EICORE TECHNOLOGIES PVT. LTD. v. EEXPEDISE TECHNOLOGIES PVT. LTD.

(dd) Plaintiffs’ letter dated 7 January 2020 issued to the Defendants, refuting the Defendants’ contentions. (ee) Defendants’ letter dated 21 February 2020 issued to the Plaintiffs, refusing the Plaintiffs’ offer to return the monies already received under the Ad-Hoc Agreement. IV.Correspondence exchanged with Aditya Birla Health Insurance Co Ltd (“ABHI”) in respect of the Defendants’ engagement with them. (ff) Annual Report on Health Insurance published by ABHI on its website for the financial year 2019-20 wherein at page 75, ABHI refers to HealthBuzz as one of the IT systems used by it. (gg) E-mails dated 16 September 2019, 7 October 2019 and 25 October 2019 exchanged between the Plaintiffs and ABHI which confirmed that the Defendants continued to provide services in respect of HealthBuzz to ABHI. (hh) Notice dated 29 April 2020 issued by the Plaintiffs to ABHI for invocation of arbitration agreement in order to settle all disputes.

(ii) ABHI’s reply dated 28 May 2020 to the Plaintiffs denying its engagement with the Defendants in respect of HealthBuzz. (jj) Plaintiffs’ reply dated 31 May 2020 to ABHI's reply dated 28 May

2020. V.Documents in respect of the HealthBuzz-Claims System supplied by the Defendants to Liberty General Insurance Co Ltd ("Liberty") (kk) Software License and Support Agreement dated 16 December 2014 executed between Plaintiff No 1 and Liberty wherein Liberty’s business requirements for implementing HealthBuzz in four different phases was captured.

(ll) Addendum Agreement executed between Plaintiff No 1 and Liberty demonstrating the resumption of services by the Plaintiffs.

(mm) Screenshots of the TPA claims system that was initially provided by the Plaintiffs to Liberty. (nn) Screenshots of the HealthBuzz - Claims System supplied by the Defendants to Liberty, which the Plaintiffs accessed while providing services to Liberty on 29 October 2021. (oo) Screenshots of the source code of HealthBuzz software disclosing references to Defendant No 1, which the Plaintiffs accessed while providing services to Liberty. VI.Other Documents (pp) Indicative list of the different services at each level (L0 to L[3]) to demonstrate the provision of services, both with and without the use of source code. Section B (a) Draft confidentiality agreement shared by the Defendant No. 14 with ABHI on 31 August 2016 for providing implementation and support services in relation to the Plaintiffs’ proprietary software, HealthBuzz. (b) Defendant No. 1’s proposal dated 21 October 2016 in respect of maintenance services for HealthBuzz to ABHI.

(c) Purchase Order of INR 79,20,000 issued by ABHI in favor of the

Defendant No. 1 dated 2 November 2016 following the proposal for providing L[2] and L[3] support services for HealthBuzz while being employed with the Plaintiffs.

(d) E-mail dated 31 January 2017 sent by the Defendant No. 14 (while being employed with the Plaintiffs) to ABHI wherein the source code of HealthBuzz was unauthorizedly shared. (e) E-mail dated 17 February 2017 sent by ABHI to the Defendant Nos. 4 and 14 enclosing a document setting out ABHI’s business requirements in respect of Group EW coverage for the purpose of seeking fee estimation/timelines for delivery. (f) Commercial proposals for module customizations and implementation of multiple change requests submitted by the Defendants to ABHI between 9 February 2017 to 20 February 2017. (g) Several other proposals such as proposals for development of Idea Payment Bank module dated 6 February 2017, proposal for web API development and customization for Policy Bazar dated 6 February 2017, etc. were shared by the Defendant No. 1 with ABHI. (h) Purchase Orders issued by ABHI in favour of the Defendant No 1.

(i) Purchase order for INR 5,50,000 towards Policy Bazaar integration services dated 2 February 2017.

(ii) Purchase order for INR 8,50,000 towards Idea Payment banking services dated 2 February 2017.

