Delhi HC rejects Diwali cleaning excuse, bars Cafe Brown Sugar from adding old invoices to trademark suit
Justice Purushaindra Kumar Kaurav held that documents lying in a plaintiff own godown throughout are not subsequently discovered documents under Sudhir Kumar, that a company cannot step outside Order XI Rule 1(5) CPC by deferring a search of its own records, and that the Diwali cleaning story was untrue and illogical when the first page of the same sales account had been filed with the plaint.
A plaintiff in a commercial suit who finds old invoices in its own store room a year after filing cannot call them newly discovered documents, the Delhi High Court has held. On 29 October 2026, Justice Purushaindra Kumar Kaurav dismissed an application by Cafe Brown Sugar Pvt Ltd under Order XI Rule 1(5) of the Code of Civil Procedure, as amended by the Commercial Courts Act, 2015, to place on record sales ledgers, purchase bills, promotional material and TDS certificates from 2003 to 2011 in its trademark and passing-off suit against Jaipur-based Vyom Foodcraft Pvt Ltd and Richa Jalani. The company said the papers turned up during a Diwali cleaning of its godown. The court found the explanation “not only untrue but also extremely illogical”.
A prior-use claim from 2000, and four bundles found in old cartons
Cafe Brown Sugar sued on 13 November 2024 for a permanent injunction against infringement of its trade mark and copyright and passing off in relation to the Brown Sugar family of marks, pleading continuous use for food products and restaurant services since 2000. The defendants' trade mark applications claim use only from 26 October 2010, so the suit stands or falls on prior adoption and continuous prior use. The suit came up first on 14 November 2024 and has been heard on several dates since; issues have not been framed and admission and denial of documents has not begun.
The application, I.A. 28544/2025, sought leave to file four sets of documents: copies of the sales register, cash book and invoices from 23 January 2003 to 28 December 2009; seventeen purchase bills and supplier invoices from 2 July 2003 to 18 June 2009; eleven promotional and marketing documents from 1 April 2004 to 8 April 2009; and 49 Form 16-A TDS certificates for assessment year 2011-12. The plaintiff said the audited financial statements for 2000 to 2011 were untraceable and it had been unaware the other documents existed until a Diwali cleaning and record-sorting exercise at its godown and office store rooms brought them to light in old cartons. On 10 September 2026 the court gave it two weeks to file a supporting affidavit. The company's director then deposed on 22 September 2026 that the business had been run by her late husband until his death on 20 November 2017, that she took over in early 2018, and that she did not know where or how the older physical records were kept.
Counsel Nikhil Chawla argued that no new case was being set up: the plaint already pleaded sales, purchases, suppliers' invoices and promotion, and the documents merely corroborated continuous use and answered the defendants' case. The reasonable cause threshold in Order XI Rule 1(5), he said, is lower than sufficient cause or good cause, procedure is the handmaid of justice, and the defendants would lose nothing since they could deal with the documents at trial. He cited Agva Healthcare v. Agfa-Gevaert NV, Hassad Food Company v. Bank of India, Darrameks Hotels v. Brilltech Engineers, Xero Degrees v. Frankart Global, Dhawan Box Sheet Containers v. National Insurance and Sabu Trade v. Raj Kumar Sabu.
The defendants: five tranches of filings, and two documents already on the record
Senior advocate Neeraj Grover, for the defendants, said the plaintiff had to establish reasonable cause and had shown no diligence; the TDS certificates, in particular, were readily available from the department or the chartered accountant. This was the plaintiff's fifth tranche of documents, after the plaint, a filing on 13 December 2024, I.A. 9199/2025 of 4 April 2025 and the replication. In I.A. 9199/2025, one of four documents had been refused because it was in the plaintiff's possession when the suit was filed, and the other three were allowed on costs of Rs 30,000 by order dated 8 May 2025. More tellingly, the plaint itself carried purchase invoices from 2001, sales invoices from 2003 and the sales account for 2004-05. Page 40 of the new list was identical to page 480 of the plaint documents, the same invoice of 8 April 2008, and page 8 of the new list was identical to page 499, the same 2004-05 sales account. It was impossible, he argued, that the plaintiff had the first page of that account when it sued and found the rest during a Diwali cleaning; the application was an attempt to bolster the goodwill case after reading the written statement.
