CM(M)-IPD 4/2026 Page 1 of 22

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Judgment reserved on: 20.01.2026

Judgment delivered on: 29.01.2026

CM(M)-IPD 4/2026, CM 10/2026, CM 12/2026

SHYAM RASTOGI TRADING AS SHYAM HOSIERY

INDUSTRIES AND ANR .....Petitioners

versus

HUGO BOSS TRADE MARK MANAGEMENT GMBH AND CO

KG AND ANR .....Respondents

Advocates who appeared in this case:

For the Petitioners : Mr. Kirtiman Singh, Senior Advocate alongwith

Mr. Chandra Prakash, Mr. Abhinav Kumar, Ms.

Aindri Sahah and Mr. Maulik Khurana,

Advocates.

For the Respondents : Mr. Ajay Amitabh Suman, Mr. Shravan Kumar

Bansal and Mr. Rishi Bansal, Advocates.

CORAM:

HON’BLE MR. JUSTICE TUSHAR RAO GEDELA

J U D G M E N T

TUSHAR RAO GEDELA , J.

CM 11/2026 (condonation of delay)

1. By way of the present application, the petitioners seek condonation

of delay of 36 days in filing the present petition.

2. For the reasons stated in the present application, the application is

allowed and the delay of 36 days in filing the present appeal is condoned.

3. The application stands disposed of.

CM(M)-IPD 4/2026

4. Present petition has been filed under Article 227 of the Constitution

CM(M)-IPD 4/2026 Page 2 of 22

of India, 1950 read with Section 151 of Code of Civil Procedure, 1908

(hereinafter referred to as “CPC”) assailing the order dated 12.09.2025

passed by the learned District Judge (Commercial Court-02), Saket Courts,

New Delhi in suit bearing CS(COMM) 538/2023 titled Hugo Boss

Trademark Management GMBH & Company KG vs. Shyamji Rastogi,

whereby the application filed by the petitioner/defendant seeking to place

on record additional documents, was dismissed.

5. Bereft of reference to the facts mentioned in the suit plaint, it would

be relevant to only consider that the petitioners had filed an application

under Order XI Rule 1(10) and Order XIII Rule 1 of CPC for placing

additional documents on the record of Trial Court in support of its

contention that the petitioners are prior user of the trademark BIG BOSS,

which would have, in turn, supported the application under Order XXXIX

Rule 4, CPC for vacating the ad interim injunction order dated 25.09.2023.

6. The petitioner sought to place on record the following documents, as

enumerated in para 4 of the application:-

S.

No.

DOCUMENTS

DESCRIPTION

RELEVANCY

1 Sale Tax Challan

Year 1996-97

1998-99

1999-2000

2000-01

2001-02

2002-03

2003-04

2004-05

These Documents include Judgments of the Sale Tax

Department, Challans, and sale tax return forms from

year 1996 onwards.

These documents demonstrate the authenticity of the

firm i.e. Shyam Hosiery Industries. These records

confirm that the firm has been consistently filing its

challans, sale tax, and income tax return.

Till the year 2020- 21 Shyam Hosiery Industries was

functional and sale tax was filed in the name of Shyam Hosiery Industries and in the year 2021- 23. The firm

Shyam Hosiery Industries was later assigns BIG

BOSS as a BIG BOSS GARMENTS PVT. LTD. On

22-01-2022 and GST Return was filed in the name of

BIG BOSS GARMENTS PVT. LTD.

CM(M)-IPD 4/2026 Page 3 of 22

2 Acknowledgment

of

the Income Tax

Return, from

financial year 2001

to 2023

These documents demonstrate that that the defendant

was engaged in business primarily dealing in the

hosiery items.

3 Printing Bills/

Purchase bills Year

27-10-1995

03-01-2003

10-10-2009

26-06-2005

05-09-2009

These are the crucial documents in which defendant

Shyam Hosiery Industries purchased the packing

material mentioned in the bill i.e. design charges and

materials descriptions from 1995 to design their logo,

“BIG BOSS” on the articles

. Since 1995, the

defendant Shyam Hosiery Industries has been

manufacturing articles under the “BIG BOSS” Brand

since 1995.

4 Sale of Shyam

Hosiery Industries

from years 1996 to

2022, BIG BOSS

Garments Pvt. Ltd.

Sales 2022- 2023

This document demonstrate that the defendant Shyam

Hosiery Industries was sales from 1996 to 2022 and

BIG BOSS Garments Pvt. Ltd. sales in year 2022- 23

5 A copy of the bill

of the BONDS

KNITTING

MILLS a

manufacturing unit

in Tirupur, Tamil

Nadu

Purchased goods in the defendants brand name BIG

BOSS in the year 2009, 2010 and 2011. This

documents shows that the defendant purchased goods

under consideration (WHITE LABELING) in the

brand name BIG BOSS.

