Delhi High Court
Max Hypermarket India Private Limited vs Curo India Private Limited on 22 November, 2018
Equivalent citations: AIRONLINE 2018 DEL 2789
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 22nd November, 2018
+ CS(COMM) 95/2016
MAX HYPERMARKET INDIA PRIVATE LIMITED .... Plaintiff
Through: Mr. Saransh Jain and Mr. Madhavan
Sharma, Advs.
Versus
CURO INDIA PRIVATE LIMITED ......Defendant
Through: Mr. U.K. Shandilya and Mr. Pawan
Verma, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
OA No.70/2018 (of defendant)
1. The defendant has preferred this Chamber Appeal against the order
dated 8th May, 2018 of the Joint Registrar allowing IA No.3307/2018 of the
plaintiff under Order XI Rule 1(1) and (5) read with Section 151 of the Code
of Civil Procedure, 1908 (CPC) for filing additional documents and
permitting the additional documents of the plaintiff to be taken on record.
2. This Chamber Appeal first came up before this Court on 13 th July,
2018, when it was the contention of the counsel for the defendant/appellant
that the Joint Registrar did not have the power to permit additional
documents to be taken on record. However, the hearing on that date was
adjourned to today.
3. Today, the counsel for the plaintiff on enquiry as to the provision in
exercise of power whereunder the Joint Registrar has permitted the plaintiff
to file additional documents, after the stage prescribed for filing thereof, has
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drawn attention to Rule 3 of Chapter II of the Delhi High Court (Original
Side) Rules, 2018 which inter alia provides as under:-
―3. Power of the Registrar - The powers of the
Court, including the power to impose costs in relation to
the following matters, may be exercised by the Registrar:
.........................
(24) Application for orders for discovery and for
orders concerning the admission, production and
inspection of documents;‖
(emphasis added)
4. The counsel for the plaintiff has argued, (a) that the Joint Registrar,
under the aforesaid clause is empowered to permit late production of
documents; (b) that though the Rules aforesaid are of the year 2018 but even
in the Rules as existing prior to coming into force of Commercial Courts,
Commercial Division and Commercial Appellate Division of High Courts
Act, 2015 and the 2018 Rules i.e. the Delhi High Court (Original Side)
Rules, 1967, the same power was to be found in clause (16) of the
corresponding Rule 3 of Chapter II, which was identically worded as the
present clause (24) afore quoted; (c) that earlier, the defendant/appellant had
made a similar application and which was also dealt with by the Joint
Registrar; and, (d) that all the Joint Registrar are entertaining and dealing
with similar applications.
5. Merely because the Joint Registrar concerned, on an earlier occasion,
wrongly invoking his jurisdiction had allowed a similar application of the
defendant/appellant or the other Joint Registrars are also exercising the said
jurisdiction, would not vest the jurisdiction in the Joint Registrar, if none
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exists under the Rule aforesaid. The argument to the said effect is thus of no
avail.
6. A reading of the clause (24) afore quoted of Rule 3 of 2018 Rules and
which is identical to Clause (16) of Rule 3 of the 1967 Rules shows, that the
power which has been vested in the Joint Registrar is in relation to the
"Application for orders for discovery and for orders concerning admission,
production and inspection of documents". Such an application is different
from an application of a party to the suit for delayed filing of own documents,
beyond the time prescribed therefor.
7. Prior to the amendment of certain provisions of the CPC as applicable
to commercial suits, by the Commercial Courts Act, CPC, in Order VII,
Rule 14 thereof, provided as under:
―14. Production of document on which plaintiff sues or
relies.--(1) Where a plaintiff sues upon a document or relies
upon document in his possession or power in support of his
claim, he shall enter such documents in a list, and shall produce
it in Court when the plaint is presented by him and shall, at the
same time deliver the document and a copy thereof, to be filed
with the plaint.
(2) Where any such document is not in the possession or
power of the plaintiff, he shall, wherever possible, state in
whose possession or power it is.
(3) A document which ought to be produced in Court by
the plaintiff when the plaint is presented, or to be entered in
the list to be added or annexed to the plaint but is not
produced or entered accordingly, shall not, without the leave
of the Court, be received in evidence on his behalf at the
hearing of the suit.
