Delhi High Court - Orders
Sirona Hygiene Private Limited vs Amazon Seller Services Private Limited ... on 2 December, 2022
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~15(Original)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 503/2022 & IA14624/2022, IA 20127/2022, IA
20128/2022, IA 20129/2022
SIRONA HYGIENE PRIVATE LIMITED ..... Plaintiff
Through: Mr.Vaibhav Vutts,
Ms.Anupriya Shyam and Mr.D.
Jayachandran, Advs.
versus
AMAZON SELLER SERVICES PRIVATE LIMITED AND
ORS. ..... Defendants
Through: Mr.Vivek Ayyagari and
Ms.Ramya Aggarwal, Advs. for D-1
Ms.Shruti Dass, Adv. for D-2
Mr.Anil Kumar Sahu, Mr.Pran Krishnajana,
Advs. for D-7
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 02.12.2022 IA 14624/2022
1. This order disposes of an application by Defendant 7 under order XI Rule 1 (10) of the Code of Civil Procedure, 1908 (CPC) as amended by the Commercial Courts Act, 2015.
2. By this application, Defendant 7 seeks leave to place on record
(i) screenshots from the internet and (ii) the printout of a research paper published in February 2008. Both these documents have been sought to be placed on record to contest the novelty of Design No. 263764, which is the suit design asserted by the plaintiff. The application submits that the applicant/Defendant 7 came across the aforesaid data on a thorough search conducted on the "WayBack Machine" search engine, as well as from the google.com webpage, and a research paper available thereon.
Signature Not Verified Digitally Signed CS(Comm) 503/2022 Page 1 of 7 By:KAMLA RAWAT Signing Date:06.12.2022 16:24:403. Mr. Vutts, learned Counsel for the plaintiff/non-applicant strenuously opposes the application. He submits that the application is being filed belatedly, nearly two years after the written statement was filed by Defendant 7. He draws attention to the fact that the present proceedings are in the nature of a commercial suit, in which procedural requirements are much stricter and the Court has to ensure expediting of proceedings. Mr. Vutts also contests the correctness of the ground urged in the application for failing to have produced the aforesaid documents along-with the written statement. He submits that screenshots from the "WayBack Machine" web page specifically find place in the judgment of the learned single Judge of this Court in Crocs Inc. v. Liberty Shoes Ltd. 1, on which Defendant 7 relied in his written statement. As such, Mr. Vutts submits that Defendant 7 was well aware of the existence of the search engine "WayBack Machine"
and, quite obviously, also of the google.com search engine. Had he acted with due diligence, submits Mr. Vutts, Defendant 7 could easily have accessed the data on which he now seeks to place reliance when he filed the written statement or at least shortly thereafter, and no justifiable cause exists to allow the said data to be introduced in the proceedings at this belated stage.
4. Mr. Vutts submits that these contentions are without prejudice to his contention that the data that Defendant 7 now seeks to introduce, even otherwise does not in any manner defeat the case set up by the plaintiff.
5. On the approach of the Court to be adopted in cases where applications for production of additional documents are filed, the Signature Not Verified 1 2018 SCC OnLine Del 7107 Digitally Signed CS(Comm) 503/2022 Page 2 of 7 By:KAMLA RAWAT Signing Date:06.12.2022 16:24:40 Supreme Court has expounded at length in its decision in Sugandhi v. P. Rajkumar2. In that case, at the stage of recording of their evidence, the defendants filed an application seeking leave to produce additional documents, stating that the documents had been traced by them only shortly prior thereto, which was why they could not file them with the written statement. The documents were not allowed to be taken on record by the learned Trial Court, whose decision was affirmed by the High Court, against which the matter was carried to the Supreme Court.
6. The Supreme Court dealt with the matter thus, in paras 6 to 10 of its judgment:
"6. Rule 1-A of Order 8 CPC provides the procedure for production of documents by the defendant which is as under:
"1-A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.--(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counterclaim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in court by the defendant under this Rule, but, is not so produced shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this Rule shall apply to documents--
(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory."Signature Not Verified 2
(2020) 10 SCC 706 Digitally Signed CS(Comm) 503/2022 Page 3 of 7 By:KAMLA RAWAT Signing Date:06.12.2022 16:24:40
7. Sub-rule (1) mandates the defendant to produce the documents in his possession before the court and file the same along with his written statement. He must list out the documents which are in his possession or power as well as those which are not. In case the defendant does not file any document or copy thereof along with his written statement, such a document shall not be allowed to be received in evidence on behalf of the defendant at the hearing of the suit. However, this will not apply to a document produced for cross-examination of the plaintiff's witnesses or handed over to a witness merely to refresh his memory. Sub-rule (3) states that a document which is not produced at the time of filing of the written statement, shall not be received in evidence except with the leave of the court. Rule 1(1) of Order 13 CPC again makes it mandatory for the parties to produce their original documents before settlement of issues.