6 A Copy of the bill

which was issued

by Vaashavi

Garments, a

Manufacturing Unit

in Tripur,

Tamil Nadu

On October 5, 2013, a bill was issued by Vaashavi

Garments, a manufacturing unit based in Tirupur,

Tamil Nadu. Shyam Hosiery Industries had placed an order with them for garments under their brand name, "Big Boss." This manufacturing

unit specializes in

producing garments and printing brand logos as per

customer specifications.

7 Bills of Shyam

Hosiery Industries

from year 1997 to

June 2023

0n 03- 05-1997, 26-

05-1997 and 03- 12-

1997

This documents shows that these bills were given to

different customer who buys goods from the Shyam

Hosiery and in these bills it is clearly written the

article name as Big Boss “BB”, However from 1996 to

2003, during this period computerized bills was not

used , and manual bills were used, the name Big Boss

is not mentioned. However, the sale tax Judgement

specifies that the hosiery goods were manufactured

with labour charges and the stitching charges it is

clearly mentioned in the Judgement of the sale tax

department.

CM(M)-IPD 4/2026 Page 4 of 22

8 A true copy of the

computerized bills

since 10-01-2004

From this document it is evident that Shyam Hosiery

sold garments under the brand name "Big Boss." From

2004 onwards, computerized bills were issued,

confirming that Shyam Hosiery Industries sold "Big

Boss" products to various customers, and after the

BIG BOSS GARMENTS PVT. LTD. Was operational

in the year 2022, bills were issued in the name of this

company.

9 Advertisement

Bills in the name of Dainik Jagran

This documents shows that the defendant Shyam

Hosiery Industries paid the advertisement bills to

Jagran Prakashan Ltd to advertise their brand i.e. BIG

BOSS in newspaper.

10 A copy of the

newspaper cutting dated 23- 12-2009,

30-12-2009, 14- 02-

2009 and 07-02-

2010

This document indicates that the advertisement for the

“Big Boss” was published in Dainik Jagran

newspaper.

11 A copy of the bills

of

Spica Elastic dated

04-12-1996 and

25-12-1996 a

renowned brand

who

sells elastics

Bills from Spica Elastic dated 04/12/1996 and

25/12/1996, bearing bill numbers 7952 and 8704

respectively, were issued in the name of Vidya

Traders. These bills confirm that elastic Weaving with

the "BIG BOSS" name was ordered and used in the

production of Big Boss articles. At the time when

defendants firm has applied for the registration and it got registered in the year 14- 10-1996 where defendant

placed an order for elastic through his father’s

proprietorship firm, Vidya Traders. Since Vidya

Traders was a registered firm, the application for the

elastic was made through defendants father’s name,

and the department approved the request on that basis.

12 A true copy of the

Company registration

Certificate dated

14-10-1996.

Shyam Hosiery Industries was officially registered on

14/10/1996. Subsequently, we relocated the office and submitted an application to the Sales Tax Department

to update the records. In a document registered in

1997, the department acknowledged and recorded the

office relocation. Furthermore, on 20/03/2007, in

compliance with Section 213B, the department

formally documented the office relocation in their

records and included it in our registration letter.

7. The “reasonable cause” for non disclosure of documents at the time

of filing written statement, as stipulated in Order XI Rule 1(10) CPC as

applicable to Commercial Courts and as stated in the application filed by

CM(M)-IPD 4/2026 Page 5 of 22

the petitioner are brought out in para 6 of the said application. For

convenience, para 6 is extracted hereunder:-

“6. That since these documents were old and records were not available

at the time of filling of the written statement and only after filling of the

appeal in the high court against the order dated 2

ND

JANUARY, 2024

(hereinafter referred as "impugned order") passed by the Court of Ms

Anuradha Shukla Bhardwaj Ld. DJ(Commercial- Court 02), South

District, Saket Courts, New Delhi in the Suit being CS (Comm) No.538 of

2024 and titled as HUGO BOSS Trademark Management GMBH& Co

KG & Anr. (hereinafter referred as 'subject suit') in which vide the said

order, this Hon’ble Court has dismissed the application under Order

XXXIX Rule 4 CPC of the defendant flied for vacating the ex-parte ad

interim order dated 25.09.2023 thereby allowing the Application under

Order XXXIX Rules 1 & 2 CPC filed by the plaintiffs that the defendant

started searching when, while hearing of the appeal a query was raised

by the hon’ble court to show sales having been done from the year 1995

and thus granted time to to bring on record these relevant sale

documents being done from the year 1995. Thus only after the said

directions given vide order dated 05.07.2024 that the defendants started

searching from the old records and after searching could found these

documents which is being placed along with this Application. A true copy

of the order dated 05.07.2024 is being annexed herewith and marked as

Annexure B.”

