Punjab-Haryana High Court
M/S Bestech India Private Limited vs Fakira Singh And Another on 12 March, 2025
Neutral Citation No:=2025:PHHC:035427
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of Decision: 12.03.2025
1. CR-1501-2025
M/s Bestech India Private Limited ....Petitioner
Versus
Fakira Singh (Deceased) Through LRs and Another ....Respondents
2. CR-1508-2025
M/s Bestech India Private Limited
....Petitioner
Versus
Ashok Kumar and Another ...Respondents
CORAM: HON'BLE MR. JUSTICE VIKRAM AGGARWAL
Present: Mr. Sanjay Vij, Advocate and
Mr. Uday Vij, Advocate
for the petitioner(s).
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VIKRAM AGGARWAL, J (ORAL).
The aforetitled revision petitions assail orders dated 25.02.2025 (Annexure P-1) passed by the Exclusive Commercial Court, Gurugram vide which the applications under Order 11 Rule 1 (10) of the Code of Civil Procedure, 1908 (for short 'CPC') were dismissed. Two suits i.e. Civil Suit Nos.98 and 99 of 2021 titled as 'Fakira Singh Vs. M/s Bestech India Private Limited' and 'Ashok Kumar Vs. M/s Bestech India Private Limited and Another' respectively were filed. The petitioner is the defendant in both the suits and assails orders on the applications filed by the petitioner. The issue being identical, the same is being decided by way of a common judgment. The facts, however, are being derived 1 of 9 ::: Downloaded on - 18-03-2025 00:00:11 ::: Neutral Citation No:=2025:PHHC:035427 CR-1501-2025 and connected matter -2- from CR-1501-2025 titled as 'M/s Bestech India Private Limited Vs. Fakira Singh (Deceased) Through LRs and Another'.
2. The facts, as emanating from the revision petition, are that a suit for declaration and permanent injunction was filed by the respondents-plaintiffs in the Special Commercial Court, Gurugram in the year 2021. Written statement was filed. An application (Annexure P-2) under Order 11 Rule 1 (10) CPC was filed seeking permission to tender additional documents on behalf of the petitioner- defendant. 13 documents which were the audited balance sheets of the petitioner-defendant starting from the financial year 2011-2012 to the financial year 2023-2024 were sought to be produced. It was averred that the said documents were important and necessary to prove the case of the petitioner-defendant. It was averred that the said documents could not be appended with the written statement as they were not available despite due diligence. It was also averred that the application was being filed without any delay. It was further averred that the production of the documents was essential for the just, proper and effective adjudication of the dispute between the parties.
3. The application was opposed by way of a reply (Annexure P-3). It was averred that the application was belated and had been filed when the evidence of the plaintiff had already concluded. Reference was made to Order 11 Rule 1 (10) CPC and it was averred that in view of the same, the documents could not be permitted to be produced in evidence. On merits, all averments were denied.
4. By way of the impugned order dated 25.02.2025, the application was dismissed, leading to the filing of the present revision petition.
5. I have heard learned counsel for the petitioner.
6. Learned counsel has submitted that the impugned order is not sustainable. Learned counsel submits that the documents sought to be produced by way of an application were duly disclosed in the written statement. Learned 2 of 9 ::: Downloaded on - 18-03-2025 00:00:11 ::: Neutral Citation No:=2025:PHHC:035427 CR-1501-2025 and connected matter -3- counsel has referred to the written statement (Annexure P-4) in this regard. Learned counsel has also referred to the provisions of Order 11 Rule 7 and 10 and has submitted that the rigor of the said provision will not apply to the petitioner- defendant on account of the documents having been duly disclosed in the written statement. He submits that one opportunity be granted to the petitioner to produce these documents in evidence which even otherwise are essential for the just decision of the case. In support of his contentions, learned counsel has placed reliance upon the judgments passed by the Supreme Court of India in the cases of 'Sudhir Kumar @ S. Baliyan Vs. Vinay Kumar G.B.', 2021 AIR (SC) 4303 and 'Levaku Pedda Reddamma and ors. Vs. Gottumukkala Venkata Subbamma and anr.', 2022 (2) Apex Court Judgments (SC) 339 as also the judgments passed by Delhi High Court in the cases of 'Bela Creation Pvt. Ltd. Vs. Anuj Textiles' [CM(M) 405 of 2022, decided on 02.05.2022] and 'The Great Gatsby Club of India Vs. Mahesh Prefab Pvt. Ltd.', 2022 AIR CC 2796.
