to be applicable if it is averred that the documents were found subsequently and were not in power, possession, control or custody of the defendant when the Written Statement was filed, and the rigour of establishing a reasonable cause for non-disclosure will not arise in a case where the additional documents sought to be produced/relied upon are discovered subsequent to the filing of the Written Statement. This Court allowed the documents that were post the filing of the Written Statement and were in public domain to be taken on record. However, this Court refused to take on record the documents for which no assertion was made that they were not in the power, possession, control or custody of the defendant/applicant at the time of the filing of the Written Statement.
30. In Entertainment Network (India) Ltd. (supra), this Court observed as under:- “21. Having so observed, the Court finally held that if the Courts, in spite of the legislative mandate and change, continue to overlook such deficiencies in the name of interest of justice, the litigants and practitioners of the commercial suit will never wake up to the change required to be brought about in the conduct of such suits. The facts of the present case, in my view, are squarely covered by these two judgments. In the present case also, there is no explanation why the inadvertent error was not detected earlier and why the Defendant waited until conclusion of the Plaintiff's evidence to file the application to bring the said additional document on record.
25. In my view, the said judgment squarely applies to the present case. Written statement was filed by the Defendant on 02.06.2016. Application for grant of injunction was heard on 27.10.2016 and the judgment was pronounced on 13.07.2018. Defendant filed an appeal against the said judgment on 26.07.2018; issues were framed on 12.11.2018 and the evidence of the Plaintiff concluded on 12.12.2019. The documents placed on record by the Defendant along with the affidavit of evidence indicate that the Annual Financial Report for the year 2016-2017 was available with the Defendant before 26.09.2017, as on the said date the Report was sent to the Ministry of Information and Broadcasting. Annual Financial Report for the year 2017-2018 was forwarded to the Defendant by the Accounting Firm under letter dated 28.09.2018 and Annual Financial Report for the year 2018-2019 was forwarded to the Defendant vide letter dated 06.06.2019. Therefore, going by these dates, there was no reason why the first two reports were not sought to be brought on record till the year 2020 when they were received in the years 2017 and 2018, respectively. Even the report for the year 2018-2019 was in possession of the Defendant in June, 2019, prior to commencement of the Plaintiff's evidence. There is no explanation worth a mention for not filing these reports until the year
2020. In any case, if leave is granted at this stage when the Plaintiff's evidence has concluded and Defendant is permitted to bring the additional documents on record, Plaintiff will not have the occasion to deal with the said documents. Had the documents been filed earlier, Plaintiff would have had an opportunity to deal with the documents by appropriately amending its pleadings and/or filing its own documents to counter the documents sought to be brought on record by the Defendant. As held in Nitin Gupta v. Texmaco Infrastructure & Holding Limited, 2019 SCC OnLine Del 8367, progress of the suit cannot be interdicted on such casual approach of the Defendant and there is no gainsaying that if in every case, a party is permitted to file additional documents once the trial has begun, without due cause, the whole purpose of the Commercial Courts Act would be defeated. Defendant has clearly not been able to show any cause why the trial should be interdicted at this stage, as the only argument is that the documents came into existence post filing of the written statement and are crucial to establish the growing goodwill and reputation. If the contention of the Defendant is accepted, this would be setting the clock back inasmuch as if the documents are taken on record, Plaintiff will have to be given an opportunity to admit/deny the documents and lead its evidence in counter to the said documents, defeating the purpose of the Act, i.e., expeditious disposal. On the same analogy, document (b), which are printouts of the Social Media pages, cannot be taken on record.” (Emphasis supplied)
31. Applying the above principles to the facts of the present case, the defendant/applicant was given an opportunity to place additional documents on record, vide order of this Court dated 17.08.2016. This opportunity was not availed of by the defendant/applicant. The defendant/applicant, in its application, does not state that the documents now sought to be placed on record were not in the power, possession, control or custody of the defendant/applicant as on that date.
32. The submission of the defendant/applicant that the Written Statement was filed in extreme urgency in the year 2012, also does not justify the non-filing of these documents in the year 2016 or immediately thereafter. The defendant/applicant has, therefore, failed to show any reasonable cause for not producing these documents at an earlier stage of the trial of the Suit.
33. For the reasons stated hereinabove, the application so far as it prays for leave to file documents ‘D1’ to ‘D11’, ‘D13’ to ‘D17’ is rejected. The document ‘D12’ sought to be placed on record by the defendant/applicant is a copy of the judgment dated 28.02.2014 passed by this Court in Sanjay Kapur (supra). The same can always be cited by the defendant/applicant and, therefore, I see no reason why the same cannot be taken on record.
34. In view of the above, the application is partly allowed. The document filed as ‘D12’ is taken on record. The remaining documents shall remain expunged from the record of this suit.
35. As the defendant/applicant caused delay in the conclusion of the Suit by filing the present application, the defendant/applicant shall pay a cost of Rs.25,000/- (Rupees Twenty-Five Thousand only) to the plaintiffs/non-applicants. List on 16th January, 2023 before the learned Joint Registrar (Judicial). NAVIN CHAWLA, J NOVEMBER 30, 2022/rv/DJ/AB