Ms Cafe Brown Sugar Pvt Ltd vs Vyom Foodcraft Pvt Ltd & Anr.
- Court
- Delhi High Court
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
# CNR No. DLHC010796312024
+ CS(COMM) 1008/2024 and I.A. 44967/2024
MS CAFE BROWN SUGAR PVT LTD
94, NEAR SHAMBHU DAYAL BAGH,
OKHLA INDUSTRIAL AREA, PHASE – III,
NEW DELHI – 110020, INDIA.
.....PLAINTIFF
( Through: Mr. Nikhil Chawla, Ms. Mansha Mehta and Ms. Parul
Tuli, Advocates.)
versus
1. VYOM FOODCRAFT PVT LTD
11-A/B, CHAMPA DEVI TOWER,
JYOTIBA FHULE ROAD, NEAR MANGAL MANCH,
NANDPURI, SODALA,
JAIPUR, RAJASTHAN – 302006, INDIA.
.....DEFENDANT NO.1
2. RICHA JALANI
59, SURAJ NAGAR (EAST),
CIVIL LINES,
JAIPUR, RAJASTHAN – 302006, INDIA.
.....DEFENDANT NO.2
(Through: Mr. Neeraj Grover, Sr. Advocate with Mr. Yatin
Chadha, Ms. Dolly Luthra, Mr. Kashish Sethi, Mr.
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By:PURUSHAINDRA
KUMAR KAURAV
Signed By:PRIYA
Signing Date:29.10.2026
17:48:56
1
Gurvinder Singh and Ms. Sanandika Pratap Singh,
Advocates.)
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% Reserved on: 14.10.2026
Pronounced on: 29.10.2026
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JUDGMENT
I.A. 28544/2025 (under Order XI Rule 1(5) of the CPC, 1908 as
amended by Commercial Courts Act, 2015 r/w Section 151 of CPC
The instant application has been filed on behalf of the plaintiff under
Order XI Rule 1(5) of the Code of Civil Procedure, 1908 („CPC‟), as
amended by the Commercial Courts Act, 2015 („Act of 2015‟), read with
Section 151 of the CPC, seeking leave to place on record additional
documents.
2. The main suit is for permanent injunction restraining infringement of
Trade Mark and Copyright, Passing Off, etc. in relation to „BROWN
SUGAR‟/
/
/
(hereinafter referred to as
„Brown Sugar Family of Marks‟).
3. The case of the plaintiff is that it has been using the „Brown Sugar
Family of Marks‟ in respect of food products and restaurant services since
the year 2000, whereas the defendants‟ trade mark applications for the
impugned marks claim use only from 26.10.2010. The suit thus rests on the
plea of prior adoption and continuous prior use by the plaintiff.
4. The suit was instituted on 13.11.2024 and was taken up for hearing
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KUMAR KAURAV
Signed By:PRIYA
Signing Date:29.10.2026
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for the first time on 14.11.2024. Since thereafter, the same was taken up for
consideration on multiple dates. The issues are yet to be framed, and the
process of admission and denial of documents is yet to commence.
5. The additional documents which are sought to be produced on behalf
of the plaintiff and their purported relevance are as under:-
S. No. Document Date Relevancy/ Purpose
1. Sales Invoices and
Ledgers- Copies of Sales
Register, Cash Book and
various invoices raised by
M/s Cafe Brown Sugar
Pvt. Ltd. pertaining to
services rendered by the
Plaintiff.
23-01-2003 to
28-12-2009
To demonstrate
continuous business
operations and
commercial use of the
“BROWN SUGAR”
mark and turnover
generated and
goodwill associated
with the Plaintiff‟s
cafes and products.
2. Purchase Bills and
Supplier Invoices- Copies
of 17 documents
comprising the Purchase
Book of the Plaintiff
Company and bills/
invoices issued by various
vendors against raw
materials purchased by
M/s Café Brown Sugar
Pvt. Ltd.
02-07-2003 to
18-06-2009
To substantiate
procurement of raw
materials, packaging
and other inputs used
in connection with the
Plaintiff‟s business,
evidencing ongoing
commercial use of the
mark.
3. Promotional and
Marketing Materials-
Copies of 11 documents
pertaining to various
promotional activities
undertaken and performed
by the Plaintiff at different
locations for brand
01-04-2004 to
08-04-2009
To prove brand
promotion and
advertising
expenditure
undertaken by the
Plaintiff to establish
reputation and public
association with the
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Signing Date:29.10.2026
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promotion of M/s Café
Brown Sugar Pvt. Ltd.
mark.