7. I have given my thoughtful consideration to the issue in hand.
8. Under normal circumstances, the Court would have been inclined to grant one opportunity to the petitioner-defendant to produce the documents mentioned in the application which are essentially stamped and signed audited balance sheets from the financial year 2011-2012 to the financial year 2023-2024. However, once the provisions of Order 11 Rule 7 and 10 CPC (as applicable to the Commercial Courts) are considered, the irresistible conclusion that one arrives at is that such permission cannot be granted. No doubt, procedure is the hand-maid of justice and normally, one should construe provisions liberally, for, the eventual aim is to render justice. However, the legislature enacted the provisions for the Commercial Courts Act, 2015 (hereinafter referred to as the 'Act') with a specific view in mind. As per the provisions of the Act, an endeavour has to be made to 3 of 9 ::: Downloaded on - 18-03-2025 00:00:11 ::: Neutral Citation No:=2025:PHHC:035427 CR-1501-2025 and connected matter -4- decide commercial disputes within a period of six months. Keeping the said aims and objectives in mind, provisions in CPC, as applicable to the Act were framed.
9. Order 11 Rule 7 lays down as under:
"(7) The 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 counter-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, 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 the defendants and relevant only--
(i) for the cross-examination of the plaintiff's 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."
10. Further, Order 11 Rule 10 provides as under:
"(10) Save and except for sub-rule 7(c) (iii), defendant shall not be allowed to rely 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."
As per the said provision, a defendant would not be allowed to rely on documents which were in the defendant's power, possession, control or custody and not disclosed alongwith the written statement or counter-claim, save and except by leave of the Court and such leave shall be granted only upon the defendant establishing reasonable cause for non-disclosure alongwith the written statement or counter-claim.
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11. This provision came to be interpreted by the Supreme Court of India in the case of 'Sudhir Kumar @ S. Baliyan Vs. Vinay Kumar G.B.' (supra). In this case, the plaintiff had filed a commercial suit before the Commercial Court, Delhi for permanent injunction as regards use of trade-marks. This suit was withdrawn on 27.07.2019 as the same was not filed in conformity with the provisions of the Act. Thereafter, a fresh suit was filed on 31.08.2019. An application under Order 7 Rule 14 (3) CPC was moved by the plaintiff seeking leave of the Court to file additional documents. This application was dismissed on 13.11.2019. The defendant filed its written statement on 06.01.2020. The defendant also moved an application under Order 11 Rule 1 (10) CPC seeking leave to produce additional documents. This application was rejected on 08.10.2020. In an appeal filed before the Delhi High Court, the same was allowed on 07.12.2020 and documents were ordered to be taken on record. In the meantime, the plaintiff also filed an appeal against the order dated 13.11.2019 which was, however, dismissed and the matter reached the Supreme Court of India. The Supreme Court of India set aside the order of the Delhi High Court and granted an opportunity to the plaintiff to file additional documents. However, the same was done after examining the provisions threadbare and specifically coming to the conclusion that the application had been moved within a period of 30 days from the filing of the suit:
"8.1 It emerges from the record that the first suit was filed by the plaintiff in the month of October, 2018, bearing TM No.236 of 2018, restraining the defendant from infringing and passing-off plaintiff's Trade Marks. That an ex-parte interim injunction was passed in favour of the plaintiff by order dated 29.10.2018. It appears having realized and found that the earlier suit was not in consonance with the provisions of the Commercial Courts Act, the plaintiff withdrew the said suit being TM No.236 of 2018 on 27.07.2019 with liberty to file a fresh suit as per the Commercial Courts Act, 2015. Therefore, the second suit was filed on 31.08.2019 and within a period of thirty days from filing of the second suit the appellant herein -
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original plaintiff preferred the present application seeking leave of the court to file additional documents. In the application, it was specifically mentioned that so far as the invoices are concerned, the same were not in its possession at the time of the filing of the plaint and so far as the other documents are concerned they were not filed due to they being voluminous. Therefore, so far as the invoices sought to be relied on/produced as additional documents ought to have been permitted to be relied on/produced as it was specifically asserted that they were not in his possession at the time of filing of the plaint/suit.
8.2 The submissions on behalf of the defendant that the cause shown for non production was an afterthought cannot be accepted for the simple reason that the application was filed within a period of thirty days from the date of filing of the second suit and at the time when the application for interim injunction under Order 39, Rule 1 was not fully heard and kept for orders.
8.3 Even the reason given by the learned Commercial Court that the invoices being suspicious and therefore not granting leave to produce the said invoices cannot be accepted. At the stage of granting leave to place on record additional documents the court is not required to consider the genuineness of the documents/additional documents, the stage at which genuineness of the documents to be considered during the trial and/or even at the stage of deciding the application under Order 39, Rule 1 that too while considering prima facie case. Therefore, the learned Commercial Court ought to have granted leave to the plaintiff to rely on/produce the invoices as mentioned in the application as additional documents."
