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IN THE
HIGH COURT OF DELHI AT NEW DELHI
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Reserved on: 31st July, 2018
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Pronounced on: 6th August, 2018
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CS(COMM) 905/2016
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M/S
CROCS INC USA
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..... Plaintiff
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Through :
Mr.S.K.Bansal, Mr.Ajay Amitabh
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Suman,
Advocates.
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versus
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M/S
ACTION SHOES PVT LTD & ANR
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..... Defendants
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Through
: Mr.Jayant
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Mehta,
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Mr.Kapil
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Wadhwa and
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Ms.Devyani
Nath,
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Advocates
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for
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defendants/
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appellant.
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CORAM:
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HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
O.A. No.76/2018
1.
This chamber appeal is against an
Order dated 05.07.2018 passed by the learned Joint Registrar wherein he has
allowed the
respondent’s application I.A.No.2180/2018 seeking
permission to bring on record additional documents despite the plaintiff
evidence being underway and two witnesses having been cross-examined. The
additional documents were allowed to be brought on record by the Joint
Registrar despite having filed after framing of issues and the commencement of
the trial. It is alleged earlier too the plaintiff has been granted an
opportunity to file additional documents vide
CS(COMM) No.905/2016 Page 1 of
6
an order dated 10.11.2017, but it failed to bring these documents at
such time, hence the impugned order is liable to be set aside.
2.
Certain dates are relevant for
the purpose. On 14.09.2017 the issues in this case were framed. On 13.09.2017
I.A. No.11385 of 2017 was filed by the plaintiff to bring on record the
additional documents (other than the documents in dispute). Such application
was allowed on 10.11.2017.
3.
On 07.11.2017 issues were
amended. However on 02.12.2017, 05.12.1017 and 12.01.2018 three sets of
documents were filed by the plaintiff. Later on, on 13.01.2018 the plaintiff
moved an application I.A.No.2180/2018 to formally bring these three sets of
documents on record. The impugned order was passed by the Joint Registrar on
05.07.2018 on the premise the trial has not yet commenced.
4.
The
question now is
if these documents
were in the
plaintiff’s possession prior to the date of framing
of issues and/or before the date of filing of the suit and if those were, then
can such documents be allowed to be placed on record at this stage.
5.
The reason for filing the
documents after framing of issues is mentioned in para 4 of I.A.No.2180/2018 as
under:
“The said
documents were not in power, possession, control or
custody of the plaintiff earlier and are very recent in
nature‖.
6.
Thus, the plaintiff alleges
power, possession and control or
a)
the
documents were not in custody of the plaintiff earlier;
CS(COMM) No.905/2016 Page 2 of
6
and b)
are very recent in nature.
7.
However, a bare perusal of the
documents would show barring a judgment passed by Ecuador Court on 31.10.2017; all other documents are dated either
prior to framing of issues or prior to the filing of the suit, hence, documents
being of the plaintiff itself, it cannot say the same were never in its power,
possession or custody and it is also false to allege such documents were recent in nature except a decision of Ecuador Court dated 31.10.2017.
8.
Order VII Rule-14(3) of the Code
of Civil Procedure, 1908 reads as under:-
“14 Production of document on which
plaintiff sues or relies—
(1)
xxx
(2)
xxx
(3)
A document which ought to be produced in Court by
the plaintiff when the plaint is presented, or to be entered in the list to be
added or annexed to the plaint but is not produced or entered accordingly,
shall not, without the leave of the Court, be received in evidence on his
behalf at the hearing of the suit.
(4)
xxx
9.
Further, Order XI Rule-1(1) of the Code of Civil
Procedure,
1908
reads as under:
“1.
Disclosure and discovery
of documents.—(1)
Plaintiff
shall
file a list of all documents and photocopies of all documents, in its power,
possession, control or custody, pertaining to the suit, along with the plaint,
including:—
(a) documents
referred to and relied on by the plaintiff in the plaint;
(b) documents
relating to any matter in question in the proceedings, in the power,
possession, control or custody of the plaintiff, as on the date of filing the
plaint, irrespective of whether the same is in support of or adverse to the
plaintiff‗s case;
(c) nothing
in this Rule shall apply to documents produced by plaintiffs and relevant only––
CS(COMM) No.905/2016 Page 3 of
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(i) for the
cross-examination of the defendant‗s witnesses, or
(ii) in answer
to any case set up by the defendant subsequent to the filing of the plaint, or
(iii) handed
over to a witness merely to refresh his memory.‖
10.
