Phonepe Private Limited Vs Ezy Services and Ors

MANU/DE/3187/2022
IN THE HIGH COURT OF DELHI Stage: Prior to issue

framing
Request for Additional
CS (Comm.) 292/2019 and I.A. 4975/2022 document allowed partly.
Decided On: 29.08.2022
Appellants: Phonepe Private Limited
Vs.
Respondent: Ezy Services and Ors.
Hon'ble Judges/Coram:
Jyoti Singh, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Sandeep Sethi, Jayant Mehta, Senior Advocates, Nitin
Sharma, Shilpa Gupta and Vaarish Sawlani, Advocates
For Respondents/Defendant: J. Sai Deepak, Karmanya Dev Sharma and Aditya Goel,
Advocates
Case Category:
MERCANTILE LAWS, COMMERCIAL TRANSACTIONS INCLUDING BANKING - TRADE
MARKS/COPY RIGHTS/PATENTS/DESIGN ACT
JUDGMENT
Jyoti Singh, J.
I.A. 9897/2021 (Under Order 11 Rule 1(10) read with Section 151 CPC, by Defendants),
9898/2021 (Under Section 151 CPC, by Defendants)
1 . I.A. 9897/2021 has been filed on behalf of the Defendants for filing additional
documents under Order XI Rule 1(10) read with Section 151 CPC as amended by the
Commercial Courts, Commercial Division and Commercial Appellate Division of High
Courts Act, 2015 (hereinafter referred to as the 'Act').
2. I.A. 9898/2021 has been filed on behalf of the Defendants seeking permission to file
certain contracts mentioned in the List of Documents in I.A. 9897/2021, in a sealed
cover as they contain information which is confidential and disclosure of which shall be
detrimental to the business interests of the Defendants.
3 . Plaintiff has filed the present suit seeking a decree of permanent injunction
restraining the Defendants and all others acting on their behalf from using 'Pe' or any
deceptive variant of 'PhonePe', which is identical and/or similar to Plaintiff's trademarks
PhonePe, , amounting to infringement as well as in respect of

payment services or in any other manner, thereby amounting to passing off, along with
other reliefs claiming damages etc.
4 . Summons in the suit were issued to the Defendants on 29.05.2019. Upon being
served, Defendants filed their written statement on 01.07.2019. Replication was filed by
the Plaintiff on 21.08.2019. Both parties have filed their affidavits of admission and
denial of documents as well as joint schedule of documents. Admittedly, issues are yet
30-09-2022 (Page 1 of 12) www.manupatra.com Librarian Tada Law Faculty, University of Delhi
to be framed in the suit.
5. By the present application being I.A. 9897/2021, Defendants seek to place on record
the following additional documents:
1 . Certificate issued by the Finance Controller of Defendant No. 2 attesting to
the number of transactions that have taken place on Defendant No. 2 mobile
application.
the expenses of Defendant No. 2 on advertisements and business promotions.
the annual turnover of Defendant No. 2.
the capital and debt funds of Defendant No. 2.
the number of merchants that have tied up with Defendant No. 2.
the number of Defendant No. 2's mobile application downloads.
the investment done by third parties on Defendant No. 2.
the number of internet hits of Defendant No. 2's website.
the Valuation of Defendant No. 2.
1 0 . Screenshots of Defendant No. 2's mobile application taken from Google
Play Store and Apple Store.
11. Sample terms and conditions on which Defendant No. 2 agrees to provide
its services to merchants.
1 2 . Unsolicited media articles published for Defendant No. 2's 'BharatPe"
trademarks.
13. Documents showing awards received by Defendant No. 2 for its "BharatPe"
trademarks.
14. Extract taken from Defendant No. 2's website www.bharatpe.com.
15. Printouts taken from various social media platform accounts maintained by
Defendant No. 2.
16. Document showing the current version of "BharatPe" trademark, which was
adopted somewhere around March 2020.
