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S.K Das vs Doyeli Sanyal & Ors on 29 July, 2022

Author: Navin Chawla

Bench: Navin Chawla

                    $~12
                    *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                    +    CS(COMM) 175/2018

                             S.K DAS
                                                                                     ..... Plaintiff
                                                Through:     Mr.Manish Kr. Mishra, Ms.Akansha
                                                             Singh & Mr.Srinivas Venkat, Advs.

                                                versus

                             DOYELI SANYAL & ORS
                                                                                  ..... Defendants
                                                Through:     Mr.P.S. Bindra, Sr. Adv. with
                                                             Ms.Rishika Arora, Advs. for D-1.
                                                             Mr.Manish Kumar, Adv. for D-2

                          CORAM:
                          HON'BLE MR. JUSTICE NAVIN CHAWLA
                                            ORDER

% 29.07.2022 I.A. 16666/2019

1. By this application, the defendant no. 1/applicant prays for permission to place on record the alleged hand written lab-note book on the project and Raw GLC Chromatograms of the defendant no. 1 on record.

2. The learned senior counsel for the defendant no. 1/applicant submits that the said documents, though have always been in possession of the defendant no. 1/ applicant, were not produced at an earlier stage as it was apprehended that the same would be copied by plaintiff and the plaintiff would claim that he was the Investigator of the Project and the author of the Report.

3. I do not find any merit in the present application.

4. Issues in the suit were framed on 23.08.2017. Thereafter, an additional issue was framed by the order of 08.07.2019. The plaintiff has already led his evidence and closed the same, as recorded in the order dated 20.09.2019. The present application has been filed only thereafter.

5. Order XI Rule 1(7) of the Code of Civil Procedure, 1908, as applicable to the Commercial Disputes (in short, 'the CPC') states that the defendant in a Suit shall file the 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 counter-claim, if any. Order XI Rule 1(8) of the CPC further states that 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, the details of parties to each documents being produced by the defendant, mode of execution, issuance of receipt and line of custody of each document.

6. Most importantly, Order XI Rule 1(9) of the CPC states that 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 Order XI Rule 1(7)(c)(iii) of the CPC, 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 the counter-claim, and that the defendant does not have in its power, possession, control or custody any other document.

7. The exception to the mandate of filing all documents in the power, possession, control or custody of the defendant is contained in Order XI Rule (1)(7)(c)(i) to (iii) of the CPC, which states that this mandate shall not apply to documents produced by the defendant and relevant only for the cross-examination of the plaintiff's witnesses, in answer to any case set up by the plaintiff subsequent to filing of the plaint, or handed over to a witness merely to refresh his memory. Clearly, the case of the defendant no. 1/applicant does not fall in any of these exemptions.

8. Order XI Rule 1(10) of the CPC provides a further window to the defendant to produce additional documents at a later stage of a suit by seeking leave of the Court. Such leave shall be granted only upon the defendant establishing "reasonable cause for non-disclosure along with the written statement or counter-claim" of such document. In the present case, the cause set out by the defendant no. 1/applicant is certainly not "reasonable". If the defendant no.1 was apprehending misuse of the documents, now sought to be produced, by the plaintiff, there were other means of protecting against the same, like seeking permission to file them in a sealed cover. The defendant no.1/applicant, having chosen not to file these documents, at this belated stage, cannot be allowed to produce the same.

9. Accordingly, I find no merit in the application and the same is dismissed. The defendant no. 1 shall pay a cost of Rs. 25,000/- to the plaintiff.

CS(COMM) 175/2018

10. The learned counsel for the defendant no. 2 prays for further time to file affidavit(s) of evidence of her witness(s). The same be filed within a Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:01.08.2022 18:19:59 period of four weeks from today.

NAVIN CHAWLA, J JULY 29, 2022/rv Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:01.08.2022 18:19:59