Indian Kanoon - Search engine for Indian Law

Delhi District Court

The vs Poonam on 17 April, 2017

IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
        DISTRICT JUDGE-02, WEST, DELHI.

CS No. 06/16
New No. 11106/16


M/s. Big Shows Entertainment Private Ltd.

vs.

M/s. Big Shows Entertainers Private Ltd. & Ors.



                          ORDER

17.04.2017

1. The defendants have filed an application under Order VIII 1A (3) read with Section 151 CPC seeking permission to file some additional documents and recall of order dated 17.02.2017. The brief facts stated in the application are as under:

2. It is stated that since defendants could not file the documents despite permission given by the court, the right to file documents by the defendants was closed on 17.02.2017. It is submitted that the defendants could not file the documents as they were in the process to collect the documents upon which they wish to rely upon as the said documents are old and were not readily available with the defendants. The details of documents which the defendants seek to rely upon mentioned in para 4 of the application are as under:

(a). TDS Certificate in original issued by Arun Vihar Institute (1.1.2000-31.1.2000).

(b). TDS Certificate in original issued by Birla Vidya Niketan (April 2002 -March 2003).

(c). Statement of current account in the name of M/s. Big Shows Entertainers in Syndicate Bank, Branch Sector- 18, Noida from 24.09.97 to 2004.

(d). Statement of current account in the name of M/s. Big Shows Entertainers in Indian Overseas Bank, Noida (2004-2005).

(e). Status of application No. 1318956 under Class 41 of registered Wordmark "BIG SHOW" in the name of 'World Wrestling Entertainment, Inc.'.

(f). TDS certificates dated 13.02.1998, 17.01.1998 and 10.04.1998 issued by T.V. Eighteen India Ltd.

(g). IEC Code dated 23.03.2005.

(h). ABN Amro Bank account statement from January to February, 2003.

(i). Certificate issued by Praveen Goel & Associates

(j). TDS certificates dated 06.03.1999 and 05.02.1999 issued by Arun Vihar Institute.

(k). Invoice dated 11.07.2005 along with import documents.

(l). Invoice dated 29.01.2008 along with import documents.

(m). Invoice dated 02.02.2010 along with import documents.

(n). Copy of status report of the application No. 2920975 filed by the plaintiff before the Registrar of Trademarks.

3. It is stated that the aforesaid documents are relevant for the issue involved in the present suit and are essential. It is stated that in the fitness of things and interest of justice that the order dated 17.02.2017 is recalled and defendants are permitted to file aforementioned documents.

4. In the reply to the application filed on behalf of the plaintiff, it is stated stated in the preliminary submissions and objections that the application is without any merit and bad in law. The defendant had been given opportunity to file the documents but the same had not been filed by the defendants and finally the court was constrained to close the right to file additional documents.

5. It is further stated that the Court must consider the fact that Order 8 Rule 1A (3) of CPC provides that a document which ought to be produced in the Court by the defendant either under Order 8 Rule 1A (1) or 1A (2) of the CPC, but not so produced, still can be produced leave of the court, which means that the defendant cannot voluntarily produce on record. The defendant has miserably failed to mention any reason why the application should be allowed. The defendants referred the judgment of Hon'ble High Court titled "Hukum Chand Ghanshyam Dass and Ors. vs. Poonam Bala and Ors."

6. It is further stated that the power to recall order under Section 151 CPC is the inherent power of the court which can only be applied in cases where the orders have been obtained by fraud or extraneous consideration. The petitioner has referred the judgment of 'Budhia Swain vs. Gopinath Deb. (1999) 4 SCC 396. It is further stated that the documents mentioned in the application does not mention a single document which could show the usage of the trademark BIG SHOWS by the defendant.

7. On merits, the averments made in the application are denied as wrong and false.

8. I have heard Ld. Counsel for the applicant/ defendant Sh. Satish Aggarwal and Ld. Counsel for the plaintiff Sh. Sumit Nagpal and Ms. Kamna Nagpal and perused the record. Ld. Counsel for the applicant/ defendant filed written submissions along with judgments on 17.04.2017 at 2.00 p.m. I have gone through the written submissions as well.

9. It is pertinent to mention here that the present suit filed on 04.02.2016. The defendant put in appearance on 30.03.2016. On 27.04.2016, written statement, reply and documents were filed by defendants. Thereafter, the hearing was scheduled for disposal of interim application under Order 39 Rule 1 & 2 CPC. The said application was decided vide order dated 24.11.2016. Thereafter, opportunities were granted to the parties to file documents, A/D of documents till 17.02.2017 but defendant chose not to file any further documents. The application in this regard was rejected on 17.02.2017 and right to file further document closed.

10. Now present application filed by defendant/ applicant. The main ground taken by the applicant/ defendant that they were in the process of collecting the documents. I have gone through the documents. These documents are pertaining to year 2003, 2005, 2008 and 2010. The other documents filed on record are even older then the said period. In my opinion, sufficient time has been granted to the defendant. I agree with the contention of Ld. Counsel for the plaintiff that it is necessary to specify the plausible reason why the documents were not produced at the appropriate stage despite giving the ample opportunities.

11. I have also gone through the para 4 of the judgment of Hukum Chand Ghanshyam Dass (Supra) relied by the plaintiff. On the other hand, Ld. Counsel for the defendant relied on the judgments of 'Prashant Kumar Goyal v. Smt. Sogra Khatoon & Ors.' AIR 2012 Sikkim 1 and 'Om Prakash Keshri vs. Smt. Chintu Devi' 2007 A I H C 605.

12. In my considered opinion, after applying the provisions of law, Order 8 Rule 1 A (3) and B, the judgments relied by parties, the defendant despite giving ample opportunities failed to file the documents and no plausible reason given for non production of documents. However, the case is still at the stage of admission/denial and framing of issues and trial has not begun. Therefore, in the interest of justice, I allow the application subject to payment of cost of Rs.10,000/- to the plaintiff. Application is disposed of accordingly.

Announced in the open court today the 17th April, 2017.

(Sanjay Kumar) ADJ-02,West/Delhi 17.01.2017 CS No. 77/2015 ( New No. 12174/16) Page No. 5/5