Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 17.12.2021
Pronounced on: 03.01.2022
+ CS(COMM) 247/2019
JINDAL STAINLESS (HISAR) LTD. ..... Plaintiff
Through: Mr.Saif Khan & Mr.Achuttam
Shreekumar, Advocates
Versus
SOURABH JINAL & ORS. ..... Defendants
Through: Ms.Roopa Dayal & Mr.Birender
Bhatt, Advocates for Defendants
No.1 & 3.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
ORDER
I.A. No. 3510/2021 (under Order VIII Rule 1 (3) CPC)
1. The captioned suit has been filed by the plaintiff seeking permanent
injunction, restraining infringement of trademark "JINDAL", passing-off,
dilution and tarnishment of the trademark; damages; rendition of accounts;
delivery up; declaration of 'well-known' status etc.
2. The present application has been preferred by applicant/defendant
No.1- Sourabh Jindal to bring on record certain additional documents. The
reasons for filing this application have been enumerated in Para-4 of this
application, which read as under:-
“4. During Pendency of the suit and after filing of the written
I.A. 3510/2021 in CS(COMM) 247/2019 Page 1 of 7
statement and the documents, following developments have taken
place:-
(i) Defendant No. 1 has got registration of the trademark
“Sourabh Jindal” with logo in class 16 and 35.
(ii) Mr. Dheeraj Aggarwal and Mr. Praful B. Bhatt joined the
business with defendant No.1 and have created a Limited
Liability Partnership company in the name of Sourabh Jindal
th
LLP from 14 August, 2020. Now the business of Defendant
No.1 is being run by three of the Partners In the name of
limited liability Partnership company called SOURABH
JINDAL LLP with all its assets and liabilities from 14th
August, 2020. The plaintiff is free to take appropriate steps to
substitute Sourabh Jindal LLP as a Defendant in the said suit
as per law.
(iii) Defendant No 1 has also executed an assignment deed (of
trademark Sourabh Jindal with logo)in favour of Sourabh
Jindal LLP and filed an appropriate application TM-P before
the concerned authority in this regard.
3. At the hearing, learned counsel for applicant/defendant No.1
submitted that the documents sought to be placed on record are in public
domain and are necessary for just determination of the case.
4. On the other hand, the present application was vehemently opposed
by learned counsel for plaintiff who submitted that the plea of defendant
No.1 that the additional documents sought to be placed on record were in
possession of defendant No.1 cannot be accepted, as defendants might
have initiated the process for registration of the trademark much before
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filing of the written statement, however, did not disclose this fact in the
written statement so filed. Learned counsel further submitted that the said
defendant has not been able to show any reasonable cause for non-
disclosure of the documents which are sought to be placed on record.
5. With regard to bringing on record partnership agreement dated
14.08.2020, deed of assignment, demand draft of Rs. 10,000 etc., learned
counsel for plaintiff submitted that these are not relevant for the purposes
of adjudication of the present disputes.
6. To submit that before leave of the court is granted for taking on
record some documents at a belated stage, the party seeking to produce the
documents must satisfy the court that the said documents were not within
their knowledge, learned counsel for plaintiff relied upon a decision of this
Court in Polyflor Limited Vs. Sh. A.N. Goenka & Ors. 2016 SCC OnLine
Del 2333. Reliance was also placed upon a decision of Patna High Court
in Dewanti Devi and Others Vs. Radheshyam Tiwary and Others 2019
SCC OnLine Pat 28 to submit that provisions of Order VIII Rule 1A(3)
prove that the documents which have not been produced along with the
written statement, cannot be produced to the Court later on without leave
of the Court. Further, in support of his submission that a document filed
beyond the stage prescribed for filing thereof, runs contrary to the case
pleaded, learned counsel for plaintiff relief upon a decision of this Court
in Nitin Gupta Vs. Texmaco Infrastructure & Holding Limited 2019
SCC OnLine Del 8367. Lastly, learned counsel submitted that the purport
of Commercial Courts Act is to expedite the disposal of such suits and by
filing such application, the defendant is trying to delay the proceedings
and on this aspect, placed reliance upon decision of this Court in Societe
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DES Produits Nestle S.A. & Anr. Vs. Essar Industries & Ors. 2016 SCC
OnLine Del 4279.