8. Sub-rule (3), as quoted above, 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 discretion conferred upon the court to grant such leave is to be exercised judiciously. While there is no straitjacket formula, this leave can be granted by the court on a good cause being shown by the defendant.
9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3).
10. Coming to the present case, the defendants have filed an application assigning cogent reasons for not producing the documents along with the written statement. They have stated that these documents were missing and were only traced at a later stage. It cannot be disputed that these documents are necessary for arriving at a just decision in the suit. We are of the view that the courts below ought to have granted leave to produce these documents."
7. Mr. Vutts seeks to distinguish the decision in Sugandhi2 on the ground that the decision was not rendered in a commercial suit and that, therefore, the considerations which apply are different.
Signature Not Verified Digitally Signed CS(Comm) 503/2022 Page 4 of 7 By:KAMLA RAWAT Signing Date:06.12.2022 16:24:408. On facts, the contention is correct. Sugandhi2 was not a case dealing with the commercial suit. That said, however, the only difference between Order VIII Rule 1-A(3) of the CPC, which deals with the right to file, at a last stage, additional documents in addition to those filed along with the written statement, and Order XI Rule 1(10) of the CPC as amended by the Commercial Courts Act, is that, Order XI Rule 1(10) requires the defendant is required to produce sufficient cause as to why the documents were not filed with the written statement. That consideration has also, however, been taken into account by the Supreme Court in paras 7 to 10 of Sugandhi2. The Supreme Court has emphasised the fact that, ultimately, the aim of the Court has to be to reach at the truth. This consideration, if anything, is even more applicable in commercial suits, in view of the inherent aspect of public interest and economy involved therein.
9. The principles enunciated in Sugandhi2, therefore, would equally apply, in my considered opinion, to a commercial suit.
10. In this context, it is also worthwhile to note that Order XI Rule 1(10) of the CPC as amended by the Commercial Courts Act - as also Order XI Rule 1(5), which deals with additional documents to be filed by a plaintiff - does not prescribe any period of limitation within which such documents could be introduced in the proceedings. That said, the Court would, of course, while dealing with such an application, keep in mind the stage of the proceedings. If the documents are being sought to be introduced at a much belated stage, after evidence is completed, or when the matter is at the stage of final arguments, the approach of the Court may justifiably be different. In the Signature Not Verified present case, however, the trial is yet to commence, and the Digitally Signed CS(Comm) 503/2022 Page 5 of 7 By:KAMLA RAWAT Signing Date:06.12.2022 16:24:40 application of the plaintiff under Order XXXIX Rules 1 and 2 is also yet to be heard. Pleadings in the application under Order XXXIX Rules 1 and 2 are, however, complete.
11. The documents that Defendant 7 seeks to place on record, as per the application, are intended to indicate that the asserted suit design is bad for want of novelty. Without going into the correctness of that assertion, as lack of novelty is one of the defences available in a patent infringement action, it cannot be said that the documents are irrelevant.
12. Mr. Vutts submits that his main apprehension is that, if the documents are allowed to be taken on record at this stage, he would have to admit or deny the same and the proceedings would thus stand protracted.
13. In order to assuage this apprehension, while allowing the present application and taking the additional documents as noted in para 1 supra on record, the plaintiff is directed to file his affidavit of admission and denial of the said documents within one week from today. No extension of time would be granted.
14. List the matter before the learned Joint Registrar on 19th December 2022 to complete the exercise of admission and denial of the additional documents and their marking as exhibits, and also for marking of exhibits of the documents already filed in the proceedings, whereafter the matter would be listed before the Court for case management hearing.
15. Signature Not Verified The present application is disposed of accordingly. Digitally Signed CS(Comm) 503/2022 Page 6 of 7 By:KAMLA RAWAT Signing Date:06.12.2022 16:24:40IA 20127/2022 (under Order XXXIX Rules 1 and 2 of the CPC)
16. Written submissions on this application already stand filed by Defendant 7. Apropos Defendants 9, 14 and 15, this Court, vide order dated 8th September 2022, had directed the Registry to put up a report as to whether they have been served. The Registry has accordingly put up a report stating that the said defendants had not only been served but had also been participating in the proceedings on various dates.
17. Accordingly, I do not deem it appropriate to await the response of Defendants 9, 14 and 15 before proceeding to hear the plaintiff's application under XXXIX Rules 1 and 2.
18. Accordingly, list the application under Order XXXIX Rules 1 and 2 before the Court for hearing and disposal on 11th January 2023.
19. Should any of the other parties except Defendant 7 seek to file written submissions they may do so at least 48 hours in advance of the next date of hearing after exchanging copies with all other parties in the matter.
C.HARI SHANKAR, J DECEMBER 2, 2022/kr Signature Not Verified Digitally Signed CS(Comm) 503/2022 Page 7 of 7 By:KAMLA RAWAT Signing Date:06.12.2022 16:24:40