17. Document showing meaning of "Pe" in Hindi language.
1 8 . Documents illustrating domain names having the word "Pe" or "Pay" in
their name.
19. Entities using the words "Pe" or "Pay" in their name, either through mobile
applications or through websites.
20. Extracts taken from the website showing past versions of CardPe's website
www.cardpe.com.
21. Board Resolution issued by Defendant No. 2 in favour of Mr. Sumeet Singh.
22. Promotional and advertisement material issued by Defendant No. 2 for its
trademarks.
2 3 . Television Advertisements of Defendant No. 2 promoting its "BharatPe"
trademark.
24. Contract entered into by Defendant No. 2 with Actor Salman Khan.
2 5 . Contract entered into by Defendant No. 2 with Indian cricketer Suresh
Raina.
2 6 . Contract entered into by Defendant No. 2 with Indian cricketer Sanju
Samson.
27. Contract entered into by Defendant No. 2 with Indian cricketer Shubhman
Gill.
28. Contract entered into by Defendant No. 2 with Indian cricketer Yuzvendra
Singh Chahal.
29. Contract entered into by Defendant No. 2 with Indian cricketer Ravindra
Jadeja.
3 0 . Contract entered into by Defendant No. 2 with Indian cricketer Prithvi
Shaw.
31. Contract entered into by Defendant No. 2 with Indian cricketer Shreyas Iyer
3 2 . Contract entered into by Defendant No. 2 with Indian cricketer Rohit
Sharma.
3 3 . Contract entered into between Defendant No. 2 and ICC Business
Corporation FZ LLC.
34. Sponsorship Endorsement Contract entered into between Defendant No. 2
and Viacom 18 Media Private Limited for Big Boss Season 13.
35. Contract entered into by Defendant No. 2 with GroupM Media India Private
Limited.
3 6 . Contract entered into by Defendant No. 2 with National Payments
Corporation of India.
3 7 . Commercial Terms under which Defendant No. 2 agrees to provide its
services to its merchants.
6 . Case of the Defendants is that (a) most of the additional documents sought to be
filed came into existence after filing of the written statement on 01.07.2019 and were
thus not in Defendants' power, possession, control or custody at the time of filing the
written statement; (b) documents such as advertisements, promotion material and
newspaper articles or print outs/screenshots from the websites etc. were in the
knowledge of the Plaintiff as these were in the public domain, besides the fact that
Defendants did not gain anything by not filing these documents earlier; (c) Defendants
have filed several documents earlier which were voluminous and ran into 8 volumes
(1888 pages) that include media articles and certificates attested by Defendants'
Company Secretary, evidencing the number of merchant tie ups, transactions, mobile
app downloads etc. which Defendants had achieved till the date of filing the written
statement and through some of the additional documents, Defendants intend to bring on
record documents that attest to Defendants' number of downloads, turnover, internet
hits etc. post the filing of the written statement and till the filing of the present
application; (d) every document sought to be placed on record has foundational
relevance i.e. basis in the written statement and none has the effect of changing the
character of the defence taken or is inconsistent with the pleadings and consequentially,
do not even require amendment in the written statement; (e) issues are yet to be
framed in the suit and, therefore, in order to determine if a document can be taken on
record at this stage, only the pleadings have to be considered and so long as a
document relates to the lis and subject matter of the suit and has foundation in
pleadings, it can be taken on record, the Legislative intent being evident from the words
'pertaining to the suit' in sub-rule (7) of Rule 1 of Order XI CPC; (f) 'pertaining to the
suit' means pertaining to the disputes between the parties and not 'relevance' from the
perspective of the Evidence Act, which applies after issues are framed and in fact, even
after issues are framed, grounds of admissibility and relevancy are merely recorded and
taken up only at the stage of final arguments as held in K. Mallesh v. K. Narender and
Others, MANU/SC/1257/2015 : (2016) 1 SCC 670 and Hemendra Rasiklal Ghia v.