8. The learned Trial Court vide impugned order dated 12.09.2025

dismissed the application of the petitioner/defendant by relying upon a

number of judgments passed by this Court as also on merits. The learned

Trial Court considered the relevancy of the documents and was not

convinced by the cause shown by the petitioner for not having filed these

documents alongwith the written statement or soon thereafter, on the

premise that most of the documents, particularly documents mentioned at

S.No.7 to 10, were in control and possession of the defendant yet were not

produced alongwith the written statement. So far as the other documents

are concerned, like sale records etc. from the year 1996 to the year 2003

also were not permitted to be taken on record as the said documents were

found to be belonging to the petitioner/defendant. For the two documents

i.e. those mentioned at S.No.5 and 6 in the application, though were noted

CM(M)-IPD 4/2026 Page 6 of 22

to be bills issued to the plaintiff by two different parties, yet, the learned

Trial Court had noted that the petitioner had not furnished any reason as to

why these two could not be filed alongwith the written statement. Another

relevant observation of the learned Trial Court was that the petitioner had

nowhere stated that these documents were not with it or that it had to obtain

these documents from any third party. Thus, finding no justifiable reason,

the application under Order XI Rule 1(10) CPC filed by the

petitioner/defendant was rejected vide impugned order dated 12.09.2025.

9. Mr. Kirtiman Singh, learned senior counsel appearing for the

petitioner at the outset argued that at the stage of filing of the application

under Order XI Rule 1(10) CPC, the Courts are obliged and mandated to

consider only “reasonable cause” for not having produced or filed the said

documents alongwith the written statement. He contended that it is not the

mandate of the learned Trial Court to consider the sufficiency or relevancy

of the documents itself. All that has to be considered is whether the

petitioner was able to furnish “reasonable cause” for not having filed these

documents alongwith the written statement.

10. Learned senior counsel also emphatically argued that the moot

question before the learned Trial Court in the suit was that whether the

petitioner/defendant is entitled to use the trademark BIG BOSS having

trademark registration in the marks/labels as contended in the written

statement and using it since 1995. He emphasized that all the documents as

mentioned in the said application were documentary proof which would

enable the petitioner/defendant to not only discharge the onus placed on it

but also establish that the trademark BIG BOSS had been adopted and

being used since the year 1995. This, according to learned senior counsel,

would in turn establish its prior user of the trademark BIG BOSS. That, in

CM(M)-IPD 4/2026 Page 7 of 22

the submission of the learned senior counsel, would not only be the

substratum of the petitioner/defendant’s defence but would also demolish

the case set up by the respondent/plaintiff. According to him, the learned

Trial Court misdirected itself in not considering this crucial aspect and

concepts of law while passing the impugned order.

11. Having argued as above, learned senior counsel referred to the

documents mentioned in para 4 of the application and also pointed out to

the relevancy of the said documents which has been substantiated in the

table in para 4 itself. He was at pains to indicate that the documents in the

nature of Sales Tax Challan commencing from the year 1997 through till

2004-05, acknowledgement of Income Tax Returns from FY 2001- 2023,

printing bills/purchase bills from 27.10.1995 to 05.09.2009, sales

documents of the defendant from the year 1996 to 2022 and its successor of

the year 2022-23 and other relevant documents enumerated in the list, were

those documents which would have inevitably proved and established prior

user of the trademark BIG BOSS by the petitioner. To each of the aforesaid

documents, learned senior counsel sought to explain as to why the same

were not filed alongwith the written statement but were necessary to be

taken on record even at a belated stage. His contention was that most of the

documents, though pertain to the petitioner yet, were of a period

commencing from 1996- 97 onwards. He submitted that it took a substantial

time to obtain these documents, some of which were invoices/bills which

the petitioner had issued to third parties which had to be obtained from

those parties, which inevitably took a long time. He contended that

procedural law is only a handmaid of justice and substantive law and not

the other way round. He greatly emphasized that merely because some

delay had occurred in filing the said documents, would by itself not be a

CM(M)-IPD 4/2026 Page 8 of 22

reason for the Court not to take the same on record if otherwise, the

documents merited acceptance as also that those documents would be

crucial to a party to discharge its onus as also establish its defence. That,

according to him, is the settled law. He relied upon the judgments of this

Court in Mrs. Renu Chowdry & Ors. vs. Mr. Vivek Sharma & Ors.,

CS(OS) 358/2017 dated 05.12.2025 and Md. Islamuddin vs. SS Kapoor,

CM(M) 1137/2022 dated 01.11.2022, in support of his contentions.

