Delhi High Court
Fats Inc. vs Zen Technologies Limited on 25 January, 2008
Equivalent citations: 149(2008)DLT260
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
ORDER Shiv Narayan Dhingra, J.
I.A. Nos. 5621/2007 and IA No. 8308/2007
1. Defendant filed IA No. 5621 of 2007 Order 7 Rule 14(3) read with Section 151 CPC to file additional documents. The defendant filed an affidavit by way of evidence on 16th March 2007. Along with the said affidavit, the defendant filed few more additional documents which it is contended could not be filed by the defendant at the time of filing written statement. The second IA being No. 8308 of 2007 for similar relief was filed.
2. In IA No. 5621 of 2007, it is stated that the defendant be allowed to file certificate issued by the statutory auditor showing the sales figures of the defendant Company i.r.o ZEN iFATS and research and development expenses for all products, original invoices and documents showing participation of the defendant in the Exhibitions, documents under which defendant sent its sub-system for exhibition, e-mails received from organizers of exhibition showing that the plaintiff and defendant had participated in the same exhibition, in order to prove that the plaintiff was very well aware of the defendant's using the trademark. It is submitted that the plaintiffs has, for the first time, filed sales, research and development figures of its own during evidence. The plaintiff's witness has also relied upon the Annual Report during his cross examination. Hence, the defendant be allowed to file the above documents to show its development efforts and amount spent by it. It is further stated that the plaintiff in the suit claimed damages to the tune of Rs. 20 lac but in the affidavits by way of evidence, it claimed damages to the tune of Rs. 75 crore without any basis and, therefore, all above documents were very much essential to adjudicate upon the issues raised by the parties. The documents like E-Mails from the organizers of exhibitions, and about the participation of the plaintiff and defendant in the same exhibition, were necessary to prove on record the falsity of the plaintiff's witness who deposed that he became aware of the existence of defendant in middle of 2005. Some of the documents like corrigendum dated 14th January 2002 and 13th March 2002, office copy of the defendant's bid to a tender, document under which the defendant sent its sub-systems for exhibition, letter issued by Ministry of Science and Technology were misplaced by the defendant when the defendant shifted its premises in 2005. These documents were now found while searching for some other files. The letter dated 12th March, issued by the plaintiff's representative to defendant is intended to show that the plaintiff company was aware of defendants product ZEN iFATS since 2001 but since the plaintiffs witness has denied the knowledge of defendant's company till middle of 2005, filing of this letter is necessary.
3. In IA No. 8308 of 2007, the defendant wants to bring on record additional documents filed by it with the affidavit of witnesses by way of evidence. It is stated that the defendant incidentally met the representative of M/s Logical Solutions Limited, Hyderabad on 30th March 2007 and was told that the said concern had sought clarification of tenders issued by the Government of India pursuant to which corrigendum dated 14th January 2002 and 13th March 2002 were issued. On this, defendant's company requested M/s Logical Solutions to supply the copies of the correspondence in this regard. The M/s Logical Solutions asked for the documents under the Right to Information Act. These documents were received on 15th July by the defendant's company from M/s Logical Solutions. These documents show that government tenders, issued on 25th May 2000/17th June 2001/5th December 2001, were global tenders for all manufacturers manufacturing the Firearms Training Systems (FATS). These documents were necessary to show that FATs was a generic term and was being used by the Government as well as by other manufacturers and production of these documents was necessary to throw light on the falsity of the plaintiff's claim in the suit.
4. The applications are supported by affidavits. No reply to these application has been filed by the plaintiff, however, applications were opposed during arguments.
5. Under Order 7 Rule 14(3) CPC, documents can be filed by a party, with the leave of the Court, if a reasonable explanation and ground is given by the party showing its inability in filing documents earlier at right stage. In the present case, defendant claimed that the plaintiff though in the plaint claimed damages of only Rs. 20 lac, but in the affidavit of evidence, he claimed damages to the tune of Rs. 75 crore and, therefore, the defendant felt it necessary to file all its sales figures and other documents to prove that plaintiff was not entitled to damages and was in the knowledge of user of this trademark by the defendant and others.
6. It is settled law that a party cannot travel beyond its pleadings in evidence. If the plaintiff had restricted its claim of damages in the suit only to Rs. 20 lac. Even if the damages suffered by the plaintiff were in crores, the plaintiff cannot be granted damages for more than Rs. 20 lac. Filing of affidavit in evidence by plaintiff witness is no ground to allow additional documents. The other ground taken is that the plaintiff's witness relied upon the annual report which was not part of the documents of plaintiff in order to prove its sale figures and other figures and due to these reasons defendant has to file these documents.
7. I consider that the defendant, in any event, had to prove that it was using the trademark since long time. The defendant was supposed to file all the documents showing his user along with written statement. The defendant was also supposed to prove that the plaintiff was in the knowledge of use of the trademark by the defendant, since the acquiescence is one of the defense available under the Trademarks Act. The plaintiff in this suit claimed that it spent huge amounts on Trademark and promotion. The defendant in response was supposed to file documents in respect of its sale, promotion and advertisement expenses. The defendant cannot take the plea that these documents were to be filed by the defendant only after the plaintiff proved its sale figures and figures of promotion of the market or on advertisement. Similarly, the plea taken by defendant that the documents were misplaced because of shifting of office, is not tenable, more so when the defendant has not even disclosed where its earlier office was situated and where it was shifted. It is quite unbelievable that in any private sector company, the documents can be misplaced or become untraceable in the manner described by the defendant. The plea raised by the defendant seems to unbelievable on the face of it.
8. It is mandatory for parties to file all documents along with their pleadings so that both parties know about each others case. A party, during evidence, cannot be allowed to file additional documents unless it shows that these documents were not within its control. None of the documents stated by the defendant are those which were not within the control of the defendant neither the documents are those which were not relevant for the purpose of deciding the issues from the point of view of the defendant, as is seen from the pleadings of the parties.
9. I consider that except the document which the defendant got from M/s Logical Solutions Limited, no other document can be allowed to be placed on record.
10. Accordingly, IA No. 8308/2007 is allowed and IA No. 5621/2007 is hereby dismissed. The documents which the defendant got from M/s Logical Solutions Limited, if filed, be taken on record.
11. Both the applications stand disposed of.
CS(OS) No. 1472/2005List this suit before the Joint Registrar for admission/denial of additional documents, if any, on 20th March, 2008 and before the Court on 6th May, 2008.