$~30
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*
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IN THE
HIGH COURT
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OF DELHI
AT
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NEW DELHI
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+
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CS(OS) 504/2004
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POLYFLOR LIMITED
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.....
Plaintiff
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Through
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Mr. Harsh Vardhan Pathak & Mr.
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Sushant
Singh, Advs.
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versus
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SH. A.N. GOENKA &
ORS.
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DA+
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..... Defendants
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Through
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Mr. Ajay Amitabh Suman,
Adv.
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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.
Contd...2
-2-
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
Contd....3
-3-
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
Contd....4
-4-
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
