Delhi High Court
Entertainment Network (India) Ltd vs Ht Media Limited on 29 August, 2022
Author: Jyoti Singh
Bench: Jyoti Singh
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 29th August, 2022
+ CS(COMM) 179/2016
ENTERTAINMENT NETWORK (INDIA) LTD ..... Plaintiff
Through: Mr. Sudeep Chatterjee and Mr. Kunal
Vats, Advocates.
versus
HT MEDIA LIMITED ..... Defendant
Through: Mr. Rajshekhar Rao, Senior Advocate
with Ms. Meghna Mishra, Mr. Ankit Rajgarhia,
Mr. Tarun Sharma, Mr. Abhishek Grover and
Mr. Areeb Amanullah, Advocates.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
JYOTI SINGH, J.
I.A. 1882/2020 (Under Order XI Rule 7(c) CPC as amended by the Commercial Courts Act, 2015 read with Section 151 CPC, by Defendant)
1. Present application has been preferred on behalf of the Defendant under Order XI Rule 7(c) CPC as amended by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as the 'Act') read with Section 151 CPC, seeking permission to bring additional documents on record and lead evidence with respect to these documents.
2. Plaintiff has filed the present suit seeking a decree of permanent injunction restraining the Defendant and all others acting on its behalf using any trademark that is identical or deceptively similar to the Plaintiff's CS(COMM) 179/2016 Page 1 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12 trademark 'PEHLA NASHA' either as a radio channel titled 'RADIO NASHA', trademark, trading style, name, logo, part of name or in any other manner or any other mark or name or domain name, identical to or deceptively similar to the Plaintiff's mark 'PEHLA NASHA' in relation to any services/products especially for broadcast, re-broadcast, radio broadcast, internet broadcast and in any other form whatsoever, so as to result in violation of Plaintiff's statutory and common law rights, along with other reliefs of damages etc.
3. It is pertinent to note, at the outset, that issues were framed in the present suit on 12.11.2018. Subsequently, Defendant filed its list of witnesses on 08.01.2019 and Plaintiff filed its list of witnesses on 16.01.2019. Plaintiff's evidence concluded on 12.12.2019. Defendant filed its evidence by way of affidavit of DW-1, Mr. Neeraj Saraswat, on 25.01.2020 along with additional documents, which are now sought to be brought on record by way of the present application. The suit is currently at the stage of Defendant's evidence.
4. The additional documents that the Defendant seeks to place on record by the present application are as follow:-
(i) A Copy of Power of Attorney dated 24.01.2020 of Mr. Neeraj Saraswat.
(ii) A Copy of Board Resolution dated 15.07.2015.
(iii) A Copy of the Brand Report dated 22.12.2015 prepared by the Brand Marketing and Management Company engaged by the Defendant.
(iv) A Chart detailing the filing status of Plaintiff's and Defendant's Trademark Applications.CS(COMM) 179/2016 Page 2 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12
(v) Print outs of Defendant's Radio Nasha Delhi's page on Facebook, Twitter and Instagram.
(vi) Copy of the Annual Financial Reports of the Defendant Company.
5. It must be noted at the outset that during the course of the arguments, Plaintiff had fairly and candidly tendered its no-objection with respect to document No. (i), i.e., copy of Power of Attorney dated 24.01.2020, document No. (ii), i.e., copy of Board Resolution dated 15.07.2015 and document No. (iv), i.e., charts detailing the filing status of Plaintiff's and Defendant's trademark applications. This stand is also reflected in the written note of arguments filed in support of the arguments canvassed in Court. In view of the aforesaid, these documents are taken on record.
6. Defendant seeks permission to take the additional documents on record on the grounds: (a) save and except two documents, remaining documents have emerged subsequent to the filing of the written statement by the Defendant; (b) the documents in no manner prejudice the right of the Plaintiff; (c) it is trite law that parties can be permitted to file additional evidence at any stage of the trial, including the appellate stage, if the document is required to adjudicate the disputes between the parties effectively and is relevant for substantial justice; (d) in the absence of the aforesaid documents, the lis between the parties cannot be decided completely, as the Plaintiff's suit is based on the premise that Defendant is riding upon its goodwill and the additional documents would prove not only that Plaintiff has no goodwill for its alleged mark 'PEHLA NASHA' but also that it is not using the same as a trademark; (e) documents would demonstrate that there is no commonality or similarity between the two CS(COMM) 179/2016 Page 3 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12 marks and thus, no likelihood of confusion; (f) Plaintiff would be entitled to cross-examine and put the additional documents to Defendant's witness during trial as the examination-in-chief of Defendant's witness is not concluded and thus, no prejudice will be caused to the Plaintiff; and
(g) Order XI Rule 1(7) of the Act permits taking documents 'pertaining to the suit' and relevancy of the documents has to be tested on this count only, leaving all other aspects such as admissibility, etc. to be decided at the stage of final arguments.