4. TDS Certificates/ Form
16-A- Copies of 49
different Forms 16-A filed
under the Income Tax Act
for the Assessment Year
2011-2012, evidencing
deduction and deposit of
tax at source by the
Plaintiff.
01-04-2010 to
31-03-2011
To corroborate
Plaintiff‟s financial
transactions,
accounting
compliance and
continuity of
commercial activity
relating to the activity
under the „Brown
Sugar‟ family of
marks.
6. The aforesaid documents admittedly pertain to the period between
23.01.2003 and 31.03.2011. The justification for their non-production along
with the plaint is stated to be the untraceability of the audited financial
statements for the years 2000 to 2011 and the unawareness of the existence
of the other documents. The documents are stated to be contemporaneous
invoices and related supporting material to substantiate and corroborate the
plaintiff‟s continuous use of the mark during the said period.
7. It is stated that during the course of a Diwali cleaning, the plaintiff
had come across the aforesaid documents. For the sake of clarity, paragraph
no.2 of the application is extracted as under:-
“2. It is submitted that during the course of a recent Diwali cleaning and
record-sorting exercise carried out at the Plaintiff‟s godown and office
store rooms, certain relevant business records were traced which had
inadvertently not been filed earlier. These documents include invoices
evidencing sales, purchases, promotional expenditure, all of which are
material to establish the Plaintiff‟s long, continuous and bona fide use of
the „Brown Sugar Family of Marks‟.
*
4. It is submitted that the said omission was purely inadvertent and
unintentional, as the concerned physical files were stored in old cartons
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KUMAR KAURAV
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and were discovered only during the aforesaid annual cleaning. It is
further stated that immediately upon tracing them, the Plaintiff instructed
its counsel to place them on record. It is submitted that the Plaintiff could
not have produced the same at the time of filing the present petition
despite exercising due diligence, as the said documents were not within its
immediate possession, power, or knowledge at the relevant time and came
to light only subsequently upon the said discovery.”
8. Vide this Court‟s order dated 10.09.2026, the plaintiff was granted
two weeks‟ time to file an additional affidavit in support of the application.
Pursuant thereto, the authorised representative and Director of the plaintiff
company, in order to justify the cause, has filed an additional affidavit dated
22.09.2026 and has explained that the business of the plaintiff was being
looked after by her late husband, who had expired on 20.11.2017.
Thereafter, in early 2018, she decided to take over the business. It is stated
that she had no knowledge of the precise location or manner in which the
older physical records were stored or maintained. It is further stated that the
additional documents pertain to the period 23.01.2003 and 31.03.2011 and,
therefore, relate to the time prior to her having taken over the business.
9. It is contended that no new case is being set up by way of the
additional documents. In the plaint, necessary pleadings have already been
made regarding the sales, purchase bills, suppliers invoices, promotional and
marketing material etc., and the additional documents only support and
corroborate the plaintiff‟s pleaded case of continuous use.
10. The documents are stated to be necessary to counter the case of the
defendants. That no prejudice would be caused to the defendants if the
documents are taken on record, whereas grave prejudice would be caused to
the plaintiff if they are not. The defendants would have sufficient
opportunity to deal with the documents in accordance with law during the
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KUMAR KAURAV
Signed By:PRIYA
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course of the trial.
11. Learned counsel submits that the threshold of „reasonable cause‟
under Order XI Rule 1(5) of the CPC is lower than that of „sufficient cause‟
or „good cause‟, and that procedure, being a handmaid of justice, ought not
to come in the way of a fair adjudication of the dispute. In support of his
submissions, he has placed reliance on the following decisions: Agva
1
Healthcare Private Limited & Ors. v. Agfa-Gevaert NV & Anr., Hassad
2
Food Company Q.S.C. & Anr. v. Bank of India & Ors ., Darrameks Hotels
3
and Developers Private Limited v. Brilltech Engineers Private Limited,
4
Xero Degrees v. M/s Frankart Global Private Limited & Ors ., M/s
Dhawan Box Sheet Containers Pvt. Ltd. v. National Insurance Company
5 6
Ltd., and Sabu Trade Pvt. Ltd. v. Raj Kumar Sabu & Ors.