OA No.70/2018 in CS(COMM) 95/2016 Page 3 of 15
(4) Nothing in this rule shall apply to document produced
for the cross examination of the plaintiff's witnesses, or, handed
over to a witness merely to refresh his memory.‖
(emphasis added)
Similarly, Order VIII Rule 1A of the CPC provided as under:
―1A. Duty of defendant to produce documents upon which
relief is claimed or relied upon by him.--(1) Where the
defendant bases his defence upon a document or relies upon
any document in his possession or power, in support of his
defence or claim for set-off or counter-claim, he shall enter
such document in a list, and shall produce it in Court when the
written statement is presented by him and shall, at the same
time, deliver the document and a copy thereof, to be filed with
the written statement.
(2) Where any such document is not in the possession or
power of the defendant, he shall, wherever possible, state in
whose possession or power it is.
(3) A document which ought to be produced in Court by
the defendant under this rule, but, is not so produced shall
not, without the leave of the Court, be received in evidence on
his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to documents--
(a) produced for the cross-examination of the plaintiff's
witnesses, or
(b) handed over to a witness merely to refresh his
memory.‖
(emphasis added)
and Order XI titled "Discovery and Inspection" of the CPC, in
Rules 12 to 18 and 21 thereof provided as under:
―12. Application for discovery of documents.--Any party may,
without filing any affidavit, apply to the Court for an order
directing any other party to any suit to make discovery on oath
of the documents which are or have been in his possession or
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power, relating to any matter in question therein. On the
hearing of such application the Court may either refuse or
adjourn the same, if satisfied that such discovery is not
necessary, or not necessary at that stage of the suit, or make
such order, either generally or limited to certain classes of
documents, as may, in its discretion be thought fit:
Provided that discovery shall not be ordered when and so
far as the Court shall be of opinion that it is not necessary
either for disposing fairly or the suit or for saving costs.
13. Affidavit of documents.--The affidavit to be made by a
party against whom such order as is mentioned in the last
preceding rule has been made, shall specify which (if any) of
the documents therein mentioned he objects to produce, and it
shall be in Form No.5 in Appendix C, with such variations as
circumstances may require.
14. Production of documents.--It shall be lawful for the
Court, at any time during the pendency of any suit, to order
the production by any party thereto, upon oath of such of the
documents in his possession or power, relating to any matter
in question in such suit, as the Court shall think right; and the
Court may deal with such documents, when produced, in such
manner as shall appear just.
15. Inspection of documents referred to in pleadings or
affidavits.--Every party to a suit shall be entitled [at or before
the settlement of issues] to give notice to any other party, in
whose pleadings or affidavits reference is made to any
document [or who has entered any document in any list
annexed to his pleading,] or produce such document for the
inspection of the party giving such notice, or of his pleader, and
to permit him or them to take copies thereof; an any party not
complying with such notice shall not afterwards be at liberty to
put any such document in evidence on his behalf in such suit
unless he shall satisfy the Court that such document relates only
to his own title, he being a defendant to the suit, or that he had
some other cause or excuse which the Court shall deem
sufficient for not complying with such notice, in which case the
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Court may allow the same to be put in evidence on such terms
as to costs and otherwise as the Court shall think fit.
16. Notice to produce.--Notice to any party to produce any
documents referred to in his pleading or affidavits shall be in
Form No.7 in Appendix C, with such variations as
circumstances may require.
17. Time for inspection when notice given.--The party to
whom such notice is given shall, within ten days from the
receipt of such notice, deliver to the party giving the same a
notice stating a time within three days from the delivery thereof
at which the documents, or such of them as he does not object to
produce, may be inspected at the office of his pleader, or in the
case of bankers' books or other books of account or books in
constant use for the purposes of any trade or business, at their
usual place of custody, and stating which (if any) of the
documents he objects to produce, and on what ground. Such
notice shall be in Form No.8 in Appendix C, with such
variations as circumstances may require.
18. Order for inspection.--(1) Where the party served with
notice under rule 15 omits to give such notice of a time for
inspection or objects to give inspection, or offers inspection
elsewhere than at the office of his pleader, the Court may, on
the application of the party desiring it, make an order for
inspection in such place and in such manner as it may think
fit:
Provided that the order shall not be made when and so
far as the Court shall be of opinion that, it is not necessary
either for disposing fairly or the suit or for saving costs.