7. In addition to the abovementioned general grounds, learned Senior Counsel appearing on behalf of the Defendant/Applicant adverted specifically to each of the documents sought to be placed on record and the reason why they should be permitted. With respect to the Brand Report dated 22.12.2015, prepared by a Company engaged by the Defendant, it was urged on behalf of the Defendant that the report would show that Defendant never intended to cause any loss or harm to the Plaintiff by incorporating the word 'NASHA' in its mark and adopted the same bonafidely, by engaging professionals and without reference to or knowledge of Plaintiff's playlist 'PEHLA NASHA'. Brand Report goes to the very root of the matter and highlights how the name of Defendant's FM Radio Station came to be coined. The report could not be filed due to inadvertent error at the time of filing the written statement. Additionally, this report has assumed importance due to certain observations made by the Court in the judgment dated 13.07.2018, whereby this Court has granted temporary injunction against the Defendant.
8. It was further contended that document No. (v) comprises of the screenshots of Defendant's Delhi Radio Station 'RADIO NASHA 107.2 CS(COMM) 179/2016 Page 4 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12 FM' pages on Facebook, Twitter and Instagram and are sought to be placed on record to prove the goodwill and popularity of the Defendant, which has grown substantially during the pendency of the present suit. This is a document which came into existence after the filing of written statement and is free from rigours of showing 'reasonable cause' for non-disclosure of the documents at the time of filing the written statement, under Order XI Rule 1(10) CPC, as applicable to the Act.
9. It was further argued that document at serial No. (vi) of the present application are copies of Annual Financial Reports for the years 2016-17, 2017-18 and 2018-19, submitted by the Defendant to the Ministry of Information and Broadcasting and came into existence after filing of the Written Statement on 02.06.2016. It was submitted that the documents would show Defendant's financial standing and expenses incurred in the promotion of the brand 'RADIO NASHA' and are crucial for effective adjudication of Defendant's case in the present suit. It was also urged that Defendant has preferred an appeal being FAO(OS)(COMM) 155/2018 against judgment dated 13.07.2018, which is pending and in which an application has been preferred by the Defendant being CM No. 29790/2018 for placing on record additional documents, some of which are common to the present application and therefore, it cannot be argued by the Plaintiff that the documents have been introduced for the first time.
10. Reliance was placed on the judgment in ITC Limited v. JP Morgan Mutual Fund India Pvt. Ltd. & Ors., 2020 SCC OnLine Cal 972 passed by the Calcutta High Court, wherein the Court allowed additional documents to be taken on record, at a stage of the suit where after framing of issues, evidence of Plaintiff was concluded and the matter was at the stage of CS(COMM) 179/2016 Page 5 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12 examination-in-chief of Defendant No.1's witness, after being satisfied that the documents were necessary for adjudicating the issues arising in the suit. Reliance was also placed on the judgment in Hassad Food Company Q.S.C. & Another v. Bank of India & Ors., 2019 SCC OnLine Del 10647; Nitin Gupta v. Texmaco Infrastructure & Holding Limited, 2019 SCC OnLine Del 8367; Societe DES Produits Nestle S.A. & Anr. v. Essar Industries & Ors., 2016 SCC OnLine Del 4279 and Sudhir Kumar @ S. Baliyan v. Vinay Kumar G.B., 2021 SCC OnLine SC 734.
11. Plaintiff has opposed the present application on multifarious grounds. It was argued that the application is misconceived and vexatious and has been filed with the purpose of delaying the trial. Most of the additional documents existed when the written statement was filed, while the remaining are irrelevant for adjudication of the issues arising in the suit. Defendant has introduced the aforementioned documents for the first time on 25.01.2020 along with the affidavit of evidence, i.e., nearly four years after institution of the suit on 10.03.2016 and filing of the written statement on 02.06.2016. This Court reserved the order on Plaintiff's injunction application on 27.10.2016, which was pronounced on 13.07.2018. Thereafter, the Defendant filed an appeal on 26.07.2018 and filed an application for bringing on record five additional documents, one of which was the present Brand Report dated 22.12.2015. Issues were framed on 12.11.2018 and even at that stage, no attempt was made to bring the additional documents, which were in custody and possession of the Defendant, on record. Evidence of the Plaintiff concluded on 12.12.2019 and thereafter, these documents were filed along with the affidavit of evidence on 25.01.2020, without seeking leave of the Court and on an CS(COMM) 179/2016 Page 6 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12 objection being taken by the Plaintiff, present application was filed, which deserves to be dismissed.
