Delhi District Court
M/S Media Dekho Services Pvt Ltd Through ... vs Mohit Kumar Proprietor P R Dekho Inc on 20 March, 2025
CS (COMM.)/810/2022
DLND010081412022
M/S MEDIA DEKHO SERVICES PVT LTD & ANR.
VS.
MOHIT KUMAR & ANR.
20.03.2025
Present: Sh. Vaibhav Massey, Advocate for Plaintiffs.
Defendant no. 1 in person.
Sh. Vijay Pal Singh, Advocate for Defendants
(through video conferencing).
Heard. File perused.
Record shows that two applications i.e., (I)
application under Order XI Rule 1 (5) r/w Section 151 CPC dated
11.08.2024 seeking leave to file additional documents moved by
plaintiffs and (ii) application under Order XI Rule 1 (10) r/w
Section 151 CPC dated 04.10.2024 seeking leave to file
additional documents moved by defendants are pending disposal
in this matter.
Although, the defendants have already filed their
written reply to the aforesaid application moved by plaintiffs,
however, the plaintiffs have not filed any written reply to the
aforesaid application moved by defendants.
At the outset, Ld. Counsel of plaintiffs, on
instructions, states at Bar that the plaintiffs does not wish to file
any written reply to the application dated 04.10.2024 (supra)
moved by defendants and he shall straight away advance
arguments on the said application.
Accordingly, arguments on both the aforesaid
Contd:-
-2-
applications heard. Record perused.
By way of application dated 11.08.2024 ( supra), the
applicants/plaintiffs seek leave of the Court to file the following
additional documents:-
Documents to be Filed Status of Documents.
1.Media Dekho Trade Registered.
Mark current status and Certificate of Class 35.
2. PR Dekho Trade Opposed.
Mark current status (Plaintiff Trade Mark).
3. Copy of Opposition Opposed.
File on Plaintiff's Trade mark PR. Dekho.
4. Copy of Counter Opposed.
Statement filed by the plaintiff in PR. Dekho Trade Mark.
5. Status of Trade Mark Objected.
of Defendant (PR
Dekho)
6. Examination report Objected.
of Defendant's Trade
Mark PR Dekho
5617447.
7. Copyright Certificate Registered.
of Mediadekho.com.
By way of application dated 04.10.2024 (supra), the applicants/defendants seeks leave of the Court to file the documents i.e., Tax Invoices, Reply dated 18.03.2023 to Examination Report (MIS-R) dated 22.12.2022 and its Search Report dated 17.03.2023 of the Trademark Registry Delhi and Reply dated 03.09.2024 to Show Cause Hearing on application No. 5617447 The Registrar of Trade Mark, Delhi.
Firstly, I shall deal with the application moved by Contd:-
-3-applicants/plaintiffs, wherein it is stated in para no. 2 that the plaintiffs made endevour to file all the relevant and necessary documents in their power, possession, control or custody, relating to subject matter of the present suit. It is stated in para no. 3 thereof that owing to the voluminus nature of documents during the course of proceedings, the status of some of documents got changed and some documents came before plaintiffs during course of proceedings of the present suit and some documents inevitably got missed out and therefore, the plaintiffs have moved this application seeking leave of the Court to file the above referred additional documents.
Ld. Counsel of plaintiffs has advanced arguments on the aforesaid line of the averments made in the application. He has contended that trademark "MEDIA DEKHO" of plaintiffs got registered during pendency of suit and the application for registration of other trademark "PRDEKHO" of plaintiffs stands opposed by the defendant herein and the additional documents are status of both the said trademarks, as also copy of Trademark Registration Certificate in respect of "MEDIA DEKHO", copy of opposition petition filed by defendant herein, reply thereto alongwith its annexures filed by plaintiffs and status of application for registration of Trademark "PRDEKHO" of defendant, as shown to be opposed, besides notice issued by Trademark Registry raising objection to the said application of defendant and Certificate regarding Registration of Copyright of the plaintiff and therefore, all these documents may be allowed to be placed on record.
Contd:--4-
Per contra, the application has been strongly opposed on behalf of the defendants on the ground that the plaintiffs have failed to disclose any justifiable ground for not filing some of the proposed additional documents which were readily available with them, alongwith the plaint. The application is further opposed on the ground that the subject matter of the suit is related to Trademark "PRDEKHO" and there is no change in the status of the said trademark and by way of application in hand, the plaintiffs are try to mix up two separate trademarks in order to create confusion and to mislead this Court. The averments made in application in hand have been disputed and denied by the defendants. Ld. Counsel of defendants has further submitted that the plaintiffs had enough occasion to file new documents alongwith replication, but they failed to do so and therefore, the instant application is liable to be dismissed.
As regards the application dated 04.10.2024 ( supra) moved by defendants, their Counsel has submitted that those documents could not be filed earlier as some of them were not in existance at the time of filing of written statement and other were left out inadvertently even after due care and caution. It is further submitted that these additional documents are relevant and essential for adjudication of the subject matter of the present suit and therefore, the application may be allowed.