Subodh Mody, MANU/MH/1268/2008; (g) it is not for the Court, at this stage, to go into
the admissibility or evidentiary value or genuineness of the documents in question as
held by this Court in Nitin Gupta v. Texmaco Infrastructure & Holding Limited,
MANU/DE/1554/2019; (h) sub-rule (10) of Rule 1 of Order XI CPC provides that
Defendant shall not be allowed to rely on documents which were in its power,
possession, control or custody and not disclosed along with the written statement, save
and except by leave of the Court and on establishing reasonable cause for non-
disclosure along with the written statement and, therefore, all that the Defendant is
required to show is a reasonable cause for non-disclosure of documents that existed
prior to filing of the written statement, which has been shown in this case by the
Defendants; (i) as for the category of documents which came into existence after the
filing of the written statement, the rigour or mandate to establish a reasonable cause for
non-disclosure does not apply, as laid down by the Supreme Court in Sudhir Kumar @
S. Baliyan v. Vinay Kumar G.B., MANU/SC/0650/2021; (j) the additional documents are
in aid of the written statement and for the purpose of proving the pleaded case of the
Defendants and no new fact or averment is sought to be introduced by these
documents; and (k) it is well settled that rules of procedure are handmaid of justice and
cannot be construed to prejudice the Defendants, who have after exercising due
diligence already disclosed 8 volumes of documents with the written statement and this
principle has been reiterated by the Supreme Court recently in Sugandhi (Dead) by
Legal Representatives and Another v. P. Rajkumar, MANU/SC/0792/2020 : (2020) 10
SCC 706.
7 . Plaintiff has vehemently opposed the present application on the grounds that (a)
most of the documents sought to be now placed on record were already in power,
possession, control and custody of the Defendants at the time of filing the written
statement in July, 2019, as some of the documents date back to the year 2019 and no
reasonable cause has been shown for non-disclosure of the documents along with the
written statement; (b) Defendants have already filed two applications for additional
documents being I.A. Nos. 9287/2019 and 1831/2020 on 10.07.2019 and 04.01.2020
respectively and even at that stage, the documents existing prior to the said filings,
were not disclosed; (c) Defendants are trying to introduce new facts and averments in
the present application and bring on record documents which do not pertain to the
disputes in the suit; (d) Defendants are seeking to file documents in relation to
expansion of their business under the impugned mark BharatPe, during the pendency of
the suit, which is impermissible, as any subsequent expansion is irrelevant for final
adjudication as the rights of the parties have already crystallized on the date of filing
the plaint and the written statement respectively; (e) if Defendants are permitted to file
documents endlessly on the ground that they came into existence post filing of the
written statement, this would be a never-ending exercise and would delay the suit as
well as defeat the purpose of the Act and the commercial suits will start suffering from
the same malady which the ordinary suits suffered, as held by this Court in Nitin Gupta
(supra); (f) Order XI Rule 1(10) CPC, as amended by the Act, clearly provides that
Defendant shall not be allowed to rely upon any document which was available with it
at the time of filing the written statement and the purpose of the amendment was to
ensure expeditious disposal of suits and to avoid unnecessary delay in adjudication, by
the parties to the lis; and (g) the present application is merely a delay tactic and if
allowed would defeat the purpose and mandate of the Act.
8. Additionally, responding to the specific documents sought to be placed on record by
way of the present application, it was pointed out that documents at serial nos. 1 to 9
are assumed to be in power and possession of the Defendants and the same should not
be allowed in the absence of any reasonable cause for their non-disclosure with the
written statement. Documents at serial nos. 10, 11, 17 and 20 and some documents at
serial nos. 12, 18 and 19 would also be assumed to be in custody and possession of the
Defendants, which they did not disclose while filing the written statement or even in the
subsequent two applications for filing additional documents and there is not a whisper
in the application which demonstrates a reasonable cause, as required under Order XI
Rule 1(10) CPC. Documents referred to in serial nos. 13, 14, 15, 16, 22 and 23 are
documents whereby Defendants are claiming goodwill and reputation gained subsequent
to filing of the suit. This cannot be permitted in law as it is immaterial and irrelevant for
adjudication of the disputes arising in the present suit. Reliance is placed on the
following judgments:
(a) Rishi Raj v. Saregama India Ltd., MANU/DE/2965/2021.
