[Cites 11, Cited by 0]
Bombay High Court
Fintree Education Pvt Ltd vs Fintree Finance Private Limited on 20 February, 2026
2026:BHC-OS:5031
902-IA-L-8377-2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (L) NO. 8377 OF 2025
IN
COMMERCIAL IP SUIT NO. 234 OF 2021
FinTree Education Pvt. Ltd. & Anr. ...Applicants/Plaintiffs
Versus
Fintree Finance Pvt. Ltd. ...Respondent/Defendant
_______
Mr. Hiren Kamod a/w. Mr. Anees Patel i/b. Ketan Dhavle, for the
Applicants/Plaintiffs.
Mr. Alankar Kirpekar a/w. Mr. Ayush Tiwari, Mr. Vishal Hegde, Mr. Rohit
Maurya i/b. Samudra Legal LLP, for the Defendant.
_______
CORAM : ARIF S. DOCTOR, J.
RESERVED ON : 22nd JANUARY 2026
PRONOUNCED ON : 20th FEBRUARY 2026
JUDGMENT
1. The Applicants, who are the Plaintiffs in the captioned Suit, have filed the
present Interim Application under the provisions of Order VI Rule 17 read
with Section 151 of the Civil Procedure Code, 1908 ("CPC"), seeking to
amend the Plaint as well as Notice of Motion (L) No. 14688 of 2019 by
adding additional documents as well as pleadings.
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A Brief Background:
2. On 23rd August 2012, Plaintiff No. 2 obtained registration of the mark
FINTREE ("the Plaintiffs' mark") bearing No. 23845600 in class 41.
3. On 14th June 2019, the Plaintiffs filed the captioned Suit for infringement
since the Defendants were using the mark / FINTREE ("the
impugned mark"). The Plaintiffs also filed Notice of Motion (L) No.
14688 of 2019 under the provisions of Order XXXIX, Rules 1 and 2 of the
CPC, seeking an injunction against the Defendant from using the impugned
mark and infringing the registered trade mark of Plaintiff No.2.
4. The Defendant, on 3rd September 2019, filed an Affidavit in Reply to the
Notice of Motion.
5. Since the Plaint as filed did not contain any prayer for passing off, the
Applicant, on 2nd December 2021, filed Interim Application (L) No. 28145
of 2021, seeking to amend the Plaint by adding a prayer of passing off
("First Application for Amendment"). The First Application for
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amendment was allowed by this Court vide an Order dated 20th February
2023.
6. However, while the pleadings in respect of passing off were added pursuant
to the first amendment, it is the Plaintiffs' case that some of the necessary
pleadings and documents in support thereof were absent in the Plaint, and
the separate prayer of passing off remained to be added in the prayer clause
of Notice of Motion (L) No. 14688 of 2019. It was thus that the Applicant
sought for and was granted liberty by this Court vide an Order dated 6th
March 2025 to file an appropriate application for amendment.
7. It was thus that the present Interim Application ("Second Application for
Amendment") has been filed.
Submissions on behalf of the Plaintiff:
8. Mr. Kamod, Learned Counsel appearing on behalf of the Plaintiffs,
submitted that the proposed amendments sought by the Plaintiffs fall into
four categories:
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a. Documents produced in answer to the case set up by the Defendant
in its Affidavit in Reply;
b. Documents which came into existence after the filing of the Suit;
c. Documents not in the power, possession and custody of the Plaintiffs
at the time of institution of the Suit, and;
d. Amendments confined purely to the pleadings.
He then, in support of each of these four categories, made the following
submissions:
a. Documents in answer to the case set up by the Defendant
9. He submitted that there was no dispute as to the fact that the disclosure
regime under Order XI Rule 1 of the CPC, as amended by the Commercial
Courts Act, 2015 ("Commercial Courts Act") applied to Commercial
Suits, including applications for amendment under Order VI Rule 17 CPC.
He thus submitted that ordinarily, a Plaintiff is required to disclose along
with the Plaint all documents in its power, possession, control or custody
pertaining to the Suit. He, however, emphasised that Order XI Rule
1(1)(c)(ii) itself carves out a specific exception, inasmuch as it provides
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that the Rule does not apply to documents produced by a Plaintiff which
are relevant only in answer to any case set up by the Defendant subsequent
to the filing of the Plaint.
