COLUMBIA SPORTSWEAR COMPANY VS HARISH FOOTWEAR-CHAMBER APPEAL

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*                    IN THE HIGH COURT OF DELHI AT NEW DELHI

+CS(COMM) 1611/2016

COLUMBIA SPORTSWEAR COMPANY

..... Plaintiff

Through :    Mr.Neeraj  Grover,  Ms.Kanika  Bajaj

and Mr.Himanshu Deora, Advs.

versus

HARISH FOOTWEAR & ANR

..... Defendants

Through :    Mr.S.K.Bansal,   Mr.Pankaj     Kumar,

Mr.Vinay Kumar Shukla and Mr.Ajay

Amitabh Suman, Advs.

CORAM:

HON'BLE MR. JUSTICE YOGESH KHANNA

O R D E R

%                                         04.04.2018

O.A. 36/2018, 4370-4371/2018

O.A.  36/2018  is  a  chamber  appeal  against  an  order  dated

01.03.2018 whereby the plaintiff has been allowed to place on record

voluminous documents consisting of about 2,000 pages containing

invoices, magazines, documents, vouchers etc. The submission of the

appellant is the learned Joint Registrar did not consider due diligence

on the part of the plaintiff, per Order 11 Rule 1(5) of the Commercial

Courts Act, 2015 r/w Section 151 CPC. The said rule read as under :

The plaintiff shall not be allowed to rely on documents, which were in the plaintiff’s power, possession, control or custody and not disclosed along with plaint or within the extended period set out above, save and except by leave of Court and such leave shall be granted only upon the plaintiff

establishing reasonable cause for non–disclosure along with the plaint.

However counsel for the plaintiff has taken me to application

IA  No.15599/2017  more  specifically  paras  7,  8  and  9  which  are

reproduced as under :

7.    That pursuant to the framing of the issues in this matter, the Plaintiff started collating the evidence to support its claims in this matter and to lead the evidence in the trail. During the said process, the Plaintiff has been able to locate various relevant documents which are very essential/ germane to the issues and the controversies involved in the subject matter.

8.    It is further submitted that the Plaintiff has filed certain documents along with the aforesaid suit. However, during the pendency of the present proceedings, the Plaintiff has discovered certain additional documents, namely the documents pertaining to the promotional and advertisement efforts of the Plaintiff in various magazines, news article, Olympics sponsorship activities, other promotional activities, business operations of the Plaintiffs liaison office in India since 1995, etc. pertaining to the use of the trade mark/ trade name COLUMBIA, filed as a part of the attached List of Documents with Index, which are available in original with the Plaintiff from his old records and/ or can be supported by the Plaintiffs publically available records or the information available on the internet. Further, the documents pertaining to the liaison office of the Plaintiff in India are very old, inter alia, dating back to as early as 1995-2005, and also, these evidence were earlier used in other litigation matters of the Plaintiff and therefore, could not be produced earlier, despite due diligence.

9.    The records of the Plaintiff are quite voluminous and are scattered at various places. The Plaintiff being a global company, having operations in various countries around the court, these documents were attended by number of persons during the course of the time until date. In view of the same, it took time to trace out these documents and place it before this Hon’ble Court. Therefore, despite due diligence, the Plaintiff could not have filed these documents on record earlier at the time of the filing of the present suit.

It is alleged by the plaintiff that despite  due diligence such

documents could not be produced on record earlier because of the

reasons  aforesaid.  Impugned  order  passed   by  the  learned    Joint

Registrar though notes of an admission on behalf of the defendant viz.

such documents are relevant, (though such admission is denied) and

that the evidence has not started as yet, hence considering the nature

of documents he allowed the application. The defendant alleged the

learned Joint Registrar did not mention about reasonable cause or due

diligence if was there on part of the plaintiff.

Considering the circumstances, viz. a) the evidence has not

started as yet; b) the documents being in public domain; c) such

documents being relevant for the plaintiff’s case, the order of the

learned Joint Registrar need no interference. Though the learned Joint

Registrar has not noted due diligence on the part of the plaintiff in his

order  but  paras  7,  8  and  9  of  the  application  do  speak   about

reasonable cause on which application the impugned order is passed.

The O.A. 36/2018 thus has no merit and is accordingly dismissed,

alongwith pending applications.

IA No.3874/2018

This application is qua the direction to allow the examination and cross-examination of the plaintiff’s witness No.1. Though the IA was moved for video conferencing but during the arguments the plaintiff says he would be satisfied if the evidence of the plaintiff’s witness No.1 is recorded by learned Local Commissioner at his expense. Hence Sh.R.K.Yadav, District Judge (Retd.) (Mobile: 9910384623) is appointed as the Local Commissioner to record the evidence of PW1 and since the witness has to travel from USA hence the evidence be recorded on day-to-day basis starting w.e.f 25^th April, 2018 onwards till the evidence of PW1 is complete; there being a direction by the Division Bench to complete the evidence within four months. The fee of the Local Commissioner shall be as per Original side rules, as amended.

List before Court on 18^th September, 2018.

YOGESH KHANNA, J

APRIL 04, 2018

VLD