Calcutta High Court
D) Costs Of And Incidental To This ... vs P.Rajkumar.Represented By His on 2 August, 2025
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OD-13
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
Ordinary Original Civil Jurisdiction
C.S.No./49/2010
In
G.A.No./2/2023
NEW DELHI TELEVISION LTD. AND ORS.
Before:
The Hon'ble Justice BISWAROOP CHOWDHURY
Date: 02th AUGUST 2025
Appearance:
Mr. Dhruba Ghosh, Sr. Adv.
Mr. Aniket Agarwal, Adv.
Ms. Madhurima Halder, Adv.
Mr. B. Chakraborty, Adv.
...for ITC ltd.
Mr. Sakya Sen, Sr. Adv.
Mr. Amit Kr. Nag, Adv.
Mr. P. Banerjee, Adv.
Mr. Y. Bhattacharyya, Adv.
...for defendants.
The Court: This application is filed by Defendant no-1 praying for the following reliefs:
a) An order be passed directing the Registrar of Companies Kolkata, West
Bengal to depute a competent officer for production of the original report of
Mr. T.Pandian Deputy Director (Inspection), Registrar of Companies
Kolkata, West Bengal dated 26th October 2009 to produce before this
Hon'ble Court.
b) Alternatively an order directing issuance of Summons/Sub-poena through
the concerned Department of this Hon'ble Court for production of the
original report of Mr. T. Pandian, Deputy Director (Inspection), Registrar of
Companies, West Bengal dated 26th October 2009 before this Hon'ble Court
on such date as this Hon'ble Court may deem fit and proper.
c) Ad interim order in terms of prayers above.
d) Costs of and incidental to this application be paid by the plaintiff.
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e) Such further or other order or orders and/or direction or directions as this
Hon'ble Court may deem fit and proper.
The contention of the defendant/petitioner may be summed up thus;
1. After service of the summons in the suit the Defendants through their
Advocate entered appearance and have filed a written statement. The
primary defence as urged in the Written Statement is that the news
published alleged to be defamatory reports the violation of various
provisions of the Companies Act, 1956 by the plaintiff based on Inspection
Report of the Deputy Director (Inspection), Registrar of Companies Kolkata,
West Bengal conducted in terms of the order/direction passed by the
Ministry vide its letter No. 3/111/2007/CL.II dated 19/09/2007. According
to the applicant as a News Channel the applicant is entitled to news item
based on the said Inspection Report which is an available record pertaining
to the case and therefore, question of defamation in any manner does not
and cannot arise.
2. After considering the issue suggested by the parties by an Order dated 1st
February 2023 the following issues were framed:-
A. Did the defendants cause publication of the said news programme on 9th
and 10th February 2010 as pleaded in the plaint?
B. Were the statements made in the said news programme defamatory in
nature as alleged in the plaint?
C. Is the defendant entitled to take the defence of fair comment and
justification as alleged in written statement?
D. Did the defendants exercise due care and diligence in making the
statements in the news programme?
E. Is the plaintiff entitled to any damages from the defendants or any of
them?
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F. To what relief (if any) is the plaintiff entitled?
G. Whether the suit is maintainable?
H. Whether the plaintiff is entitled to decree against the defendant for
publishing article?
3. As is evident from the issues framed one of the issues for adjudication is
whether the statements made in the news programmes were defamatory in
nature as has been alleged in the plaint. Similarly another issue for
adjudication as to whether the defendant is entitled to take the defence of
fair comment and justification as alleged in the written statement.
4. Pursuant to framing of ISSUES by Order dated 1st February 2023 plaintiff
was permitted three weeks time to file Judges Brief of Documents, and the
petitioner was granted opportunity to take inspection of the said document
within one week and the suit was fixed for witness action on 2nd March
2023.
5. By Order dated 20th July 2023 the suit was fixed on 1st September 2023. In
the meantime the petitioner proposing to disclose another document gave
liberty to the plaintiff to take inspection of such additional document
disclosed. But the plaintiff has not completed inspection till today.
6. Again by letter dated 7th September 2023 issued by the Learned Advocate
for the defendant, the defendant sought to rely on another document being
Report of Mr. T. Pandian Deputy Director (Inspection) Registrar of
Companies West Bengal dated 26th October 2009.
7. The plaintiff by letter dated 12th September 2023 intimated that they shall
take inspection of the original report upon receipt of the complete set of
documents.
8. The applicant does not have in its control power or possession of the
original of the Inspection Report of the Deputy Director (Inspection)
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Registrar of Companies Kolkata West Bengal. The said document is in the
power, control and possession of the Deputy Director (Inspection) Registrar
of Companies Kolkata, West Bengal.