10. According to Mr. Kamod, the legislative intent behind this exception was
that a Plaintiff cannot reasonably be expected, at the time of instituting the
Suit, to anticipate every defence that may subsequently be raised. He
therefore submitted that documents that become relevant only because of
a defence raised would be an exception to the requirement of initial
disclosure. He submitted that the additional documents sought to be
brought on record in the present Interim Application fall squarely within
this exception, as they are being produced solely in response to the defence
raised for the first time in the Affidavit in Reply. Consequently, he
contended that the requirements under Order XI Rule 1(4) and Rule 1(5),
including the need to establish reasonable cause for non-disclosure, would
not apply.
11. In the present case, Mr. Kamod submitted that the documents which,
according to him, fell in the above category were D1, F1, F6 and F7 since
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(i) Documents at Exhibit D1: the photographs of the Plaintiffs' branches in
Mumbai, Pune and Bangalore; Shops & Establishments Certificate and a
Rent Agreement, which addresses Defendant's allegation that Plaintiffs do
not have branches at Pune and Bangalore;
(ii) Documents at Exhibit F1: the invoices of the expenditure incurred by
Plaintiffs under the FINTREE mark, which addresses the Defendant's case
that the Plaintiffs had not advertised the mark;
(iii) Documents at Exhibit F6 and Exhibit F7: the screenshots of the
Plaintiffs' website and social media platform showing Plaintiffs' virtual
presence.
b. Documents which came into existence after the Suit was filed
12. Mr. Kamod then submitted that, apart from documents covered by Order
XI Rule 1(1)(c)(ii), certain documents were obtained or came into
existence only after the institution of the Suit. He submitted that; thus, such
documents could not have been in the Plaintiffs' possession at the time of
institution, and therefore the embargo under Order XI Rule 1(5) would not
be attracted.
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13. In the facts of the present case, he submitted that the documents which
have come into existence after the Suit was filed were:
(i) Exhibit C1: the updated status page of the Plaintiffs' renewed
registration;
(ii) Exhibit F2: the Chartered Accountant's Certificate dated 3rd March
2025;
(iii) Exhibit F3: the tax invoices certified by the Chartered Accountant after
the institution of the Suit.
14. He further submitted that with regard to such documents that came into
existence after the suit was filed, the Court at this stage was not required to
go into the question as to whether such documents could have been
obtained earlier or not, and to assess their evidentiary value. He submitted
that this was a matter which would have to be decided at the trial. In support
of his contention, he placed reliance upon the decision of this Court in Nitin
Sukanraj Jain v. Neoliva Life Science Pvt. Ltd.1
[Bombay High Court] Order dated 25th July 2023 in IA(L) No. 17260 of 2023 in COMIP Suit No. 451 of 2022.
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c. Documents not in the power, possession and custody of the Plaintiffs
at the time of institution of the Suit
15. Mr. Kamod submitted that there were certain documents which were not
in the power, possession and custody of the Plaintiffs at the time of
institution of the Suit and thus are required to be produced on record, since
the same play a crucial role in showing the Plaintiffs' use of the mark
FINTREE. He submitted that though Order XI Rule 1 of the CPC mandates
parties to disclose all the documents in their custody at the time of
institution of the Suit, the party not being in possession of the documents
at the time of institution of the Suit, may be allowed to produce them at a
later stage. In support of this contention, he placed reliance upon the
decision of Sudhir Kumar v. Vinay Kumar G.B2 wherein the Court, while
discussing the legislative intent behind Order XI Rule 1, observed that the
restriction of Order XI Rule 1(5) against filing additional documents is not
absolute but conditional, and thus a party can be allowed to produce
relevant documents belatedly on justifiable reasons.
(2021) 13 SCC 71.
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16. He then submitted that, in the present case, the documents at Exhibit F5,
which are the testimonials and reviews of the Plaintiffs' clients, were not
in the Plaintiffs' possession at the time of institution but were relevant to
show the Plaintiffs' continuous use and reputation pursuant to the mark
FINTREE. In order to support this contention, he placed reliance upon the
decision of this Court in the case of Sony Music Entertainment India Pvt.
Ltd. v. Ilaiyaraja Music N Management Pvt. Ltd & Ors.3 and the decision
of Delhi High Court in the case of Vijay Kumar Varshney v. Longlast
Power Products Ltd. & Anr.4 wherein it was held that the rigors of Order
XI Rule 1 will not apply to the documents which are sought to be produced
in answer to a case set up by Defendant.