12. While referring to the judgment of this Court in Hassan Food

Company Q.S.C. & Anr. vs. Bank of India & Ors., CS(COMM) 9/2018

dated 15.10.2019, learned senior counsel submitted that this Court while

exercising its discretionary power had condoned the delay in filing the

documents under Order XI Rule 1(5) of the CPC. He referred to para

nos.13 & 14, to submit that the term “reasonable cause” is at a much

lower threshold of proof than “good cause” or even “sufficient cause”.

Correlating this definition to the term “reasonable cause” employed in

Order XI Rule 1(10) CPC, learned senior counsel contended that the

threshold of proof being lower, there was no impediment for the learned

Trial Court to accept the documents and provide an opportunity to the

petitioner/defendant to discharge its onus based on these documents.

According to him, the learned Trial Court overlooked the crucial nature of

these documents, which would have gone a long way to establish the

petitioner as a prior user. He also relied on the judgement in Sugandhi

(Dead) vs. P. Rajkumar: (2020) 10 SCC 706 to submit that the Hon’ble

Supreme Court had infact condoned the delay therein and permitted the

defendant in that case to place these documents on record despite

considerable delay on the ground that the said documents were traced at a

later stage.

CM(M)-IPD 4/2026 Page 9 of 22

13. Mr. Singh also stated that it was only once the petitioner/defendant

had filed an appeal bearing FAO(COMM) 87/2024 assailing the order

dated 02.01.2024 granting ad interim injunction in favour of the

respondent/plaintiff, while dismissing the application of the

petitioner/defendant under Order XXXIX Rule 4 CPC and upon the query

of the learned Division Bench of this Court in respect of sales from the year

1995 to establish prior use, that the petitioner/defendant had sought time to

file an application to place on record additional documents. According to

him, it was only after the observation of the learned Division Bench in the

order dated 05.07.2024, that the defendants started searching from old

records and after finding the relevant documents, preferred the application

before the learned Trial Court to place the same on record. He submitted

that on an overall conspectus, the impugned order is unsustainable both in

law and on facts and therefore, may be quashed and set aside,

simultaneously allowing the application under Order XI Rule 1(10) CPC

filed by the petitioner/defendant.

14. Per contra, Mr. Suman, learned counsel for the respondent/plaintiff

vehemently opposed and refuted the submissions made on behalf of the

petitioner. Learned counsel while referring to the order dated 05.07.2024 of

the learned Division Bench in FAO(COMM) 87/2024 submitted that a

plain reading of the order clearly indicates that neither any liberty nor any

permission was granted by the learned Division Bench of this Court for

placing on record any of the documents which were listed in the application

under Order XI Rule 1(10) CPC. Thus, according to him, the basis of the

submission on behalf of the petitioner is without any factual foundation and

ought to be rejected. Even otherwise, he submitted that even till the

subsequent date of listing i.e., 15.01.2025 of the appeal before the learned

CM(M)-IPD 4/2026 Page 10 of 22

Division Bench, the petitioner/defendant had failed to file any such

documents either on the record of the Appellate Court or the Trial Court.

He relied upon the observation noted by the learned Division Bench in the

order dated 15.01.2025. Learned counsel emphasized that the conduct of

the petitioner does not inspire any confidence in the explanation offered by

it. He stated that while the written statement was filed on 27.10.2023,

issues were framed on 21.02.2024, the application under Order XI Rule

1(10) CPC was preferred by the petitioner only on 20.01.2025. Thus, the

application was preferred after almost one year and four months from the

date of filing of the written statement. He further submitted that though the

petitioner has heavily relied on the order dated 05.07.2024 of the learned

Division Bench of this Court, yet the application seeking to place on record

additional documents before the Appellate Court was stated to have been

filed after 6 months, on 14.01.2025, which has been noted in the order

dated 15.01.2025. He submitted that this factual background would not

only demonstrate but establish the absolute casual, cavalier, lackadaisical

and indifferent attitude of the petitioner/defendant in substantiating its

defence. He states that the Court ought not to come to the aid of such

casual litigants and this being a commercial suit, such parties should not be

allowed to delay the proceedings of commercial suits.

15. That apart, on merits, learned counsel submitted that even if the

sufficiency and relevancy of the said documents is not taken into

consideration, yet the fact that these documents pertain to and belong to the

petitioner/defendant has not been denied, rather, admitted by him. Inviting

attention to para 5 and 6 of the application under Order XI Rule 1(10) CPC,

learned counsel submitted that no explanation, much less “reasonable

cause” has been tendered by the petitioner/defendant as to why such

CM(M)-IPD 4/2026 Page 11 of 22

immense delay in filing the said documents has occurred. He pointed out to

the fact that the only reason in writing, in paragraph 6, is that it is only

pursuant to the observation vide order dated 05.07.2024 in FAO(COMM)

87/2024 of the learned Division Bench of this Court that the

petitioner/defendant commenced searching from the old records and found

the enlisted documents. This explanation, according to the learned counsel,

is not a “reasonable cause” for not having produced the documents

alongwith the written statement, as also not relevant for consideration

under the provisions of Order XI Rule 1(10) CPC.