Further, Chapter 7 Rule-14 of Delhi High Court
(Original
Side)
Rules, 2018 states as under:
“14. No documents to be filed after completion of
pleadings.-Except as provided in Order XIII of the Code and
these Rules, neither party shall be entitled to file any documents after
completion of pleadings in the suit. Upon failure of parties to file their
respective documents and/ or file the respective documents on completion of
filing of pleadings, in accordance with these Rules, the Registrar shall
forthwith place the matter before Court.”
11.
The above sections/rules etc.
have been discussed in various judgments viz. Polyflor Limited vs. Sh.A.N.Goenka & Ors. 2016
(156) DRJ
600 the Court held:
―16. Order VII Rule 14(3) mandates
that: ―A document
which ought to be produced in Court by the plaintiff when the plaint is
presented, or to be entered in the list to be added or annexed to the plaint
but is not produced or entered accordingly, shall not, without the leave of the
Court, be received in evidence on his behalf at the hearing of the suit‖. Thus,
as a matter of rule, the plaintiff is prohibited from leaving in evidence a
document which he ought to have produced when the plaint was presented. The
exception to this rule is that, where the Court grants leave to the plaintiff,
the document may be permitted to be led in evidence at the hearing of the suit.
25.
In my view, the aforesaid judgment squarely applies
to the facts of the present case. It cannot be said by the plaintiffs that they
were not aware of the existence of their own audited annual reports from 1997
onwards till 2013. Since the said annual reports are of the plaintiffs
themselves, and even according to the plaintiffs, the plaintiffs are obliged to
maintain the records for a period of seven years under the law applicable to
the plaintiff company, it cannot be said that in spite of due diligence, the
plaintiffs could not have produced the said documents at the time of filing of
the suit in respect of the period 1997 to 2004, and for the period thereafter
till the time of framing of issues in 2013. Not only these documents, or even
copies, therefore, were not filed earlier, they were not even referred to or
relied upon either in the
pleadings, or in any other document filed by the plaintiff.‖
CS(COMM) No.905/2016 Page 4 of
6
12.
In Societe Des Produits Nestle S.A. and Ors. vs. Essar Industries and ors. 2016 (67) PTC 678
(Del) the Court held:
11. The
principle which prevailed with the Courts earlier, for allowing documents even
at the late stage viz. of the litigant should not suffer for the fault of his
advocate or for being not advised to file documents at the correct stage and
which principle had evolved in the context of mofussil jurisdiction, where the
litigants were uneducated and not aware of their rights, cannot certainly be
applied to suits of commercial men and commercial concerns who do not suffer
from any such handicap.
12. Applying
the said reasoning and finding the suit to be of 1993 vintage and not finding any justification
for the defendants No. 4&5 to file documents at this stage and yet further finding that allowing such
additional documents to be taken on record would endlessly delay the
trial, inasmuch as an opportunity will then also have to be given for proof of the said documents and which proof
would entail examination of a number of witnesses, I am not inclined to allow
the additional documents to be taken on record.
13.
Further in Ramanand vs. Delhi Development Authority 2016 SCC Online Del 4925
the Court held:
11. Admittedly, the
issues were framed
way back on
28.11.2007. An
additional legal issue
has been framed
on
07.11.2012.
The evidence of the petitioner has already commenced. Now at this belated stage
the petitioner has chosen to move the present applications in 2012. The only
explanation given is that the documents intended to be filed are a result of
―subsequent events and supply of relevant information by the concerned
authorities‖. Under the guise of this general excuse 88 additional documents
are sought to be placed on record. The manner in which the documents are sought
to be filed clearly show that the plea of the petitioner lacks merits. The
belated filing of the documents would prejudice the respondent at this stage.
No sufficient reasons are
given by the petitioners.
14.
Hence, as culled out from the
judgments and law above though there is no bar qua production of documents even
at a late stage but the plaintiff need to prove such documents were not in his
power and possession at the time of filing of suit and/or despite
CS(COMM) No.905/2016 Page 5 of
6
due diligence he could not produce such documents.
However, in the present case since all the documents except one relates to
dates prior to the filing of the suit or prior to framing of issues hence the
plaintiff cannot allege such documents being recent or were never in its power
or possession. Further, two of the plaintiff’s witnesses have already been
examined, cross-examined and discharged and the third witness is under
examination. Moreso no cogent reason is shown in this application for late
filing of such documents so, I see no reason why the application be allowed
expect for a decision of Ecuador Court dated
31.01.2017 which only be taken on record.
The appeal, therefore, is allowed in terms of the above. No order as to
cost.
CS(COMM) 905/2016
15.
List on 06.09.2018.
YOGESH KHANNA, J
AUGUST 06, 2018
SSC
CS(COMM) No.905/2016 Page 6 of
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