17. At the time of the arguments, Mr. Kamod fairly submitted that Exhibit F4
is a chart showing the export sales summary of the Plaintiffs. However,
since the same lacks particulars such as the authority/personnel issuing the
same, the Plaintiffs will not press for production of the said document.
[Bombay High Court] Order dated 8th November 2023 in IA(L) No. 25506 of 2023 in COMIP Suit No. 560 of
2022.
2023 SCC OnLine Del 3775.
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d. Amendments confined only to the pleadings
18. Mr. Kamod then laid emphasis on the fact that the Suit was still at a pre-
trial stage. He submitted it was well settled that pre-trial amendments were
to be allowed liberally, particularly where no prejudice would be caused to
the Defendant and the amendment is necessary for complete and effective
adjudication of the dispute. He also submitted that the law does not impose
an absolute bar on the production of documents after the institution of the
Suit; rather, it permits such production where necessity arises, especially
when the trial has not commenced.
19. He further submitted that Order XI Rule 1 does not require an overly
technical or exhaustive recital of every document within the Plaint. The
object of the provision is to promote discipline and expedition in
commercial litigation, not to defeat substantive justice on technical
grounds. In this context, he relied upon the decisions in Board of Mumbai
Port Authority v. DSV Gerimal5, and M/s. MLI Logistics India Pvt. Ltd.
2025 SCC Online Bom 2984.
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v. Sarr Freights Corporations6, to submit that procedural provisions
should not be interpreted in a manner that confers an unwarranted technical
advantage.
20. Mr. Kamod then, without prejudice to the above, submitted that
intellectual property matters warrant a liberal approach in procedural
application, particularly where statutory and proprietary rights are sought
to be protected against continuing infringement. In support, he relied upon
the decision of this Court in Ultra Media and Entertainment Pvt. Ltd. v.
Y-Not Films LLP & Ors.7
21. Lastly, Mr. Kamod submitted that certain proposed amendments were
confined solely to the pleadings and are clarificatory and corrective in
nature. They do not introduce a new cause of action or alter the nature of
the Suit. Relying upon Valo Automotive Pvt. Ltd. v. Sprint Cars Pvt. Ltd.,8
he submitted that where a trial has not commenced, the governing
consideration is whether the amendment is necessary to determine the real
[Bombay High Court] Order dated 9th May 2025 in Com. Suit No. 193 of 2023 & IA No. 4654 of 2024 a/w. IA
No. 5949 of 2025.
2024 SCC OnLine Bom 3085.
2021 SCC OnLine Del 4080.
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controversy between the parties. Pre-trial amendments, particularly those
necessary to meet a defence raised for the first time, ought to be permitted
to avoid multiplicity of proceedings and to ensure effective adjudication.
22. In these circumstances, he submitted that the present Interim Application
deserves to be allowed.
Submissions on behalf of the Defendant:
23. Mr. Kirpekar, Learned Counsel appearing on behalf of the Defendant,
opposed the present application for amendment filed nearly six years after
the institution of the Suit. He submitted that most of the documents now
sought to be brought on record were admittedly in the Plaintiffs'
knowledge and possession or, at the very least, could have been within the
Plaintiffs' power, possession, control or custody had the Plaintiffs
exercised the required diligence at the relevant time.
24. Mr. Kirpekar then submitted that the Plaintiffs' conduct reflected a
consistent lack of diligence. He submitted that it was only after this Court
had declined ad-interim relief for infringement that the Plaintiffs sought to
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amend the Plaint and introduce a cause of action for passing off. He pointed
out that although the first application for amendment was allowed by an
Order dated 20th February 2023, the Plaintiffs once again failed to
incorporate all necessary pleadings and documents. He submitted that the
present Application, was therefore yet another attempt to fill in the lacunae
in the Plaint in the guise of an Application under Order XI Rule 1.
25. On the aspect of the Plaintiffs' lethargy in proceeding expeditiously, Mr.
Kirpekar pointed out that even six years after the institution of the Suit, the
writ of summons had not been served upon the Defendants, which he
submitted was contrary to Practice Note 60 of the Bombay High Court
original side practice notes.