(2) Any application to inspect documents, except such as
are referred to in the pleadings, particulars or affidavits of the
party against whom the application is made or disclosed in his
affidavit of documents, shall be founded upon an affidavit
showing of what documents inspection is sought, that the party
applying is entitled to inspect them, and that they are in the
possession or power of the other party. The Court shall not
make such order for inspection of such documents when and so
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far as the Court shall be of opinion that it is not necessary
either for disposing fairly of the suit or for saving costs.
........
21. Non-compliance with order for discovery.--(1) Where any
party fails to comply with any order to answer interrogatories,
or for discovery or inspection of documents, he shall, if a
plaintiff, be liable to have his suit dismissed for want of
prosecution, and, if a defendant, to have his defence, if any,
struck out, and to be placed in the same position as if he had
not defended, and the party interrogating or seeking discovery
or inspection may apply to the Court for an order to that effect
and [an order may be made on such application accordingly,
after notice to the parties and after giving them a reasonable
opportunity of being heard].
(2) Where an order is made under sub-rule (1) dismissing
any suit, the plaintiff shall be precluded from bringing a fresh
suit on the same cause of action.‖
(emphasis added)
8. As would immediately become evident on perusal of the aforesaid
provisions, while the documents in own possession of plaintiff or defendant,
which the plaintiff or the defendant in a suit was required to produce in
support of its claim or defence, Order VII Rule 14(1)&(3) and Order VIII
Rule 1A(1)&(3), required to be filed along with the plaint or written
statement and not permitted to be filed thereafter "without the leave of the
Court"; the documents, which the plaintiff or the defendant in a suit was
required to produce in support of its claim or defence but which were not in
power or possession of plaintiff or defendant but in power or possession of
opposite party, Order XI Rules 12, 14 and 18 required such plaintiff or
defendant to seek discovery, production and / or inspection from the
opposite party. Application under Order XI Rules 12 to 18 and 21, could not
be filed for seeking discovery on oath, production and inspection of own
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documents but of documents which were or had been in possession or power
of "any other party" to the suit. Direction thereunder could not be sought
against own self but against the other party.
9. The powers of the Registrar, as defined in Rule 3 supra, whether of
the year 1967 (as amended from time to time) or of the year 2018 have to be
understood and interpreted in the context of the provisions of the CPC.
None of the clauses of Rule 3, whether of 1967 Rules or of the 2018 Rules
empowered the Registrar to grant leave for filing of the documents in
possession of the plaintiff or the defendant, by the plaintiff or the defendant,
beyond the stage prescribed in Order VII Rule 14(1) or in Order VIII Rule
1A(1) of the CPC. Clause (16) of the 1967 Rules which permitted the
Registrar to exercise the powers of the Court in relation to applications for
orders for discovery and for orders concerning the admission, production
and inspection of documents thus applied not to granting leave to the
plaintiff or the defendant to produce documents in own possession, beyond
the time prescribed therefor but to Order XI Rules 12 to 18 & 21 aforesaid.
Clause (16) of 1967 Rules and Clause (24) of 2018 Rules use the word
„production‟ in conjunction with „orders for discovery‟ and it is clear as
daylight that „production‟ therein of documents is pursuant to order of
discovery of documents and which, as aforesaid, cannot be sought against
own self but only against the other party.
10. The Commercial Courts Act though amended certain provisions of
CPC vis-à-vis commercial suits, has not altered the provisions of Order VII
and Order VIII reproduced above. Order XI of the CPC introduced vide the
Commercial Courts Act and as applicable to commercial suits, is titled
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"Disclosure, Discovery and Inspection of Documents in Suits before the
Commercial Division of a High Court or a Commercial Court" and Rule
1 thereof provides as under:
―1. Disclosure and discovery of documents.--(1) Plaintiff
shall file a list of all documents and photocopies of all
documents, in its power, possession, control or custody,
pertaining to the suit, along with the plaint, including:--
(a) documents referred to and relied on by the plaintiff in
the plaint;
(b) documents relating to any matter in question in the
proceedings, in the power, possession, control or
custody of the plaintiff, as on the date of filing the
plaint, irrespective of whether the same is in support
of or adverse to the plaintiff's case;
(c) nothing in this rule shall apply to documents produced
by plaintiffs and relevant only--
(i) for the cross-examination of the defendant's
witnesses, or
(ii) in answer to any case set-up by the defendant
subsequent to the filing of the plaint, or
(iii) handed over to a witness merely to refresh his
memory.