12. It was argued that even otherwise, the additional documents are wholly irrelevant for adjudication of the present disputes. The printouts of Defendant's 'RADIO NASHA' Delhi's page on Facebook, Twitter and Instagram ought not to be taken on record, as Defendant is attempting to set up a new plea of goodwill and popularity of its radio channel during the pendency of the suit. No evidence can be permitted beyond the pleadings in the written statement. No issues have been framed regarding goodwill in the Defendant's mark as is evident from the order dated 12.11.2018, wherein issues were framed. Subsequently, Defendant moved an application under Order XIV Rule 5(1) CPC, seeking of framing of two additional issues, which was disposed of vide order dated 03.12.2018, without any amendment to the issues. Moreover, the Facebook page was created on 14.03.2016 and the Twitter page in March, 2016, while Defendant is seeking to put screenshots of the pages taken on 24.01.2020.
13. Insofar as the Annual Financial Reports are concerned, the documents have not come recently in possession of the Defendant. There is no reasonable explanation as to why the Reports for the years 2016-17 and 2017-18 were not filed at an earlier stage of suit when the same were admittedly available even prior to framing of the issues and why the Defendant waited till the conclusion of Plaintiff's evidence. Annual Financial Report for the year 2018-2019 was in possession of the Defendant before the evidence of Plaintiff concluded and no steps were taken to bring the same on record. In any event, Annual Financial Reports are not descriptive of Defendant's goodwill in its radio channel at the time of CS(COMM) 179/2016 Page 7 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12 institution of suit and moreover, if a party is aware that its mark forms the subject matter of a dispute but continues to use, expand and invest in the same, it does so at its own peril.
14. Learned counsel for the Plaintiff placed reliance on the judgments in Om Prakash Gupta v. Ranbir B. Goyal, (2002) 2 SCC 256 and Hukum Chandra (Dead) Through Legal Representatives v. Nemi Chand Jain and Others, (2019) 13 SCC 363, for the proposition that rights of parties crystalise at the time of filing of the suit and subsequent events during the pendency thereof cannot be taken into account for adjudication of rights of parties to the lis. Reliance was placed on the judgments in Nitin Gupta (supra), Polyflor Limited v. Sh. A.N. Goenka & Ors. 2016 SCC OnLine Del 2333; Zee Entertainment Enterprises Ltd. v. Saregama India Ltd., 2019 SCC OnLine Del 10215 and Societe DES Produits Nestle S.A. (Supra), for the proposition that once a trial has commenced, no party can file additional documents as it is against the legislative intent of the Commercial Courts Act. Reliance was placed on the judgment in Jolen Inc. v. Doctor & Company, 2002 SCC OnLine Del 518 to argue that advertisements, sales figures, etc. are of no relevancy if adoption of a trademark is subsequent, tainted and dishonest. It was urged that permitting the Defendant to place the additional documents on record, at this stage, would set the clock back, which would defeat the purpose of the Commercial Courts Act.
15. Strenuously opposing the application with respect to the Brand Report dated 22.12.2015, it was contended that the said document was in power and possession of the Defendant even when the suit was instituted on 10.03.2016. Defendant filed an affidavit of Mr. Abhishek Kapoor, Chief CS(COMM) 179/2016 Page 8 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12 Financial Officer of the Defendant Company on 14.03.2016, followed by another additional affidavit on 17.03.2016, yet the Brand Report was not disclosed. Order XI Rule 1(7) mandates that all documents in power, possession, custody and control of the Defendant shall be filed along with the written statement with the exception under Rule 1(7)(c). A document which was in power and possession and was not disclosed along with written statement, cannot be allowed to be relied on, save and except, with the leave of the Court which shall be granted only upon the Defendant establishing reasonable cause for non-disclosure along with written statement. No cause, least of all, a reasonable cause has been disclosed in the application for non-disclosure of the Brand Report along with the written statement and only a vague plea is taken that it was an inadvertent error. In fact, the act of the Defendant is completely malicious as initially the report was deliberately concealed in order to supress the fact that the first reaction of the public to the word 'NASHA' was extremely negative. Only when the Plaintiff's channel garnered goodwill, Defendant with a view to encash the goodwill and reputation took steps to have the report placed on record.
