L.T. Overseas North America Inc. vs Sachdeva & Sons Pvt. Ltd
2013 Latest Caselaw 4832 Del

*       THE HIGH COURT OF DELHI AT NEW DELHI

+ C.S (OS) Nos. 342/2003, IAs 10028/2007, 7630/2008, OA 65/2013

                                             Date of Decision:22.10.2013

L.T. OVERSEAS NORTH AMERICA INC.                      .........Plaintiff

                                  Through:      Mr. J. Saideepak, Ms
                                                Julien George, Advs for
                                                the appellant in OA No.
                                                65/2013


                                  Versus

SACHDEVA & SONS PVT. LTD                              .........Defendant

                                  Through:     Mr. Manish Vashisht,
                                               Adv.


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

O.A. No. 65/2013 (filed by the plaintiff against the order of the Joint Registrar dated 22.04.2013)

1. The instant appeal is filed by the plaintiff/appellant against the Order dated April 22, 2013, passed by the Ld. Joint Registrar dismissing the application filed by it under Order VII Rule 14 of the

CPC (I.A. No. 6336/2013), seeking leave to place on record additional documents.

2. The plaintiff/appellant has sought to place on record, Apostilled Registration Certificates issued by the United States Patent and Trademark Office (USPTO) in favour of the appellant/plaintiff‟s mark „ROYAL‟, as well as certain bills of lading and invoices, which attest to the ownership of the mark in favour of the its predecessor-in-title and erstwhile plaintiff, M/s. Kusha Inc. The plaintiff submits that these documents are relevant to resolve the disputes between the parties to the suit.

3. The plaintiff/appellant submits that it was impleaded only in 2012, and stepped into the shoes of the erstwhile plaintiff M/s. Kusha Inc. vide Order dated July 17, 2012. The plaintiff/appellant submits that it needed time to collect additional relevant documents from the erstwhile plaintiff in order to place on record all material facts which addressed the real controversy in issue, namely, the ownership of the mark „ROYAL‟. And that, although the Ld. JR has observed that the plaintiff/appellant had been impleaded only in 2012, she has found fault with the plaintiff/appellant for not filing the additional documents before the commencement of trial. In furtherance of its submission, the plaintiff/appellant has placed reliance on the decisions of Billa Jagan Mohan Reddy & Anr. v. Billa Sanjeeva Reddy & Ors., (1994) 4 SCC 659, as well as Joginder Singh v. Amar Nath Gupta, 2012 VIII AD (Del) 439.

4. In its reply, the defendant/respondent submits that the plaintiff/appellant was given due opportunity by this Court vide order dated July 17, 2012 to collect all the necessary documents and file them along with the affidavits of evidence within a period of six weeks. And that it was only when PW1 was partially cross-examined on the material particulars of the case, the plaintiff tried to fill up the lacunae by producing additional documents. The defendant/respondent also alleges that all the documents sought to be filed pertain to the period 1993, 1995, 1996, 2001, 2002, and 2006 to 2009. And that there is no reason to believe that the plaintiff/appellant did not have access to these documents at the time of their impleadment in 2012.

5. The defendant/respondent also submits that the plaintiff/appellant, instead of filing its evidence within the prescribed time, kept taking adjournments from the Local Commissioners. And that this Court vide Order dated November 22, 2012, made it clear that in the event of the plaintiff not utilizing the two opportunities given to it for leading evidence, the Local Commissioner would have the liberty to close the evidence of the plaintiff. And that on January 29, 2013, PW1, appeared before the Local Commissioner and was partially cross-examined. However, on the subsequent date, an adjournment was sought on behalf of the plaintiff as PW1 did not appear. At the request of the plaintiff/appellant, the recording of evidence was adjourned to April 22 and 23, 2013. However, instead of appearing on the given

dates, the plaintiff filed IA No. 6336/2013 for bringing on record additional documents.

6. In the rejoinder, the plaintiff/appellant has highlighted the relevance of the documents sought to be placed on record. It has also reiterated that the said documents were not in its possession at the time when it was impleaded as a party to the suit, and that it took considerable time to procure and place them on record. The plaintiff/appellant has also emphasized that the photocopies of the Apostilled Registration Certificates, were originally filed along with the plaint, and that the documents which were sought to be placed on record subsequently, were essentially the same in content. And that the only difference was in the structure and layout of the website of the USPTO which had undergone changes during the pendency of the suit. Similarly, the sets of bills of lading and invoices are also claimed to be essential to establish prior use and reputation of the impugned mark in favour of the plaintiff/appellant. The plaintiff/appellant has urged that these documents be placed on record to ensure a meaningful cross- examination of PW1.