12. In fact, the plaintiff had sought permission to produce invoices and some other documents. It was the case of the plaintiff that invoices were not available with them at the time of filing of the suit but the other documents had not been filed because the suit was filed urgently. The Supreme Court of India negated this contention and permitted tendering of only the invoices holding that the suit could not be said to have been filed urgently once the previous suit had been withdrawn.
13. In the case of 'Bela Creation Pvt. Ltd. Vs. Anuj Textiles' (supra), the Delhi High Court also examined the provisions of Order 11 Rule 1 (10) CPC and held that a 'reasonable cause' must refer to a cause which was outside the control 6 of 9 ::: Downloaded on - 18-03-2025 00:00:11 ::: Neutral Citation No:=2025:PHHC:035427 CR-1501-2025 and connected matter -7- of the petitioner-defendant and which prevented the petitioner-defendant from filing the concerned documents alongwith the written statement:
"23. Moreover, as the learned Commercial Court correctly held, the written statement and counter-plaint were accompanied by a Statement of Truth, in which it was specifically stated thus:
6. I say that all documents and the power, possession, control or custody, pertaining to the facts and circumstances of the proceedings initiated by the defendant company has been disclosed and copies thereof next with the list of documents filed with the written statement/counter claim, and that the defendant does not have any other documents in its power, possession and control or custody.
In the absence of any averment to the effect that the aforesaid declaration, contained in the Statement of Truth accompanying the written statement and counter-plaint filed by the petitioner, was incorrect, the learned Commercial Court was justified in holding that additional documents, which were in the custody of the petitioner at the time of filing the written statement, could not be permitted to be introduced at a later stage. "Reasonable cause", within the meaning of Order XI Rule 1(10) of the CPC, as amended by the Commercial Courts Act, cannot extend to negligence in filing of documents before the Court. "Reasonable cause". necessarily, must refer to a cause which was outside the control of the petitioner, and which prevented the petitioner from filing the concerned documents along with the written statement."
14. In the case of 'The Great Gatsby Club of India Vs. Mahesh Prefab Pvt. Ltd.' (supra) also while relying upon the judgment in the case of 'Sudhir Kumar @ S. Baliyan Vs. Vinay Kumar G.B.' (supra), a similar view was taken by the Delhi High Court.
15. Reverting to the facts of the present case, in the application it was only stated as under:
"3. That the aforesaid documents are important and necessary documents for defendant No. 1 to prove that its case. It would not be out of place to mention that on account of being duly stamped and signed by the authorized person of defendant No.1, the documents in question are per se admissible.
4. That the documents in question could not be appended by defendant No,1 with its written statement since the same were not 7 of 9 ::: Downloaded on - 18-03-2025 00:00:11 ::: Neutral Citation No:=2025:PHHC:035427 CR-1501-2025 and connected matter -8- available with it despite having exercised due diligence. On account of the same, the documents are being produced at this stage."
16. In the considered opinion of this Court, absolutely no reason worth its name was given as to why the said documents were not appended with the written statement. After all, the documents sought to be produced are balance sheets from the year 2011-2012 to the year 2023-2024. It cannot be said that the said documents were not in possession of the petitioner-defendant or that despite due diligence, they were not available. It has to be borne in mind that the evidence of the plaintiffs had already concluded when the application was moved. Still further, it has to be borne in mind and was duly noticed by the Commercial Court, Gurugram that the written statement was filed on 03.03.2022 and, therefore, it could not be said that the balance sheets at least from the year 2011 to 2021 were not available. It was rightly held that even the balance sheets for the year 2023-2024 would also have been in its knowledge and possession at the time of the case management hearing. Not only this, previously also an application under Order 11 Rule 1 (10) CPC was moved by the petitioner-defendant on 09.11.2023 which was allowed on 11.03.2024. In the said application also, the present documents were not sought to be produced.
17. It has to be borne in mind that the provisions of law are enacted with certain aims and objectives and they cannot be whittled down at the drop of a hat. Litigants have to be aware of the provisions and have to abide by them. Merely granting one opportunity by imposing costs is not the answer to every issue. A line has to be drawn somewhere.
18. Under the circumstances, I do not find any illegality in the orders dated 25.02.2025 passed by the Exclusive Commercial Court, Gurugram, vide which the application moved by the petitioner-defendant was rejected.
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In view of the above, I do not find any merit in the present revision petitions and the same are accordingly dismissed.
(VIKRAM AGGARWAL)
JUDGE
12.03.2025
Prince Chawla
Whether speaking/reasoned : Yes/No.
Whether reportable : Yes/No.
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