MANU/DE/3186/2022

Additional documents at the

IN THE HIGH COURT OF DELHI
CS (Comm.) 179/2016
Decided On: 29.08.2022
stage of Defendant's evidence
rejected.
Highlights the Objectives of
Commercial courts

Appellants: Entertainment Network (India) Ltd.

Vs.
Respondent: HT Media Limited
Hon'ble Judges/Coram:
Jyoti Singh, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Sudeep Chatterjee and Kunal Vats, Advocates
For Respondents/Defendant: Rajshekhar Rao, Senior Advocate, Meghna Mishra, Ankit
Rajgarhia, Tarun Sharma, Abhishek Grover and Areeb Amanullah, Advocates
Case Category:
MERCANTILE LAWS, COMMERCIAL TRANSACTIONS INCLUDING BANKING - TRADE
MARKS/COPY RIGHTS/PATENTS/DESIGN ACT
JUDGMENT
Jyoti Singh, J.
I.A. 1882/2020 (Under Order XI Rule 7(c) CPC as amended by the Commercial Courts
Act, 2015 read with Section 151 CPC, by Defendant)
1 . Present application has been preferred on behalf of the Defendant under Order XI
Rule 7(c) CPC as amended by the Commercial Courts, Commercial Division and
Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as the
'Act') read with Section 151 CPC, seeking permission to bring additional documents on
record and lead evidence with respect to these documents.
2 . Plaintiff has filed the present suit seeking a decree of permanent injunction
restraining the Defendant and all others acting on its behalf using any trademark that is
identical or deceptively similar to the Plaintiff's trademark 'PEHLA NASHA' either as a
radio channel titled 'RADIO NASHA', trademark, trading style, name, logo, part of name
or in any other manner or any other mark or name or domain name, identical to or
deceptively similar to the Plaintiff's mark 'PEHLA NASHA' in relation to any
services/products especially for broadcast, re-broadcast, radio broadcast, internet
broadcast and in any other form whatsoever, so as to result in violation of Plaintiffs
statutory and common law rights, along with other reliefs of damages etc.
3. It is pertinent to note, at the outset, that issues were framed in the present suit on
12.11.2018. Subsequently, Defendant filed its list of witnesses on 08.01.2019 and
Plaintiff filed its list of witnesses on 16.01.2019. Plaintiff's evidence concluded on
12.12.2019. Defendant filed its evidence by way of affidavit of DW-1, Mr. Neeraj
Saraswat, on 25.01.2020 along with additional documents, which are now sought to be
brought on record by way of the present application. The suit is currently at the stage of
Defendant's evidence.