7. I have heard the Ld. Counsels for both the parties. I have also perused through the relevant documents sought to be placed on record as well as the impugned Order. I shall proceed to examine if the impugned Order suffers from any infirmities or irregularities.

8. The Ld. JR, vide Order dated April 22, 2013, has dismissed the application of the plaintiff/appellant to place on record, any additional documents, while according the following reasoning:

"The perusal of the application reveals that no reason has been assigned for non-production of these documents at an earlier stage. It is not in dispute that although issues were framed on 22.03.2006, the present plaintiff stepped into the shoes of the erstwhile plaintiff on 17.07.2012. On the very day, the Hon'ble Court had directed the plaintiff to file its affidavit of evidence within six weeks from 13.08.2012 (date before the Ld. Local Commissioner to fix the dates for evidence). Amongst, other additional documents, the plaintiff also seeks leave of the Court to place on record, documents which attest to the ownership of the mark 'ROYAL' in favour of the plaintiff, or its predecessors in title. The plaintiff was very well aware of the necessity and relevancy of these documents to prove its case. This Court fails to understand as to what precluded the plaintiff not to file these documents at an earlier stage i.e. before the commencement of trial." (emphasis supplied).

9. The Ld. JR has relied upon the decisions of this Court in the cases of Haldiram (India) Pvt. Ltd. & Ors. v. Haldiram Bhujiawala & Anr., 158 (2009) DLT 522, Gold Rock World Trade Ltd. v. Veejay Lakshmi Engineering Works Ltd., 2007 (143) DLT 113, and Asia Pacific Breweries v. Superior Industries, 2009 (158) DLT 670, to reiterate the settled proposition of law in this regard, which mandates that additional documents cannot be allowed as a matter of right, and are subject to the discretion of the Court. The observation of this Court in the Golden Rock Case (supra) which was quite relevant, as noted by the Ld. JR are thus:

"4-The learned counsel for the plaintiff sought to invoke this inbuilt power of the Court even in respect of Order 7 Rule 14(3) which relates to production of documents at a belated stage. There would be no difficulty in holding that the inbuilt power referred to in the said Supreme Court decision, could also be invoked when the question of granting leave arises in the context of Rule 14(3) of Order 7. Consequently, before leave of the Court can be granted for receiving documents in evidence at a belated stage, the party seeking to produce the documents, must satisfy the Courts that the said documents were earlier not within the parties knowledge not could be produced at the appropriate time inspite of due diligence." (emphasis supplied).

10. Though I am in agreement with the observation of the Ld. JR at large, I also find partial merit in the instant appeal. Before I proceed to decide to decide the contentions, it is essential to revisit the provisions governing the documentary evidence.

11. Order XIII Rule 1 stipulates:

"Documentary Evidence to be produced at or before the settlement of issues: (1) The parties or their pleaders shall produce, at or before the settlement of issues, all the documentary evidence of every description in their possession or power, or on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.

(2)The Court shall receive the documents so produced. Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs."

12. In the Jagan Mohan Reddy Case (supra), the Apex Court observed:

"It is clear from its [Order XIII Rule 1] bare reading that the parties or their counsel shall be required to produce all the documentary evidence in their possession or power which they intend to rely on to establish their right along with pleadings or before settlement of the issues. The court is enjoined under sub- rule (2) to receive such documents provided they are accompanied by an accurate list thereof prepared in the prescribed form. If they are not in the party's possession or custody, it shall be filed by the party along with an application to condone the delay in filing them. The explanation for delay is not as rigorous as one filed under Section 5 of the Limitation Act." (emphasis supplied).

13. Similarly, the right to place additional documents on record is provided for under Order VII Rule 14(3). The said provision stipulates:

"(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not without the leave of the Court, be received in evidence on his behalf at the hearing of the suit."