12. Per contra, Mr. Neeraj Grover learned senior counsel appearing on
behalf of the defendant contends that the provisions of Order XI Rule 1(5) of
the CPC would not empower the plaintiff to place on record the additional
documents unless reasonable cause is established. It is also contended that
the plaintiff should have undertaken due diligence at the time of filing of the
suit and nothing prevented the plaintiff from finding out the entire material
to be placed on record. In any case, the documents i.e., TDS Certificates/
Form 16-A, are easily accessible with the Department or with the Chartered
Accountant.
13. Learned senior counsel for the defendants further submits that the
1
2023 SCC OnLine Del 7914.
2
2019 SCC OnLine Del 10647.
3
2025 SCC OnLine Del 4024.
4
2025 SCC OnLine Del 11198.
5
2025 SCC OnLine Del 9472.
6
2026 SCC OnLine Del 3234.
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KUMAR KAURAV
Signed By:PRIYA
Signing Date:29.10.2026
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plaintiff has filed documents in the instant suit in no less than five tranches,
i.e., (i) along with the plaint on 13.11.2024, (ii) on 13.12.2024, (iii) along
with I.A. 9199/2025 filed on 04.04.2025, (iv) along with the replication and
(v) along with the instant application. It is pointed out that in I.A.
9199/2025, out of the four documents sought to be placed on record, one
document dated 26.04.2023 was not taken on record as it was in the power,
possession, control and custody of the plaintiff at the time of filing of the
suit, whereas the remaining three documents were permitted to be taken on
record subject to costs of ₹30,000/- vide order dated 08.05.2025.
14. It is also contended that the plaintiff, along with the plaint, had
already filed purchase invoices from the year 2001 (at pages 373-424 and
427-464), sales invoices from the year 2003 (at pages 465-498) and the sales
account for the year 2004-05 (at page 499). It is pointed out that page 40 of
the present list of documents is identical to page 480 of the documents filed
along with the plaint, both comprising the same invoice dated 08.04.2008,
and page 08 of the present list of documents is identical to page 499 of the
documents filed along with the plaint, both comprising the same sales
account for the year 2004-05.
15. According to learned senior counsel, it is impossible that the plaintiff
had the first page of the sales account for the year 2004-05 at the time of
institution of the suit and found the rest of its pages during the Diwali
cleaning. It is, thus, contended that the plaintiff had complete knowledge of
these documents and that, after the written statement came to be filed, the
plaintiff is seeking to bolster its case of goodwill and user and to overcome
the preliminary objections taken in the written statement.
16. I have considered the submissions made by learned counsel for both
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the parties and perused the record.
17. Before adverting to the merits of the application, it would be apposite
to notice the statutory framework that governs the production of additional
documents. In an ordinary civil suit, the consequence of the plaintiff not
producing a document along with the plaint is provided in Order VII Rule
14(3) of the CPC.
18. Thus, in an ordinary suit, the provision merely requires the leave of
the Court and does not prescribe the grounds on which such leave is to be
granted. The position is materially different in a suit relating to a
commercial dispute of a specified value. Section 16 of the Act of 2015
provides that the provisions of the CPC, in their application to such suits,
stand amended in the manner specified in the Schedule, and that the
Commercial Division shall follow the provisions of the CPC as so amended.
Sub-section (3) thereof further provides that where any provision of any
Rule of the jurisdictional High Court or any amendment to the CPC by the
State Government is in conflict with the provisions of the CPC as amended
by the Act of 2015, the provisions of the CPC as amended by the Act of
2015 shall prevail.
19. The ambit of Order XI Rule 1 of the CPC has been the subject matter
of consideration in a consistent line of decisions. A coordinate bench of this
7
Court in Nitin Gupta v. Texmaco Infrastructure & Holding Ltd .,
specifically dealt with a situation where the document was stated to have
been misplaced or was not immediately available with the plaintiff, and held
as under:-
“38. Unless, the Commercial Divisions, while dealing with the commercial
7
2019 SCC OnLine Del 8367.
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suits, so start enforcing Rules legislated for commercial suits, and refuse
to entertain applications for late filing of documents, especially with
respect to documents of suspicious character and continue to show
leniency in the name of „interest of justice‟ and „a litigant ought not to
suffer for default of advocate‟, the commercial suits will start suffering
from the same malady with which the ordinary suits have come to suffer
and owing whereto the need for the Commercial Courts Act, 2015 was felt.