(iii) Purchase order for INR 40,000 towards cheque reconciliation process for Seller portal and App dated 3 February 2017.

(iv) Purchase order for INR 15,07,954 towards revised member ID logic, product configuration for affinity group, discontinuation of FF combinations below 1 lac, discontinuation of OPD and Maternity, retail product – hospital cash development dated 16 March 2017 and its corresponding invoice dated 3 April 2017.

(i) Independent Master Services Agreement executed between the

Defendants (while being employed with the Plaintiffs) and ABHI post discussions in March 2017. (j) E-mails exchanged between ABHI and the Defendants Nos. 4, 14 and 18 on 24 May 2017 by which ABHI shared a document setting out its business requirements on the basis of which the Defendant No. 1 was to offer support services in relation to HealthBuzz. (k) E-mail sent by Mr Prabhdeep Lamba (who is currently working with Contingent (Hong Kong) and has been in close collaboration with the Defendants before) to the Defendant No. 4 on 15 April 2017 which contained references to the ownership of the Plaintiff 5 in HealthBuzz and the modus operandi of the Defendants for providing services in respect of HealthBuzz to the Plaintiffs’ clients.

6. Arguing in support of the application, learned Senior Counsel appearing on behalf of the Plaintiffs submitted that there is no legal bar in taking on record the documents in Section ‘A’ which fall in 3 broad categories viz: (a) relate to events or incidences which have occurred subsequent to the filing of the suit; (b) have been discovered by the Plaintiffs after the suit was filed; and (c) existed prior to the filing of the suit, but were not in Plaintiffs’ power, possession, control or custody at the time of filing and were not related to the infringing activities of or breaches by the Defendants, when the suit was filed.

7. Elaborating and dilating on the nature of additional documents, it was stated that the first 4 categories of documents from (a) to (jj) have come into existence only after the filing of the suit and Plaintiffs are not required to disclose ‘reasonable cause’ under Order XI Rule 1(5) CPC, for non-filing the said documents with the plaint. The 5th category of documents (kk) to (oo) relate to infringing activities of the Defendants pertaining to their transactions with Liberty General Insurance Co. Ltd. (Liberty), discovered by the Plaintiffs subsequent to the suit and thus the Software License and Support Agreement with Liberty, albeit pre-dates the suit, becomes relevant and reasonable cause for non-disclosure with the plaint, need not be established. Plaintiffs have broadly referred to the infringing activities of the Defendants, recently discovered by the Plaintiffs, in paras 44 to 93 of the plaint and it is neither necessary nor was feasible or even possible to have pleaded in the plaint about the infringing activities of the Defendants relating to every Insurance company, with whom they have been or are dealing and using ‘HealthBuzz’. These documents have also become relevant on account of the averments in the written statements, where Defendants have denied having any access to data, documents, source code or confidential information of the Plaintiffs. Defendants have also denied that they had abused the faith reposed in them or cheated the Plaintiffs or siphoned of Plaintiffs’ business while being employed with them and have instead stated that they were free to enter into a contract for managing the Plaintiffs software ‘HealthBuzz’. The additional documents sought to be placed on record will evidence that contrary to the stand in the written statements, Defendants have continued to infringe, by supplying the HealthBuzz- Claims System to one of Plaintiffs’ clients, which was impossible without accessing Plaintiffs’ proprietary software and copyrighted source code.

8. It was submitted that the 6th category of document (pp) is in aid of the Plaintiffs’ pleaded case in the plaint. The document is an indicative list of services that can or cannot be undertaken without modification of source code and pleadings to this effect are in paragraphs 3, 4, 5, 29, 32, 119, 152 and 156 of the plaint. Defendants have, however, failed to demonstrate that the document is irrelevant or immaterial in any manner and/or that the indicated list of services could be rendered without use of Plaintiffs’ source code. Importantly, Defendants have admitted that once any client acquires the software from the Plaintiffs, it can subsequently engage any Company for managing the software, which would necessarily entail use of the source code.

