Brown Sugar Cafe’s Diwali-Cleaning Excuse Fails: Delhi HC Rejects Late Records Already In Company’s Custody

The plaintiff, in a suit alleging trade mark and copyright infringement and passing off, claimed continuous use of the “Brown Sugar” family of marks since 2000, predating the defendants’ claimed use from 26 October 2010.

It sought leave under Order XI Rule 1(5) CPC to file sales and purchase records, promotional materials, and TDS certificates relating to 2003–2011, saying the records were found during Diwali cleaning and had not been located earlier.

The defendants opposed the application, noting that the plaintiff had filed documents in several tranches and had already filed records of the same period and nature with the plaint, including two documents identical to those now sought to be added.

The issues had not yet been framed, and admission and denial of documents had not commenced.

Under Order XI Rule 1(5) CPC, as amended for commercial suits, a plaintiff may rely on documents in its power, possession, control, or custody that were not disclosed with the plaint only with the Court’s leave and upon establishing reasonable cause for the non-disclosure; “reasonable cause” requires a lower degree of proof than “good cause” or “sufficient cause,” but must be established to the Court’s satisfaction.

In Sudhir Kumar @ S. Baliyan v. Vinay Kumar G.B., the Supreme Court held that this requirement does not apply where documents were, in fact, not in the plaintiff’s power, possession, control, or custody when the plaint was filed and were discovered later.

Nitin Gupta v. Texmaco Infrastructure & Holding Ltd. and Bela Creation Pvt. Ltd. v. Anuj Textiles establish that misplaced or not immediately available documents, and negligence in filing, do not by themselves constitute reasonable cause.

The Court also relied on Zee Entertainment Enterprises Ltd. v. Saregama India Ltd. and M/s Levitate Mobile Technologies Pvt. Ltd. v. M/s Standard Chartered Bank concerning strict disclosure obligations and the need to prevent repeated, staged filing of documents.

Section 16 of the Commercial Courts Act, 2015 makes the CPC provisions as amended for commercial disputes applicable to such suits.

The documents had remained in the plaintiff’s own godown or storerooms; the plaintiff’s later decision to search its records did not make them documents discovered subsequent to the suit for purposes of the Sudhir Kumar exception.

Their relevance to the plaintiff’s pleaded claim of prior and continuous use was apparent when the suit was filed, rather than arising only in response to the defendants’ case.

The plaintiff had already filed contemporaneous records, including documents identical to two of those now tendered, but did not explain why the remaining records had not been disclosed.

The general assertion of discovery during Diwali cleaning was unsupported by particulars, and the plaintiff’s director had taken over the business more than six years before suit; lack of knowledge of the records’ precise location was not a cause outside the plaintiff company’s control.

The Court also took account of the plaintiff’s prior applications to file additional documents and the risk of permitting documents to be filed in successive tranches.

The application was dismissed, and the documents filed with it were directed not to form part of the suit record.