Delhi High Court
Societe Des Produits Nestle S.A. & ... vs Essar Industries & Ors on 28 July, 2016
$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 587/2016
SOCIETE DES PRODUITS NESTLE S.A. & ANR ..... Plaintiffs
Through: Mr. Hemant Singh, Ms. Mamta R.
Jha, Mr. Manish K. Mishra and Mr.
Waseem Shuaib Ahmed, Advs.
Versus
ESSAR INDUSTRIES & ORS. ..... Defendants
Through: Mr. Shailen Bhatia, Mr. Amit Jain and
Mr. Niraj Mishra, Advs. for D-4&5.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 28.07.2016
IA No.6930/2007 (of plaintiffs for summoning of record)
1. The evidence of the plaintiffs stands concluded.
2. This application has become infructuous and be not shown in the
Cause List.
IA No.3380/2016 (of D-4&5 u/O 11 R-1(10) CPC for filing additional
documents)
3. The counsel for the defendants No.4&5/applicants and the counsel for
the plaintiffs/non-applicants have been heard.
4. It transpires (i) that the present suit was instituted as far back as in
1993 though was re-numbered in 2004; (ii) that the suit is to restrain the use
of the trademark 'MAGGI' in relation to mixers, grinders and juicers and for
ancillary reliefs; (iii) that the suit as originally instituted was against the
defendants No.1&2 who were manufacturing the goods under the said
trademark and the defendant No.3 was stated to be the dealer of the
defendants No.1&2 at Delhi; (iv) that the defendant No.3 has not contested
the suit and is ex-parte; (v) that the defendants No.1&2 have now assigned
the trademark to the defendants No.4&5 who were subsequently impleaded
in this suit and the defendants No.1&2 also are now not appearing; (vi) that
there is no formal order proceeding ex-parte against defendants No.1&2 as
yet; (vii) that the issues were framed in the suit on 8 th December, 2000 and
additional issues were framed on 28th July, 2005; (viii) that there is no
interim order in favour of the plaintiffs because on 20 th February, 2001, the
counsel for the plaintiffs stated that if the trial is expedited he is not pressing
for interim orders; (ix) that though the counsel for the defendants No.4&5
furnished advance copy of affidavit by way of examination-in-chief of the
defendant No.4 to the counsel for the plaintiffs along with documents which
were not filed earlier but now after the evidence of the plaintiffs stood
concluded on 5th November, 2015 and the stage for evidence of the
defendants No.4&5 was reached, it transpired that the said affidavit by way
of examination-in-chief of the defendant No.4 is not on record; (x) that the
defendants No.4&5 were however permitted to file a fresh affidavit by way
of evidence of the defendant No.4; (xi) that the defendants No.4&5 have
along with the fresh affidavit, besides the documents which were filed along
with the earlier affidavit, have filed a large number of additional
documents; (xii) that the said additional documents are to show user of the
trademark in relation to mixers and grinders since 1982 and inter alia
comprise of legal notices, replies thereto and advertisements in newspapers;
(xiii) that the suit is a commercial suit within the meaning of the Commercial
Courts, Commercial Division and Commercial Appellate Division of High
Courts Act, 2015 (Commercial Courts Act).
5. The counsel for the defendants No.4&5 states that the defendants
No.4&5 dispute that the defendant No.3 was the dealer of the defendants
No.1&2.
6. The counsel for the plaintiff does not admit the genuineness of the
additional documents filed by the defendants No.4&5.
7. On enquiry, as to whether the legal notices and replies are also
disputed, it is stated that the legal notices are not to the defendants No.1&2
or defendants No.4&5 but to some other entity.
8. The counsel for the defendants No.4&5 states that the said other entity
was the proprietary concern of the defendant No.4.
9. I have in the light of aforesaid facts judged the justifiability of
allowing the additional documents on record and permitting the same to be
proved.
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.
11. The principle which prevailed with the Courts earlier, for allowing
documents even at the late stage viz. of the litigant should not suffer for the
fault of his advocate or for being not advised to file documents at the correct
stage and which principle had evolved in the context of mofussil jurisdiction,
where the litigants were uneducated and not aware of their rights, cannot
certainly be applied to suits of commercial men and commercial concerns
who do not suffer from any such handicap.
12. Applying the said reasoning and finding the suit to be of 1993 vintage
and not finding any justification for the defendants No.4&5 to file
documents at this stage and yet further finding that allowing such additional
documents to be taken on record would endlessly delay the trial, inasmuch as
an opportunity will then also have to be given for proof of the said
documents and which proof would entail examination of a number of
witnesses, I am not inclined to allow the additional documents to be taken on
record.
13. The application is dismissed.
14. It is however clarified that the defendants No.4&5 shall be entitled to
prove only the documents which were filed along with the affidavit of which
advance copy was given to the counsel for the plaintiffs on 6th September,
2001, even though such documents also had not been filed at an appropriate
earlier stage.
IA No.8395/2016 (of D-4&5 for summoning the witnesses)
15. Allowed; the defendants No.4&5 are permitted to summon such of the
witnesses who are to prove the documents qua which the evidence has been
confined and not the witnesses who were required to prove the documents
which have not been permitted to be taken on record.
16. The application is disposed of.
CS(COMM) 587/2016
17. The date of 5th August, 2016 before the Joint Registrar is cancelled.
18. Court Commissioner is stated to have been appointed to record the
evidence of the parties.
19. The parties to, with prior appointment, appear before the Court
Commissioner on 10th August, 2016.
20. The Court Commissioner to endeavour to expedite the recording of the
evidence.
RAJIV SAHAI ENDLAW, J.
JULY 28, 2016
'bs'..