(2) The list of documents filed with the plaint shall
specify whether the documents in the power, possession, control
or custody of the plaintiff are originals, office copies or
photocopies and the list shall also set out in brief, details of
parties to each document, mode of execution, issuance or
receipt and line of custody of each document.
(3) The plaint shall contain a declaration on oath from
the plaintiff that all documents in the power, possession, control
or custody of the plaintiff, pertaining to the facts and
circumstances of the proceedings initiated by him have been
disclosed and copies thereof annexed with the plaint, and that
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the plaintiff does not have any other documents in its power,
possession, control or custody.
Explanation.--A declaration on oath under this sub-rule
shall be contained in the Statement of Truth as set out in the
Appendix.
(4) In case of urgent filings, the plaintiff may seek leave
to rely on additional documents, as part of the above
declaration on oath and subject to grant of such leave by Court,
the plaintiff shall file such additional documents in Court,
within thirty days of filing the suit, along with a declaration on
oath that the plaintiff has produced all documents in its power,
possession, control or custody, pertaining to the facts and
circumstances of the proceedings initiated by the plaintiff and
that the plaintiff does not have any other documents, in its
power, possession, control or custody.
(5) 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 plaint or
within the extended period set out above, save and except by
leave of Court and such leave shall be granted only upon the
plaintiff establishing reasonable cause for non-disclosure
along with the plaint.
(6) The plaint shall set out details of documents, which
the plaintiff believes to be in the power, possession, control or
custody of the defendant and which the plaintiff wishes to rely
upon and seek leave for production thereof by the said
defendant.
(7) Defendant shall file a list of all 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 courter-claim if any, including--
(a) the documents referred to and relied on by the
defendant in the written statement;
(b) the documents relating to any matter in
question in the proceeding in the power,
possession, control or custody of the defendant,
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irrespective of whether the same is in support
of or adverse to the defendant's defence;
(c) nothing in this Rule shall apply to documents
produced by defendants and relevant only--
(i) for the cross-examination of the plaintiffs
witnesses,
(ii) in answer to any case set-up by the plaintiff
subsequent to the filing of the plaint, or
(iii) handed over to a witness merely to refresh
his memory.
(8) The list of documents filed with the written statement
or counter-claim shall specify whether the documents, in the
power, possession, control or custody of the defendant, are
originals, office copies or photocopies and the list shall also set
out in brief, details of parties to each document being produced
by the defendant, mode of execution, issuance or receipt and
line of custody of each document;
(9) The written statement or counter-claim shall contain
a declaration on oath made by the deponent that all documents
in the power, possession, control or custody of the defendant,
save and except for those set out in sub-rule (7)(c)(iii)
pertaining to the facts and circumstances of the proceedings
initiated by the plaintiff or in the counter-claim, have been
disclosed and copies thereof annexed with the written statement
or counter-claim and that the defendant does not have in its
power, possession, control or custody, and other documents;
(10) Save and except for sub-rule 7(c)(iii), defendant
shall not be allowed to reply 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
counter-claim;
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(11) The written statement or counter-claim shall set out
details of documents in the power, possession, control or
custody of the plaintiff, which the defendant wishes to rely upon
and which have not been disclosed with the plaint, and call
upon the plaintiff to produce the same;
(12) Duty to disclose documents, which have come to the
notice of a party, shall continue till disposal of the suit.‖
(emphasis added)
11. Thereafter, Rule 2 thereof is titled "Discovery by Interrogatories" and
Rule 3 thereof is as under:
―3. Inspection.--(1) All parties shall complete inspection of all
documents disclosed within thirty days of the date of filing of
the written statement or written statement to the counter-claim,
whichever is later. The Court may extend this time limit upon
application at its discretion, but not beyond thirty days in any
event.
(2) Any party to the proceedings may seek directions
from the Court, at any stage of the proceedings, for inspection
or production of documents by the other party, of which
inspection has been refused by such party or documents have
not been produced despite issuance of a notice to produce.