26. It was in the context of the aforesaid facts that Mr. Kirperkar submitted
that the real question which the Court must consider is as follows:
"Whether the scheme of the Commercial Courts Act, 2015, permits a
Plaintiff to repeatedly amend pleadings and introduce documents
through successive applications, without proceeding with the Suit to
trial?"
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27. Mr. Kirperker then submitted that the aforesaid question would have to be
answered in the negative since the Commercial Courts Act provides for a
stringent procedural framework mandating complete and candid disclosure
at the threshold. He submitted that the legislative intent behind the
Commercial Courts Act was expedition, finality and procedural discipline.
He thus submitted that any attempt to introduce documents belatedly must
therefore be strictly scrutinised since the same militated against the scheme
of the amended Order XI.
28. He submitted that the provisions of Order XI, as amended, were
mandatory in nature, which required a Plaintiff to, along with the Plaint,
file a list and copies of all documents in the Plaintiff's power, possession,
control or custody. He submitted that while sub-rule (4) of Order XI
provides a limited window in urgent cases to bring additional documents
within thirty days, any subsequent production of documents would have to
satisfy the test of "reasonable cause" for non-disclosure as contemplated
under sub-rule (5). He submitted that it was well settled that where a statute
prescribes a manner of doing something, it must be done in that manner
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alone. He submitted that this would equally apply to intellectual property
rights Suits which are governed by the provisions of the Commercial
Courts Act.
29. Mr. Kirpekar then placed reliance upon the decision of the Hon'ble
Supreme Court in Sudhir Kumar v. Vinay Kumar G.B to submit that strict
adherence to amended Order XI was mandatory even in commercial
intellectual property suits and that only documents brought on record in
compliance with the scheme provided for in amended Order XI can be
permitted. He further submitted that Order XI Rule 1(1)(c)(ii) must be
construed narrowly and harmoniously with the overall scheme of the Act.
The exception therein, he submitted, cannot be expanded to permit the
introduction of documents which were admittedly within the Plaintiff's
possession when the Suit was filed.
30. He submitted that the central question was whether the Plaintiffs had
satisfied the test of "reasonable cause" under Order XI Rule 1(5). He
submitted that in the facts of the present case, no such cause has been made
out. To amplify this contention, he pointed out that the Suit was instituted
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in 2019, alleging infringement of the trade mark FINTREE prior to which
the Plaintiffs had issued a cease-and-desist notice dated 16th April 2019, to
which the Defendant replied on 23rd April 2019. He thus submitted that the
Plaintiffs were therefore fully aware of the Defendant's stand well before
filing their first amendment application.
31. He then submitted that even after ad-interim relief was refused in 2019,
the Plaintiffs had filed a first amendment application, which was allowed
in February 2023. Despite that opportunity, he submitted that the present
second amendment application has been filed seeking further amendments
and additional documents. He submitted that the explanation that the
Plaintiffs realised only on 6th March 2025 that a specific prayer had not
been incorporated, according to him, demonstrates callousness rather than
a new development.
32. Mr. Kirperkar then, in dealing with the documents which were sought to
be added, submitted as follows:
i. Exhibit C-1: He fairly stated that the Defendant has no objection to this
document being taken on record.
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ii. Exhibit D-1: The Shops and Establishments Certificate dating back to
2014 were admittedly within the Plaintiffs' possession prior to the
institution of the Suit. In respect of the other documents, he submitted
that even assuming they were produced in answer to the Defendant's
Affidavit dated 3rd September 2019, no explanation has been offered
as to why they were not placed on record at least at the time of the first
amendment in 2021. No reasonable cause has been demonstrated.
iii. Exhibit F-1: Advertisement material prior to 2021 was within the
Plaintiffs' possession. No satisfactory explanation has been furnished
for its earlier non-production.
iv. Exhibits F-2 and F-3: He submitted that reliance on Nitin Sukhraj
Jain v. Neoliva Life Science Pvt. Ltd. is misplaced. In that case,
documents were produced within a reasonable time. Here, the
Chartered Accountant's certificate and invoices are sought to be
introduced after six years without explanation. The mere fact that a
document was created subsequently does not justify its belated
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production, especially when viewed against the Plaintiffs' overall
conduct.
v. Exhibits F-4 to F-7: He submitted that Exhibit F-4 is not even a
document in the eyes of law and that Exhibits F-5 to F-7 do not satisfy
Order XI requirements. In particular, WHOIS search details reflecting
registration of the Plaintiffs' domain name in 2012 were clearly within
the Plaintiffs' knowledge and ought to have been disclosed earlier.