7. In rejoinder, the stand of applicant/ defendant No.1 has relied upon
Hon’ble Supreme Court’s decision in Sugandhi (Dead) by Legal
Representatives and Another Vs. P. Rajkumar (2020) 10 SCC 706 to
submit that procedural and technical hurdles shall not be allowed to come
in the way of court doing substantial justice. Learned counsel emphasized
that defendant No.1 has been permitted to use “Sourabh Jindal” as his trade
name and trademark and document in respect of registration thereof was
not in possession of defendant No.1 at the time of filing of the written
statement and no prejudice shall be caused to the plaintiff if these
documents are taken on record.
8. Learned counsel representing both the sides were heard at length
and record of this case has been carefully perused.
9. Pertinently, vide order dated 15.05.2019, this Court has passed the
following interim directions:-
“With consent of counsels, till further orders, without
prejudice to the rights and contentions of the parties, it
is directed that the defendants shall forthwith stop using
the mark ‘JINDAL’ per se in their trading name as well
as trade mark but shall be entitled to use ‘SOURABH
JINDAL’ as their trade name and trade mark.”
10. Thereafter, written statement on behalf of defendant No.1 was filed
on 25.06.2019; issues were framed by this Court on 05.09.2019 and on
31.10.2019, after completion of admission-denial of documents and filing
of list of witnesses and affidavit of plaintiff’s witness- PW1, the matter
was set down for examination and cross-examination of PW-1 on
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16.01.2000. On the said date, PW-1 was partly cross-examined and
thereafter on 08.03.2021 the present application was filed on behalf of
defendant No.1.
11. Relevantly, the provisions of Order VIII Rule 1(3) CPC make it
clear that a document which ought to be produced in Court by the
defendant under this rule, but, is not so produced shall not, without the
leave of the Court, be received in evidence on his behalf at the hearing of
the suit.
12. Relevantly, the documents sought to be placed on record clearly
show that applications for registration of trademarks under Class 35 and
16 respectively were made on 07.06.2019, whereas written statement was
filed thereafter on 25.06.2019. According to applicant/ defendant No.1, the
registration of trademark “Sourabh Jindal” with the logo in Class 16 was
granted on 31.01.2020 and Class 35 was granted on 18.02.2020. Though
for the reasons best known to defendant No.1, the fact of having applied
for registration of word mark “Sourabh Jindal” during pendency of this
suit, was not mentioned in the written statement. However, it cannot be
lost sight of that by virtue of interim order dated 15.05.2019, this Court
had permitted the defendants to use the said trade/word mark and no
restraint order in respect thereof was passed and after receipt of traded
mark registration certificate, defendant No.1 has approached this Court to
place the same on record. Relevantly, the suit is at the stage of cross-
examination of PW-1 and parties are yet to establish their case with respect
to use of trade mark “Jindal” on the basis of issues framed by this Court.
13. So far as with bringing on record partnership agreement dated
14.08.2020, deed of assignment, receipt of payment of demand draft of
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Rs.10,000 etc. is concerned, this Court finds that defendant No.1 has
brought to the notice of this Court that it has created a Limited Liability
Partnership company in the name of Sourabh Jindal LLP from 14.08.2020,
which is run by Mr. Dheeraj Aggarwal and Mr. Praful B. Bhatt besides
him and has thereby informed the persons responsible in case of fixation
of liability.
14. The Hon’ble Supreme Court in Sugandhi (Supra) has held as
under:-
8. Sub-rule (3), as quoted above, provides a second
opportunity to the defendant to produce the
documents which ought to have been produced in the
court along with the written statement, with the leave
of the court. The discretion conferred upon the court
to grant such leave is to be exercised judiciously.
While there is no straitjacket formula, this leave can
be granted by the court on a good cause being shown
by the defendant.
9. It is often said that procedure is the handmaid of
justice. Procedural and technical hurdles shall not be
allowed to come in the way of the court while doing
substantial justice. If the procedural violation does
not seriously cause prejudice to the adversary party,
courts must lean towards doing substantial justice
rather than relying upon procedural and technical
violation. We should not forget the fact that litigation
is nothing but a journey towards truth which is the
foundation of justice and the court is required to take
appropriate steps to thrash out the underlying truth
in every dispute. Therefore, the court should take a
lenient view when an application is made for
production of the documents under sub-rule (3).
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15. Applying the pertinent observations of the Hon’ble Supreme Court
in Sugandhi (Supra) to the case in hand, I find that without prejudice to
the rights and contention of the parties, these documents can be taken on
record. The present application is allowed and accordingly disposed of.
CS(COMM) 247/2019 & I.A. 6960/2019
16. Renotify on the date fixed i.e. 22.03.2022.
(SURESH KUMAR KAIT)
JUDGE
JANUARY 03, 2022
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