Stage: Defendant's Evidence

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 4. The additional documents that the Defendant seeks to place on record by the present
application are as follow:-
(i) A Copy of Power of Attorney dated 24.01.2020 of Mr. Neeraj Saraswat.
(ii) A Copy of Board Resolution dated 15.07.2015.
(iii) A Copy of the Brand Report dated 22.12.2015 prepared by the Brand
Marketing and Management Company engaged by the Defendant.
(iv) A Chart detailing the filing status of Plaintiff's and Defendant's Trademark
Applications.
(v) Print outs of Defendant's Radio Nasha Delhi's page on Facebook, Twitter
and Instagram.
(vi) Copy of the Annual Financial Reports of the Defendant Company.
5. It must be noted at the outset that during the course of the arguments, Plaintiff had
fairly and candidly tendered its no-objection with respect to document No. (i), i.e., copy
of Power of Attorney dated 24.01.2020, document No. (ii), i.e., copy of Board
Resolution dated 15.07.2015 and document No. (iv), i.e., charts detailing the filing
status of Plaintiff's and Defendant's trademark applications. This stand is also reflected
in the written note of arguments filed in support of the arguments canvassed in Court.
In view of the aforesaid, these documents are taken on record.
6 . Defendant seeks permission to take the additional documents on record on the
grounds: (a) save and except two documents, remaining documents have emerged
subsequent to the filing of the written statement by the Defendant; (b) the documents
in no manner prejudice the right of the Plaintiff; (c) it is trite law that parties can be
permitted to file additional evidence at any stage of the trial, including the appellate
stage, if the document is required to adjudicate the disputes between the parties
effectively and is relevant for substantial justice; (d) in the absence of the aforesaid
documents, the lis between the parties cannot be decided completely, as the Plaintiff's
suit is based on the premise that Defendant is riding upon its goodwill and the
additional documents would prove not only that Plaintiff has no goodwill for its alleged
mark 'PEHLA NASHA' but also that it is not using the same as a trademark; (e)
documents would demonstrate that there is no commonality or similarity between the
two marks and thus, no likelihood of confusion; (f) Plaintiff would be entitled to cross-
examine and put the additional documents to Defendant's witness during trial as the
examination-in-chief of Defendant's witness is not concluded and thus, no prejudice will
be caused to the Plaintiff; and (g) Order XI Rule 1(7) of the Act permits taking
documents 'pertaining to the suit' and relevancy of the documents has to be tested on
this count only, leaving all other aspects such as admissibility, etc. to be decided at the
stage of final arguments.
7 . In addition to the abovementioned general grounds, learned Senior Counsel
appearing on behalf of the Defendant/Applicant adverted specifically to each of the
documents sought to be placed on record and the reason why they should be permitted.
With respect to the Brand Report dated 22.12.2015, prepared by a Company engaged by
the Defendant, it was urged on behalf of the Defendant that the report would show that
Defendant never intended to cause any loss or harm to the Plaintiff by incorporating the
word 'NASHA' in its mark and adopted the same bonafidely, by engaging professionals
and without reference to or knowledge of Plaintiff's playlist 'PEHLA NASHA'. Brand

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 Report goes to the very root of the matter and highlights how the name of Defendant's
FM Radio Station came to be coined. The report could not be filed due to inadvertent
error at the time of filing the written statement. Additionally, this report has assumed
importance due to certain observations made by the Court in the judgment dated
13.07.2018, whereby this Court has granted temporary injunction against the
Defendant.
8 . It was further contended that document No. (v) comprises of the screenshots of
Defendant's Delhi Radio Station 'RADIO NASHA 107.2FM' pages on Facebook, Twitter
and Instagram and are sought to be placed on record to prove the goodwill and
popularity of the Defendant, which has grown substantially during the pendency of the
present suit. This is a document which came into existence after the filing of written
statement and is free from rigours of showing 'reasonable cause' for non-disclosure of
the documents at the time of filing the written statement, under Order XI Rule 1(10)
CPC, as applicable to the Act.
9. It was further argued that document at serial No. (vi) of the present application are
copies of Annual Financial Reports for the years 2016-17, 2017-18 and 2018-19,
submitted by the Defendant to the Ministry of Information and Broadcasting and came
into existence after filing of the Written Statement on 02.06.2016. It was submitted that
the documents would show Defendant's financial standing and expenses incurred in the
promotion of the brand 'RADIO NASHA' and are crucial for effective adjudication of
Defendant's case in the present suit. It was also urged that Defendant has preferred an
appeal being FAO(OS)(COMM.) 155/2018 against judgment dated 13.07.2018, which is
pending and in which an application has been preferred by the Defendant being CM No.
29790/2018 for placing on record additional documents, some of which are common to
the present application and therefore, it cannot be argued by the Plaintiff that the
documents have been introduced for the first time.
10. Reliance was placed on the judgment in ITC Limited v. JP Morgan Mutual Fund India
Pvt. Ltd. & Ors., MANU/WB/0537/2020 passed by the Calcutta High Court, wherein the
Court allowed additional documents to be taken on record, at a stage of the suit where
after framing of issues, evidence of Plaintiff was concluded and the matter was at the
stage of examination-in-chief of Defendant No. 1's witness, after being satisfied that the
documents were necessary for adjudicating the issues arising in the suit. Reliance was
also placed on the judgment in Hassad Food Company Q.S.C. & Another v. Bank of
India & Ors., MANU/DE/3385/2019; Nitin Gupta v. Texmaco Infrastructure & Holding
Limited, MANU/DE/1554/2019; Societe DES Produits Nestle S.A. & Anr. v. Essar
Industries & Ors., MANU/DE/1860/2016 and Sudhir Kumar @ S. Baliyan v. Vinay Kumar
G.B., MANU/SC/0650/2021.
11. Plaintiff has opposed the present application on multifarious grounds. It was argued
that the application is misconceived and vexatious and has been filed with the purpose
of delaying the trial. Most of the additional documents existed when the written
statement was filed, while the remaining are irrelevant for adjudication of the issues
arising in the suit. Defendant has introduced the aforementioned documents for the first
time on 25.01.2020 along with the affidavit of evidence, i.e., nearly four years after
institution of the suit on 10.03.2016 and filing of the written statement on 02.06.2016.
This Court reserved the order on Plaintiff's injunction application on 27.10.2016, which
was pronounced on 13.07.2018. Thereafter, the Defendant filed an appeal on
26.07.2018 and filed an application for bringing on record five additional documents,
one of which was the present Brand Report dated 22.12.2015. Issues were framed on
12.11.2018 and even at that stage, no attempt was made to bring the additional