Commercial Division is thus not required to entertain or allow
applications for late filing of documents, without any good cause being
established for non-disclosure thereof along with pleadings. The plaintiff
herein has utterly failed in this regard. The application nowhere explains
as to why the plaintiff, if had obtained the said letter from the defendant,
did not remember the same and make disclosure of the same at the time of
filing the police complaint and/or at the time of filing of this suit, even if
the letter had been misplaced or was not immediately available. The form
prescribed for filing affidavit of documents requires a litigant in a
commercial suit to, even if not immediately possessed of a relevant
document, disclose the same. A litigant who fails to do so and also does
not satisfy the Court while seeking to belatedly file the document, why no
disclosure of such document was made, cannot be permitted to so file
documents.”
20. Thereafter, in Zee Entertainment Enterprises Ltd. v. Saregama India
8
Ltd ., the distinction between the regime governing ordinary suits and that
governing commercial suits was explained in the following words:-
“16. A plaintiff in an ordinary suit, if desirous of producing a document
required to be produced along with the plaint at a subsequent stage, is
only required to obtain the leave of the Court. The Legislature has not laid
down the grounds on which such leave is to be granted. I have however in
Nitin Gupta supra held that grant of such leave by the Court is not a
ministerial function and the Court has to be satisfied qua the reasons for
non-production of the documents along with the plaint. The same however
places no restriction on the power of the Court to grant such leave. As
distinct therefrom, under Order XI Rule 1(5) as applicable to commercial
suits, there is an embargo on the Court, not to allow the plaintiff to rely on
any document which was in plaintiff‟s power, possession, control or
custody and not disclosed along with the plaint. The disclosure under
Rules 1(1) & (2) has to be accompanied with listing and filing of the
documents. The said embargo placed on the Court can be lifted only upon
the plaintiff establishing reasonable cause for non-disclosure along with
8
2019 SCC OnLine Del 10215.
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the plaint. The use of the word „establishing‟ conveys that there should be
something more than a mere explanation for non-production along with
plaint, amounting to proof of the explanation.”
21. In Hassad Food Company (supra), on which the plaintiff has placed
reliance, this Court explained the threshold of „reasonable cause‟ as under:-
“13. … Under sub-rule (5) of Rule 1 of Order XI, 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 the plaint or
within the extended period save and except by leave of the Court which
leave can be granted only if the plaintiff establishes reasonable cause for
non-disclosure along with the plaint. The language used in the sub-rule (5)
is that the plaintiff is required to show “a reasonable cause” and not a
“sufficient cause” as is ordinarily provided in other provisions.
14. While dealing with Order XIII Rule 2 CPC wherein the words used
are: “unless good cause is shown”, the Supreme Court in the decision
reported as (2002) 1 SCC 535 Madanlal v. Shyamlal, noted the distinction
between “good cause” and “sufficient cause” and held that “good cause”
requires a lower degree of proof as compared to “sufficient cause” and
thus the power under Order XIII Rule 2 CPC should be exercised liberally.
Sub-Rule (5) of Rule 1 of Order XI of the Commercial Courts Act, 2015
uses the phrase “reasonable cause” which would require even a lower
degree of proof as compared to “good cause”.”
22. The Supreme Court in Sudhir Kumar @ S. Baliyan v. Vinay Kumar
9
G.B., while analysing the aforesaid scheme, drew a clear distinction
between documents which were in the plaintiff‟s power, possession, control
or custody at the time of filing of the plaint and those which are discovered
subsequently. The relevant extracts read as under:-
“9.5. Order 11 Rule 1(5) further provides that 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. Therefore on
combined reading of Order 11 Rule 1(4) read with Order 11 Rule 1(5), it
emerges that (i) in case of urgent filings the plaintiff may seek leave to rely
9
(2021) 13 SCC 71.
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on additional documents; (ii) within thirty days of filing of the suit; (iii)
making out a reasonable cause for non-disclosure along with plaint.
9.6. Therefore a further thirty days‟ time is provided to the plaintiff to
place on record or file such additional documents in court and a
declaration on oath is required to be filed by the plaintiff as was required
as per Order 11 Rule 1(3) if for any reasonable cause for non-disclosure
along with the plaint, the documents, which were in the plaintiff‟s power,
possession, control or custody and not disclosed along with plaint.