16. I have heard learned counsel for the Plaintiff and learned Senior Counsel for the Defendant and have examined the rival contentions.
17. At the cost of repetition, it needs to be noted that Plaintiff has given up its objection with respect to 3 additional documents sought to be placed on record by the Defendant and the controversy is, therefore, limited to 3 sets of documents: (a) Brand Report dated 22.12.2015; (b) Printouts of the RADIO NASHA Delhi's page on Facebook, Twitter and Instagram; and
(c) Annual Financial Reports for the years 2016-17, 2017-18 and 2018-19.
CS(COMM) 179/2016 Page 9 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:1218. Insofar as document (a) aforesaid is concerned, it is indisputable that the same came into existence on 22.12.2015, i.e., not only before the filing of the written statement by the Defendant but even prior to filing of the suit. The only reason for non-disclosure of the report along with the written statement, as discernible from the pleadings in the application, is that the document was inadvertently not filed earlier and that the requirement to file the same has become relevant and more pronounced on account of the observations of the Court in Para 26 of the judgment dated 13.07.2018.
19. Order XI sub-rule (7) of Rule 1 CPC, as amended by the Commercial Courts Act, 2015, mandates that the Defendant shall file a list of documents in its power, possession, control or custody, pertaining to the suit, along with the written statement. Sub-rule (10) of Rule 1 of Order XI of the Act clearly stipulates that Defendant shall not be allowed to rely on documents which were in Defendant's power, possession, control or custody and not disclosed along with the written statement, save and except by leave of the Court and that such leave shall be granted only upon the Defendant establishing 'reasonable cause' for non-disclosure along with written statement. The Brand Report is a document which beyond a doubt, existed prior to the filing of the written statement and was in power, possession, control or custody of the Defendant. Therefore, the rigours of Order XI Rule 1(10) of the Act shall apply on all four corners and the document cannot be taken on record, unless the Defendant makes out a 'reasonable cause' for its non-disclosure at the time of filing the written statement. The only ground put-forth, as noted above, by the Defendant for non-disclosure of the document, is 'inadvertence' and the observations of the Court while granting injunction against the Defendant. Unfortunately, under the Commercial Courts Act, CS(COMM) 179/2016 Page 10 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12 these considerations cannot be a ground to permit filing of additional documents. The proscription against permitting such a document to be taken on record, unless a reasonable cause is made out by the Defendant, in my view, is absolute. It also needs to be emphasised at this stage that the Brand Report is dated 22.12.2015 and no attempt was made by the Defendant for nearly 5 years to bring the said document on record as the present application was filed only on 06.02.2020, by which date the issues were framed in the suit and Plaintiff's evidence had concluded. In the entire application, there is no reason spelt out by the Defendant for inaction for these 5 years, while admittedly, the report was in its power and possession in the year 2015 itself and thus, no permission can be granted to take the document on record.
20. This Court in Rishi Raj v. Saregama India Ltd., 2021 SCC OnLine Del 4897, had rejected the application filed by the Plaintiff, post framing of issues refusing to accept 'inadvertence' as a ground for non-disclosure along with the plaint. Similarly, in the case of Zee Entertainment Enterprises Ltd. Saregama India Ltd., 2019 SCC OnLine Del 10215, Plaintiff had filed an application to file additional documents after framing of the issues on the ground of 'inadvertent error' on account of which the said documents were left out from the list of documents filed along with the suit. After analysing the provisions of Order XI Rule 1(5) pertaining to commercial suits, the Court observed as under:-
"17. A reading of paragraphs 3 and 4 of the application which have been reproduced here-in-above and in which alone the attempt, if any, at establishing reasonable cause has been made, are not found to satisfy the test. Not only is there no explanation as to why the inadvertent error now alleged was CS(COMM) 179/2016 Page 11 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12 not detected at the time of institution of the suit when the plaintiff was required to sift through each document for entering its requisite particulars in the list, on oath, but even now, at the stage of applying for leave to file documents, no proper pleadings lest establishing a case have been made out. All that is pleaded is that "in view of the age of such documents, two assignment agreements were left out from the list of documents along with the present plaint in lieu of which other agreement with the same party was placed on record erroneously...". No particulars have been given as to why the signatory of the plaint and of the affidavit in terms of Order XI Rule 1(3) & (6) did not go through the documents as required by law. In fact, no affidavit of Mr. Harsh Tripathi who had signed and verified the plaint and sworn on affidavit of disclosure of document, even has been filed, and the affidavit accompanying the application is of Mr. Mudit Raizada who, save for describing himself as authorised signatory of the plaintiff, has not even stated the position, if any, held by him in the plaintiff. There is again no explanation as to why, when the first affidavit of Mr. Anurag Bedi was drafted, the mistake or inadvertence even if any did not come to light. There is no explanation as to why the mistake, though not noticed at the time of filing the affidavit by way of examination-in-chief of Anurag Bedi, did not still come to light while withdrawing the said affidavit on the ground of errors therein. There is yet no explanation as to why even at the time of drafting the fresh affidavit of Mr. Anurag Bedi or at the time of scheduling of examination-in-chief, the mistake did not come to light."