9. Insofar as documents under ‘Section B’ are concerned, contention was that although these documents date back to a period prior to the filing of the suit, but existence of these documents was unknown to the Plaintiffs, when the suit was filed. These documents have been recently discovered, during arbitration proceedings, against Aditya Birla Health Insurance Co. Ltd. (ABHI), post the filing of the suit from the backup of the laptop that was being used by one of the ex-employees of the Plaintiffs. The documents demonstrate the extent of Defendants’ involvement in dealing with Plaintiffs’ software HealthBuzz, while providing services to ABHI, during their employment with the Plaintiffs, in breach of contractual terms and confidentiality obligations therein. It was canvassed that it has been a challenge for the Plaintiffs to retrieve and collate these documents, including those filed along with the plaint, on account of sudden resignation of the Defendant employees, who while leaving took away all confidential data and information, to which they were privy. Most of these documents, it was urged, have been already filed along with two applications, one under Order XXXIX Rule 2A CPC being I.A. 6886/2021 and another under Order XXXIX Rules 1 and 2 CPC being I.A. 16424/2021.

10. It was further submitted that there is no delay in filing the additional documents as the same were filed soon after the last set of documents were discovered on 29.10.2021. Assuming without admitting there is a delay in filing of the documents, that cannot be a ground for not taking them on record, once they are otherwise relevant and material to adjudication of the disputes arising in the present suit.

11. Learned Senior Counsel contended that it is a settled law that the mandate of Order XI Rule 1(5) CPC to establish a ‘reasonable cause’ for non-disclosure of the documents along with the plaint shall not apply if it is averred that documents were discovered subsequent to filing of the suit and were not in power, possession, control or custody of the Plaintiffs, when the plaint was filed. [Ref.: Sudhir Kumar @ S. Baliyan v. Vinay Kumar G.B., 2021 SCC OnLine SC 734]. Even where the provisions of Order XI Rule 1(5) CPC require disclosure of a reasonable cause, the said expression requires a lower degree of proof as compared to ‘good cause’ or ‘sufficient cause’.

12. Learned Senior Counsel further contended that Plaintiffs have shown reasonable cause for filing the documents as mentioned in ‘Section B’ and a liberal approach is required to be taken in the matter, particularly, when suit is at a stage where issues have not been framed. [Ref.: Hassad Food Company Q.S.C. and Another v. Bank of India and Others, 2019 SCC OnLine Del 10647]. The Court, at this stage, is not required to determine the authenticity, admissibility or relevancy of the documents of a threshold required at the stage of trial and final arguments and therefore, the argument of the Defendants with respect to relevancy of the documents to the dispute ought to be rejected. Certainly, the Court is entitled to see that the documents sought to be brought on record under Order XI Rule 1 CPC are not totally alien to the subject matter of the suit.

13. Arguing in rebuttal, learned Senior Counsel appearing on behalf of Defendants No. 1 to 7 and 12 to 19, opposed the application on many-fold grounds. It was canvassed with vehemence that the pleadings in the application are vague and baseless and do not disclose any cogent reason for filing the additional documents. In order to place the additional documents on record, Applicant is required to show that: (a) documents could not be filed with the plaint by reason of their not being in the power, possession, control or custody of the Plaintiff; and (b) the documents have a critical bearing on the matter and are necessary for effective adjudication of the issues involved. As far as documents that have purportedly come into existence after filing of the suit, the only ground pleaded in the application is that they have come into existence post the filing of the suit. No reason is forthcoming as to how the documents are relevant and necessary for effective adjudication of the issues involved in the suit. A bare averment that the additional documents are relevant and material to meet the case set up by the Defendants in the written statement is not enough and it is not stated as to why no steps were taken to file the documents when the replication was filed.