33. Mr. Kirpekar also then placed reliance upon the decision of the Himachal
Pradesh High Court in Mohan Meakin Limited v. The Devicolam
Distilleries Ltd.9 to submit that there is an absolute statutory bar against
reliance on documents which were within a party's possession but not
disclosed at the prescribed stage, except upon strict proof of "reasonable
cause". Inadvertence, oversight or internal miscommunication, he
submitted, do not constitute reasonable cause.
34. In dealing with the decision in the case of Board of Mumbai Port
Authority v. DSV Gerimal, Mr. Kirpekar pointed out that the amendment
2024:HHC:11877.
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was necessitated since a new case was raised in the Written Statement,
which was not a mere denial. He submitted that a mere denial does not
amount to "setting up a case" under Order XI Rule 1(1)(c)(ii). He then
pointed out that the decision in the case of Valo Automotive Pvt. Ltd. v.
Sprint Cars Pvt. Ltd. was rendered prior to the decision of the Hon'ble
Supreme Court in Sudhir Kumar, and to the extent it adopts a liberal
approach, it cannot override the subsequent binding precedent. Similarly,
he pointed out that the decisions in the case of Sugandhi by LRs v. P.
Rajkumar10 and Menkabai v. Manohar Mukundrao Deshpande & Ors.11
relied upon by the Plaintiffs in oral pleadings, were not rendered in the
context of Order XI as amended. Mr. Kirpekar then pointed out that in Sony
Music Entertainment India Pvt. Ltd., the amendment was the first
amendment and arose from a new factual dispute in the Written Statement.
Similarly, in Vijay Kumar Varshney, the delay was justified by specific
circumstances, like COVID-19 and a plea of prior use. He therefore
(2020) 10 SCC 706.
1970 SCC OnLine Bom 87.
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submitted that none of these cases would apply to the facts of the present
case. He also pointed out that in the case of Nitin Sukhraj Jain, the
documents were produced within a reasonable time and shortly after the
institution of the Suit. In contrast, the present application is filed six years
later and constitutes a second amendment.
Submissions in Rejoinder:
35. Mr. Kamod submitted that the Defendant's reliance on Sudhir Kumar v.
Vinay Kumar G.B. was misplaced since in the said decision the Written
Statement had already been filed and the defence had been crystallised.
The Plaintiff in that case had failed to disclose documents admittedly in its
possession at the time of filing the suit and later sought to introduce them
without establishing "reasonable cause" under Order XI Rule 1(5). It was
in those circumstances that the Hon'ble Supreme Court declined to permit
the belated production of documents. In contrast, in the present case, the
documents are either produced in answer to the Defendant's case within
the meaning of Order XI Rule 1(1)(c)(ii) or came into existence subsequent
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to the filing of the Suit. Further, the Written Statement has not yet been
filed, issues have not been framed, and the trial has not commenced. He
therefore submitted that the factual matrix in Sudhir Kumar was entirely
distinguishable, and the ratio thereof does not apply to the present case.
36. He similarly submitted that Mohan Meakin Ltd. v. The Devicolam
Distilleries Ltd. was also inapplicable since the documents were sought to
be introduced after the Written Statement had been filed, on the ground of
inadvertence, without establishing reasonable cause. It was in that context
that the Court refused to permit the party to fill lacunae in its case. In the
present matter, however, no plea of inadvertence has been taken. The
amendment is sought on the basis that the documents fell within the
statutory exception under Order XI Rule 1(1)(c)(ii) or came into existence
subsequently. Moreover, in Mohan Meakin, the trial had already
commenced, whereas in the present case, the proceedings are still at the
pre-trial stage.