Therefore the plaintiff has to satisfy and establish a reasonable cause for
non-disclosure along with plaint. However, at the same time, the
requirement of establishing the reasonable cause for non-disclosure of the
documents along with the plaint shall not be applicable if it is averred and
it is the case of the plaintiff that those documents have been found
subsequently and in fact were not in the plaintiff‟s power, possession,
control or custody at the time when the plaint was filed. Therefore Order
11 Rule 1(4) and Order 11 Rule 1(5) applicable to the commercial suit
shall be applicable only with respect to the documents which were in
plaintiff‟s power, possession, control or custody and not disclosed along
with plaint. Therefore, the rigour of establishing the reasonable cause in
non-disclosure along with plaint may not arise in the case where the
additional documents sought to be produced/relied upon are discovered
subsequent to the filing of the plaint.”
10
23. Similarly, in Bela Creation Pvt. Ltd. v. Anuj Textiles, while dealing
with the analogous provision of Order XI Rule 1(10) of the CPC, this Court
held as under:-
“24. In the absence of any averment to the effect that the aforesaid
declaration, contained in the Statement of Truth accompanying the written
statement and counter-plaint filed by the petitioner, was incorrect, the
learned Commercial Court was justified in holding that additional
documents, which were in the custody of the petitioner at the time of filing
the written statement, could not be permitted to be introduced at a later
stage. “Reasonable cause”, within the meaning of Order XI Rule 1(10) of
the CPC, as amended by the Commercial Courts Act, cannot extend to
negligence in filing of documents before the Court. “Reasonable cause”,
necessarily, must refer to a cause which was outside the control of the
petitioner, and which prevented the petitioner from filing the concerned
documents along with the written statement.”
24. This Court in M/s Levitate Mobile Technologies Pvt. Ltd. v. M/s
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11
Standard Chartered Bank, considered various decisions in the context of
the provisions of Order XI of the CPC and culled out the following
principles:-
“48. Thus, on the edifice of the judicial pronouncements as exposited
above, the position of law revolving around Order XI as applicable to
commercial disputes could be summarised as below postulates:
i. While filing the “commercial suit”, the plaintiff ought to file a list of all
documents pertaining to the suit along with the photocopies of all such
documents in its power, possession, control or custody, along with the
plaint;
ii. The provision covers documents which are referred to and relied upon
by the plaintiff in the plaint as well as the documents in relation to any
matter in question in the proceedings, irrespective of whether the same are
in favour of or adverse to the case of the plaintiff;
iii. In order to ensure true and full disclosure, the plaint shall also contain
a declaration on oath of the plaintiff to the effect that all documents in the
power, possession, control or custody of the plaintiff, pertaining to the
facts and circumstances of the proceeding initiated by him, have been
disclosed and copies thereof annexed with the plaint, and that the plaintiff
does not have other documents in its power, possession, control or
custody;
iv. In order to cater to urgent filings, a provision has been carved out
whereby the plaintiff can take leave to rely upon additional documents
after filing, within a period of 30 days after filing;
v. As a measure of last resort and to take care of unforeseen exigencies,
Order XI Rule 1(5) permits the plaintiff to rely on documents, which were
in the plaintiff‟s power, possession, control or custody and not disclosed
along with plaint, 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;
vi. At this stage, the Court is not required to look into the genuineness of
the documents as the same is to be considered appropriate to examine
during the stage of trial and the only concern is whether the plaintiff has
demonstrated that a reasonable cause had prevented it from producing the
documents at the first instance;
vii. The phrase „reasonable cause‟, as used by the legislature in Order XI
Rule 1(5), conveys a comparatively lower degree of proof as compared to
10
2022 SCC OnLine Del 1366.
11
2025 SCC OnLine Del 818.
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the other phrases such as „sufficient cause‟ or „good cause‟;
viii. However, at the same time, the „reasonable cause‟ should be
something which ought to be outside the control of the plaintiff and it must
have prevented the plaintiff in the first instant from filing such documents
at the time of presentation of the plaint;
ix. Moreover, the purported reasons or bald assertions like „change of
counsels‟, „advice of Registry‟, „bona fide belief that those documents
were already in the record of the Court‟, „voluminous/bulky nature of
documents‟ etc. under normal circumstances on its own, does not give the
imprimatur that „reasonable cause‟ has been established. The fundamental
pre-requisite of „reasonable cause‟ requires something more that would
have prevented the plaintiff from placing those documents on record at the
earliest opportunity.
x. Having said so, the legislature has consciously used the word
„establishing‟ in Order XI Rule 1(5) so as to convey that the „reasonable
cause‟ must be established to the satisfaction of the Court, as opposed to
merely showing or averring or pleading the bald assertion of reasonable
cause.”