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 CS(COMM) 179/2016 Page 12 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12 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.
22. In this context, I may refer to the judgment in Nitin Gupta (supra) wherein post framing of issues, Plaintiff had sought to file a letter dated 02.09.2013. Defendant had opposed the application inter alia on the ground that while filing the suit, Plaintiff had nowhere disclosed that there was any such document addressed by the Defendant to the Plaintiff and that no reasonable cause as required under Order XI Rule 1(5) of the Act was made out for taking the additional documents on record. The Court found merit in the contention of the Defendant that the Plaintiff is entitled, under Order XI of the Act, as applicable to commercial suits, to file a document belatedly only if it establishes 'reasonable cause' for non-disclosure along with the plaint. Application was disallowed by the Court and one of the factors, which weighed with the Court to come to the said conclusion, was that Plaintiff was unable to show a reasonable cause for non-disclosure of the document along with the plaint. What is significant is the observation of the Court in para 38 of the judgment that unless the Commercial Divisions while dealing with the commercial suits start enforcing Rules legislated for commercial suits and refuse to entertain applications for late filing of documents where they do not disclose reasonable cause and continue to show leniency, Commercial Courts will start suffering from the same malady which the ordinary suits have suffered and the purpose of the Commercial Courts Act would be defeated. I may also quote from the judgment of a Co-ordinate Bench in Great Gatsby Club of India v. Mahesh Prefab Pvt. Ltd., 2022 SCC OnLine Del 2099 as under:-
CS(COMM) 179/2016 Page 13 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12"21. The court cannot dilute the rigour of the said provisions on any sympathetic or other considerations. It is presumed that these considerations were in the mind of the legislature when they enacted the Commercial Courts Act. There can be no charity beyond the law."
23. Insofar as documents (b) and (c), are concerned, it is not disputed by the Plaintiff that the same came into existence post the filing of the written statement. As held by the Supreme Court in Sudhir Kumar @ S. Baliyan (supra), the documents, which are not in possession, power or custody at the time of filing of the plaint, would not come under the rigours of Order XI Rule 1(5) of the Act and the requirement of establishing reasonable cause for non-disclosure will not be applicable, if it is averred that the documents were found subsequently and were not in Plaintiff's power and possession when the plaint was filed. The same analogy would apply to the filing of additional documents by the Defendant where they come into existence post the filing of the written statement. Therefore, Defendant is not required to disclose a reasonable cause for non-filing of the aforesaid documents.
24. The question, however, that arises is that whether the Defendant is entitled to grant of leave for filing the said additional documents, considering the fact that the suit is at the stage of commencement of Defendant's evidence. Before alluding to the facts of the present case, I may refer to the judgment in Polyflor Limited (supra) where a Chamber Appeal was under consideration before the Court against an order dismissing an application preferred by the Plaintiff under Order VII Rule 14(3) CPC for taking on record additional documents, which were not filed along with the plaint and were sought to be brought on record when Plaintiff's witness was under cross-examination. The Court held as under:-
CS(COMM) 179/2016 Page 14 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12"17. Thus, the issue is, whether in the above noted facts and circumstances, the plaintiff is entitled to grant of such leave. In the present case, the plaintiff's witness PW-1 is under cross- examination and has already undergone a substantial portion of his cross-examination. To grant leave to, and permit the plaintiff to file and lead in evidence additional documents at this stage would mean that the defendants would be put to serious prejudice. The defendants have not had the occasion to deal with the said documents. Had the documents now sought to be produced, been produced at the relevant time, i.e. at the stage of filing of the suit, or at least at the time when the issues were framed, the defendants would have had the occasion to deal with the same by making appropriate pleadings and filing its own documents to counter the reliance placed by the plaintiff on the documents in question.