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Reasons and Conclusions:
37. Having heard Learned Counsel for the parties at length and having perused
the pleadings and the case law upon which reliance is placed, I find as
follows:
A. At the outset, it is undisputed that the present Suit is a Commercial
Suit which is governed by the provisions of Order XI of the CPC, as
amended by the Commercial Courts Act, 2015. A plain reading of
Order XI makes it clear that a Plaintiff is required to, at the threshold,
disclose all documents in its power, possession, control or custody
pertaining to the Suit. The Hon'ble Supreme Court has in the case of
Sudhir Kumar, inter alia held that the disclosure regime under
Order XI of the CPC, as amended by the Commercial Courts Act,
2015, is mandatory and must be strictly enforced in Commercial
Suits. A Plaintiff is therefore required to disclose, at the time of filing
the Plaint, all documents in its power, possession, control or custody
relating to the Suit. If such documents are not disclosed at the
threshold, they can be brought on record later only with the leave of
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the Court and upon establishing "reasonable cause" for the earlier
non-disclosure. Further, the Hon'ble Supreme Court clarified that
mere oversight, inadvertence, or the Plaint being voluminous does
not constitute reasonable cause and that the scheme of Order XI is
designed to ensure procedural discipline, early crystallisation of
disputes, and expeditious disposal of commercial litigation. Thus,
documents which were in the Plaintiff's power, possession or
custody at the time of institution of the Suit cannot be permitted to
be brought on record subsequently unless the Plaintiff satisfies the
statutory test of "reasonable cause" or unless they are in answer to a
case set up by the Defendant.
B. In the aforesaid context, I am unable to accept the contention that a
more liberal approach must be taken and greater latitude must be
shown in intellectual property insofar as Order XI is concerned. This
submission is untenable for two principal reasons. First, the scheme
of amended Order XI itself expressly provides the circumstances in
which additional documents may be brought on record, subject to
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compliance with the conditions prescribed therein. The statutory
framework is therefore self-contained and does not contemplate a
separate standard for particular categories of commercial disputes.
Second, to permit greater latitude merely because the dispute
concerns intellectual property would, in effect, dilute the discipline
embedded in the amended Order XI and would undermine the very
object of the provision. The Plaintiffs' reliance upon the decision in
the case of Ultra Media and Entertainment Pvt. Ltd. v. Y-Not Films
LLP & Ors. to contend that Commercial Intellectual Property Suits
are governed by or subject to a more lenient approach is misplaced.
The said decision primarily concerned the rejection of a Plaint under
Order VII Rule 11 read with Section 12A of the Commercial Courts
Act on the ground of non-compliance with pre-institution mediation.
The observations therein regarding intellectual property matters
standing on a different footing were made in the context of urgency
and public interest considerations. The issue at hand concerns the
Plaintiffs' requirement at the time of the filing of the Suit to disclose
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and produce documents relied upon and in the power, possession, or
control of the Plaintiffs. The decision does not in any manner even
suggest that the requirements of Order XI can be diluted in
Commercial Intellectual Property Suits. In any view, Rule 1(5)
would take care of any contingency where the Plaintiff, at the time
of filing of the Suit had not disclosed along with the Plaint despite
being in power, possession and custody of such documents only if a
case of "reasonable cause" has been made out.
C. Order XI Rule 1(1)(c)(ii) however undoubtedly carves out a limited
exception in respect of those documents that might be in the power,
possession and custody of the Plaintiff when the Suit was filed and
which the Plaintiff is required to bring on record only in answer to a
case set up by the Defendant after the filing of the Plaint. However,
this exception cannot be interpreted so broadly as to render the
overall scheme and purpose of amended Order XI, as mandated a
rigorous disclosure regime overriding general provisions of the CPC
as observed in the decision of Sudhir Kumar, nugatory. Therefore
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recourse to Rule 1(1)(c)(ii) is available only where the documents
proposed to be produced are genuinely necessitated to meet the
requirement of being the documents in answer to the case set up by
the Defendant. Hence, when considering an application under this
provision, the Court must carefully examine whether the documents
are genuinely in response to the case set up by the Defendant and
that the application is not merely filed under the provisions of Order
XI Rule 1(1)(c)(ii) only as a ruse to overcome and/or circumvent the
requirement of establishing "reasonable cause" under Order XI Rule
1(5).
D. Therefore, in the facts of the present case, for the Plaintiffs to
succeed, the Plaintiffs must necessarily demonstrate that Exhibits
C1, F2, F3 and F5 were not in the Plaintiffs' possession when the
Suit was filed and Exhibits D1, F1, F6, and F7 were being introduced
in answer to the case pleaded in the Affidavit in Reply. It is therefore
imperative to ascertain whether in fact the Plaintiffs have made out
a case under the provisions of Rule 1(1)(c)(ii) of Order XI before
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allowing the amendment so as to ensure that the same do not
override or defeat the statutory mandate of Sub-Rule (5) of Order XI
Rule 1. It is in this context that the amendments which have been
sought for must be considered.
