M/S Crocs Inc Usa vs M/S Liberty Shoes Ltd & Others
2018 Latest Caselaw 4577 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                         Reserved on: 31st July, 2018
                                     Pronounced on: 06th August, 2018

+    CS(COMM) 1415/2016
     M/S CROCS INC USA
                                                          ..... Plaintiff
                         Through :    Mr.S.K.Bansal, Mr.Ajay Amitabh
                                      Suman, Advocates.

                         versus

     M/S LIBERTY SHOES LTD & OTHERS
                                                         ..... Defendants
                         Through :    Mr.Jayant     Mehta,      Mr.Kapil
                                      Wadhwa and Ms.Devyani Nath,
                                      Advocates                       for
                                      defendants/appellant.
     CORAM:
     HON'BLE MR. JUSTICE YOGESH KHANNA

     YOGESH KHANNA, J.

O.A. No.84/2018

1. This chamber appeal is against an Order dated 12.07.2018 passed by the learned Joint Registrar wherein he has allowed the respondent's application I.A.No.1629/2018 seeking permission to bring on record additional documents despite the plaintiff evidence being underway and two witnesses having been cross-examined. The additional documents were allowed to be brought on record by the Joint Registrar despite having filed after framing of issues and the commencement of the trial. It is alleged earlier too the plaintiff has been granted an opportunity to file additional documents vide

an order dated 10.11.2017 but it failed to bring these documents on record at such time, hence the impugned order is liable to be set aside.

2. Certain dates are relevant for the purpose. On 14.09.2017 the issues in this case were framed. On 13.09.2017 I.A. No.11384 of 2017 was filed by the plaintiff to bring on record the additional documents (other than the documents in dispute). Such application was allowed on 10.11.2017.

3. On 07.11.2017 issues were amended however on 02.12.2017, 05.12.1017 and 12.01.2018 three sets of documents were filed by the plaintiff. Later on, on 13.01.2018 the plaintiff moved an application I.A.No.1629/2018 to formally bring these three sets of documents on record. The impugned order was passed by the Joint Registrar on 12.07.2018 on the premise the trial has not yet commenced.

4. The question now is if these documents were in the plaintiff's possession prior to the date of framing of issues and/or before the date of filing of the suit, and if those were, can such documents be allowed to be placed on record at this stage.

5. The reason for filing the documents after framing of issues is mentioned in para 4 of I.A.No.1629/2018 as under:

"The said documents were not in power, possession, control or custody of the plaintiff earlier and are very recent in nature‖.

6. Hence, the plaintiff alleges a) the documents were not in

power, possession and control or custody of the plaintiff earlier; and b) are very recent in nature.

7. However, a bare perusal of the documents would show barring a judgment passed by Ecuador Court on 31.10.2017; all other documents are dated either prior to framing of issues or prior to the filing of the suit, hence, documents being of the plaintiff itself, it cannot say the same were never in its power, possession or custody and it is also false to allege such documents were recent in nature except a decision of Ecuador Court dated 31.10.2017.

8. Order VII Rule-14(3) of the Code of Civil Procedure, 1908 reads as under:-

"14 Production of document on which plaintiff sues or relies--

             (1)       xxx
             (2)       xxx
             (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.

(4) xxx

9. Further, Order XI Rule-1(1) of the Code of Civil Procedure, 1908 reads as under:

"1. Disclosure and discovery of documents.--(1) Plaintiff shall file a list of all documents and photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the plaint, including:--

(a) documents referred to and relied on by the plaintiff in the plaint;

(b) documents relating to any matter in question in the proceedings, in the power, possession, control or custody of the plaintiff, as on the date of filing the plaint, irrespective of whether the same is in support of or adverse to the plaintiff‗s case;

(c) nothing in this Rule shall apply to documents produced by plaintiffs and relevant only--

(i) for the cross-examination of the defendant‗s witnesses, or

(ii) in answer to any case set up by the defendant subsequent to the filing of the plaint, or

(iii) handed over to a witness merely to refresh his memory.‖

10. Further, Chapter 7 Rule-14 of Delhi High Court (Original Side) Rules, 2018 states as under:

"14. No documents to be filed after completion of pleadings.- Except as provided in Order XIII of the Code and these Rules, neither party shall be entitled to file any documents after completion of pleadings in the suit. Upon failure of parties to file their respective documents and/ or file the respective documents on completion of filing of pleadings, in accordance with these Rules, the Registrar shall forthwith place the matter before Court."

11. The above sections/rules etc. have been discussed in various judgments viz. Polyflor Limited vs. Sh.A.N.Goenka & Ors. 2016 (156) DRJ 600 wherein the Court held:

―16. Order VII Rule 14(3) mandates that: ―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‖. Thus, as a matter of rule, the plaintiff is prohibited from leaving in evidence a document which he ought to have produced when the plaint was presented. The exception to this rule is that, where the Court grants leave to the plaintiff, the document may be permitted to be led in evidence at the hearing of the suit.

25. In my view, the aforesaid judgment squarely applies to the facts of the present case. It cannot be said by the plaintiffs that they were not aware of the existence of their own audited annual reports from 1997 onwards till 2013. Since the said annual reports are of the plaintiffs themselves, and even according to the plaintiffs, the plaintiffs are obliged to maintain the records for a period of seven years under the law applicable to the plaintiff company, it cannot be said that in spite of due diligence, the plaintiffs could not have produced the said documents at the time of filing of the suit in respect of the period 1997 to 2004, and for the period thereafter till the time of framing of issues in 2013. Not only these documents, or even copies, therefore, were not filed earlier, they were not even referred to or relied upon either in

the pleadings, or in any other document filed by the plaintiff.‖

12. In Societe Des Produits Nestle S.A. and Ors. vs. Essar Industries and ors. 2016 (67) PTC 678 (Del) the Court held:

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. Further in Ramanand vs. Delhi Development Authority 2016 SCC Online Del 4925 the Court held:

11. Admittedly, the issues were framed way back on 28.11.2007. An additional legal issue has been framed on 7.11.2012. The evidence of the petitioner has already commenced. Now at this belated stage the petitioner has chosen to move the present applications in 2012. The only explanation given is that the documents intended to be filed are a result of ―subsequent events and supply of relevant information by the concerned authorities‖. Under the guise of this general excuse 88 additional documents are sought to be placed on record. The manner in which the documents are sought to be filed clearly show that the plea of the petitioner lacks merits. The belated filing of the documents would prejudice the respondent at this stage. No sufficient reasons are given by the petitioners.

14. Hence, as culled out from the judgments and law above though there is no bar qua production of documents even at a late stage but the plaintiff need to prove such documents were not in his power and possession at the time of filing of suit and/or despite

due diligence he could not produce such documents. However, in the present case since all the documents except one relates to dates prior to the filing of the suit or prior to framing of issues hence the plaintiff cannot allege such documents being recent or were never in its power or possession. Further, two of the plaintiff's witnesses have already been examined, cross-examined and discharged and the third witness is under examination. Moreso no cogent reason is given in this application for late filing of such documents so, I see no reason why the application be allowed expect for a decision of Ecuador Court dated 31.01.2017 which only be taken on record.

The appeal, therefore, is allowed in terms of the above. No order as to cost.

CS(COMM) 1415/2016

15. List on 06.09.2018.

YOGESH KHANNA, J AUGUST 06, 2018 SSC