POLYFLOR LIMITED VS SH. A.N. GOENKA & ORS

$~30
*	IN  THE  HIGH  COURT	OF  DELHI  AT	NEW  DELHI
+	CS(OS) 504/2004
	POLYFLOR LIMITED		..... Plaintiff
	Through	Mr. Harsh Vardhan Pathak & Mr.
		Sushant Singh, Advs.
	versus
	SH. A.N. GOENKA & ORS.	DA+	..... Defendants
	Through	Mr. Ajay Amitabh Suman, Adv.

CORAM:

ASHUTOSH KUMAR (DHJS), JOINT REGISTRAR

(JUDICIAL)

O R D E R

%                                          16.03.2016

IA No.1446/2016 under Order VII Rule 14 (3) r/w Section 151 CPC moved on behalf of plaintiff seeking leave to place additional documents on record and for further directions

By means of present application, plaintiff seeks to place on record three sets of documents relating to Audited Statement of Accounts which allegedly substantiate the sales figure and turnover arising out of the plaintiff’s goods under the Trademark POLYFLOR since 1997 till 2013. The first set is photocopy of Annual report of plaintiff which includes from its predecessor for the year 1997 to 1999. The second set is the original duly Audited Annual Report for the year ended 30.06.2001 and for the year ended 30.06.2003. The third set is originals of Annual Report of the plaintiff Company for the year ended 30.06.2005, 30.06.2007, 30.06.2009, 30.06.2011 & year ended 30.06.2013.

I have heard learned counsels for parties and perused the record.

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Learned counsel for plaintiff has relied upon the judgment in

the matter titled “Smt. Shantibai K. Vardhan & Ors. Vs. Ms. Meera

G. Patel & Anr. 2008 (6) ALLMR 212”.

Learned counsel for defendants has relied upon the following

judgments:

i)             Shalimar Chemical Works Ltd. Vs. Surendra Oil and Dal Mills (Refineries) and Ors. in Civil Appeal No.52 of 2005 decided on 27.08.2010, by Hon’ble Supreme Court of India;

ii)            Doctor Morepen Ltd. & Anr. Vs. Poysha Power Generation P. Ltd. 2013 (137) DRJ 261, by Hon’ble Delhi High Court;

iii)          S. Johnflex Industries Vs. Capital Meters Ltd. and Ors. In CS(OS) 106/2004 in IA No. 10752/2015 & IA No. 1072/2015 passed on 25.05.2015, by Hon’ble Delhi High Court;

iv)          FATS Inc. Vs. Zen Technologies Limited in CS(OS) 1472/2005 decided on 25.01.2008, by Hon’ble Delhi High Court; and

v)           M/s Capital Meters Limited and Anr. Vs. M/s S. Johnflex Industries & Anr. In FAO(OS) 324/2015 & CM No.11302/2015 (Stay) decided on 03.07.2015, by

Hon’ble Delhi High Court.

All the documents sought to be filed are pertaining to the period ending 30.06.2013. Original suit was filed in the year 2004. Admittedly neither the aforesaid documents were filed alongwith plaint nor at the stage of admission/denial of documents or even at the time of framing of issues on 02.12.2013. PW1 is under cross-examination and his substantial cross-examination has already

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been carried out and the captioned IA was filed only on 27.01.2016. Vague and non convincing reasons have been given by learned counsel for plaintiff for not filing the documents earlier. No justifiable reason has been given as to when the said documents were in the domain and control of the plaintiff then why the same were not filed at the appropriate stage or even at the stage of framing of issues.

The original suit is for permanent injunction, passing off, profits out of rendition of accounts, etc. and plaintiff has claimed amount of Rs.20.0 lacs, out of profits by rendition of accounts of the defendants. Even if the plaintiff shows figures of its sales (from the documents after 2004 sought to be filed) in crores after 2004 (i.e. after filing of suit), the plaintiff cannot be granted more than what has been claimed. The judgment cited by the plaintiff does not help its case in any way as the same is distinguishable on facts and the following judgments of Hon’ble Delhi High Court relied upon by the defendants are squarely applicable in the facts of the case:

i)             FATS Inc. Vs. Zen Technologies Limited in CS(OS) 1472/2005 decided on 25.01.2008; and

ii)            M/s Capital Meters Limited and Anr. Vs. M/s S. Johnflex Industries & Anr. In FAO(OS) 324/2015 & CM No.11302/2015 (Stay) decided on 03.07.2015.

Also allowing the application may further delay the trial specially when PW1 has been substantial cross-examined. It was for the plaintiff to show due diligence which it has failed to show. Plaintiff cannot be allowed to fill in the lacuna, at this stage without

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any strong reasons for not filing the said documents in its power and control even at the stage of framing of issues. The captioned IA being devoid of merits is dismissed and is accordingly disposed of.

CS(OS) 504/2004

Put up the matter before the learned Local Commissioner for recording of evidence of plaintiff’s witnesses on dates already fixed.

ASHUTOSH KUMAR (DHJS)

JOINT REGISTRAR (JUDICIAL)

MARCH 16, 2016/ab