E. As regards proposed Exhibits C1 and F2, which on the face of the
documents came into existence after the institution of the Suit, and
Exhibit F3 which might have been older documents but are recently
certified by CA, such documents could not, by their very nature,
have been disclosed along with the Plaint. The embargo under Order
XI Rule 1(5) is therefore not attracted in respect of these documents,
though their relevance and admissibility will, of course, be subject
to scrutiny at trial. The Plaintiffs' reliance on the decision of Nitin
Sukanraj Jain is apposite, wherein the Court has considered a
similar issue of production of the sales report, invoices, auditors'
report, etc., after institution of the Suit. The Defendant's attempt to
distinguish the same on the ground that in the said case, documents
were produced within a few months of institution, unlike the present
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case, would not, in my view, disentitle the Plaintiffs to the
amendment sought for since what is relevant in the said decision is
that it is not for the Court to go into the issue of whether such
documents could have been obtained prior to the institution of the
Suit.
F. As regards proposed Exhibits D1, F1, F6 and F7, which are sought
to be introduced in answer to the case pleaded in the Affidavit in
Reply, I am unable to accept the Plaintiffs' contention that these
documents would fall within the exception carved out under Order
XI Rule 1(1)(c)(ii). Firstly, the "case set up by the Defendant" as
contemplated under Order XI must ordinarily be understood in the
context of the pleadings, namely, the Plaint and the Written
Statement, and not an Affidavit in Reply. Secondly, it is not in
dispute that these documents were in existence at the time of the
institution of the Suit. They were therefore available to the Plaintiffs
even when the first amendment application was filed, which was
admittedly after the Defendant had placed its Affidavit in Reply on
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record. The Plaintiffs have now, after a lapse of nearly six years from
the filing of the Affidavit in Reply, sought to introduce these
documents on the ground that they are required to answer the case
set up therein. I am unable to accept this submission. The Plaintiffs
had ample opportunity to place these documents on record when
they moved the first amendment application. Having failed to do so
at that stage, they cannot now invoke amended Order XI Rule
1(1)(c)(ii) as a device to introduce documents long within their
knowledge and possession. In my view, the present attempt is
nothing but an effort to circumvent the mandate of amended Order
XI Rule 1(5), since the Plaintiffs would be unable to satisfy the
statutory requirement of demonstrating "reasonable cause" for their
earlier non-disclosure.
G. Insofar as the amendments which are confined solely to the
pleadings are concerned, it is well settled that pre-trial amendments
are to be liberally allowed. The present Suit is admittedly at a pre-
trial stage since no Written Statement has not been filed and issues
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902-IA-L-8377-2025
have not been framed. In this regard, the Plaintiffs' reliance upon the
decision in Valo Automotive Pvt. Ltd., is apposite since the Court is
required to examine whether the proposed amendment is necessary
for determining the real questions in controversy and whether it
alters the fundamental character of the Suit. In my view, the
amendments to the pleadings alone would satisfy this test and thus
would have to be allowed.
H. The decisions in the case of Mohan Meakin Ltd. and Sudhir Kumar
would not, in my view, disentitle the Plaintiff to the limited relief
which I propose to grant since the facts in both cases were materially
different. In the case of Mohan Meakin Ltd. the amendment was
sought for after the trial had commenced. Similarly, the decision in
Sudhir Kumar would not apply since the Defendant had filed
Written Statement in that case and hence the present case are distinct
as those of the aforesaid decision. Thus, in neither of the cases was
the Suit at the pre-trial stage.
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38. In the aforesaid backdrop and as per the reasons mentioned above, the
Interim Application is partly allowed in the following terms:
i. The documents at Exhibits C1, F2 and F3 of the captioned Interim
Application are permitted to be placed on record along with the
Plaint. Consequently, the Plaintiffs are allowed to carry out necessary
amendments in paragraphs 5 and 14A of the Plaint respectively.
ii. The Plaintiffs are also permitted to carry out amendments to
paragraphs 11, 14A and prayer clause (a1) of the Notice of Motion
(L) No. 14688 of 2019, as specified in paragraphs 5(h), 5(i) and 5(j)
of the captioned Interim Application, respectively.
iii. iii. No orders as to costs.
39. The Interim Application is disposed of in the aforesaid terms.
[ARIF S. DOCTOR, J.]
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