14. In the Haldiram Case (supra), this Court observed:

"In any event, both under the old Order 7 Rule 18 sub-rule (1) and new Order 7 Rule 14 sub-rule (3) CPC a new document can certainly be produced on behalf of plaintiff at the final hearing of suit, but the same has to be done with leave of the Court. It is not that the plaintiff has a legal vested right to file a document at a belated stage i.e. at the final hearing of the suit. The said provision gives a discretionary power to the Court, which needless to say has to be exercised in a reasonable and legal manner. In fact, this power has to be exercised sparingly and for some overpowering reason and not as a matter of routine. If petitioners' interpretation of Sub Rule 3 is accepted, it would make it impossible for the trial court to conclude the hearing of any suit." (emphasis supplied).

15. It is pertinent to note that this proposition has been reiterated by this Court in, Gold Rock World Trade Case (supra) as well as the Asia Pacific Breweries Case (supra).

16. Therefore, it appears that under the Code, the Courts are vested with discretionary power to receive documents in evidence at belated stages of trial, provided that parties sufficiently establish that the said documents were not in their possession or could not have been acquired at the appropriate time despite exercise of sufficient efforts and due diligence. However, this proposition is only partially true. In order to elucidate this nuanced proposition, I wish to rely upon the observations of the Karnataka High Court in the case of Nanjunda Setty @ N. S. Tallam & Ors. v. Tallam Subbaraya Setty and Sons & Ors., ILT 2004 KAR 924. The Court observed:

"17. The language employed in Sub-rule (3) of Rule 14 of Order 7 and Sub-rule3 of Rule 1-A of Order 8 also assumes significance. The words used in the said provisions are that if the documents are not produced or entered accordingly shall not without the leave of the Court be received in evidence on his behalf, "at the hearing of the suit." Therefore, in order to appreciate this provision we have to see the meaning of the word "at the hearing of the suit". The word "hearing" has been the subject matter of interpretation in several decisions. The consensus arrived at in respect of the meaning to be attached to that word is now well settled. The expression "hearing" used to describe whatever takes place before a Court closes the judicial functions at any stage of the proceedings subsequent to its inception. It refers to all the stages of the Trial of the suit, namely the settling of issues, taking of evidence and hearing of arguments or other proceedings pending final adjudication of

the suit. It may not refer to matters connected with the disposal of the interlocutory proceedings in the course of the suit. But it includes all proceedings which lead to the disposal or decision of the suit as such. Therefore, the phrase at the hearing of the suit" employed in the aforesaid provision makes the intention of the Legislature or Parliament very clear, i.e. after the pleadings are filed, before the judgment is pronounced at any stage of the proceedings the document could be produced with the leave of the Court.

18. The intention of the Legislature could be gathered from one more angle. Order 41 Rule 27 CPC which provides for production of additional evidence in the appellate Court has remained untouched by these amendments. Therefore, the effect is even after the judgment is over, in the appellate Court, it is open to the party to produce the document in support of his claim or defence. However, stringent conditions are imposed before such evidence is permitted to be produced. Once, those conditions prescribed are satisfied, the appellate Court has ample power to receive such documentary evidence. The only condition being that Court shall record the reasons for permitting such additional evidence. Therefore, the intention of the Parliament is clear. The only difference after the amendment would be, earlier, good cause was to be shown for non- production of the document. Whereas, what is to be shown after the amendment is not good cause for non-production of document, but the relevancy of the document for deciding the case. Once the Court comes to the conclusion that the document to be produced is relevant for the purpose of deciding the controversy between the parties and the Courts requires the said document to pronounce the judgment on merits, thereafter no fetters are placed on the power of Court to receive the documents. If documents could be received in evidence in an appeal, in the circumstances mentioned under Order 41 Rule 27 CPC, the Trial Court has the ample power to receive such documents prior to passing of the decree. However, receiving the documents after the stage of evidence is only by way of

exception and the rule is to produce the documents along with pleadings or along with the affidavit. Therefore, after the stage of filing of the affidavit by way of examination in chief is over, the party loses his right to file any document of any description." (emphasis supplied).

17. The Karnataka High Court in the Nanjunda Setty Case (supra), further went on to broadly classify the kind of documents which parties seek to rely upon. I find it relevant to reproduce the observation:

"19. Therefore, what follows from the aforesaid discussion is the documents on which the parties rely on in support of their case could be broadly classified as under:

1. Document upon which the plaintiff sues/document upon which the defendant bases his defence;

2. Documents in possession or power of the plaintiff/defendant in support of his claim/defence on which they rely on;

3. The original of documents mentioned at (1) and (2) supra;

4. Documents on which the parties rely on and which are not in their possession or power;

5. The documents on which the parties rely on incidentally but not to support their claim or defence and documents to disprove the claim or defence of the opposite party.