On other hand, Ld. Counsel of non applicants/plaintiffs have opposed this application on similar ground that the defendants have failed to disclose any sufficient ground for not filing the documents at the appropriate stage. He Contd:--5-
has pointed out from those documents that Tax Invoices are for the period from 25.04.2022 to 13.09.2022, whereas reply of Examination Report is dated 18.03.2023 and Search Report is dated 17.03.2023 and thus, the defendants could have filed the same alongwith their written statement or at the most alongwith their supplementary written statement dated 12.08.2023. Having failed to do so, it is contended on behalf of plaintiffs that the application in hand is devoid of any merit and thus, may be dismissed.
In brief, it be noted that the plaintiffs have filed the present suit under Section 28 and 29 r/w Section 134 and 135 of The Trademarks Act, 1999 seeking decree of permanent and mandatory injunction against the defendants, thereby restraining the defendants, their partners, dealers, agents and all others acting on their behalf from infringing their trademark and/or passing off by providing services in relation to PRDEKHO and MEDIA DEKHO, besides damages, rendition of accounts, delivery up, etc. It may be noted that the present suit was filed on 22.09.2022 and the defendants filed their written statement on 01.02.2023 and supplementary written statement on 30.10.2023.
Further, the plaintiffs are shown to have filed their replication on or about 17.02.2023.
Pertinently, the plaintiffs had filed certain additional documents alongwith their replication, as reflected from the proceedings dated 23.03.2023 available on record, however, said additional documents were not take on record and were directed Contd:-
-6-to be kept aside for want of any application seeking leave of the Court to file those additional documents. However, the plaintiffs did not care to move any application like the present one, till 11.08.2024, for which no explanation whatsoever is forthcoming on behalf of the plaintiffs. Moreover, the grounds raised by the plaintiffs in their application, are entirely vague and no plausible or justifiable ground whatsoever is disclosed on their behalf for not filing those documents which were already in their possession at the time of filing the suit and/or the replication and also as to why they did not move any application despite order dated 23.03.2023 (supra) passed by Ld. Predecessor of this Court. Ld. Counsel of plaintiffs conceded during the course of arguments that trademark registration Certificate in respect of mark "MediaDekho.com" is issued on 15.11.2023, whereas Copyright Registration Certificate is dated 20.07.2023. Not only this, the notice issued by Trademark Registry qua TM Application no. 5617447 of defendant herein, is also dated 17.03.2023. The opposition petition is date 18.04.2023 and its reply/counter statement is dated 24.06.2023. Again, the plaintiffs have failed to point out any possible reason for not filing any application proposing to file said documents at the earliest available opportunity.
As regards the proposed additional documents being sought to be filed by defendants, the Tax Invoices pertain to the period from 25.04.2022 to 13.09.2022, Reply to Examination report is dated 18.03.2023 and Search Report is dated 17.03.2023. As also noted above, the defendants have filed their Contd:-
-7-written statement on 01.02.2023 and supplementary written statement on 30.10.2023. It is recorded in the proceedings dated 28.07.2023 that the defendants may filed supplementary written statement, which goes to show that the defendants could have filed appropriate application seeking leave of the Court to file above referred documents. Having not so done, they are duty bound to disclose any plausible or justifiable ground which prevented them from not moving appropriate application and/or filing such additional documents at the earliest available opportunity.
Hon'ble Supreme Court of India in the cited case of 'Sudhir Kumar @ S. Baliyan vs. Vinay Kumar G.B. ' (supra) in the context of Order XI Rule 1(3) CPC has held 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."
Contd:-
-8-Further, Hon'ble Supreme Court in the celebrated case of 'Ambalal Sarabhai Enterprises Ltd. vs. K.S Infraspace LLP', (2020) 15 SCC 585 has made the following observations:
"36. A perusal of the Statement of Objects and Reasons of the Commercial Courts Act, 2015 and the various amendments to the Civil Procedure Code and insertion of new rules to the Code applicable to suits of commercial disputes show that it has been enacted for the purpose of providing an early disposal of high value commercial disputes. A purposive interpretation of the Statement of Objects and Reasons and various amendments to the Civil Procedure Code leaves no room for doubt that the provisions of the Act require to be strictly construed. If the provisions are given a liberal interpretation, the object behind constitution of Commercial Division of Courts viz. putting the matter on fast track and speedy resolution of commercial disputes, will be defeated. If we take a closer look at the Statement of Objects and Reasons, words such as "early" and "speedy" have been incorporated and reiterated. The object shall be fulfilled only if the provisions of the Act are interpreted in a narrow sense and not hampered by the usual procedural delays plaguing our traditional legal system."
