In commercial suits, failure to disclose documents within the prescribed timelines when those documents were in the party's possession bars their subsequent reliance, unless sufficient reasonable cause for the non-disclosure is established prior to the closure of evidence.

JUDGMENT :

Meenakshi Madan Rai, J.

1. The Petitioner herein, who was the Plaintiff before the Learned Commercial Court, East Sikkim, at Gangtok, filed a Suit for Infringement, Passing off of Trade Mark, Infringement of Copyright, Injunction and other consequential reliefs, under Sections 28(1) and 29 of the Trade Marks Act, 1999, against the Defendant/ Respondent. The Suit was valued at Rs. 1,00,00,000/- (Rupees one crore) only.

2. The original Plaintiff was the United Spirits Limited (USL). The business was later taken over by the present Petitioner who was thereby transposed as the Plaintiff. After closure of the evidence before the Commercial Court and when the matter was fixed for final arguments, the Petitioner filed a Petition under Order XI Rule 1(5), read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter, “CPC”), dated 28-09-2023, pertaining to disclosure, discovery and inspection of documents in suits, vide which, the Petitioner sought to file the following documents;

(i) Original certificate for use in legal proceedings for the trade mark registrations 296836 dated 12-06-1974; 544357 dated 15-12-1998; 949492 dated 05-01-2004 and 2000458 dated 27-11-2015;

(ii) Certified copy of Design Registration No.216986 dated 03-07-2008;

(iii) C.A. Certificate showing sales incurred by the Plaintiff in respect of brandy under the trade mark Honey Bee; and

(iv) Usership Agreement, dated 01-01-2015, between USL and the Defendant.

3. Advancing the plea that the Petition be allowed, Learned Counsel for the Petitioner submitted that the Suit was filed in the year 2018. The entire evidence of the litigating parties was recorded and completed in June, 2022. The USL was taken over by Inbrew Beverages Pvt. Ltd., the present Petitioner Company on 30-09-2022, who stepped into the shoes of the original Plaintiff. The present Petitioner, while examining the documents handed over to it by the USL and relied on in the dispute, applied for the “certified to be true copies” of the documents from the Trade Mark Registry, located at New Delhi, which were accordingly made available. The Petitioner then sought to file the documents before the Commercial Court, but their Petition under Order XI Read with Rule 5(1) supra was rejected vide the impugned Order dated 24-11-2023, in I.P.R. Suit No.01 of 2018. That, disallowing the Petitioner to file these documents would be to their prejudice, as the original Plaintiff had failed to take necessary steps and the Petition ought to be allowed to rely on the documents to substantiate their case. Hence, the impugned Order be set aside and the instant Petition be allowed.

4. Learned Counsel for the Respondent, Defendant before the Commercial Court, in the first instance raised the question of maintainability of the Petition under Article 227 of the Constitution of India by relying on the decision of Rajendra Diwan vs. Pradeep Kumar Ranibala and Another , (2019) 20 SCC 143 wherein the Supreme Court has inter alia held that, the powers under Article 227 of the Constitution is to be used sparingly and only when there is a perversity, arbitrariness or unreasonableness, in the order of the Courts below. That, the writ jurisdiction of the High Court cannot be converted into an alternative appellate forum in the absence of provision of appeal in the eyes of law. That, documents sought to be furnished now as “certified to be true copies”, were in fact submitted before the Commercial Court as photo