6. The documents which come into existence after the pleadings are filed into Court.

20. The documents belonging to category (1) and (2), if they are not produced along with the pleadings shall not be received in evidence without the leave of the Court at the hearing of the suit.

Documents of category (3) shall be filed on or before settlement of issues. Documents (4), (5) and (6) could be filed along with the affidavit. Therefore, it is clear that if documents belonging to Category (1) and (2) are not produced along with the pleadings and documents at Category No. 3 are not produced at or before settlement of issues and documents mentioned in Categories (4) and (5) are not produced along with affidavit, the party loses a right to produce those documents at the subsequent stage of hearing of the suit. But that does not mean the Court has no jurisdiction to entertain the same if it is of the opinion that the said documents are relevant for the purpose of deciding the case in controversy between the parties and doing justice to the parties in the case." (emphasis supplied).

18. The documents sought to be filed by the plaintiff/appellant are four Apostilled Registration Certificates issued in the name of its predecessor-in-title and erstwhile plaintiff, M/s. Kusha Inc., and some bills of lading and invoices issued by the erstwhile plaintiff. As far as the original certificates are concerned, the plaintiff/appellant submits, and rightly so, that in the list of documents already filed, they have furnished the copies of the said certificates downloaded from the website. The said copies clearly substantiate the plaintiff to be having four registration certificates in their name viz. Nos. 1638914, 1982355, 2066393 and 2176252. Though the evidence already on record regarding these four certificates appears to be sufficient to espouse the plaintiff‟s case, in order to avoid technical objections, the plaintiff wishes to place the Apostilled Registrations Certificates on record.

19. From the classification of documents as proposed in the Nanjunda Setty Case (supra), it is seen that the Apostilled Registration Certificates would fall under category 1, i.e. documents upon which the plaintiff sues. And as observed in that case, since the plaintiff has already produced copies of these certificates along with its pleadings, there is no legal impediment in taking them on record at this stage. Moreover, there cannot be any dispute that these certificates would stand the test of relevancy as noted Nanjunda Setty Case (supra) to be the litmus test post the 2002 amendment to the Code; since these documents are essential for the decision of this case, where the plaintiff is required to prove to be the registered proprietor/owner of the marks in question.

20. With regard to the bills of lading and invoices, I find that they fall under category 2 of the classification made out in the Nanjunda Setty Case (supra). It is submitted that these additional bills of lading and invoices are sought to be placed on record to prove the prior use of the marks by the plaintiff. Since all these invoices are issued by the erstwhile plaintiff, taking them on record at this stage may not help the case of the plaintiff as the same will be required to be proved by the erstwhile plaintiff, who has already divested/exited, and the plaintiff has stepped into its shoes. Even otherwise, since the copies of other invoices/bills have already been filed, it cannot be said that the plaintiff was not aware of the bills/invoices sought to be filed at this stage. And since copies of these documents had not been filed along with the

pleadings, as observed in the Nanjunda Setty Case (supra), they cannot be placed on record unless the plaintiff has justified the delay.

21. In the instant case however, the plaintiff has not been able to establish that the delay in filing additional documents was beyond its reasonable control. The only ground on which the plaintiff/applicant has claimed to condonation of delay is that it stepped into the shoes of the erstwhile plaintiff in 2012. It is pertinent to note that on the same ground the plaintiff/applicant was granted six weeks to place these documents on record. However, the plaintiff/applicant did not do so. Besides, the plaintiff/applicant has failed to show why it could not procure the said documents during the time period which was assigned to it. There is no reason to believe that the plaintiff/applicant did not possess basic documents maintained in daily course of business, such as bills of lading or invoices at its ready disposal.

22. Further, it must be borne in mind that the parameter or yardstick for exercise of discretion varies when there is a delay in filing documents for evidence vis-à-vis, additional documents after the commencement of trial. And as observed in the Haldiram Case (supra), if such discretion was exercised liberally, it would make it impossible for the trial court to conclude the hearing of any suit.

23. In light of the above discussion, the impugned Order is set aside to the extent that the plaintiffs are allowed to place on record, the four Apostilled Registration Certificates. I see no infirmity or illegality in

the exercise of discretion by the Ld. JR to decline placing additional bills of lading and invoices on record. Appeal allowed accordingly.

M. L. MEHTA, J.

OCTOBER 22, 2013.

kk/rmm