18. The progress of the suit cannot be interdicted on account of the blatantly casual approach of the plaintiff. The plaintiff has not given any justifiable and acceptable explanation for not filing the said documents at the earlier stage of the proceedings. If the submissions of the plaintiff were to be accepted, it would mean that in every case, a party should be permitted to lead in evidence documents not earlier filed and relied upon at any stage of the proceedings.
xxx xxx xxx
21. As aforesaid, there is no cause shown, much less a reasonable cause for non-disclosure of the documents and non- filing of the documents, or at least copies thereof along with the plaint, or even till the stage of framing of the issues."
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 CS(COMM) 179/2016 Page 15 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12 record by the Defendant along with the affidavit of evidence indicate that the Annual Financial Report for the year 2016-17 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 2017-18 was forwarded to the Defendant by the Accounting Firm under letter dated 28.09.2018 and Annual Financial Report for the year 2018-19 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 2018-19 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 (supra), 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 CS(COMM) 179/2016 Page 16 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12 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.
26. Learned counsel for the Defendant relied on the judgment in Hassad Foods (supra) which, in my view, does not help the Defendant. In the said case, the additional documents that were sought to be filed and were allowed by the Court, can be seen from para 16 of the judgment. Some of the documents were attachments of the e-mails which had already been filed, however, on account of the documents being voluminous, these attachments were left out. Albeit Monthly Inventory Statements had been filed by the Plaintiffs, Defendant Banks statement was not filed along with the plaint. Remaining documents were SWIFT statements regarding payments made and the same were relevant to the case as the Defendants had put the Plaintiffs to strict proof regarding the payments; Judicial orders of the Court of the learned ACMM in an FIR and copy of the Minutes of Meeting of Board of Directors. More importantly, the Court allowed the application since the suit was at a stage where the pleadings were not complete and even the replication was to be taken on record and in this view, the Court was of the opinion that the application was so not so belated as to be disallowed. In fact, para 17 of the judgment shows that the Court distinguished the case in Nitin Gupta (supra) and noted that amongst the two reasons why the Court CS(COMM) 179/2016 Page 17 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12 in the said case had declined to permit additional documents was that the documents were being filed after the issues had been settled.
27. Reading of the judgment in Societe DES (supra), in my view, shows that the observations of the Court, in fact, run contrary to the stand of the Defendant. In para 10 of the judgment, Court observed as under:-
"10. Though Courts have undoubtedly been liberal in past in allowing documents to be filed, even at a late stage, beyond the stage prescribed in law for filing thereof, but I am of the view that the said view needs to be changed specially in the light of the coming into force of the Commercial Courts Act, the whole purport whereof is to expedite the disposal of such suits and when certain edge has been given to the said suits in the manner of disposal thereof and which differentiation and advantage, if the said suits were not to be treated differently or did not form a distinct class, would be held to be arbitrary and discriminatory. A litigant with a claim which would not classify as a commercial dispute would certainly then be entitled to contend that no priority should be given to commercial suits as is purported to be done under the Commercial Courts Act."
28. Having so observed, the Court noted that applying the aforesaid reasoning to the suit before it, no justification was found to permit the Defendants No. 4 and 5 to file documents at the belated stage, as that would endlessly delay the trial inasmuch as an opportunity will then have to be afforded for proof of the said documents, which would entail examination of a number of witnesses and delay the trial. Be it noted that in the said case, Court had allowed only the documents which were filed along with an affidavit which was filed earlier but was not on record and the Court had only permitted filing of a fresh affidavit with these documents. However, insofar as large number of additional documents that were later filed to show CS(COMM) 179/2016 Page 18 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12 user of the trademark were disallowed and to that extent, the application was dismissed.