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 documents, which were in custody and possession of the Defendant, on record.
Evidence of the Plaintiff concluded on 12.12.2019 and thereafter, these documents were
filed along with the affidavit of evidence on 25.01.2020, without seeking leave of the
Court and on an objection being taken by the Plaintiff, present application was filed,
which deserves to be dismissed.
12. It was argued that even otherwise, the additional documents are wholly irrelevant
for adjudication of the present disputes. The printouts of Defendant's 'RADIO NASHA'
Delhi's page on Facebook, Twitter and Instagram ought not to be taken on record, as
Defendant is attempting to set up a new plea of goodwill and popularity of its radio
channel during the pendency of the suit. No evidence can be permitted beyond the
pleadings in the written statement. No issues have been framed regarding goodwill in
the Defendant's mark as is evident from the order dated 12.11.2018, wherein issues
were framed. Subsequently, Defendant moved an application under Order XIV Rule 5(1)
CPC, seeking of framing of two additional issues, which was disposed of vide order
dated 03.12.2018, without any amendment to the issues. Moreover, the Facebook page
was created on 14.03.2016 and the Twitter page in March, 2016, while Defendant is
seeking to put screenshots of the pages taken on 24.01.2020.
1 3 . Insofar as the Annual Financial Reports are concerned, the documents have not
come recently in possession of the Defendant. There is no reasonable explanation as to
why the Reports for the years 2016-17 and 2017-18 were not filed at an earlier stage of
suit when the same were admittedly available even prior to framing of the issues and
why the Defendant waited till the conclusion of Plaintiff's evidence. Annual Financial
Report for the year 2018-2019 was in possession of the Defendant before the evidence
of Plaintiff concluded and no steps were taken to bring the same on record. In any
event, Annual Financial Reports are not descriptive of Defendant's goodwill in its radio
channel at the time of institution of suit and moreover, if a party is aware that its mark
forms the subject matter of a dispute but continues to use, expand and invest in the
same, it does so at its own peril.
14. Learned counsel for the Plaintiff placed reliance on the judgments in Om Prakash
Gupta v. Ranbir B. Goyal, MANU/SC/0035/2002 : (2002) 2 SCC 256 and Hukum
Chandra (Dead) Through Legal Representatives v. Nemi Chand Jain and Others,
MANU/SC/1483/2018 : (2019) 13 SCC 363, for the proposition that rights of parties
crystallize at the time of filing of the suit and subsequent events during the pendency
thereof cannot be taken into account for adjudication of rights of parties to the lis.
Reliance was placed on the judgments in Nitin Gupta (supra), Polyflor Limited v. Sh.
A.N. Goenka & Ors. MANU/DE/0943/2016; Zee Entertainment Enterprises Ltd. v.
Saregama India Ltd., MANU/DE/3096/2019 and Societe DES Produits Nestle S.A.
(Supra), for the proposition that once a trial has commenced, no party can file
additional documents as it is against the legislative intent of the Commercial Courts Act.
Reliance was placed on the judgment in Jolen Inc. v. Doctor & Company,
MANU/DE/0515/2002 to argue that advertisements, sales figures, etc. are of no
relevancy if adoption of a trademark is subsequent, tainted and dishonest. It was urged
that permitting the Defendant to place the additional documents on record, at this
stage, would set the clock back, which would defeat the purpose of the Commercial
Courts Act.
1 5 . Strenuously opposing the application with respect to the Brand Report dated
22.12.2015, it was contended that the said document was in power and possession of
the Defendant even when the suit was instituted on 10.03.2016. Defendant filed an
affidavit of Mr. Abhishek Kapoor, Chief Financial Officer of the Defendant Company on