25. The said position has been reiterated in Zee Entertainment
12
Enterprises Ltd. v. Saregama India Ltd., wherein it was observed as
under:-
“25. The consistent view of this Court has been that, in commercial suits,
timelines are to be strictly followed. The expression „reasonable cause‟
occurring in Order XI Rule 1(5) of the CPC has to be a cause which is
outside the control of the plaintiff and prevented the plaintiff from filing
the additional documents at the relevant stage. Reference in this regard
may be made to Bela Creations Pvt. Ltd. v. Anuj Textiles, 2022 SCC
OnLine Del 1366, and Rishi Raj v. Saregama India Ltd., 2021 SCC
OnLine Del 4897.”
26. On the anvil of the aforesaid principles, the first question which arises
for consideration is whether the case of the plaintiff falls within the
exception carved out in Sudhir Kumar (supra), i.e., whether the documents
were, in fact, not in the plaintiff‟s power, possession, control or custody at
the time when the plaint was filed, or whether the case is squarely governed
12
2025 SCC OnLine Del 1210.
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by the rigours of Order XI Rule 1(5) of the CPC.
27. The exception carved out in Sudhir Kumar (supra) is available only
where the documents “in fact were not in the plaintiff‟s power, possession,
control or custody at the time when the plaint was filed”. The emphasis is on
the fact of possession, and not on the time at which the plaintiff chooses to
look for, or to produce, the documents. In the instant case, the documents
were, at all times, lying in the plaintiff‟s own godown and store rooms. They
did not come to the plaintiff from any external source after the institution of
the suit. The only thing that changed was the plaintiff‟s decision to search its
own records. It is, therefore, not a case where the documents were
discovered subsequently.
28. Rather, it is a case where the plaintiff has itself chosen to discover the
documents subsequently. A party cannot, by deferring the search of its own
records to a time of its convenience, convert documents which were always
in its custody into subsequently discovered documents, and thereby take
itself out of the rigours of Order XI Rule 1(5) of the CPC. If such a course
were permitted, the requirement of disclosure along with the plaint, and the
declaration on oath under sub-rule (3), would be reduced to a mere
formality, since any party could avoid the statutory consequence simply by
not looking. The case of the plaintiff, therefore, does not fall within the
exception carved out in Sudhir Kumar (supra), and the rigours of Order XI
Rule 1(5) of the CPC would apply in full force.
29. The plaintiff has also sought to contend that the documents are in
response to the allegations raised by the defendants. However, the
documents pertain to the period between 23.01.2003 and 31.03.2011 and are
sought to be relied upon to establish the plaintiff‟s use of the mark prior to
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26.10.2010, i.e., the date of user claimed by the defendants. The plea of
prior adoption and continuous use since at least the year 2000 is the very
foundation of the plaint. The need to place documentary material in support
of such a plea was, therefore, apparent at the time of the institution of the
suit itself and cannot be said to have arisen only in answer to a case set up
by the defendants subsequent to the filing of the plaint, so as to bring the
documents within the ambit of Order XI Rule 1(1)(c)(ii) of the CPC.
30. The next question is whether the plaintiff has established reasonable
cause for the non-disclosure of the documents along with the plaint. The suit
was filed in the year 2024 and was taken up for hearing for the first time on
14.11.2024. Since thereafter, the same was taken up for consideration on
multiple dates. The instant application came to be filed after the filing of the
written statement, and it does not explain the reasonable cause for the non-
filing of the documents at the time of institution of the suit. The documents
were admittedly in existence and, as noted above, were lying in the
plaintiff‟s own premises.
31. More importantly, the plaintiff had, along with the plaint itself, filed
purchase invoices from the year 2001, sales invoices from the year 2003 and
the sales account for the year 2004-05, which are documents of the same
period and of the same nature as the documents now sought to be produced.
The defendants have specifically pointed out that two of the documents now
sought to be filed are identical to those already filed with the plaint, namely,
the invoice dated 08.04.2008 and the sales account for the year 2004-05.