(b) Sudhir Kumar @ S. Baliyan (supra).
(c) Natures Essence Private Limited v. Protogreen Retail Solutions Private
Limited and Others, MANU/DE/0474/2021.
9. In rejoinder, it was reiterated on behalf of the Defendants that most of the additional
documents came into existence after the filing of written statement on 01.07.2019 and
even at the time of filing the two earlier applications, most of the additional documents
now sought to be brought on record were not in power, possession, control and custody
of the Defendants. It was urged that the embargo under Order XI Rule 1(10) CPCis till
the filing of the written statement and documents which come into existence or are
executed, issued or published post the filing of the written statement ought to be taken
on record, so long as they pertain to the suit and are not contrary to the pleadings. The
issues have not been framed in the matter and the trial is yet to begin and, therefore,
no prejudice shall be caused to the Plaintiff if the present application is allowed and this
is more so, since all the additional documents have a genesis/foundation in the written
statement. It is not correct for the Plaintiff to argue that the documents pertaining to a
period post the filing of the written statement do not relate or are relevant to the
disputes in question. Once the Defendants have laid the foundation of their goodwill,
reputation and related aspects in the written statement, it is always open to bring
further documents to substantiate and establish the expansion or enhancement in
reputation and goodwill. With respect to the documents which were in public domain, in
any case no objection can be raised, as held by this Court in CS(COMM.) 1611/2016
titled as Columbia Sportswear Company v. Harish Footwear & Anr., more particularly,
when even the issues have not been framed in the present case.
10. I have heard the learned Senior Counsels for the Plaintiff and learned counsel for
the Defendants and examined their rival contentions.
11. Order XI Rule 1(10) CPC as amended by the Act reads as under:
"Disclosure, discovery and inspection of documents in suits before the
Commercial Division of a High Court or a Commercial Court
1. Disclosure and discovery of documents.-.........
xxx xxx xxx
(10) Save and except for sub-rule (7) (c) (iii), defendant shall not be allowed
to rely on documents, which were in the defendant's power, possession, control
or custody and not disclosed along with the written statement or counter-claim,
save and except by leave of Court and such leave shall be granted only upon
the defendant establishing reasonable cause for non-disclosure along with the
written statement or counterclaim."
1 2 . Order XI Rule 1(7), as applicable to the commercial suits, mandates that the
Defendant shall file a List of Documents and photocopies of all documents, in its power,
possession, control or custody, pertaining to the suit, along with the written statement
or with its counter claim, if any. Reading of sub-rule (10) of Rule 1 of Order XI shows
that there is a statutory proscription on the Defendant being allowed to rely on
documents which it does not disclose with the written statement/counter claim, if the
same were in its power, possession, control or custody. At the same time, the Court is
also proscribed from granting leave except where the Defendant shows a reasonable
cause for not filing the said documents. This has been reiterated by the Supreme Court
in Sudhir Kumar @ S. Baliyan (supra) albeit in the context of Order XI Rule 1(3)
imposing obligations on the Plaintiff and the relevant para is as follows:
"31. 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 XI 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 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 XI Rule 1(4)
and Order XI Rule 1(5) applicable to the commercial suit shall be applicable
only with respect to the documents which were in plaintiffs 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."
13. From the above passage, it is clear that the Supreme Court has enunciated that 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 that the documents were
found subsequently and were not in the power, possession and custody of the Plaintiff
when the plaint was filed and the rigour of establishing the reasonable cause in non-
disclosure will not arise in a case where the additional documents sought to be
produced/relied upon are discovered subsequent to the filing of the plaint.