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 14.03.2016, followed by another additional affidavit on 17.03.2016, yet the Brand
Report was not disclosed. Order XI Rule 1(7) mandates that all documents in power,
possession, custody and control of the Defendant shall be filed along with the written
statement with the exception under Rule 1(7)(c). A document which was in power and
possession and was not disclosed along with written statement, cannot be allowed to be
relied on, save and except, with the leave of the Court which shall be granted only upon
the Defendant establishing reasonable cause for non-disclosure along with written
statement. No cause, least of all, a reasonable cause has been disclosed in the
application for non-disclosure of the Brand Report along with the written statement and
only a vague plea is taken that it was an inadvertent error. In fact, the act of the
Defendant is completely malicious as initially the report was deliberately concealed in
order to suppress the fact that the first reaction of the public to the word 'NASHA' was
extremely negative. Only when the Plaintiff's channel garnered goodwill, Defendant with
a view to encash the goodwill and reputation took steps to have the report placed on
record.
16. I have heard learned counsel for the Plaintiff and learned Senior Counsel for the
Defendant and have examined the rival contentions.
1 7 . At the cost of repetition, it needs to be noted that Plaintiff has given up its
objection with respect to 3 additional documents sought to be placed on record by the
Defendant and the controversy is, therefore, limited to 3 sets of documents: (a) Brand
Report dated 22.12.2015; (b) Printouts of the RADIO NASHA Delhi's page on Facebook,
Twitter and Instagram; and (c) Annual Financial Reports for the years 2016-17, 2017-
18 and 2018-19.
18. Insofar as document (a) aforesaid is concerned, it is indisputable that the same
came into existence on 22.12.2015, i.e., not only before the filing of the written
statement by the Defendant but even prior to filing of the suit. The only reason for non-
disclosure of the report along with the written statement, as discernible from the
pleadings in the application, is that the document was inadvertently not filed earlier and
that the requirement to file the same has become relevant and more pronounced on
account of the observations of the Court in Para 26 of the judgment dated 13.07.2018.
19. Order XI sub-rule (7) of Rule 1 CPC, as amended by the Commercial Courts Act,
2015, mandates that the Defendant shall file a list of documents in its power,
possession, control or custody, pertaining to the suit, along with the written statement.
Sub-rule (10) of Rule 1 of Order XI of the Act clearly stipulates that Defendant shall not
be allowed to rely on documents which were in Defendant's power, possession, control
or custody and not disclosed along with the written statement, save and except by leave
of the Court and that such leave shall be granted only upon the Defendant establishing
'reasonable cause' for non-disclosure along with written statement. The Brand Report is
a document which beyond a doubt, existed prior to the filing of the written statement
and was in power, possession, control or custody of the Defendant. Therefore, the
rigours of Order XI Rule 1(10) of the Act shall apply on all four corners and the
document cannot be taken on record, unless the Defendant makes out a 'reasonable
cause' for its non-disclosure at the time of filing the written statement. The only ground
put-forth, as noted above, by the Defendant for non-disclosure of the document, is
'inadvertence' and the observations of the Court while granting injunction against the
Defendant. Unfortunately, under the Commercial Courts Act, these considerations
cannot be a ground to permit filing of additional documents. The proscription against
permitting such a document to be taken on record, unless a reasonable cause is made
out by the Defendant, in my view, is absolute. It also needs to be emphasised at this

