VEE EXCEL DRUGS VS HAB PHARMACEUTICALS

IN THE HIGH COURT OF DELHI AT NEW DELHI


  CS(OS) 1851/2008





  VEE EXCEL DRUGS and

  PHARMACEUTICALS(P) LTD. ..... Plaintiff

  Through Mr. Ajay Amitabh Suman, Advocate.



versus



  HAB PHARMACEUTICALS and

  RESEARCH LTD. ..... Defendant

  Through Ms. Sushani, Advocate.



  CORAM:

  SH. GIRISH KATHPALIA (DHJS), JOINT REGISTRAR





   O R D E R

   11.04.2012



  IA No. 18248/2011 (under Order VII Rule 14 CPC)



  Despite opportunity reply was not filed. I have heard both the
  learned counsel on this application.

  By way of this application, plaintiff seeks permission to place on
  record certain additional documents, which is strongly opposed by the
  learned counsel for defendant.

  It is submitted by learned counsel for plaintiff that they seek
  permission to place on record additional documents by way of three sets.
  First set consists of certain documents filed in CS (OS) No. 1007/05 by
  one M/s. Ma Gayatri, a partnership firm who is stranger to the present
  suit. As per plaintiff case, they obtained rights of M/s. Ma Gayatri to
  use the trade mark impugned in the present suit and amendment to
  incorporate those facts was allowed vide order dated 12.08.09; subsequent
  to framing of issues, plaintiff came to know about certain documents
  filed earlier by M/s. Ma Gayatri in CS (OS) No. 1007/05 which would have
  bearing on the present suit as well, as such, plaintiff applied certified
  copies of the said documents which are now sought to be placed on record
  in this case as additional documents. Second set of documents are order
  dated 08.08.2011 of Intellectual Property Appellate Board, whereby

  registration of the impugned trade mark in the name of the present defendant was cancelled. Third set of additional documents is certain
  bills and invoices which were already in possession of plaintiff but
  could not be filed due to lapse on the part of previous law offer of
  plaintiff company.

  In opposition to the application, learned counsel for defendant
  submits that so far as order dated 08.08.2011 of IPAB is concerned, the
  defendants have no objection if the same is taken on record. But as
  regards remaining two sets of additional documents namely certified
  copies of documents pertaining to CS (OS) No. 1007/05 and bills and
  invoices, defendants strongly oppose on the grounds that the same are
  being filed at much belated stage. Learned counsel for defendants submits
  that the said documents ought to have been filed alongwith amended plaint
  way back in the year 2009 itself. Learned counsel for defendant also made
  a reference to order dated 09.11.2010 whereby right of plaintiff to file
  evidence was closed followed by order dated 08.12.2010 whereby right to
  lead plaintiff evidence was restored. It is further submitted by learned
  counsel for defendant that even the present application was brought much
  belatedly in November, 2011, though the issues were framed in September,
  2010.

  In support of application, learned counsel for plaintiff places
  reliance on the judgment of Hon?ble Delhi High Court in the case titled
  as Vijay Kumar Geol vs DDA, IA No. 6254/007 of CS (OS) No. 2537/2000
  decided vide order dated 21.07.09 passed by Hon?ble Ms. Justice Aruna
  Suresh.

  In the case Kapil Sharma vs. Lalit Kumar Sharma, MANU/SC/1170/2009,
  the Hon?ble Supreme Court expressed disagreement with the view taken by
  the Hon?ble Division Bench and held that since the witness of the
  applicant was yet to step into the box for cross examination, filing of
  additional documents by the applicant ought not to have been disallowed.
  In the present case also, the admitted position is that till date
  plaintiff?s evidence is yet to commence.

  It is nobody?s case that the additional documents now being sought
  to be filed are not relevant to the present dispute. Rather as described
  above, one of the sets of the additional documents pertains to the facts
  already allowed to be pleaded by way of amendment of the plaint. As
  regards third set of additional documents namely bills and invoices, I
  find no reason to disbelieve that due to lapse of previous law officer of
  plaintiff company the same were not filed.

  The fact remains that plaintiff evidence is yet to commence, so no
  prejudice would be caused to the defendant by taking the additional
  documents on record.

  So far as the issue of delay is concerned, it is cardinal principle
  of justice that disputes should be decided on merits instead of defaults
  and where the non-applicant can be compensated in terms of cost, such
  applications should not be thrown out merely on the grounds of delay.

  In view of above discussion, the present application is allowed and additional documents of plaintiff are taken on record subject to cost of
  `.20,000/- which shall be paid to the defendant.

  CS (OS) No. 1851/2008

  Since the additional documents so taken on record as above are not
  required to be put to the other side for admission/ denial of the
  documents, as submitted by both the sides, relist the matter for
  plaintiff evidence on 28th September, 2012 at 02:15 pm.

  Fresh chief affidavit of plaintiff shall be filed within four
  weeks, if required.







  SH. GIRISH KATHPALIA (DHJS)

  JOINT REGISTRAR

  APRIL 11, 2012

  ms





  $ 3