16. Learned counsel, while referring to the table in para 4 of the

application, pointed out to each of the documents to submit that all the

documents undisputedly belong to the petitioner which could and ought to

have been filed along with the written statement. Having not filed within

the period so prescribed, no indulgence ought to be granted by this Court to

such callous litigants. He submitted that all the documents like Sales Tax

Challans, Income Tax Returns and even the sale invoices pertaining to the

year 1997 etc. cannot be said to be not in the possession of the petitioner.

That apart, he also pointedly drew attention to the documents which are

purported to be sale invoices on and from the year 2007 placed on paper

book commencing from page 608, to submit that these are computer

generated invoices which too could atleast have been produced by the

petitioner alongwith its written statement, being in power and possession of

the petitioner/defendant.

17. In addition to the above, learned counsel submitted that as per the

mandatory proforma prescribed under the Commercial Courts Act, 2015, it

is necessary for the parties to correctly describe, while filing the documents

alongwith the list of documents, as to whether a document is in the power,

CM(M)-IPD 4/2026 Page 12 of 22

possession, control or custody of the party; whether the documents

produced are original or photocopies or office copies of the said

documents; the mode of the execution of the said documents and the line of

custody of such documents. While pointing out to the aforesaid, learned

counsel invited attention of this Court to Page 110 of the paper book, which

is the proforma of list of documents filed by the petitioner/defendant before

the learned Trial Court, alongwith its application. Pointing out to the said

list of documents, he submitted that none of the mandatory details as

pointed above have been filled at all by the petitioner, violating the

prescribed procedure. It is his contention that it is not an innocuous error

but a deliberate attempt to overreach the Court by not disclosing true facts.

According to learned counsel, had the petitioner truthfully disclosed the

mandatory requirements in the said proforma, the application by itself

would have been bereft of any merit and would have been dismissed in

limine. In support of his contentions, he relied upon the judgment of the

Hon’ble Supreme Court in Sudhir Kumar @ S. Baliyan vs. Vinay Kumar

G.B.: (2021) 13 SCC 71. He stated that the Hon’ble Supreme Court in the

said judgment had declared that the Statement of Truth and the procedure

prescribed in under Order XI Rule 1(10) CPC so far as Commercial Courts

are concerned, ought to be read as mandatory. Thus, according to him, the

lack of description in the proforma of list of documents itself would

disentitle the petitioner from any relief at all. He prayed that the present

petition be dismissed with exemplary costs so as to ensure that no other

party misuses this provision.

18. This Court has heard the arguments of Mr. Kirtiman Singh, learned

senior counsel for the petitioner and Mr. Ajay Amitabh Suman, learned

counsel for the respondent, and perused the records of the case.

CM(M)-IPD 4/2026 Page 13 of 22

19. At the outset, it may be of some significance to bear in mind the

judgement of this Court in Hassad Food Company Q.S.C. (supra) , while

dealing with an application under Order XI Rule 1(5) of the CPC as

applicable to the Commercial Courts Act, 2015 defining the word

“reasonable cause” for non-disclosure employed in the said provision.

Para nos.13 and 14 of Hassad Food Company Q.S.C. (supra) , would be

relevant and read thus:-

“13. Perusal of Order XI as noted above reveals that the plaintiff is

bound to file all documents in its power, possession, control or custody

with the plaint and in case of urgent filing of a suit if some additional

documents are to be filed under sub- rule (1) of Rule 1 of Order XI, the

plaintiff may seek leave of the Court to rely on additional documents

which additional documents are required to be filed within 30 days of

filing of the suit. Under sub- rule (5) of Rule 1 of Order XI, the plaintiff

shall not be allowed to rely on documents which were in the plaintiff’s

power, possession, control or custody and not disclosed along with the

plaint or within the extended period save and except by leave of the

Court which leave can be granted only if the plaintiff establishes

reasonable cause for non- disclosure along with the plaint. The language

used in the sub- rule (5) is that the plaintiff is required to show “a

reasonable cause” and not a “sufficient cause” as is ordinarily provided

in other provisions.

14. While dealing with Order XIII Rule 2 CPC wherein the words used

are: “unless good cause is shown”, the Supreme Court in the decision

reported as (2002) 1 SCC 535 Madanlal vs. Shyamlal, noted the

distinction between “good cause” and “sufficient cause” and held that

“good cause” requires a lower degree of proof as compared to

“sufficient cause” and thus the power under Order XIII Rule 2 CPC

should be exercised liberally. SubRule (5) of Rule 1 of Order XI of the

Commercial Courts Act, 2015 uses the phrase “reasonable cause” which

would require even a lower degree of proof as compared to “good

cause”.”