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 stage that the Brand Report is dated 22.12.2015 and no attempt was made by the
Defendant for nearly 5 years to bring the said document on record as the present
application was filed only on 06.02.2020, by which date the issues were framed in the
suit and Plaintiff's evidence had concluded. In the entire application, there is no reason
spelt out by the Defendant for inaction for these 5 years, while admittedly, the report
was in its power and possession in the year 2015 itself and thus, no permission can be
granted to take the document on record.
20. This Court in Rishi Raj v. Saregama India Ltd., MANU/DE/2965/2021, had rejected
the application filed by the Plaintiff, post framing of issues refusing to accept
'inadvertence' as a ground for non-disclosure along with the plaint. Similarly, in the
case of Zee Entertainment Enterprises Ltd. Saregama India Ltd., MANU/DE/3096/2019,
Plaintiff had filed an application to file additional documents after framing of the issues
on the ground of 'inadvertent error' on account of which the said documents were left
out from the list of documents filed along with the suit. After analysing the provisions
of Order XI Rule 1(5) pertaining to commercial suits, the Court observed as under:-
"17. A reading of paragraphs 3 and 4 of the application which have been
reproduced here-in-above and in which alone the attempt, if any, at
establishing reasonable cause has been made, are not found to satisfy the test.
Not only is there no explanation as to why the inadvertent error now alleged
was not detected at the time of institution of the suit when the plaintiff was
required to sift through each document for entering its requisite particulars in
the list, on oath, but even now, at the stage of applying for leave to file
documents, no proper pleadings lest establishing a case have been made out.
All that is pleaded is that "in view of the age of such documents, two
assignment agreements were left out from the list of documents along with the
present plaint in lieu of which other agreement with the same party was placed
on record erroneously...". No particulars have been given as to why the
signatory of the plaint and of the affidavit in terms of Order XI Rule 1(3) & (6)
did not go through the documents as required by law. In fact, no affidavit of
Mr. Harsh Tripathi who had signed and verified the plaint and sworn on affidavit
of disclosure of document, even has been filed, and the affidavit accompanying
the application is of Mr. Mudit Raizada who, save for describing himself as
authorised signatory of the plaintiff, has not even stated the position, if any,
held by him in the plaintiff. There is again no explanation as to why, when the
first affidavit of Mr. Anurag Bedi was drafted, the mistake or inadvertence even
if any did not come to light. There is no explanation as to why the mistake,
though not noticed at the time of filing the affidavit by way of examination-in-
chief of Anurag Bedi, did not still come to light while withdrawing the said
affidavit on the ground of errors therein. There is yet no explanation as to why
even at the time of drafting the fresh affidavit of Mr. Anurag Bedi or at the time
of scheduling of examination-in-chief, the mistake did not come to light."
2 1 . Having so observed, the Court finally held that if the Courts, in spite of the
legislative mandate and change, continue to overlook such deficiencies in the name of
interest of justice, the litigants and practitioners of the commercial suit will never wake
up to the change required to be brought about in the conduct of such suits. The facts of
the present case, in my view, are squarely covered by these two judgments. In the
present case also, there is no explanation why the inadvertent error was not detected
earlier and why the Defendant waited until conclusion of the Plaintiff's evidence to file
the application to bring the said additional document on record.