14. The application lacks pleadings as to when the documents in Section ‘A’ came into power and possession of the Plaintiffs. Some of the documents date back to the year 2019 and no reason is forthcoming for their non-filing for 2 years. Plaintiffs cannot be permitted to take advantage of their lackadaisical conduct in a commercial suit. Some of the documents now sought to be brought on record were filed by the Plaintiffs with the contempt application being I.A. 6886/2021. The application was dismissed by the Court by a reasoned order, holding that the application had no merit. No reasons have been given as to why these documents have now become relevant for just adjudication of the suit.

15. Documents (a) to (c) in Section ‘A’ do not mention whether the alleged revenue is generated from HealthIns or HealthBuzz or servicing of ‘HealthBuzz’ and/or any other related activity. Mere generation of revenue by Defendants has no bearing on the present dispute and is completely irrelevant. With respect to documents (d) to (q), not a single averment is made in the plaint that Defendants have made parallel companies abroad. Moreover, these third parties have denied any association with the Defendants for which supporting documents are on record. Documents from (r) to (ee) have been filed to show breach of the interim order and have no part to play in the adjudication of the suit. These documents were in fact filed with the contempt application, which was dismissed and thus the documents cannot be brought on record, at this stage. Documents (ff) to (oo) cannot be permitted as none of them have any genesis in the pleadings. Insofar as documents relating to Liberty are concerned, the ground for filing additional documents is that the ‘Claim System Module’ has been added by the Defendants. What is the Claim System Module, how many modules does ‘HealthBuzz’ contain and how the Claim System Module is installed is not pleaded either in the plaint or replication or even in the present application and that the Defendants have installed ‘HealthBuzz’ in Liberty’s computers is not even the cause of action on which the suit is premised. Document (pp) cannot be termed as a ‘document’ and is a self-serving list prepared by the Plaintiff, only to improve and broaden the case of the Plaintiffs and assert a cause of action, not asserted in the plaint.

16. The additional documents enumerated under ‘Section B’ admittedly existed prior to filing of the suit. Plaintiffs are now taking a position that the documents have been recently discovered from a laptop used by one of the ex-employees, during arbitration proceedings against ABHI. Plaintiff is required to a reasonable cause for non-disclosure of the documents with the plaint as also the relevancy of the documents and Plaintiff has failed on both counts. It is stated in the plaint that the laptops used by the Defendants were handed over to the Plaintiffs on which Forensic investigation was conducted and some documents were filed with the plaint. There is no mention that some documents at that stage could not be retrieved on account of technical issues or lack of passwords etc. and/or how the difficulties faced at that time, if any, were subsequently resolved. Being unsuccessful in obtaining an injunction as well establishing contempt on the part of the Defendants, on these very documents, Plaintiffs cannot be permitted to rely on them again. Perusal of para 5 of the application would show that the application completely lacks in pleadings on whether the ex-employee is one of the Defendants in the present suit or any other employee or what occasioned and triggered the retrieval of these documents during arbitration. Therefore, Plaintiffs have failed to show reasonable cause as required under Order XI Rule 1(5) CPC and the documents cannot be brought on record.

17. I have heard learned Senior Counsels for the parties and examined their respective contentions. Since this is an application preferred on behalf of the Plaintiffs for bringing on record additional documents, the grounds have to be tested on the anvil of provisions of Order XI Rule 1(5) CPC, as amended by the Act, which is extracted for ready reference as under:

“XI. DISCLOSURE, DISCOVERY AND INSPECTION OF DOCUMENTS IN SUITS BEFORE THE COMMERCIAL DIVISION OF A HIGH COURT OR A COMMERCIAL COURT