(3) Order in such application shall be disposed of within
thirty days of filing such application, including filing replies
and rejoinders (if permitted by Court) and hearing.
(4) If the above application is allowed, inspection and
copies thereof shall be furnished to the party seeking it, within
five days of such order.
(5) No party shall be permitted to rely on a document,
which it had failed to disclose or of which inspection has not
been given, save and except with leave of Court.
(6) The Court may impose exemplary costs against a
defaulting party, who willfully or negligently failed to disclose
all documents pertaining to a suit or essential for a decision
therein and which are in their power, possession, control or
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custody or where a Court holds that inspection or copies of any
documents had been wrongfully or unreasonably withheld or
refused.‖
(emphasis added)
12. It would thus be seen, that as far as the commercial suits are
concerned, to the stage for filing by a party to such suit of documents in its
power and possession, Order VII Rule 14(1) and Order VIII Rule 1A(1), as
well as Order XI Rule (1) and Order XI Rule (7) apply and similarly, to the
filing beyond that stage of such documents, Order VII Rule 14(3) and Order
VIII Rule 1A(3) as well as Order XI Rule (5) and Order X Rule (10) apply.
In the event of any inconsistency, the Rules of Order XI obviously have to
prevail, the same having been introduced specially for commercial suits.
However, there is no inconsistency. Both provide for such documents to be
filed with plaint/written statement and to be not permitted to be filed
thereafter without „leave of the Court‟. The relevant Rules of Order XI
impose additional conditions, viz of leave being not granted without
establishing reasonable cause for non-filing/non-disclosure along with
plaint/written statement.
13. However, Order XI of the CPC as existed, has been substituted by
new Order XI, as far as commercial suits are concerned. Rule 3(2) thereof
also provides for seeking direction „against other party‟ for inspection or
production of documents and Rule 3(3) to (6) thereof provide for orders for
inspection/production and consequences of non-compliance therewith. The
same also nowhere provides for seeking direction against own self. Thus,
what has been held hereinabove qua Order XI Rules 12 to 18 & 21 as
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applicable to non-commercial suits, equally applies to clause (24) of Rule 3
of 2018 Rules. Just like clause (16) of the 1967 Rules applied to applications
under Order XI Rules 14 to 18 and 21 of the CPC, similarly clause (24) of
the 2018 Rules is applicable to applications under Order XI Rule 3 of the
CPC as applicable to commercial suits.
14. The Registrars/Joint Registrars under Rule 3, whether of the 1967
Rules or of the 2018 Rules are empowered, not to grant leave to a party for
production by the said party of its own documents beyond the stage
prescribed for production thereof but to exercise power to consider
application for order for discovery and production of documents from the
other party. Had the intent been to empower the Registrars/Joint Registrars
to grant leave to the parties to the suit for production of their own documents
beyond the stage prescribed therefor, the same expression would have been
used i.e. "application for grant of leave for production of documents". On
the contrary, the expression as in Order XI Rules 14 to 18 and 21 of the CPC
as applicable to ordinary suits (non-commercial suits) and in Order XI Rule
3 as applicable to commercial suits, for directing discovery by the opposite
party of documents and production of such documents has been used.
Merely because the word „other party‟ as found in Order XI Rule 14 as
applicable to non-commercial suits and in Order XI Rule 3 as applicable to
commercial suits is missing, will not empower the Registrars/Joint
Registrars to exercise power of granting leave which has been vested in the
Court under a different provision of law.
15. I have therefore no iota of doubt that the Registrar/Joint Registrar is
not empowered to grant leave to a party to produce its own document
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beyond the stage prescribed therefor and the Joint Registrar has in the
impugned order exercised jurisdiction not vested in him in law.
16. The Joint Registrar having exercised the power not vested in him, the
impugned order allowing IA No. 3307/2018 is non est and the Chamber
Appeal is allowed and is disposed of.
17. The counsel for the defendant having argued that other Joint
Registrars also are exercising similar power, the Registry is directed to
circulate this judgment amongst all the Joint Registrars.
RAJIV SAHAI ENDLAW, J.
NOVEMBER 22, 2018 „pp/bs‟ OA No.70/2018 in CS(COMM) 95/2016 Page 15 of 15