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 22. In this context, I may refer to the judgment in Nitin Gupta (supra) wherein post
framing of issues, Plaintiff had sought to file a letter dated 02.09.2013. Defendant had
opposed the application inter alia on the ground that while filing the suit, Plaintiff had
nowhere disclosed that there was any such document addressed by the Defendant to the
Plaintiff and that no reasonable cause as required under Order XI Rule 1(5) of the Act
was made out for taking the additional documents on record. The Court found merit in
the contention of the Defendant that the Plaintiff is entitled, under Order XI of the Act,
as applicable to commercial suits, to file a document belatedly only if it establishes
'reasonable cause' for non-disclosure along with the plaint. Application was disallowed
by the Court and one of the factors, which weighed with the Court to come to the said
conclusion, was that Plaintiff was unable to show a reasonable cause for non-disclosure
of the document along with the plaint. What is significant is the observation of the
Court in para 38 of the judgment that unless the Commercial Divisions while dealing
with the commercial suits start enforcing Rules legislated for commercial suits and
refuse to entertain applications for late filing of documents where they do not disclose
reasonable cause and continue to show leniency, Commercial Courts will start suffering
from the same malady which the ordinary suits have suffered and the purpose of the
Commercial Courts Act would be defeated. I may also quote from the judgment of a Co-
ordinate Bench in Great Gatsby Club of India v. Mahesh Prefab Pvt. Ltd.,
MANU/DE/2514/2022 as under:
"21. The court cannot dilute the rigour of the said provisions on any
sympathetic or other considerations. It is presumed that these considerations
were in the mind of the legislature when they enacted the Commercial Courts
Act. There can be no charity beyond the law."
23. Insofar as documents (b) and (c), are concerned, it is not disputed by the Plaintiff
that the same came into existence post the filing of the written statement. As held by
the Supreme Court in Sudhir Kumar @ S. Baliyan (supra), the documents, which are not
in possession, power or custody at the time of filing of the plaint, would not come
under the rigours of Order XI Rule 1(5) of the Act and the requirement of establishing
reasonable cause for non-disclosure will not be applicable, if it is averred that the
documents were found subsequently and were not in Plaintiffs power and possession
when the plaint was filed. The same analogy would apply to the filing of additional
documents by the Defendant where they come into existence post the filing of the
written statement. Therefore, Defendant is not required to disclose a reasonable cause
for non-filing of the aforesaid documents.
24. The question, however, that arises is that whether the Defendant is entitled to grant
of leave for filing the said additional documents, considering the fact that the suit is at
the stage of commencement of Defendant's evidence. Before alluding to the facts of the
present case, I may refer to the judgment in Polyflor Limited (supra) where a Chamber
Appeal was under consideration before the Court against an order dismissing an
application preferred by the Plaintiff under Order VII Rule 14(3) CPC for taking on
record additional documents, which were not filed along with the plaint and were
sought to be brought on record when Plaintiffs witness was under cross-examination.
The Court held as under:
"17. Thus, the issue is, whether in the above noted facts and circumstances, the
plaintiff is entitled to grant of such leave. In the present case, the plaintiff's
witness PW-1 is under cross-examination and has already undergone a
substantial portion of his cross-examination. To grant leave to, and permit the
plaintiff to file and lead in evidence additional documents at this stage would

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 mean that the defendants would be put to serious prejudice. The defendants
have not had the occasion to deal with the said documents. Had the documents
now sought to be produced, been produced at the relevant time, i.e. at the
stage of filing of the suit, or at least at the time when the issues were framed,
the defendants would have had the occasion to deal with the same by making
appropriate pleadings and filing its own documents to counter the reliance
placed by the plaintiff on the documents in question.
18. The progress of the suit cannot be interdicted on account of the blatantly
casual approach of the plaintiff. The plaintiff has not given any justifiable and
acceptable explanation for not filing the said documents at the earlier stage of
the proceedings. If the submissions of the plaintiff were to be accepted, it
would mean that in every case, a party should be permitted to lead in evidence
documents not earlier filed and relied upon at any stage of the proceedings.
xxx xxx xxx
21. As aforesaid, there is no cause shown, much less a reasonable cause for
non-disclosure of the documents and non-filing of the documents, or at least
copies thereof along with the plaint, or even till the stage of framing of the
issues."
2 5 . In my view, the said judgment squarely applies to the present case. Written
statement was filed by the Defendant on 02.06.2016. Application for grant of injunction
was heard on 27.10.2016 and the judgment was pronounced on 13.07.2018. Defendant
filed an appeal against the said judgment on 26.07.2018; issues were framed on
12.11.2018 and the evidence of the Plaintiff concluded on 12.12.2019. The documents
placed on record by the Defendant along with the affidavit of evidence indicate that the
Annual Financial Report for the year 2016-17 was available with the Defendant before
26.09.2017, as on the said date the Report was sent to the Ministry of Information and
Broadcasting. Annual Financial Report for the year 2017-18 was forwarded to the
Defendant by the Accounting Firm under letter dated 28.09.2018 and Annual Financial
Report for the year 2018-19 was forwarded to the Defendant vide letter dated
06.06.2019. Therefore, going by these dates, there was no reason why the first two
reports were not sought to be brought on record till the year 2020 when they were
received in the years 2017 and 2018, respectively. Even the report for the year 2018-19
was in possession of the Defendant in June, 2019, prior to commencement of the
Plaintiff's evidence. There is no explanation worth a mention for not filing these reports
until the year 2020. In any case, if leave is granted at this stage when the Plaintiff's
evidence has concluded and Defendant is permitted to bring the additional documents
on record, Plaintiff will not have the occasion to deal with the said documents. Had the
documents been filed earlier, Plaintiff would have had an opportunity to deal with the
documents by appropriately amending its pleadings and/or filing its own documents to
counter the documents sought to be brought on record by the Defendant. As held in
Nitin Gupta (supra), progress of the suit cannot be interdicted on such casual approach
of the Defendant and there is no gainsaying that if in every case, a party is permitted to
file additional documents once the trial has begun, without due cause, the whole
purpose of the Commercial Courts Act would be defeated. Defendant has clearly not
been able to show any cause why the trial should be interdicted at this stage, as the
only argument is that the documents came into existence post filing of the written
statement and are crucial to establish the growing goodwill and reputation. If the
contention of the Defendant is accepted, this would be setting the clock back inasmuch
as if the documents are taken on record, Plaintiff will have to be given an opportunity to