1. Disclosure and discovery of documents.—…….. (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.”

18. Order XI Rule 1(5) CPC, as applicable to the commercial suits, mandates the Plaintiff to file a List of Documents and photocopies of the documents in its power, possession, control or custody, pertaining to the suit, along with the plaint. Under Sub-Rule (5) of Rule 1 of Order XI of CPC, there is a statutory proscription on the Plaintiff to rely on documents which were not disclosed at the time of filing of the plaint, if the same were in its power, possession, control or custody. The proscription equally applies to the Court from granting leave, save and except, when the Plaintiff is able to demonstrate a reasonable cause for not filing the said documents with the plaint. This position of law clearly emerges from the exposition of law by the Supreme Court in Sudhir Kumar @ S. Baliyan (supra). Relevant para reads as follows: “31. Therefore a further thirty days time is provided to the plaintiff to place on record or file such additional documents in court and a declaration on oath is required to be filed by the plaintiff as was required as per Order XI Rule 1(3) if for any reasonable cause for non disclosure along with the plaint, the documents, which were in the plaintiff's power, possession, control or custody and not disclosed along with plaint. Therefore plaintiff has to satisfy and establish a reasonable cause for non disclosure along with plaint. However, at the same time, the requirement of establishing the reasonable cause for non disclosure of the documents along with the plaint shall not be applicable if it is averred and it is the case of the plaintiff that those documents have been found subsequently and in fact were not in the plaintiff's power, possession, control or custody at the time when the plaint was filed. Therefore Order XI Rule 1(4) and Order XI Rule 1(5) applicable to the commercial suit shall be applicable only with respect to the documents which were in plaintiff's power, possession, control or custody and not disclosed along with plaint. Therefore, the rigour of establishing the reasonable cause in non disclosure along with plaint 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.”

19. From a reading of the aforementioned passage, two principles of law pronouncedly emanate: (a) the documents which were in Plaintiff’s power, possession, control and custody, but were not disclosed along with the plaint, shall not be allowed to be relied upon, unless a reasonable cause is set out for non-disclosure and the Court grants leave to rely on the additional documents, satisfied with the reasonable cause; and (b) requirement of establishing reasonable cause shall not come in the way, if it is averred that the documents were discovered subsequently and were not in Plaintiff’s power, possession, control or custody when the plaint was filed. A corollary to the said principles is that the documents which come into existence subsequent to the filing of the suit i.e. are post-dated, are saved from the rigours of showing ‘reasonable cause’ for non-disclosure, envisaged in Rule 1(5) of Order XI CPC.

20. Tested on the anvil of the affirmation of law by the Supreme Court, the documents at serial nos. (a), (b) and (c) in Section ‘A’ of the application, as aforementioned, can be taken on record as: (i) they have come into existence subsequent to the filing of the suit [Ref.: Sudhir Kumar (supra)]; and (ii) these are Audited Financial Statements or screenshots of the website of Defendant No. 1 and are in public domain [Ref.: CS(COMM) 1611/2016 titled as Columbia Sportswear Company v. Harish Footwear & Anr.].

21. Insofar as documents at serial nos.

(d) to (q) in Section ‘A’ are concerned, these relate to correspondence/other documents in respect of parallel companies allegedly incorporated by the Defendants in India and in Singapore. It is well settled that at this stage of granting leave to place on record additional documents, Court is not required to determine the authenticity, admissibility or relevancy of the documents and these are considerations which would arise at the time of trial and/or even at the stage of deciding an application under Order XXXIX Rules 1 and 2 CPC, for arriving at a prima facie view, as held by the Supreme Court in Sudhir Kumar (supra). This is, however, not to be understood to mean that the Court would accept the documents only on the asking of the Plaintiff. Court will examine whether there is some connection to the suit and that the documents are not wholly alien or extraneous to the disputes arising between the parties to the lis and needless to say this has to be judged from the averments in the pleadings. [Ref.: K. Mallesh v. K. Narender and Others, (2016) 1 SCC 670; Khurmi Associates (P) Ltd. v. Maharishi Dayanand Co-operative Group Housing Society, 2022 SCC OnLine Del 1011; and Hemendra Rasiklal Ghia v. Subodh Mody, 2008 SCC OnLine Bom 1017].