The plaintiff/Respondent has contested this application by filing Affidavit in
opposition. The contention of the plaintiff in the affidavit in opposition may be summed up thus:
1. The application is mala-fide misconceived, harassing and not maintainable and is liable be dismissed with costs.
2. The spirit of the said application is to bring on record of this Hon'ble Court a document which the applicant has received through some undisclosed source. The Applicant has claimed that the purported inspection report is an available document. However the Applicant has not averred as to how the Defendants had come into Possession of the copy of the said report who in Defendant No. 1's organization received the said report, or who from the ROC gave a copy of the said report.
3. Any internal document of a government department which may or may not be a part of the documents collected or generated by such department for the purpose of conducting an inquiry are privileged, until such inquiry culminates in an accusations and becomes part of a judicial or quasi-
judicial proceedings. The applicant has no right of whatsoever manner to seek its production. The applicant and the other Defendants know that the balance sheets and profit and loss account of the plaintiff for the Financial years 2006-07, and 2007.08 were published two years and one year respectively prior to the telecast of the defamatory news programme. The said accounts were audited by the statutory auditor appointed by approval of the Shareholders of the plaintiff Company and also filed with statutory and regulatory authorities. Prior to making any accusation of falsification of 5 account for those years the Applicant and its officers who were responsible for publication of such statements had a duty to verify whether such statements were true and whether they had evidence to support that the accounts for the relevant years were in fact falsified as stated in the impugned news programme.
4. The plaintiff has denied that the suit is not maintainable and have further denied that the applicant has been fair in reporting or that it has also telecast the plaintiff's response as soon as the same was available as alleged or at all.
5. That the said purported inspection report which is an internal document of the ROC contained interim observations of the Deputy Director (Inspection). In fact any such inspection mentioned in the said report did not result into any adverse final findings or any penal proceedings precipitating against the plaintiff, therefore, no reliance can be placed on by the applicant on such an interim document which bears no trials of finality.
6. In the said application and in the written statement the defendants have failed to mention that how they have got hold of a copy of the Report of ROC which is an internal document of the ROC. Therefore no reliance whatsoever can be placed on the same by this Hon'ble Court. The defendants have also failed to explain the basis on which such document would be admissible as evidence in the instant suit before this Hon'ble Court. Permitting the Applicant now to bring the original version of such report on record would only aggravate and perpetuate the same by inviting it to become a part of judicial proceedings.
7. After perusal of the copy of the said inspection report it still manifests therefrom that the defendants have telecast the defamatory news programme in a risky fashion and with the sole intention to damage the 6 reputation of the plaintiff. Throughout the telecast with an intention to attract large viewership, the defendants have deliberately sensationalized it and used words such as "account malpractices" "fudging of accounts,"
falsification of accounts" all Smoke at Itc" etc. even though such critical words have nowhere been used in the report.
8. That such report is merely an observation and not conclusive and therefore no purpose will be served by bringing the same on record.
The defendant/petitioner in his Affidavit in reply has denied that the document which is an inspection report dated October 26 2009 is an internal document of the Registrar of Companies West Bengal. The applicant has further denied that applicants have misused the contents of the report for their own benefit and sensationalized the same in a news programme.
The applicant in its affidavit in reply has contended that the applicant is entitled to rely upon the inspection report filed against the respondent/plaintiff, which formed the basis of the news reported by applicant and hence prays for leave to bring on record the said document. The applicant further contends that the applicant being a news channel of repute has published/telecast the news programme based on the findings contained in the said report and is thus entitled to rely upon the same. It is also contended that it is not necessary for the applicants to disclose how the applicants have come into possession of the copy of the said report.
Heard Learned Advocate for the Applicant/Defendant no-1 and Learned Advocate for the plaintiff/opposite party, perused the petition filed and the Affidavits submitted in the case.
Mr. Sen Learned Counsel for the applicant/defendant no-1 submits that trial in the suit has not commenced yet. The plaintiff's Advocate by letter dated 12th September 2023 requested the defendant's Advocate to provide inspection of the 7 Original Inspection Report. The Defendant's Advocate has offered inspection of copy of the Inspection Report to the Plaintiff's Advocate on 8 September 2023 at 4.30 P.m. as the original of such report is not available with the defendant. One of the pages of the Inspection Report was also not available with the copy that was available with the defendant. Learned Advocate further submits that the Inspection Report being part of the defence pleaded in the written statement and the same being in the custody of the office of Registrar of Companies West Bengal having originated from the said office the prayer has been made in the instant application for production of the said document by an appropriate officer of the Registrar of Companies and alternatively for issuance of a sub-poena to produce the same. The defendant does not and/or could not have had in it's control, power and possession the original of the Inspection Report which is lying at the office of the Deputy Director (Inspection) Registrar of Companies. Learned Advocate also submits that the purpose of the present application is not to have the Inspection Report proved and have it received as defendant's evidence by marking it as an Exhibit. The only object sought to be achieved by the present application is production of the Inspection Report in original, failing which it is impossible for the defendant to either offer inspection of the said original Inspection Report to the plaintiff or disclose the missing page of the Inspection Report.