Neither the application nor the additional affidavit offers any explanation for
the same. This demonstrates that, at the time of the institution of the suit, the
plaintiff not only had access to, but had in fact drawn upon, the very records
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from which the present documents are sought to be produced.
32. It defies logic that the plaintiff could have located and filed the first
page of its sales account for the year 2004-05 along with the plaint, and yet
the remaining pages of the very same account remained hidden in old
cartons, only to surface during a Diwali cleaning nearly a year later. Records
of the same account, of the same period and of the same nature are not
ordinarily kept at different places, and no such case has even been pleaded.
33. The stated reason that the documents were found during a Diwali
cleaning in the year 2025 does not, therefore, inspire any confidence. Apart
from a bald averment, the application does not disclose when the said
exercise was carried out, by whom the documents were traced, which
godown or store room they were found in, or why the plaintiff‟s records
could not be searched before the plaint was verified.
34. Admittedly, the authorized representative had taken over the business
in early 2018, i.e., more than six years before the institution of the suit. The
suit was instituted thereafter with the declaration on oath contemplated
under Order XI Rule 1(3) of the CPC that all documents in the power,
possession, control or custody of the plaintiff had been disclosed. The
plaintiff, being a company, continued to be in custody of its own records
throughout, and the change in the person managing its affairs is an internal
arrangement of the plaintiff, which cannot be said to be a cause outside its
control. A lack of knowledge about the precise location of one‟s own
records is, at best, a case of the documents being misplaced or not
immediately available, which, as held in Nitin Gupta (supra), does not
absolve a litigant in a commercial suit of the obligation of disclosure.
35. In the instant case, the reason assigned for the belated filing is itself
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found to be untenable.
36. It is also relevant to note that this is not the first occasion on which
the plaintiff has sought to place additional documents on record. As noted
above, the plaintiff has filed documents in multiple tranches and an
indulgence has already been shown to the plaintiff in I.A. 9199/2025,
whereby three documents were permitted to be taken on record subject to
costs vide order dated 08.05.2025. This Court in M/s Levitate Mobile
Technologies (supra), in similar circumstances, observed as under:-
“59. … The plaintiff in all fairness ought to have produced all relevant
documents which were necessary for a fair adjudication of the instant case
initially at the time of filing of the plaint or at best, at the time of filing of
the I.A. No.12696/2017 when similar documents were sought to be placed
on record and the plaintiff was permitted to do so. In any case, these
documents should have been placed before the deposition of the plaintiff
was commenced. The ground of inadvertent mistake has been accepted
once in I.A. No.12696/2017 and it could not be urged time and again to
improve the case at every step of the journey. …”
37. If such a plea, at this stage, is accepted for one reason or the other, the
process will become endless, which is bound to lead to greater misuse. A
plaintiff would then be at liberty to file documents in instalments, each time
citing a fresh discovery within its own premises. Such a mischief has been
sought to be remediated by the enactment of the Act of 2015 and by
bringing the amended provisions of the CPC applicable to commercial suits.
The observations of this Court in M/s Levitate Mobile Technologies (supra)
are apposite in this regard, which read as under:-
“66. Needless to state, this Court in the case of Zee Entertainment
Enterprises Ltd. has rightly observed that if leave is granted in a liberal
manner in the name of interest of justice, the litigants and practitioners of
commercial suits would never wake up to the changed circumstances in
which a commercial suit is to be conducted. It is, thus, necessary for the
Courts to enforce such change and discipline, by ceasing to exercise the
discretion in this respect. The discretion of the Court must be exercised in
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harmony with the legislative intent behind a provision, especially when the
legislative intent is expressed in unequivocal and unambiguous terms.”
38. In view of the aforesaid, this Court is of the considered opinion that
the documents sought to be placed on record were in the power, possession,
control and custody of the plaintiff at the time of the institution of the suit.
That it is not a case of documents being discovered subsequently, but of the
plaintiff having chosen to discover them subsequently; and that the reason
and justification put forth by the plaintiff for seeking leave, namely, the
discovery of the documents during a Diwali cleaning, is not only untrue but
also extremely illogical. The plaintiff has, thus, failed to establish any
reasonable cause for the non-disclosure of the documents along with the
plaint.
39. Accordingly, the instant application stands dismissed. The documents
filed along with the application shall not form part of the record of the suit.
CS(COMM) 1008/2024 & I.A. 44967/2024
List on 09.12.2026.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
OCTOBER 29, 2026
Nc/NK
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