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 admit/deny the documents and lead its evidence in counter to the said documents,
defeating the purpose of the Act, i.e., expeditious disposal. On the same analogy,
document (b), which are printouts of the Social Media pages, cannot be taken on
record.
26. Learned counsel for the Defendant relied on the judgment in Hassad Foods (supra)
which, in my view, does not help the Defendant. In the said case, the additional
documents that were sought to be filed and were allowed by the Court, can be seen
from para 16 of the judgment. Some of the documents were attachments of the e-mails
which had already been filed, however, on account of the documents being voluminous,
these attachments were left out. Albeit Monthly Inventory Statements had been filed by
the Plaintiffs, Defendant Banks statement was not filed along with the plaint. Remaining
documents were SWIFT statements regarding payments made and the same were
relevant to the case as the Defendants had put the Plaintiffs to strict proof regarding the
payments; Judicial orders of the Court of the learned ACMM in an FIR and copy of the
Minutes of Meeting of Board of Directors. More importantly, the Court allowed the
application since the suit was at a stage where the pleadings were not complete and
even the replication was to be taken on record and in this view, the Court was of the
opinion that the application was so not so belated as to be disallowed. In fact, para 17
of the judgment shows that the Court distinguished the case in Nitin Gupta (supra) and
noted that amongst the two reasons why the Court in the said case had declined to
permit additional documents was that the documents were being filed after the issues
had been settled.
2 7 . Reading of the judgment in Societe DES (supra), in my view, shows that the
observations of the Court, in fact, run contrary to the stand of the Defendant. In para 10
of the judgment, Court observed as under:-
"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."
28. Having so observed, the Court noted that applying the aforesaid reasoning to the
suit before it, no justification was found to permit the Defendants No. 4 and 5 to file
documents at the belated stage, as that would endlessly delay the trial inasmuch as an
opportunity will then have to be afforded for proof of the said documents, which would
entail examination of a number of witnesses and delay the trial. Be it noted that in the
said case, Court had allowed only the documents which were filed along with an
affidavit which was filed earlier but was not on record and the Court had only permitted
filing of a fresh affidavit with these documents. However, insofar as large number of
additional documents that were later filed to show user of the trademark were
disallowed and to that extent, the application was dismissed.
29. Reliance by the Defendant on the judgment in Nitin Gupta (supra) is misplaced.