With regard to the plea of plaintiff that the document is inadmissible learned Advocate submits that such plea can be taken when the document is tendered. With regard to the plea of the plaintiff that the document is not relied upon in the written statement Learned Advocate submits that on a plain reading of the written statement it shall be evident that the defendant's entire case hinges upon the Inspection Report and the contents thereof which has been specifically pleaded in paragraphs 8(VII), 8(XII), 12 and 13 of the written statement.
Learned Advocate further submits that procedure is the handmaid of justice. 8 Procedural and technical hurdles should not be allowed to come in the way of the court while doing substantial justice. It is also submitted that if the procedural violation does not seriously cause prejudice to the adversary party, Courts must lean towards doing substantial justice rather than relying upon procedural and technical violation.
Learned Advocate submits that the provisions of Order VIII Rule 1A(3) of the Code relied upon by the plaintiff has no manner of application to the facts of the present case. This provision is applicable at a stage of the suit when a document is being received in evidence.
Learned Advocate also submit that the provisions of Order XIII Rule 1 of the Code relied upon by the plaintiff is inapplicable. The said provision applies in cases where a party has filed copies of documentary evidence along with plaint or written statement. The question of the party or it's pleader producing all documentary evidence in original before the settlement of issues will only arise if a party has filed copies of documentary evidence along with plaint or written statement. In the present case the defendant has not filed copy of documentary evidence, being the Inspection Report with the written statement. Thus the provisions of Order XIII Rule 1 of the Code do not apply in this case.
Learned Advocate for the Defendant no-1/petitioner relies upon the following Judicial Division.
Sugandhi (Dead) By Legal Representative VS P.Rajkumar.Represented by his power Agent Imam Oli.
Reported in (2020) 10 SCC. P-706.
Mr. Ghosh Learned Counsel for the plaintiff/opposite party submits that when the examination-in-chief of the first witness of the plaintiff was about to commence, the defendants, with mala-fide intentions and to unnecessarily stall the proceedings sought to disclose a new document a photocopy whereof was sent to the advocate of 9 the plaintiff under cover of a letter dated 7th September 2023. The plaintiff immediately sought inspection of the original document and leave to inspect was given by this Hon'ble Court by its order dated 8th September 2023. Upon inspection it was discovered by the plaintiff's advocate that the document sought to be relied on was incomplete and as such by a letter dated 12th September 2023, the plaintiff's Advocate requested the defendant to provide a complete copy.
Learned Advocate further submits that instead of providing a complete set of the original copy in their possession the defendant has filed the instant application. It is submitted that this application is made more than 13 years after the institution of the suit and post the settlement of issues and is liable to be dismissed with costs because inter alia. 1) it seeks to rectify a fatal lacuna in their defence-the defendants clearly did not possess the complete set of the document in question at the time of making the broadcast/and does not possess the same even till date) ii) The defendant has not been able to show that it is entitled to the said document (which is not a public document) in any way whatsoever and by this application is trying to use this Hon'ble Court to fish out evidence on their behalf and till date no leave has been sought nor granted to the defendants to rely on any such document. Learned Advocate also submits that the document is an internal ROC document and is inadmissible as evidence in this suit. Learned Advocate submits that prior to making any accusation of falsification of accounts for those years it was incumbent on the defendants to verify whether the accusations made out in the programme were indeed borne out by the financial statements however no such attempt was made by the Defendants. Even if the Defendant had relied/replicated/published the contents of the said interim internal report of the ROC, without any embellishment (which is not the case) the same would not be relevant in deciding whether the statements made by the Defendants was defamatory unless the defendant has independently verified the contents of the report to be factually correct. accordingly the production 10 of this document is neither relevant not necessary to decide the issues in the present matter.
Learned Counsel relies upon the following Judicial decision. The Institution of Engineers (India) and anr. VS Bishnu Pada Bag and anr. Reported in 1977 SCC Online cal-266.
Padam Sen and Anr. VS State of Uttar Pradesh.