14. In view of the aforesaid binding dicta of the Supreme Court, which would equally
apply to the case of a Defendant under Order XI Rule 1(10), there is merit in the
contention of the Defendants that in respect of the additional documents which were not
in power and possession of the Defendants at the time of filing the written statement
and came into existence subsequent thereto, the rigours of showing reasonable cause
for non-disclosure as envisaged in Rule 1(10) of Order XI will not apply. Tested on this
anvil, the additional documents sought to be placed on record at serial nos. 1 to 9, 11,
13, 14, 15, 21 and 22, which are of the year 2021 deserve to be taken on record.
Plaintiff has not taken any objection regarding relevancy of the documents at serial nos.
1 to 9, and 11, as aforementioned and in this context, I may allude to the judgment of
this Court in Hassad Food Company Q.S.C. and Another v. Bank of India and Others,
MANU/DE/3385/2019, which in my view squarely applies to the present case. Relevant
para of the judgment is extracted hereunder:-
"18. In the pleas taken in the present application the defendants neither dispute
the relevancy of the documents nor that the documents sought to be filed do
not relate to them and the only objection taken is that the plaintiffs cannot be
allowed to file the documents at the belated stage. As noted above in the
present suit the pleadings are not complete as yet as the replications are yet to
be taken on record and hence it cannot be said that the plaintiffs have filed the
present application so belatedly that it cannot be allowed. Further the plaintiffs
have very fairly taken the plea of administrative oversight which can occur
when the number of documents is voluminous. Thus the plaintiffs have made
out a reasonable cause for not filing the documents with the plaint."
15. It is pertinent to note that at this stage, as rightly argued by the learned counsel,
the Court is not required to determine the authenticity, admissibility or relevancy of the
documents of a threshold that is required to be adjudicated at the stage of trial and final
arguments. No doubt, the Court would be required to examine whether the documents
pertain to the suit, as stipulated in Order XI Rule 1(7) and should not be totally alien to
the controversy, however, this would have to be judged from the perspective of the
disputes set out in the pleadings.
1 6 . In this context, this Court alludes to the judgment of the Supreme Court in K.
Mallesh (supra), wherein the Supreme Court held that admissibility, reliability and
registrability of the documents has to be considered independently only at the time of
hearing of the trial and not prior thereto. To the same effect is the observation of the
Full Bench of the Bombay High Court in Hemendera Rasik Lal (supra).
17. Following the above principles and examining the pleadings between the parties,
Defendants have made out a case that the aforesaid documents have a
genesis/foundation in the written statement and therefore no new case is being
introduced by the Defendants. In order to demonstrate the said point, Defendants have
given a tabular representation which is extracted hereunder for ready reference:
18. Insofar as, the document at serial no. 10 is concerned, the same is taken on record
as the document is in the public domain and more importantly, has its foundation in
para 16 of the written statement, wherein the Defendants have primarily brought out
that Defendants' mobile application provides online payment services to retailers etc.
and ever since the launch of its application under the impugned marks, it has become
extremely popular. Defendants have brought forth the data relating to transactions with
their related monetary value as well as the number of downloads till the end of April,
2019. The current document seeks to expand on the said data reflecting enhanced
downloads etc. only to further its stand of popularity. The objection of the Plaintiff to
the said document is that the screenshot of the mobile applications and website have
been filed by the Plaintiff along with its documents, which stand admitted by the
Defendants in their admission/denial affidavit and no change can be permitted at this
stage and is irrelevant for adjudicating the present dispute. In my view, the relevancy
and admissibility of the document is a matter of trial and at this stage the right of the
Defendants to bring the document on record and rely on its contents cannot be
foreclosed.