The learned Single Judge of this Court had interpreted the words

“reasonable cause” to require a lower degree of proof as compared to

“good cause” predicated on the judgement of the Hon’ble Supreme Court

in Madalal vs. Shyamlal: (2002) 1 SCC 535 which was engaged with

interpretation and distinction between the words “sufficient cause” and

CM(M)-IPD 4/2026 Page 14 of 22

“good cause” occurring in Order XIII Rule 2 of CPC and thus, should be

exercised liberally as “good cause” would require lower degree of proof

than “sufficient cause”.

20. The principle laid down cannot be quarrelled with, subject to a party

showing a “reasonable cause”. Undoubtedly, the threshold of proof may

be lower than that of “good cause”, yet there has to necessarily be

available a reasonable cause for the lapse. Essentially, it has to be borne in

mind that the party filing documents belatedly and not with its pleadings

has to offer such cause, these being commercial suits under the

Commercial Courts Act, 2015. The need and requirement of a party to the

lis to be alert and vigilant, needs to be underscored. This, of course, is not

meant to lay down that in all such cases, the delay ought not to be

condoned, yet the emphasis on time bound procedure laid down

meticulously in the Commercial Courts Act, 2015 and the amendments

made to the CPC, particularly Order XI, needs to be emphatically adhered

to.

21. The other cases cited and relied upon by the petitioner deal with

ordinary civil suits and not filed under the provisions of Commercial

Courts Act which is an essential sine q ua non to distinguish the facts of this

case with those in the said judgements. While the Hon’ble Supreme Court

in Sugandhi (supra) did hold that the procedural and technical hurdles

shall not be allowed to come in the way of the Court while doing

substantial justice, that however was also in the context of Order VIII Rule

1A(3), CPC and not the amended Order XI, CPC in the context of

commercial suits under the Commercial Courts Act.

22. At this stage, it would also be relevant to consider the judgement of

the Hon’ble Supreme Court in Sudhir Kumar @ S. Baliyan (supra). In this

CM(M)-IPD 4/2026 Page 15 of 22

case, the Hon’ble Supreme Court was dealing with an application under

Rule 1 of Order XI, CPC as applicable to the commercial suits filed by the

appellant/plaintiff therein. While observing that the Statement of Truth

under Order XI Rule 1(3) is a mandate, compulsorily to be adhered to by

the plaintiff, it was noted that the documents which were in the power,

possession, control or custody and not disclosed with the plaint can be

permitted by the leave of the Court under Order XI Rule 1(5), CPC only

upon the plaintiff establishing a reasonable cause. It was also held by the

Apex Court that the requirement of establishing reasonable cause for non-

disclosure of the documents alongwith the plaint shall not be applicable if it

is averred, that it is the case of the plaintiff (the appellant in that case) that

those documents in controversy have been found subsequently and were

not in the power, possession, control or custody of the plaintiff at the time

when the plaint was filed. Consequently, it was held that the rigors of

establishing reasonable cause in non-disclosure along with the plaint may

not arise in cases where the documents sought to be produced are

discovered subsequent to the filing of the plaint.

23. This principle, as laid down in Sudhir Kumar @ S. Baliyan (supra)

can be made applicable to Order XI Rule 1(10), CPC in cases where the

defendant seeks to file documents not disclosed with the written statement

as mandated by Order XI, CPC. When this principle is applied to a

defendant, it would mean those documents which were not in the power,

possession, control or custody of the defendant when the written statement

was filed. Thus, the reasonable cause to be explained would be with respect

to the non disclosure as to why the same were not filed with the written

statement and may not be for the delay in filing the documents, per se.

Essentially, the qualification primarily is the reason for non-disclosure

CM(M)-IPD 4/2026 Page 16 of 22

rather than the delay itself. Of course, the Courts may have to bear in mind

the stage of the proceedings too when such an application under Order XI

Rule 1(10) CPC is being filed.

24. That said, this Court would now advert to the facts obtaining in the

present petition. It is relevant to bear in mind that the application seeking

permission to place additional documents on record on behalf of the

petitioner/defendant was preferred after the issues were already framed on

21.05.2024. To appreciate and apply the principle laid down above, it

would be apposite to extract para nos.5 and 6 of the application filed by the

petitioner before the learned Trial Court. The same read thus:-

“5. That these documents are material and necessary for the fair and just

adjudication of the present suit, as they establish the existence and

operations of Shyam Hosiery Industries and its use of the “Big Boss”

article name. A true copy of the complete list of documents as mentioned

above is being enclosed as ANNEXURE A.

