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.

Contd...2

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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

Contd....3

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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

Contd....4

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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

M/S FREEMANS MEASURES PVT LTD VS SUSHIL KUMAR LOHIA & ORS

$~13

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CS(OS) 1902/2012

M/S FREEMANS MEASURES PVT LTD

..... Plaintiff

Through:       Ms. Diva Arora, Adv.

versus

SUSHIL KUMAR LOHIA & ORS

..... Defendant

Through:       Mr. Ajay Amitabh Suman, Adv.

CORAM:

SH. AMIT KUMAR (DHJS), JOINT REGISTRAR (JUDICIAL)

O R D E R

%                                         24.01.2017

Counsel for defendant has objected to filing of fresh document along with affidavit of witness and it is stated that in view of the judgment of our

High Court titled as “FATS Inc. Vs. Zen Technologies Ltd. 2008 (37) PTC 349 (Del).”, as per para no. 8 no fresh document can be placed on record at this stage, which was in the power and control of the party. It is further stated that name of this witness is mentioned in the list of witnesses filed for the plaintiff in 2015 yet till filing of the affidavit no effort was made to place this document on record and no application was filed for placing this document and as such it cannot be taken on record.

Counsel for the plaintiff on the other hand has stated that this is only an authority letter authorising the witness to appear in this court and cannot be refer as a document as mentioned in the judgment relied upon by counsel for defendant and further it came to existence on 30.06.2016 and therefore was filed along with affidavit at the earliest available opportunity.

Though it is correct that name of this witness is mentioned in the list of witnesses filed on behalf of plaintiff in 2015 but as per this Authority Letter, this witness was authorised to depose only on 30.06.2016. This authority came into existence only on 30.06.2016 and as such it cannot be said that it could have been placed on record prior to that date. The judgment relied upon by counsel for defendant talks about the document, which are already in existence and are in power and possession of the party, a document authorising a person to depose in strict sense, cannot be said to be a document and further at earliest can be filed only when came into existence, the objection therefore, is not sustainable. The authority letter filed with the affidavit can be taken on record without any application.

PW3 examined, cross-examined and discharged.

Vide separate statement, counsel for the plaintiff has closed plaintiff‟s evidence.

Put up for defendant‟s evidence on 25^th April, 2017.

Let the defendant file affidavit of evidence of its witness within 4 weeks with advance copy to the other side.

AMIT KUMAR (DHJS)

JOINT REGISTRAR (JUDICIAL)

JANUARY 24, 2017/nk

M/S CAPITAL METERS LIMITED & ANR. VS M/S. S. JOHNFLEX INDUSTRIES & ANR.

$~17

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                                          Judgment delivered on: 03.07.2015

+                   FAO (OS) 324/2015 & CM No.11302/2015 (stay)

M/S CAPITAL METERS LIMITED & ANR.		.... Appellants
	versus
M/S. S. JOHNFLEX INDUSTRIES & ANR.		..... Respondents
Advocates who appeared in this case:
For the Appellants:	Mr S.K. Bansal with Mr Ajay Amitabh
	Suman, Advocates.
For the Respondents	: None.

CORAM:-

HON’BLE MR JUSTICE BADAR DURREZ AHMED

HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

CM No.11303/2015 (exemption)

Exemption is allowed subject to all just exceptions.

FAO (OS) 324/2015 & CM No.11302/2015 (stay)

1. This appeal is preferred against the order dated 25.05.2015 passed by a learned Single Judge of this Court, whereby IA No.1072/2015 filed by the appellant/defendant seeking to bring certain documents was rejected. The documents which were sought to be brought on record are as under:-

“(i)     The photographs of the products under the trademark Capital carrying the

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manufacturing year 1987.

(ii)           The ITCC Certificate for the financial year 1987-88.

(iii)           The NSIC certificate dated 22.05.1990 against application of defendant no.1 dated 08.03.1990.