1 9 . Document at serial no. 12 contains unsolicited media articles published by
Defendant No. 2. The objection of the Plaintiff with respect to the document is that
many of these articles are of the year 2019 and yet they were not disclosed with the
written statement or even in the subsequent two applications filed by the Defendants for
additional documents. A perusal of the document shows that the earliest newspaper
articles sought to be produced is dated 26.08.2019 and the latest one is dated
22.07.2021. The written statement was admittedly filed on 01.07.2019 and as rightly
stated by the Defendants, most of these documents were not in their possession and
custody on the date of filing the written statement albeit some of them existed when the
applications for additional documents were filed. No reason much less reasonable cause
has been set out by the Defendants for non-disclosure of the newspaper articles filed
for the period between 26.08.2019 and 15.12.2019 which are prior to the second
application filed by the Defendants on 04.01.2020, for bringing on record the additional
documents and in view of the judgment in Sudhir Kumar @ S. Baliyan (supra) as well
as in Bela Creation Pvt. Ltd. v. Anuj Textiles, MANU/DE/1651/2022 by this Court, the
documents cannot be taken on record. The remaining newspaper articles forming a part
of this document being subsequent to the filing of the written statement and the two
applications, are taken on record, as it is clearly stated by the Defendants that these
were not in power, possession and control of the Defendants at that stage, which is
evident from the dates on the documents.
2 0 . Document at serial no. 16 shows the current version of 'BharatPe' trademark
adopted by the Defendants around March, 2020 where there is a logo incorporated and
according to the Defendants this was launched in April, 2021. The objection of the
Plaintiff is that the document is irrelevant in adjudicating the present suit. In my view,
the document can be taken on record since it is post-filing of the written statement and
the changed logo may have relevance at a later stage during the trial and final
arguments on some of the reliefs claimed against the Defendants. Insofar as, document
at serial no. 17, is concerned, this is a printout from the internet showing the meaning
of 'Pe' in Hindi language. The objection raised by the Plaintiff is that the said document
could have been filed earlier as it was within the knowledge of the Defendants. In my
view, the objection is wholly frivolous and even otherwise, no prejudice shall be caused
to the Plaintiff if a printout from Google is brought on record only to demonstrate the
meaning of 'Pe' in Hindi language and accordingly, the document is taken on record.
21. Document at serial no. 18 comprises of printouts of documents illustrating domain
names having the word 'Pe' or 'Pay' in their name. It is clear that all the documents
referred to under the heading of Document 18 are for the period 1998 to 2015 and
existed prior to the filing of the written statement. Plaintiff has objected to the
Document on the ground that there is no reasonable cause set out for non-disclosure of
the said Document at the time of filing of the written statement and this Court finds
merit in the said contention. Perusal of the application shows that no reasonable cause
has been set out by the Plaintiff, which is the foremost requirement of the provisions of
Order XI Rule 1(10) and even, in the rejoinder, other than an evasive denial to the
contention raised by the Plaintiff, no cause is brought forth. Thus, the document is not
taken on record.
22. Document at serial no. 19 contains printouts showing entities using the words 'Pe'
or 'Pay' in their name, either through mobile applications or through websites. While
screenshots of some of the applications/websites bear dates prior to the filing of the
written statement, the others are post filing the written statement. As for the former,
there is not a whisper in the application disclosing any reasonable cause for not
disclosing the documents along with the written statement and no doubt, some
documents are of the vintage of the year 2011. As for the latter, the documents can be
taken on record following the observations of this Court in Columbia Sportswear
Company (supra), wherein the Court allowed the documents on the ground that they
were in public domain and the evidence had not started.
23. Document at serial no. 20 is an extract from the website showing past versions of
CardPe's website www.cardpe.com. The document is dated 30.06.2015 and was in
existence when the written statement was filed. It is not the case of the Defendants that
the document was not in their custody or possession at the time of filing of the written
statement and no reasonable cause has been set out for its not disclosure to meet the
threshold of Order XI Rule 1(10). Strangely, document at serial no. 23, which is
purportedly a television advertisement of Defendant No. 2, as filed is not
accessible/legible and no response has been furnished by the Defendants to the
contention of the Plaintiff that the link is not working and is, therefore, inaccessible. In
the absence of being able to even access to the document, this Court finds no cogent
reason to permit the same to be taken on record. Thus, documents at Serial Nos. 20 &
23 cannot be taken on record.