22. Following the afore-stated position of law and applying the same to the present set of facts, it can be clearly seen that documents from (d) to (q), were not in existence when the suit was filed. Documents apparently relate to a whistle blower’s complaint and parallel companies incorporated by the Defendants, including their Audited Financial Statements and recruitment websites as well as cease and desist notices, issued by Plaintiff No. 1 and replies received thereto. Having perused the pleadings in the plaint, the contention of the Defendants that these documents do not have a genesis or a foundation in the plaint, cannot be accepted. Plaintiffs have in the plaint averred that Defendants No. 4, 6, 8, 10, 12 and 14 have on several occasions misrepresented to the existing and prospective clients of the Plaintiffs and have induced several of their customers to enter into contracts with Defendants No. 1 to 3 causing loss to the Plaintiffs and wrongly benefiting themselves. It is also averred that Defendants’ employees are continuing to infringe the copyright of the Plaintiffs unabated and their illegitimate activities are multiplying, with each passing day. It is also stated that Defendants’ employees have purposely and with a dishonest intent siphoned off Plaintiffs’ business to Defendants No. 1 to 3 and are continuing to unlawfully access and use the proprietary/confidential information/intellectual property of the Plaintiffs, in breach of the confidence and trust reposed in them. The contention that Defendants’ employees are misusing the opportunity offered by their employment with the Plaintiffs as a spring board to set up competing business by stealing the business of the Plaintiffs, is also averred. Averments also include allegations that on several occasions, the said Defendants have misrepresented to the existing and prospective clients of the Plaintiffs and have induced several customers of the Plaintiffs to enter into contracts with Defendants No. 1 to 3. In para 169 of the plaint, it is averred that the confidential information of the Plaintiffs is of a character that if monetised by Defendants No. 4, 6, 8, 10, 12 and 14, it can cause irreparable loss and injury to the Plaintiffs and that Plaintiffs apprehend that the said Defendants along with Defendants No. 1 to 3 are likely to further misuse and abuse the confidential data, etc. to the detriment of the business prospects of the Plaintiffs. In para 171, it is pleaded that there is a major threat that these Defendants will disclose the information and other related materials to third parties. Para 176 contains averments that Defendants have diverted legitimate business of the Plaintiffs to the extent of at least Rs. 5 crores from 2017 till the date of the filing of the present suit and as on the date of the suit, Plaintiffs do not have further details of the monies unlawfully obtained by the Defendants as they do not have access to the bank accounts or account books of the Defendants. Thus, right is reserved to amend the plaint to claim additional amounts, as and when further information comes to Plaintiffs’ knowledge. Therefore, in view of these pleadings, in my view, no new case is being set up by the Plaintiffs by filing the aforementioned documents, as the same do have a foundation in the plaint and the documents can be taken on record.

23. Documents from (r) to (ee) in Section ‘A’ are Plaintiffs’ notices to the Defendants, alleging breach of the interim order dated 28.09.2018 and the Defendants’ notices alleging defamation and breach of ad-hoc agreement. The documents are apparently post the filing of the suit and they relate to breach of the interim order dated 28.09.2018. The only objection raised by the Defendants to these additional documents is that they were filed as part of the contempt application and once the Court has found that no contempt is made out and the application has been dismissed, the documents cannot be taken on record. While it is a matter of record that Plaintiffs did not succeed in proving that the acts of the Defendants were contemptuous, however, it cannot be said that the documents are wholly extraneous or irrelevant to the inter-se disputes between the parties to the present suit. The relevancy or admissibility of the documents will be seen at the stage of trial and final arguments. Moreover, no prejudice can be caused to the Defendants as the suit is at a stage where issues have not been framed and secondly, most of the documents relate to the responses/replies sent by the Defendants to the notices sent by the Plaintiffs or vice-versa and are in possession of the Defendants. The documents, therefore, can be taken on record, subject to their relevancy being decided at later stage.