6. That since these documents were old and records were not available at

the time of filling of the written statement and only after filling of the

appeal in the high court against the order dated 2ND JANUARY, 2024

(hereinafter referred as "impugned order") passed by the Court of Ms

Anuradha Shukla Bhardwaj Ld. DJ(Commercial - Court 02), South

District, Saket Courts, New Delhi in the Suit being CS (Comm) No.538 of

2024 and titled as HUGO BOSS Trademark Management GMBH& Co

KG & Anr. (hereinafter referred as 'subject suit') in which vide the said

order, this Hon’ble Court has dismissed the application under Order

XXXIX Rule 4 CPC of the defendant filed for vacating the ex-parte ad

interim order dated 25.09.2023 thereby allowing the Application under

Order XXXIX Rules 1 & 2 CPC filed by the plaintiffs that the defendant

started searching when, while hearing of the appeal a query was raised

by the hon’ble court to show sales having been done from the year 1995

and thus granted time to to bring on record these relevant sale

documents being done from the year 1995. Thus only after the said

directions given vide order dated 05.07.2024 that the defendants started

searching from the old records and after searching could found these

documents which is being placed along with this Application. A true copy

of the order dated 05.07.2024 is being annexed herewith and marked as

Annexure B.”

[Emphasis supplied]

CM(M)-IPD 4/2026 Page 17 of 22

25. A perusal of the explanation offered by the petitioner/defendant

clearly brings to fore that there is no reasonable cause tendered as to why

the documents sought to be produced by the petitioner were not disclosed

at the time of filing of the written statement. All that has been stated is that

the said documents are old and the records were not available at the time of

filing of the written statement. Moreover, the search for the documents

commenced only after the learned Division Bench of this Court is claimed

to have put a query in the appeal so filed and consequent directions were

passed in the order dated 05.07.2024. In order to check the veracity of the

claim, this Court has also perused the order dated 05.07.2024 passed in

FAO(COMM) 87/2024, para nos.6 and 7 of which are relevant and are

reproduced hereunder:-

“6. Counsel for the appellants says that he would like to move an

application for additional documents which would disclose that sale of

hosiery products between 1996- 1997 have been made by the appellants

under the brand name/trademark “Big Boss” and “Big Boss Double

Decker”.

6.1 If such an application is filed, this aspect will be examined on the

next date of hearing.

7. We also note that the judgment and order dated 02.01.2024 passed by

Ms Anuradha Shukla Bhardwaj, learned District Judge (Commercial

Court-02), South district, Saket, New Delhi, is impugned in the appeal.”

Contrary to what the petitioner has stated in para 6 of the application,

there is no permission granted for placing documents on record, rather, the

learned Division Bench has only noted the submission of the learned

counsel that an application to file additional documents would be filed. It is

admitted that the search for these documents commenced after the said

order was passed.

26. However, what is relevant is offering explanation of the “reasonable

cause” for not having disclosed these documents alongwith the written

CM(M)-IPD 4/2026 Page 18 of 22

statement, as required and mandated by law. Clearly, para nos.5 and 6 of

the application, rather, the entire application is bereft of any such

explanation or reasonable cause as to why the documents sought to be filed

by the petitioner/defendant were not disclosed alongwith the written

statement. In such circumstances, it would be very difficult for this Court to

lean in favour of the petitioner.

27. Learned senior counsel for the petitioner was at pains to explain the

nature of the documents and as to how and why the same were obtained

belatedly but yet, sought to be placed on record the moment the petitioner

laid hands on them. This Court is not convinced by the explanation. This is

for the reason that the defence of the petitioner/defendant before the

learned Trial Court is that the petitioner is a “prior user” of the trademark

in question BIG BOSS. It also claimed that the prior user is from the year

1996. If that were to be believed, there being no reason to disbelieve either,

then it was all the more imperative for the petitioner to have disclosed that

these documents were not in its power, possession, custody or control at the

time of filing the written statement. This Court has also considered the

documents listed in para 4 of the application and extracted in para 6 above.

Manifestly, most of the documents can be said to be in power, possession,

custody or control of the petitioner. Sales Tax Challan from the year 1996-

97 till 2004-05, Acknowledgement of Income Tax Returns from FY 2001

to 2023, Purchase Bills from 27.10.1995 onwards, Sales of Shyam Hosiery

Industries from the years 1996 to 2022 and of BIG BOSS Garments Pvt.

Ltd. of 2022-2023, True Copies of the Computerised bills from 10.01.2004

and advertisement bills in the name of Jagran Prakashan Ltd. for

advertising the brand BIG BOSS, are the additional documents of the

petitioner and thus, cannot be said to be beyond its power, possession,

CM(M)-IPD 4/2026 Page 19 of 22

custody or control. So far as the other documents are concerned, even if the

same are assumed to be not in power, possession, custody or control of the

petitioner, it was mandated by law to disclose the same at the time of filing

the written statement. These documents too pertained to the petitioner

alone, and therefore, even if it did not have possession or custody of the

same, the same ought to have been disclosed. This is for the reason that

these documents are intrinsic and crucial to determine the “prior use” of the

trademark BIG BOSS.

