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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 25th 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 18th
September, 2018.
YOGESH KHANNA, J
APRIL 04, 2018
VLD
