Point of Law: Order XI Rule 1(7) of CPC, as applicable to commercial disputes, casts an obligation on defendant to file all documents in its power, possession, control or custody.

JUDGMENT :

I.A. 14350/2022

1. This application has been filed by the defendant under Order XI Rule 12 read with Section 151 of the Code of Civil Procedure, 1908 (in short, ‘CPC’) for bringing on record the following additional documents sought to be filed on behalf of the defendant/applicant:-

“a. Original packaging of the tea packet sold under the label 'Mittal's Nilgiri Tea' (Document D-1)

b. Original packaging of the tea packet sold under the label 'Tea for You Nilgiri Tea' (Document D-2)

c. Print out of the website of Golden Tips Tea selling their packaged tea on the website www.goldentipstea.in, https://www.goldentipstea.in/collections/bro cade-bags (Document D-3)

d. Print out of the photographs of the outlet of Mittal Tea House (since 1954) located at Lodi Colony, New Delhi also available at https://nicelocal.in/delhi/shops/mittal_tea_h ouse/ (Document D-4)

e. Print out of the photographs of the outlet of Mittal Teas (since 1954) located at Barakhamba Road, New Delhi also available at https://nicelocal.in/delhi/shops/mittal_teas/ (Document D-5)

f. Print out of the website of GetMyTea (since 1991, based out of Delhi) selling their packaged tea on the website at https://www.getmytea.com/product/getmyte a-velvet-bag-withlst-flush-darjeeling-tea/ (Document D-6)

g. Copy of the Flavour License Number No. 6(9)/LC/F-145/2012 issued in favour of the Defendant by the Tea Board of India. (Document D-7)

h. Print out of the products of https://www.nathmullstea.in/collections/sho w-all (Document D-8)

i. Print out of the list of entities to whom flavour license for tea has been issued by the Tea Board of India available at http://www.teaboard.gov.in/pdf/Flavour_Te a_license_issued_ p_df5337.pdf (Document D-9)

J. Print out of Judgment dated 28.02.2014 passed by the Hon'ble High Court of Delhi in C.S. (OS) No. 851 of2012 in the matter of Sanjay Kapur and Anr. v. Dev Agri Farms Pvt. Ltd. (Document D-10)

k. Print out of the website of Golden Tips Tea selling their packaged tea on the website www.goldentipstea.in (Document D-11)

l. A copy of the trademark registration No.1747880 for the trademark in the name of the Defendant (Document D-12)

m. A copy of the trademark registration No.1747881 for the trademarkin the name of the Defendant. (Document D-13)”

2. At the outset, the learned counsel for the defendant/applicant submits that as the present suit had been filed before the Commercial Courts Act, 2015 (in short ‘the Act’) came into force, the provisions of Order VIII Rule 1-A of the CPC shall be applicable, and, therefore, reliance of the learned counsel for the plaintiffs/non-applicants on Order XI Rule 10 of the CPC, as applicable to commercial disputes, is not proper. In this regard, she places reliance on the judgment of the High Court of Calcutta in ITC Limited v. JP Morgan Mutual Fund India Pvt. Ltd. and Others, 2020 SCC OnLine Cal 972.

3. She submits that the approach to be adopted by the Court in allowing additional documents to be brought on record is more liberal under Order VIII Rule 1A of the CPC, and the said documents, if found to be relevant to the Suit, should be allowed to be taken on record.

4. She further submits that the dispute between the parties is with respect to the packaging of the goods, to which the plaintiffs/non-applicants claim an exclusive right. She submits that the additional documents sought to be placed on record along with the present application are relevant to show that others are also selling their goods in the same packaging and, therefore, the plaintiffs/non-applicants cannot claim any exclusive right over the same. She submits that such a plea has also been taken by the defendant/applicant in its Written Statement and that the documents now sought to be placed on record are merely to substantiate the said plea. She places reliance on the judgment of this Court in Phonepe Private Limited v. EZY Services and Another., 2022 SCC OnLine Del 2638, to submit that as the defendant/applicant is not trying to set up a new