24. Documents in Section ‘A’ from (ff) to (jj) relate to correspondence exchanged with Aditya Birla Health Insurance Company Ltd. (ABHI) in respect of Defendants’ engagement with them. Each of these documents are post the filing of the plaint and do not suffer from the rigour of showing reasonable cause under Order XI Rule 1(5) CPC. Document at (ff) relates to Annual Financial Report which is available on the website and is in public domain. The remaining documents, according to the Plaintiffs, are correspondence with ABHI which would show the continuing infringing activities of the Defendants and the stand of ABHI in support of the Plaintiffs. The necessary averments in support of the documents find genesis in the plaint and moreover, the case of the Plaintiffs is premised on Defendants’ own admission in the written statement that they entered into contracts with third-parties to manage Plaintiffs’ software HealthBuzz, licensed to Plaintiffs’ clients, more particularly, Aditya Birla. In this view, the documents can be taken on record.

25. Documents (kk) to (oo) relate to the HealthBuzz-Claims System supplied by the Defendants to Liberty. It is the stand of the Plaintiffs that the infringing activities of the Defendants are continuing, contrary to the stand in the written statements that they have no access to data, documents, source code etc. of the Plaintiffs. Additionally, Defendants have also stated that they are free to enter into a contract for managing the Plaintiffs’ software HealthBuzz. These documents would demonstrate that Defendants have supplied the HealthBuzz-Claims System to one of Plaintiffs’ clients i.e. Liberty, after the filing of the suit, which could not have been done without having Plaintiffs’ proprietary software and copyrighted source code and in this context the Software License and Support Agreement dated 16.12.2014 entered between the Plaintiffs and Liberty becomes relevant. Documents are not to make out a fresh cause of action, as alleged by the Defendants and there are substantial pleadings in the plaint that Defendants are continuing to infringe.

26. Having examined the documents (kk) to (oo), it is palpably clear to the Court that barring the document (kk), the remaining documents are post the filing of the plaint and do not fall under the rigours of establishing a reasonable cause for non-disclosure with the plaint and are in aid to show the alleged dealings of the concerned Defendants with Liberty. The document (kk), i.e. Software Licence and Support Agreement dated 16.12.2014 is, no doubt, prior to the filing of the suit, however, as aforementioned, viewed in light of the contention of the Plaintiffs that it has become relevant post the filing, once it was discovered that contrary to the stand of the Defendants in the written statement, they are continuing to indulge in infringing activities and have entered into transactions with Liberty, Plaintiffs cannot be deprived of placing these documents on record, subject however to their relevancy and admissibility being examined at the appropriate stage of the suit. In any event, Rule 1(c)(ii) of Order XI begins with a non-obstante clause and provides that nothing in sub-Rule (1) shall apply to documents produced by the Plaintiff and relevant only in answer to any case set-up by the Defendant subsequent to the filing of the plaint, and the aforementioned documents are being sought to be brought on record to meet the stand of the Defendants in the written statement. Defendants are not correct in their submission that there is lack of pleading with respect to the said documents. Paras 148, 150, 152, 171 and 172, to illustrate a few, contain averments that Plaintiffs have learnt that Defendants are continuing with their illegitimate acts of using counterfeit software i.e., HealthIns in the market and examples to that effect have also been mentioned.

27. With respect to Document (pp) in Section ‘A’, the opposition on behalf of the Defendants is that Plaintiffs are trying to enlarge the scope of the suit as there is no averment in the plaint to the effect that some services can be undertaken without source code modification and some cannot. It was also contended that the said document is, in fact, not even a document but only a list of services prepared by the Plaintiffs, placed merely as an annexure to the application and is unsupported by any pleadings even in the present application.

28. I have perused the document (pp) and find merit in the contention raised by the Defendants that the same cannot be taken on record. A bare perusal of document (pp) shows that it is a typed list prepared by the Plaintiffs enumerating the services allegedly which can or cannot be performed without modification of the source code. The list cannot be termed as a document and as rightly pointed out by the Defendants, has no genesis in the pleadings in the plaint or even the present application.