(emphasis supplied)"
17. Order XI Rule 1(1) of CPC, as applicable to commercial suits, gives the first opportunity to a plaintiff to file documents on which they choose to rely upon at the time of filing of the suit. Such filing is done along with a declaration that all documents in the power, possession, control or custody of the plaintiff pertaining to facts and circumstances of the proceedings initiated, have been disclosed and copies have been annexed with the plaint. Order XI Rule 1(3) CPC in fact furthers includes as part of the declaration that "the plaintiff does not have any other documents in its power, possession, control or custody".Thereafter, Order XI Rule 1(5) CPC follows, which precludes the plaintiff from relying on documents which were in their power, possession, control or custody but not disclosed with the plaint, save and except with the leave of Contd:--9-
the Court. What is underscored here is that the provision necessitates that such leave by the Court shall be granted only upon the plaintiff establishing reasonable cause for non-disclosure along with the plaint. Thus, the plaintiff has the option of disclosing documents which they choose to rely upon and if not disclosed, the same cannot be allowed unless reasonable cause is established."
In the case of 'CEC-CICI JV & Ors. v. Oriental Insurance Company Limited', bearing CS (COMM) 7/2020, decided on 15.05.2023, Hon'ble Delhi High Court has deliberated in detail on Order XI Rule 1(5) CPC and dismissed the application moved by plaintiff under the said provision, while noting in para no. 71 of the judgment that the plaintiffs could have collated the documents before the filing of the suit itself; and the argument that documents were scattered in various offices and could not be collated, was only on after-thought and they could not justify the late filing of additional documents.
In another case of 'Bela Creation Private Limited v. Anuj Textiles', 2022 SCC OnLine Del 1366, Hon'ble Delhi High Court has held as under:-
"24. In the absence of any averment to the effect that the aforesaid declaration, contained in the Statement of Truth accompanying the written statement and counter- plaint filed by the petitioner, was incorrect, the learned Commercial Court was justified in holding that additional documents, which were in the custody of the petitioner at the time of filing the written statement, could not be permitted to be introduced at a later stage. "Reasonable cause", within the meaning of Order XI Rule 1(10) of the CPC, as amended by the Commercial Courts Act, cannot extend to negligence in filing of documents before the Court. "Reasonable cause", necessarily, must refer to a cause which was outside the control of the petitioner, and petitioner from filing the concerned documents along with the written statement."
(emphasis supplied) Contd:-
-10-Yet in another case of ' Nitin Gupta v. Texmaco Infrastructure & Holding Ltd.', 2019 SCC OnLine Del 8367, Hon'ble Delhi High Court has held as under:-
38. Unless, the Commercial Divisions, while dealing with the commercial suits, so start enforcing Rules legislated for commercial suits, and refuse to entertain applications for late filing of documents, especially with respect to documents of suspicious character and continue to show leniency in the name of 'interest of justice' and 'a litigant ought not to suffer for default of advocate', the commercial suits will start suffering from the same malady with which the ordinary suits have come to suffer and owing whereto the need for the Commercial Courts Act, 2015 was felt. Commercial Division is thus not required to entertain or allow applications for late filing of documents, without any good cause being established for non-disclosure thereof along with pleadings.
Also, in the case of 'Rishi Raj v. Saregama India Ltd.', 2021 SCC OnLine Del 4897, Hon'ble Delhi High Court has held as under:-
[.....]
23. The suit was filed in 2017 and the application for filing additional documents had been filed three years later in 2020 merely stating inadvertent error. In my opinion, there is no reasonable cause given by the plaintiff for not filing the additional documents along with the plaint. The application is belated. The plaintiff cannot be permitted to rely on the documents as sought.
Similar view has been taken by Hon'ble Delhi High Court in the case of 'TTK Prestige Limited v. Baghla Sanitaryware Private Limited & Ors.', bearing CS(COMM) 281/2021, decided on 07.02.2024.
Both these applications in hand have been moved at belated stage. Moreover, no reasonable cause whatsoever has Contd:-
-11-been furnished either by the plaintiffs or by the defendants for not filing the proposed additional documents.
In view of the foregoing reasons, the discussion made herein above and while being guided by the above referred decisions of Hon'ble Apex Court as well as of Hon'ble Delhi High Court, this Court is of the opinion that both the sides have failed to show any reasonable cause for not being able to file such documents at the appropriate stage and thus, are not entitled to the leave for filing such documents at such a belated stage. The entire conduct of both the parties in moving such appliclations containing vague averments has resulted in wasting the precious time of the Court besides causing delay in proceedings of the present matter. Hence, this Court is of the view that such applications deserve to be dismissed with exemplary costs so as to dissuade them from moving such applications in such a casual manner. Resultantly, both the applications under consideration are hereby dismissed with costs of Rs. 5,000/- each. Costs shall be deposited with NDDLSA, PHC, New Delhi and receipts thereof be placed on record by next date, failing which appropriate consequences shall follow under the law. With these directions, both these applications stand disposed off accordingly.
Put up on 03.06.2025 for deposit of costs and arguments on injunction application.Digitally signed by VIDYA
VIDYA PRAKASH PRAKASH Date:
2025.03.20 17:25:11 +0530 Vidya Prakash District Judge (Commercial Court)-02 Patiala House Court, New Delhi.
20.03.2025(V)