Possession is a fact, not a matter of when the plaintiff chooses to look
The judge set the statutory frame. In an ordinary suit, Order VII Rule 14(3) requires only the court's leave to file a document later, with no prescribed grounds. In a commercial suit of specified value, Section 16 of the Commercial Courts Act applies the CPC as amended by its Schedule, and Order XI Rule 1(5) bars the plaintiff from relying on any document that was in its power, possession, control or custody and was not disclosed with the plaint, unless leave is granted on the plaintiff establishing reasonable cause for non-disclosure. The court traced the line of Delhi decisions on the provision: Nitin Gupta v. Texmaco Infrastructure, which refused to treat a misplaced or not immediately available document as excused; Zee Entertainment v. Saregama, on the word establishing requiring proof rather than explanation; Hassad Food, which accepted that reasonable cause is a lower bar than good cause; Bela Creation v. Anuj Textiles, holding that reasonable cause cannot extend to negligence and must be something outside the party's control; and Levitate Mobile Technologies v. Standard Chartered Bank, which summarised the principles, including that bald assertions of changed counsel or bulky records do not suffice.
The Supreme Court's decision in Sudhir Kumar alias S. Baliyan v. Vinay Kumar G.B., (2021) 13 SCC 71, drew the distinction that decided the case: the rigour of establishing reasonable cause does not apply to documents that in fact were not in the plaintiff's power, possession, control or custody when the plaint was filed and were found later. The judge held that the emphasis is on the fact of possession, not on when the plaintiff chooses to look for its papers. These documents had at all times been lying in the plaintiff's own godown and store rooms; they came from no external source after the suit was filed; the only thing that changed was the decision to search. It was therefore not a case of documents discovered later but one where “the plaintiff has itself chosen to discover the documents subsequently”. A party could not convert documents always in its custody into subsequently discovered ones by deferring the search to a convenient time, because then the disclosure requirement and the declaration on oath under sub-rule (3) would be reduced to formality and any party could escape the consequence “simply by not looking”. Nor could the documents be treated as a response to the defendants' case under Order XI Rule 1(1)(c)(ii): prior use since 2000 was the very foundation of the plaint, so the need for the material was apparent when the suit was filed.
Why the Diwali story did not survive the record
On reasonable cause, the court found none. The application, filed after the written statement, did not explain why the documents were not filed with the plaint in 2024; they admittedly existed and lay on the plaintiff's own premises. The plaint had carried purchase invoices from 2001, sales invoices from 2003 and the 2004-05 sales account, documents of the same period and nature as those now offered, and two of the new documents were identical to pages already on record, which neither the application nor the affidavit explained. That showed the plaintiff had not merely had access to but had actually drawn on the very records from which the new documents came. It defied logic that the first page of the 2004-05 sales account could be located and filed with the plaint while the remaining pages stayed hidden in cartons until a Diwali cleaning nearly a year later; records of one account are not ordinarily kept in different places, and no such case was pleaded. The application did not say when the cleaning happened, who traced the documents, in which godown or store room, or why the records could not have been searched before the plaint was verified.
The director's affidavit did not help. She had taken over in early 2018, more than six years before the suit, which was then filed with the Order XI Rule 1(3) declaration that all documents in the company's custody had been disclosed. A company remains in custody of its own records whoever manages it; a change of management is an internal arrangement, not a cause outside its control; and not knowing where one's own records are is at best a case of misplaced papers, which Nitin Gupta holds does not excuse a commercial litigant. The judge also noted that indulgence had already been shown once, in I.A. 9199/2025, and quoted Levitate Mobile Technologies for the proposition that inadvertence accepted once cannot be urged again and again to improve the case at every step. Accepting such a plea would make the process endless and let a plaintiff file documents in instalments, each time citing a fresh discovery on its own premises, the mischief the 2015 Act was enacted to end.
Order
I.A. 28544/2025 was dismissed. The court held that the documents were in the plaintiff's power, possession, control and custody when the suit was instituted, that it was not a case of subsequent discovery but of the plaintiff choosing to discover them later, that the Diwali cleaning justification was untrue and illogical, and that no reasonable cause for non-disclosure with the plaint had been established. The documents filed with the application will not form part of the record of the suit. CS(COMM) 1008/2024 and I.A. 44967/2024 were listed for 9 December 2026. The judgment was reserved on 14 October 2026 and pronounced on 29 October 2026.