Reported in 1960 SCC Online S.C. 77.
Before proceeding to decide the material in issue at first it is necessary to hold that as the issue is with regard to permission to produce a document and to summon the Registrar of Companies to produce the same the argument with regard to verification of the authenticity of the said documents before making statement of falsification of account cannot be considered at this stage and the same has to be considered at the time of trial of suit.
Similarly the question of source of receiving copy of the said document cannot also be gone into at this stage as the same can be clarified at the time of adducing evidence. Thirdly whether the document is inadmissible can also be considered at the time of evidence.
Thus at this stage this Court is to consider whether petitioner should be permitted to rely upon the document and whether prayer for summons to be issued upon the concerned authority in whose custody the document is lying should be granted.
In order to decide the issue it is necessary to consider the provisions contained in Order VIII Rule 1A of the Code of Civil Procedure, Order XIII of the Code of Civil Procedure and Order XVI of the Code of Civil Procedure.
Order VIII Rule 1A of the Code of Civil Procedure provides as follows:
1[1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.-Where the defendant bases his defence upon a 11 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.
2[(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]. Order XIII of the Code of Civil Procedure provides as follows:
1[Original documents to be produced at or before the settlement of issues.-(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement.
(2) The Court shall receive the documents so produced:
Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.
(3) Nothing in sub-rule (1) shall apply to documents-
(a) produced for the cross-examination of the witnesses of the other party; or
(b) handed over to a witness merely to refresh his memory.] Order XVI. Rule 6 of Code of Civil Procedure provides as follows:
6. Summons to produce document.-Any person may be summoned to produce a document, without being summoned to give evidence; and any person 12 summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.
Right to defend is a basic right A person has a right to defend any case whether civil or criminal brought against him in any Court or tribunal or any authority in accordance with law. Thus all reasonable opportunities should be granted to a person or institution to defend a case brought against him unless the same is barred under Law.
As it is observed in different judicial pronouncements that procedure is the hand maid of justice, and procedural and technical hurdles shall not be allowed to come in the way of the Court while doing substantial justice, rigid view with regard to procedure should not be taken by Court and wherever permissible Court may use discretion to do substantial justice, without being rigid on the procedure.
In the case of Sugandha (Dead) by Legal Representatives and Another (supra) the Hon'ble Supreme Court observed as follows:
7. Sub-rule (1) mandates the defendant to produce the documents in his possession before the court and file the same along with his written statement. He must list out the documents which are in his possession or power as well as those which are not. In case the defendant does not file any document or copy thereof along with his written statement, such a document shall not be allowed to be received in evidence on behalf of the defendant at the hearing of the suit. However, this will not apply to a document produced for cross-examination of the plaintiff's witnesses or handed over to a witness merely to refresh his memory. Sub-rule (3) states that a document which is not produced at the time of filing of the written statement, shall not be received in evidence except with the leave of the court. Rule 1(1) of Order 13 CPC again makes it mandatory for the parties to produce their original documents before settlement of issues.13
8. Sub-rule (3), as quoted above, provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement, with the leave of the court. The discretion conferred upon the court to grant such leave is to be exercised judiciously. While there is no straitjacket formula, this leave can be granted by the court on a good cause being shown by the defendant.
9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3).' In the case of Padam Sen and Anr (supra) the Hon'ble Supreme Court observed as follows:
'9. The question for determination is whether the impugned order of the Additional Munsif appointing Sri Raghubir Pershad Commissioner for seizing the plaintiff's books of account can be said to be an order which is passed by the Court in the exercise of its inherent powers. The inherent powers saved by s. 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the Court in the matters of procedure, which 14 powers have their source in the Court possessing all the essential powers to regulate its practice and procedure. A party has full rights over its books of account. The Court has no inherent power forcibly to seize its property. If it does so, it invades the private rights of the party. Specific procedure is laid down in the Code for getting the relevant documents or books in Court for the purpose of using them as evidence. A party is free to produce such documents or books in support of its case as be relevant. A party can ask the help of the Court to have produced in Court by the other party such documents as it would like to be used in evidence and are admitted by that party to be in its possession. If a party does not produce the documents it is lawfully called upon to produce, the Court has the power to penalize it, in accordance with the provisions of the Code. The Court has the further power to draw any presumption against such a party who does not produce the relevant document in its possession, especially after it has been summoned from it. Even in such cases where the Court summons a document from a party, the Court has not been given any power to get hold of the document forcibly from the possession of the defaulting party.