29. With respect to the documents in Section ‘B’, it is averred in the application by the Plaintiffs that the existence of these documents was not within their knowledge at the time of filing the plaint and these have been recently discovered during arbitration proceedings against ABHI from the laptop that was being used by one of the ex-employees of the Plaintiffs at the relevant time. It is categorically averred that these documents are crucial as they would demonstrate the extent of Defendants’ involvement in dealing with Plaintiffs’ proprietary software HealthBuzz and provision of services to ABHI in breach of employment contracts and confidentiality obligations. It is also stated that the documents could not be filed earlier on account of the sudden resignation of some of the employees from the services of the Plaintiffs and their taking away all confidential data and relevant information. The opposition by the Defendants to the present set of documents is that the laptop has been in possession of the Plaintiffs prior to the filing of the suit and no reasonable cause is forthcoming as to why these could not be filed with the plaint. It is not explained how some documents were retrieved from the laptop earlier and filed with the plaint, while the present set of documents could not be taken and filed for two years.

30. Having heard the learned Senior counsels for the respective parties, in my view, documents in Section ‘B’ cannot be taken on record, at this stage. Plaintiffs have averred that these documents were recently discovered during the arbitration proceedings, which was invoked on 29.04.2020 against ABHI. Be it noted that in the plaint, it is stated in para 107 that Plaintiffs engaged M/s Pinkerton Consulting & Investigation Inc. for purposes of Cyber Forensic Examination of the various computer systems, laptops and other devices, allocated to Defendants No.4, 6, 8, 10, 12 and 14 at the time they were working for Plaintiffs No.1 to 4. Defendants are right in their objection that if these documents are purportedly discovered from the backup of the laptop of Defendant(s), then they were in possession and custody of the Plaintiffs when the plaint was filed, since admittedly, the laptop was in possession of the Plaintiffs at that stage and they had access to the data contained therein, which is fortified by the fact that many documents retrieved from the laptop were indeed filed along with the plaint. Significantly, even when the application being I.A. 6886/2021 was filed, although there is reference to these documents in the context of contempt alleged to be committed by the Defendants, but there is not even a whisper as to how and why these additional documents were discovered and/or came into possession of the Plaintiffs, subsequently. Plaintiffs have thus failed to disclose reasonable cause for nondisclosure of the additional documents, which were in their custody when the suit was filed. There is nothing on record which even remotely gives credence to the stand of the Plaintiffs that the documents came into their possession subsequently and in my view, the position now adopted is belied by the admitted fact that the laptop in question was in their custody throughout.

31. In Societe DES Produits Nestle S.A. & Anr. v. Essar Industries & Ors., 2016 SCC OnLine Del 4279, this Court observed that undoubtedly, Courts have been liberal in the past in allowing documents to be filed, even at a late stage, i.e. beyond the stage prescribed in law for filing thereof, but the said view needs to change in light of the Commercial Courts Act, 2015, the whole purport whereof is to expedite the disposal of suits, and commercial suits are to be treated differently, forming a distinct class.

32. In Zee Entertainment Enterprises Ltd. v. Saregama India Ltd., 2019 SCC OnLine 10215, the Court held that if the Courts, inspite of the legislative mandate and change, continue to overlook the deficiencies in prosecution of the suits, in the name of justice, litigants of commercial suits will never wake up to the change required to be brought about in the conduct of such suits.

33. Applying the aforesaid judgments, in my view, it would be antithetical to the legislative mandate of the Act if the Plaintiffs were permitted to bring on record the documents in Section ‘B’, keeping in view that: (a) they pertain to a period prior to filing of the suit; (b) no reasonable cause as mandated under Order XI Rule 1(5) CPC is shown, persuading the Court to grant leave to bring them on record; and (c) Plaintiffs have been unable to make out a case that the documents were discovered post the filing of the suit.

34. Accordingly, the application is partially allowed in the aforesaid terms and the documents in Section ‘A’, save and except, document (pp) are taken on record, subject to payment of cost of Rs.25,000/- to the Delhi High Court Bar Clerks’ Association within three weeks from today. Documents enumerated in Section ‘B’ are disallowed.

35. Application is disposed of in the above terms.