29. Reliance by the Defendant on the judgment in Nitin Gupta (supra) is misplaced. Indisputably, in the said judgment, the Court has held that a Defendant under Order XI CPC, as applicable to commercial suits, is entitled to file a document if it establishes 'reasonable cause' for non- disclosure as this explicitly flows from the provisions of Order XI Rule 1(10) itself. Defendant has, however, relied on the judgment in support of the contention that the brand report dated 22.12.2015, although not disclosed with the written statement, may be allowed to be brought on record. This argument overlooks the observations of the Court in the said judgment that late filing of documents can be permitted only if the applicant passes the muster of showing 'reasonable cause' and in the present case, Defendant has failed to disclose any cause, which can be termed as 'reasonable cause' for permitting a report of the year 2015 to be brought on record, through an application filed in the year 2020, when in the five years period there were several opportunities available to the Defendant to place the same on record. It bears repetition to state that mere inadvertence or unfavourable observations in a judgment granting injunction against the Defendant, cannot be a reasonable cause permitting filing of the brand report after five years of its existence. Defendant, it seems, is oblivious of a very significant observation of the Court in this very judgment that if the Commercial Divisions do not enforce provisions of the Commercial Courts Act strictly and show leniency in the name of 'interest of justice', the commercial suits will suffer from the same malady which the ordinary suits suffered.
CS(COMM) 179/2016 Page 19 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:1230. Learned counsel for the Defendant also placed reliance on the judgment of the Supreme Court in Sudhir Kumar @ S. Baliyan (supra). Having carefully perused the judgment, the same does not inure to Defendant's advantage. Firstly, in the said case, amongst the several additional documents sought to be brought on record, the Supreme Court only allowed the invoices to be taken on record on the ground that they were not in possession of the Plaintiff at the time of filing the plaint. On this analogy, Defendant may have had a case for bringing on record the screenshots of Defendant's Delhi Radio Station pages on social media or the Annual Financial Reports, which came into its custody and possession, post the filing of the written statement, however, the benefit of the judgment cannot accrue to the Defendant in the present case, as in the said case, the suit had not even advanced upto the stage of framing of issues unlike the present case where the Defendant's evidence has commenced and as noted above, Defendant took no steps to bring any of these documents on record, despite the same being in custody and possession of the Defendant prior to the commencement of the Plaintiff's evidence, if not earlier and significantly no reason has been given for having waited till the conclusion of the Plaintiff's evidence to file the present application. In this context, it is relevant to note that in the case of Sudhir Kumar @ S. Baliyan (supra), the Supreme Court had disallowed the remaining documents on the ground that there was sufficient time gap between the filing of the first suit and the second suit, i.e., approximately ten months, to file the additional documents which was not availed of by the Plaintiff.
31. Last but not the least, learned Senior Counsel for the Defendant had placed strong reliance on the judgment of the Calcutta High Court in CS(COMM) 179/2016 Page 20 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12 ITC Limited (supra) to contend that even at the stage when the Plaintiff's evidence is concluded, Defendant can be permitted to file additional documents. The contention, in my view, is wholly misconceived. A bare reading of the judgment shows that the filing of the written statements as well as disclosure and discovery in the said case were all completed before the suit migrated to a commercial suit and the Court clearly observed in para 16 of the judgment that the Defendant would be governed by the unamended provisions of the CPC, i.e., Order VIII Rule 1-A(3), under which Defendant has to obtain leave for producing additional documents although, the same is also not a matter of right. Reading of the judgment shows that the Court permitted the additional documents on the ground that this would not give an edge to the Defendant over the Plaintiff, as the Plaintiff will get an opportunity to cross-examine Defendant's witnesses on the said additional documents as well as have the liberty of recalling its witnesses. With the greatest of respect, this Court cannot adopt this reasoning in the present suit in light of the judgments of the Supreme Court and this Court, as aforementioned as well as keeping in backdrop the Statement of Objects and Reasons of the Commercial Courts Act, 2015, which is to provide for speedy disposal of the suits. If each time an additional document is sought to be placed on record by any party to the suit, without due cause, at a stage when the trial has commenced and the same has to be allowed on the ground that the opposite party can be given an opportunity to cross-examine the witnesses and recall its own witnesses, the purpose of the suit proceedings under the Commercial Courts Act will be defeated.
CS(COMM) 179/2016 Page 21 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:1232. For all the aforesaid reasons, the application is partially allowed in the aforesaid terms and disposed of accordingly.
CS(COMM) 179/2016
33. List on 12.10.2022 before the learned Joint Registrar.
JYOTI SINGH, J AUGUST 29 , 2022/rk/sn/shivam CS(COMM) 179/2016 Page 22 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:30.08.2022 19:29:12