28. That said, it would also be relevant to consider as to the disclosure

statement tendered by the petitioner in the List of Documents filed

alongwith the documents in question, accompanying the application under

Order XI Rule 1(10) CPC. It would be apposite to reproduce the same as it

would have an impact on the decision. The said List of Documents is

extracted hereunder:-

List of Documents

S.

No

.

Documents Document

in power/

possession/

control custody of

Document

Original or

Photocopies of office copies

Mode of

execution

List of

Custody

Page

No.

1. Representation of

Defendants P/L, Sale Chalan Judgment, and Sale Tax Return from

year 1996 to 2023

Defendant

No.1

Digital Print

Outs

13-

185

2. Acknowledgement

income tax Return, audit Report from

F/Y 2001 to 2023

186-

274

3. Printing bill of

Year 1995, 2003

275-

276

4. Purchase of ready

goods in our brand name bill and

freight bill

277-

291

CM(M)-IPD 4/2026 Page 20 of 22

5. Defendants

Representation of

bills, order-sheet

manual/hand

written in the year

1997-2003

293-

298

6. Defendants

Representation of computerizes bill issued from Shyam

Hosiery industries and big boss

garments Pvt. Ltd.

299-

434

7. Defendants

Representation of advertisement and bill of advertising of Jagran

Prakashan

435-

442

8. Defendants

Representation of bills, Freight bills of Spica Elastic in which elastic was ordered toVidhya

Traders

443-

449

9. Representation of

Shyam Hosiery Industries Firm Registration

Certificate

450

10. Brand Assignment

Shyam Hosiery Industries to Big Boss Garments Pvt.

Ltd.

451-

461

11. Yearly Sales

Details Chart 1996-

2023

461-

A

12. High Court order

Dated 05.07.2024

462-

463

29. Ex facie, the said list of documents is bereft of the mandatory fields

required to be filled by the petitioner/defendant, which alone could have

laid down the parameters in which the said documents could have been

CM(M)-IPD 4/2026 Page 21 of 22

considered. The lack of such fulfilment of the mandate leaves no choice but

to hold against the petitioner. Moreover, this List of Documents was not

even filed with the written statement which was the essential and

mandatory requirement of Order XI CPC as applicable to the commercial

suits. Thus, looked at it any which way, the petition lacks merits.

30. Learned senior counsel for the petitioner had also argued that the

impugned order suffers from the vice of appreciating the sufficiency and

relevancy of the documents in question which is clearly beyond its

mandate. To that extent, this Court is inclined to agree with the said

contention. At the stage of considering the application under Order XI CPC

as applicable to the Commercial Courts, whether in respect of plaintiffs’

documents or those of the defendants, it is not the nature or sufficiency or

relevancy of the documents which is the edifice, but the “reasonable

cause” offered for not having disclosed the same while filing the suit or the

written statement. The reason is not far to see. At that stage, the Court is

not called upon to carry out a mini trial or appreciation of evidence for

recording any finding etc. That stage is yet to arrive. The cause for non-

disclosure at the time of filing plaint or the written statement alone is

paramount. Of course, while considering the application under Order XI

CPC, it is permissible for the Court to examine the documents from the

point view of appreciating the reasonable cause for non- disclosure, yet,

sufficiency or relevancy by itself cannot be the bedrock for the decision.

The plain reading of Order XI CPC does not brook any ambiguity with the

reasoning mentioned above. If the Legislature, in its wisdom, thought it fit

to include any such parameter, surely the said intention would have been

made clear and unambiguous. This Court is unable to appreciate any such

deviation.

CM(M)-IPD 4/2026 Page 22 of 22

31. The contentions of the learned counsel for the respondent that there

was a great delay in filing the application in the context of the written

statement having been filed by the petitioner on 27.10.2023 and the issues

having been framed on 21.05.2024 or the order dated 05.07.2024 of the

learned Division Bench in FAO(COMM) 87/2024 is concerned, though the

same may have an overall bearing on the conduct of the

petitioner/defendant, however, as observed above, the primary issue to be

considered by a Court is in appreciating as to whether any reasonable cause

has been shown. That apart, the term “reasonable cause” is at a lower

threshold of proof than “good cause”. Since no such reasonable cause has

been shown, this Court is not inclined to interfere in the impugned order.

32. Ab supra, the petition being bereft of any merits, is dismissed,

however, without any order as to costs.

33. Pending applications also stand disposed of.

TUSHAR RAO GEDELA

(JUDGE)

JANUARY 29, 2026/ rl