9. The defendants had no rights to these account books. They could not lay any claim to them. They applied for the seizure of these books because they apprehended that the plaintiff might make such entries in those account books which could go against the case they were setting up in Court. The defendants' request really amounted to the Court's collecting documentary evidence which the defendants considered to be in their favour at that point of time. It is no business of the Court to collect evidence for a party or even to protect the rival party from the evil consequences of making forged entries in those ac. count books. If the plaintiff does forge entries and uses 15 forged entries as evidence in the case, the defendants would have ample opportunity to dispute those entries and to prove them forgeries.' In the case of The Institution of Engineers (India) and anr (supra) the Hon'ble Supreme Court observed as follows:
'5. Mr. Maitra next contended that irregularities about the counting of ballot papers and proxy votes were referred to in Annexure E/1 to the plaint and as such it cannot be contended that the dispute was related only to the proxy votes of Orissa. Mr. Maitra, further contended that for passing an order under Or. 39 R. 7 of the C.P. Code it is not necessary that the said provision must confine to the subject matter of the suit itself and appropriate order can be passed under Order 39 R. 7 C.P. Code even in respect of matters in respect of which any question may arise in the suit and for this proposition Mr. Maitra relied on a decision reported in AIR 1975 All page 399. It may be stated in this connection that even assuming that the provision of Or. 39 R. 7 may be stated in this connection relate not only to the subject matter of the suit but also in other matters in which any question may arise relating to the suit, no commission can be issued for the purpose of collecting evidence in a suit. In any event, such commission should not be issued for making inventories relating to ballot papers by ex parte orders without proper verification as to the essential requirement of such a step even in a case where Or. 39 R. 7 C.P. Code is otherwise applicable. Mr. Maitra, further contended that in appropriate cases, the Election Tribunal has looked into the ballot papers for ascertaining the position and in this context he refers to a decision reported in AIR 1964 SC page 1249. It may be stated that as a proposition of law it cannot be said that even in appropriate cases the ballot papers cannot be looked into by the Court for proper adjudication of a dispute between the parties but what is emphasized is that such action should not be taken without extreme care and caution and only in such cases where inspection of ballot papers is essentially necessary for proper adjudication and the Court is satisfied on evidence that such 16 extreme step is necessary. Mr. Maitra further contended that issue of an inventory commission is a matter of discretion of the Court and if the Court has exercised such discretion there should be no interference under S. 115 C.P. Code particularly when such exercise of discretion is not perverse. The question of exercising discretion, however, does not arise in this case because we are of the view that an inventory commission cannot be issued for the purpose of fishing out some evidence which may be adduced by either of the parties in the suit. It is, therefore, an improper exercise of jurisdiction by the Court below and such improper exercise has occasioned material failure of justice. The Rule is, therefore, made absolute. There will however, be no order as to costs. The prayer for stay of the operation of the order is refused.' As sub-rule 3 of Rule 1A of Order VIII of the Code of Civil Procedure empowers a Court to permit a defendant to produce a document which ought to have been produced with written statement a liberal view should be taken so that a defendant has a reasonable opportunity to defend his case. A defendant does not come to Court voluntarily but he has to appear to answer the case brought against him by the plaintiff thus all reasonable opportunity should be given in accordance with law for the defendant to defend his case. Although the defendant/petitioner has not taken out a separate application for grant of leave but in the said application in which he seeks summons for production of the document he has shown the necessity of producing the said document which has to be considered in the interest of justice.
Although a plain reading of Order XVI Rule 6 of the Code of Civil Procedure does not suggest that the application is required to be ordered automatically without considering the bona fides of the application but in this case considering the nature of allegations made against the defendant the relief sought, and the defence taken by the defendant and the authority with whom the document is lying this Court is of the view that to do justice and to expedite the matter the prayer of the defendant should 17 be allowed.
The argument of the plaintiff that the petition is filed to fish out evidence cannot be sustained considering the facts of the case and the provision of Order XVI Rule 6 CPC, and the fact no application for issuance of Commission is made nor the plaintiff is directed to produce any of the document in their, custody. Thus the decisions of the Institution of Engineers (supra) and Padam Sen (supra) are not applicable in this case.
Thus the petition filed by the petitioner Defendant no-1 should be allowed. Let there be an order in terms of prayer (b) of the Notice of Motion dated 17th day of November 2023.
The Registrar of Companies West Bengal is directed to produce the original report of Mr. T. Pandian Deputy Director (Inspection) Registrar of Companies West Bengal dated 26th October 2009 in a sealed cover on or before 26th August 2025.
GA No-2 of 2023 stands disposed.
Fix the matter on 26/08/2025.
(BISWAROOP CHOWDHURY, J.) A.Bhar(P.A)