(iv)           KSEB Registration certificate dated 06.12.1988.

(v)              The letter dated 27.03.1987 issued by the Electricity department of UP.

(vi)           No Objection Certificate from UP Pollution Board dated 26.04.1986.

(vii)         UP PWD approval dated 14.05.1987.

(viii)      UP SEB approval dated 25.05.1987.

(ix)           The ISI License valid since the year 1987.

(x)              Surrender letter of defendant no.1 of BIS

License.”

2.                 The learned Single Judge noted that these documents were always

available with the defendants/appellants at all times. We may also point out that the said suit was filed in the year 2004. Initially, a written statement was filed by the defendants which was subsequently amended in the year 2008. Issues were framed in the year 2009 and the plaintiffs‟ evidence was concluded in the year 2012. Three years later, in the current year, i.e., 2015, the said application being IA 1072/2015 was filed

FAO (OS) No.324/2015                                                                                                                          Page 2 of 5

to bring on record the documents which were, at all times, available with

the defendants.  A flimsy explanation had been attempted to be given for

the non-production of the said documents at an earlier stage. The same

can be discerned from paragraph 4 of the application which reads as

under:-

“4. That the defendant no.1 is filing the afore mentioned additional documents by way of list of document dated 15.05.2015. The same may be referred to. All the documents are being filed in photocopies. The plaintiff is desirous of producing the same at the trial stage as the same are very important and necessary for the defendant no.1 to produce the same in relation to various proceedings on daily basis. The said document could not have been filed before framing of issues. The afore mentioned documents are very old documents are were lying under various files in godown. The custodian of the afore mentioned documents changed from time to time in the office of the defendant no.1. After much effort, the defendant no.1 was able to obtain the same. The same could not have been filed before framing of issues because of the reasons mentioned herein above. The reasons for not filing the afore mentioned document is beyond the power and control of the plaintiff.”

3.                 The learned Single Judge has correctly noted that, at this stage, the

FAO (OS) No.324/2015                                                                                                                          Page 3 of 5

defendants (appellants herein) cannot be permitted to rely on the same and that the application does not indicate diligence and seriousness of the defendants. In our view, this is only an attempt to delay the proceedings in the suit.

4. The learned counsel for the appellants placed before us a judgment of the Supreme Court in Lakshmi and Anr. v. Chinnammal Rayyammal

and Ors.: (2009) 13 SCC 25 in an attempt to support his argument that this Court ought to take the said documents on record. First of all, the said decision of the Supreme Court in Lakshmi (supra) was one under Order XIII Rule 10 CPC which is entirely different from the situation which obtains in the present case. Under that provision, the Court may send for the papers from its own record or from other Courts. Here the documents were available with the appellants at all times and admittedly so. The explanation sought to be given by the appellants, as noted above, is clearly untenable. It is in the context of Order XIII Rule 10 that the Supreme Court in Lakshmi (supra) made the observation in paragraph 12 which is reproduced herein below:

“12. If bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused;

FAO (OS) No.324/2015                                                                                                                          Page 4 of 5

the Court‟s duty being to find out the truth.

The procedural mechanics necessary to arrive at a just decision must be encouraged. We are not unmindful of the fact that the court in the said process would not encourage any fishing enquiry. It would also not assist a party in procuring a document which he should have himself filed.”

Even in the said observation of the Supreme Court, the word „ordinarily‟

has been used.  The present case does not fall in that category.              Here, no

plausible explanation has been given for not producing the documents

despite the suit having been filed in 2004 and even the written statement

having been amended in 2008, particularly, when the documents were all

along said to be available with the appellants.

5.           In the factual matrix of the present case, we do not find any error in

the impugned order whereby the learned Single Judge has refused the

appellant/defendant‟s request for taking on record the said documents.

6.                 The appeal has no merit. The same is dismissed.

BADAR DURREZ AHMED, J

SANJEEV SACHDEVA, J

JULY 03, 2015/st

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