24. With respect to document at serial no. 24 which is a contract entered into between
Defendant No. 2 with a celebrity, it is the case of the Defendants that they have already
filed redacted copy of the contract along with the written statement and only seek
permission to file unredacted copy in a sealed cover. I see no reason to disallow an
unredacted copy of the contract being placed on record in a sealed cover.
25. Documents mentioned at serial nos. 25 to 36 are contracts entered into between
Defendant No. 2 and other celebrities and business houses and are seeking to further
establish the increased goodwill and reputation of the Defendants during the pendency
of the suit, for which foundation has been laid in para 19 of the written statement to the
extent that the Defendants averred that their product is being endorsed by celebrities
and has also specifically named one of the film Actors. In my view, these documents do
not come into the rigour of explaining a reasonable cause for non-disclosure and can be
taken on record and as for the legal argument raised by the Plaintiff that goodwill
generated during the pendency of the suit, is concerned, the same is relevant at the
stage of final argument. Document at serial no. 37 relates to commercial terms under
which Defendant No. 2 agrees to provide its services to its merchants and as rightly
contended by the Plaintiff, has no relevance to the disputes arising between the parties
in the present suit and cannot be taken on record.
26. Learned Senior Counsels for the Plaintiff relied on certain judgments to substantiate
their contention. Reliance was placed on the judgment of the Supreme Court in Sudhir
Kumar @ S. Baliyan (supra). The said judgment, in my view, does not support the case
of the Plaintiff and rather supports the case of the Defendants inasmuch as the Supreme
Court in the said case has held that the requirement of establishing reasonable case for
non-disclosure of the documents along with the plaint shall not apply if it is averred
that the documents were subsequently discovered and were not in Plaintiff's power,
possession, control or custody at the time when the plaint was filed and as far as the
documents which existed at the time of filing the plaint are concerned, the same can be
brought on record with the leave of the Court, if reasonable cause is shown for non-
disclosure. Applying the said analogy, this Court is allowing the additional documents
which were not in custody and possession of the Defendants when the written statement
was filed while disallowing those which existed prior to the filing of the written
statement and for which no reasonable cause for non-disclosure has been made out by
the Defendants.
2 7 . In Rishi Raj (supra), the Court dismissed the application of the Plaintiff on the
ground that reasonable cause was not made out for non-disclosure of the documents at
the time of filing of the plaint and that mere inadvertence was not enough to permit
documents which were in power and possession of the Plaintiff at the time of filing of
the suit. It bears repetition to state that in the present case, Defendants have not taken
inadvertence as a ground with respect to the additional documents and in any event,
wherever this Court has found that Defendants have not disclosed reasonable cause for
non-disclosure of the documents at the time of filing the written statement, the
documents have been disallowed.
2 8 . Reliance was placed by the Plaintiff on the judgment of this Court in Natures
Essence Private Limited (supra). The said judgment is not applicable to the present
case, inasmuch as the Court has neither allowed nor dismissed the application filed by
the Defendants for additional documents and after examining the nature of documents
has declined to take the said documents into account to decide the application under
Order 39 Rules 1 and 2 CPC, 1908.
2 9 . For all the aforesaid reasons, the application being I.A. 9897/2021, is partly
allowed in the aforesaid terms, subject to payment of costs of Rs. 50,000/-, payable by
the Defendants in favour of Delhi High Court Bar Clerk's Association.
30. Needless to state, the relevancy and admissibility of the aforesaid documents which
are being taken on record, would be a subject matter of trial and final arguments.
31. In view of the order passed above, the contracts/documents which have been taken
on record, relating to celebrity endorsements, from serial nos. 24 to 36, are permitted
to be placed on record in a sealed cover.
32. I.A. 9898/2021 is allowed accordingly.
CS(COMM.) 292/2019 & I.A. 4975/2022
33. List on 12.10.2022 before the learned Joint Registrar.
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MANU/DE/3187/2022

IN THE HIGH COURT OF DELHI Stage: Prior to issue

PhonePe, , amounting to infringement as well as in respect of

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