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 Indisputably, in the said judgment, the Court has held that a Defendant under Order XI
CPC, as applicable to commercial suits, is entitled to file a document if it establishes
'reasonable cause' for nondisclosure as this explicitly flows from the provisions of Order
XI Rule 1(10) itself. Defendant has, however, relied on the judgment in support of the
contention that the brand report dated 22.12.2015, although not disclosed with the
written statement, may be allowed to be brought on record. This argument overlooks
the observations of the Court in the said judgment that late filing of documents can be
permitted only if the applicant passes the muster of showing 'reasonable cause' and in
the present case, Defendant has failed to disclose any cause, which can be termed as
'reasonable cause' for permitting a report of the year 2015 to be brought on record,
through an application filed in the year 2020, when in the five years period there were
several opportunities available to the Defendant to place the same on record. It bears
repetition to state that mere inadvertence or unfavourable observations in a judgment
granting injunction against the Defendant, cannot be a reasonable cause permitting
filing of the brand report after five years of its existence. Defendant, it seems, is
oblivious of a very significant observation of the Court in this very judgment that if the
Commercial Divisions do not enforce provisions of the Commercial Courts Act strictly
and show leniency in the name of 'interest of justice', the commercial suits will suffer
from the same malady which the ordinary suits suffered.
3 0 . Learned counsel for the Defendant also placed reliance on the judgment of the
Supreme Court in Sudhir Kumar @ S. Baliyan (supra). Having carefully perused the
judgment, the same does not inure to Defendant's advantage. Firstly, in the said case,
amongst the several additional documents sought to be brought on record, the Supreme
Court only allowed the invoices to be taken on record on the ground that they were not
in possession of the Plaintiff at the time of filing the plaint. On this analogy, Defendant
may have had a case for bringing on record the screenshots of Defendant's Delhi Radio
Station pages on social media or the Annual Financial Reports, which came into its
custody and possession, post the filing of the written statement, however, the benefit of
the judgment cannot accrue to the Defendant in the present case, as in the said case,
the suit had not even advanced upto the stage of framing of issues unlike the present
case where the Defendant's evidence has commenced and as noted above, Defendant
took no steps to bring any of these documents on record, despite the same being in
custody and possession of the Defendant prior to the commencement of the Plaintiff's
evidence, if not earlier and significantly no reason has been given for having waited till
the conclusion of the Plaintiff's evidence to file the present application. In this context,
it is relevant to note that in the case of Sudhir Kumar @ S. Baliyan (supra), the
Supreme Court had disallowed the remaining documents on the ground that there was
sufficient time gap between the filing of the first suit and the second suit, i.e.,
approximately ten months, to file the additional documents which was not availed of by
the Plaintiff.
31. Last but not the least, learned Senior Counsel for the Defendant had placed strong
reliance on the judgment of the Calcutta High Court in ITC Limited (supra) to contend
that even at the stage when the Plaintiff's evidence is concluded, Defendant can be
permitted to file additional documents. The contention, in my view, is wholly
misconceived. A bare reading of the judgment shows that the filing of the written
statements as well as disclosure and discovery in the said case were all completed
before the suit migrated to a commercial suit and the Court clearly observed in para 16
of the judgment that the Defendant would be governed by the unamended provisions of
the CPC, i.e., Order VIII Rule 1-A(3), under which Defendant has to obtain leave for
producing additional documents although, the same is also not a matter of right.
Reading of the judgment shows that the Court permitted the additional documents on

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 the ground that this would not give an edge to the Defendant over the Plaintiff, as the
Plaintiff will get an opportunity to cross-examine Defendant's witnesses on the said
additional documents as well as have the liberty of recalling its witnesses. With the
greatest of respect, this Court cannot adopt this reasoning in the present suit in light of
the judgments of the Supreme Court and this Court, as aforementioned as well as
keeping in backdrop the Statement of Objects and Reasons of the Commercial Courts
Act, 2015, which is to provide for speedy disposal of the suits. If each time an
additional document is sought to be placed on record by any party to the suit, without
due cause, at a stage when the trial has commenced and the same has to be allowed on
the ground that the opposite party can be given an opportunity to cross-examine the
witnesses and recall its own witnesses, the purpose of the suit proceedings under the
Commercial Courts Act will be defeated.
32. For all the aforesaid reasons, the application is partially allowed in the aforesaid
terms and disposed of accordingly.
CS(COMM.) 179/2016
33. List on 12.10.2022 before the learned Joint Registrar.
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