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Judgment
Rule. Rule made returnable forthwith. With consent of parties, matter is heard finally at admission stage.
The petitioner impugns order dated 05.12.2024 passed below Exhibit D-5 by Ad-hoc Senior Civil Judge ‘A’ Court, Quepem (hereinafter referred to as ‘Trial Court’) on interim application in Commercial Suit No.2/2024/A, thereby allowing respondent’s application for production of documents.
The petitioner is a Company engaged in business of manufacturing and selling bio fertilizer, bio extract, commercial fertilizer, pesticides etc. under ‘PLANTO’ trade mark. The petitioner instituted suit alleging infringement of trade mark and passing off against respondents, who are using trade mark ‘PLANTONICS’. On 22.02.2024 respondent filed written statement, however, documents referred in written statements were not tendered. On 07.03.2024 petitioner filed replication cum rejoinder dealing with contents of written statement and took plea that respondent cannot be permitted to file any document at later stage.
On 30.03.2024, respondent submitted application seeking leave to file documents under Order XI Rules 1(10) and 7 (c)(ii) of Commercial Courts Act (hereinafter referred to as ‘Act of 2015’) inter alia contending that due to unavailability of documents or health issues in family of Director of respondent documents could not be tendered alongwith written statement. The petitioner opposed application by filing reply, however, Trial Court allowed production of documents vide impugned order dated 05.12.2024.
Mr. Hiren Kamod, learned Advocate appearing for petitioner submits that Order XI of Act of 2015 deals with disclosure, discovery and inspection of documents. Sub-clause (7) of Clause (1) of Order XI stipulates that defendants shall file list of all documents and photocopies of all documents, in its power, possession, control or custody, pertaining to suit, alongwith written statement including documents referred to and relied on by defendant. Clause (10) of Order XI prescribes that save and except for sub-rule (7)(c)(iii) defendant cannot be allowed to rely on documents, which were in defendant’s power, possession, control or custody and not disclosed alongwith written statement except by leave of the Court, which can be granted only upon defendant establishing reasonable cause for non-disclosure alongwith written statement. He would, therefore, submit that Trial Court committed serious error of law while allowing respondent’s application for production of documents, which were not disclosed at the time of filing written statement. Referring to list of documents submitted by respondent it is contended that all documents were within knowledge, control and possession of respondent at the time of filing written statement. The respondent could not establish reasonable cause for non-disclosure alongwith written statement. In support of his contentions, he relies upon observation of Supreme Court in case of Sudhir Kumar Alias S. Baliyan Vs. Vinay Kumar G. B.1, observations of this Court in case of Khanna Rayon Industries Pvt. Ltd. Vs. Swastik Associates and Others2, and observations of Delhi High Court in case of Aap Ki Pasand and Anr. Vs. Himalayan Leaf Pvt. Ltd.3.
Per contra, Mr. J. Lopes, learned Advocate appearing for respondent would submit that production of the documents after filing of written statement is not completely barred under Order XI of Act of 2015 as applicable to Commercial Courts. The Court is empowered to permit production of documents if reasonable cause is made out for non-filing alongwith written statement. In present case, Trial Court was satisfied with reasons supplied in support of application seeking leave to produce documents. In support of his contentions he relies upon observations of Delhi High Court in case of Bennett Coleman and Co. Ltd. Vs. ARG Outlier Media Pvt. Ltd.4 and Mahesh Chaudhri and Anr. Vs. IMV India Pvt. Ltd.5, 2019 Law Suit (Del.) 2450.
After arguing for some time learned Advocate appearing for petitioner graciously consents for permitting production of documents, which were not in possession, control or custody of respondent at the time of filing written statement. Those documents are at Serial Nos.3, 4, 12, 19, 21, 27, 34, 36, 37, 38, 39 and 43 in list of documents, which was filed alongwith application seeking leave by respondent.
The learned Advocate appearing for respondent submit that in addition to documents for which petitioner has given no objection, there are some other documents, which were obtained by petitioner from Trade Mark Registry. Those documents cannot be considered to be in power and possession of respondent at the time of filing of written statement. Even otherwise, such documents are public documents and part of record maintained by Trade Mark Registry. Therefore, petitioner may not have objection for production of such documents.
Perusal of list of documents sought to be produced by respondent in addition to documents referred in aforesaid paragraph depicts that documents at Serial Nos.6, 7, 8, 13, 14, 17, 26, 29, 30 and 31 are documents which are part of public record with Trade Mark Registry, most of which are available on website of Trade Mark Registry. Apparently, respondent has obtained copies from website or from Trade Mark Registry itself. All such documents cannot be said to be within power, possession, control or custody of respondent. Pertinently, documents are produced within 120 days of service of suit summons. Possibility that respondent was not in possession of complete set of such documents at the time of filing written statement cannot be ruled out. The production of such documents would not cause prejudice to petitioner. The bar contemplated under Order XI Rule 10 would not apply for production of such documents. The cause shown by respondent for non-production of those documents alongwith written statement can be accepted as reasonable. However, except documents referred above, petitioner’s cause/explanation for non-production of documents alongwith written statement cannot be considered as reasonable or acceptable.
In case of Sudhir Kumar (supra) it is observed in paragraph no.9.3 that “Order 11 Rule 1 of CPC as applicable to Commercial Suits brought about a radical change and it mandates the plaintiff to file list of all documents, photocopies of all documents, in its power, possession, control or custody, pertaining to suit, alongwith plaint and a procedure provided under Order XI Rule 1 is required to be followed by plaintiff and defendant, when suit is Commercial Suit.
In light of aforesaid exposition of law, this Court finds that order impugned cannot be sustained in law except for the documents referred above. Hence, following order:
ORDER
a. Writ Petition is partly allowed.
b. The impugned order dated 05.12.2024 passed below Exhibit D-5 by Ad-hoc Senior Civil Judge ‘A’ Court, Quepem on interim application in Commercial Suit No.2/2024/A is modified.
c. The respondent is permitted to file/produce documents at serial nos.3, 4, 6, 7, 8, 12, 13, 14, 17, 19, 21, 26, 27, 29, 30, 31, 34, 36, 37, 38, 39 and 43 as per list of documents produced by defendant alongwith application at Exhibit D-5 in Commercial Suit No.2/2024/A pending before Ad-hoc Senior Civil Judge ‘A’ Court, Quepem.
d. Rule is made absolute in above terms.