Calcutta High Court (Appellete Side)
Kamaljeet Gupta vs Fresernius Kabi Oncology Ltd. & Ors on 14 February, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Biswajit Basu.
C.O. 4083 of 2017
Kamaljeet Gupta
-Versus-
Fresernius Kabi Oncology Ltd. & Ors.
For the petitioner : Mrs. Deblina Lahiri,
Mrs. Samapti Roy.
For the opposite party: Mr. S.N. Mitra, Senior Advocate.,
Mr. Suman Dutta,
Mr. Atish Ghosh.
Heard on : 01.02.2019
Judgement on : 14.02.2019
Biswajit Basu, J.
1. The revisional application under Article 227 of the Constitution of India is at the instance of defendant No. 1 in a suit for damages and is directed against the order No. 38 dated July 21, 2017, passed by the learned Civil Judge (Senior Division), Kalyani, Dist. Nadia, in Title Suit No. 02 of 2014 whereby the learned Trial Judge has rejected the application filed by the petitioner under Order 11 Rules 12 and 14 of the Code of Civil Procedure (hereinafter referred to as 'The said application' in short).
2. Mrs. Lahiri, learned counsel appearing on behalf of the petitioner submits that the learned Trial Judge without appreciating the scope of Order 11 Rules 12 and 14 of the Code has dismissed the said application on the ground that the relevancy of the documents in respect of which the petitioner has prayed discovery cannot be determined at this stage. She submits that in view of the nature of allegations made in the plaint, the petitioner will not be able to defend the suit unless the plaintiff is directed to make discovery on oath in accordance with Order 11 Rule 13 of the Code, in respect of the documents mentioned in the schedule appended to the said application.
She further submits that to make an order of discovery it is sufficient if the documents would be relevant for the purpose of throwing light on the matter in controversy. In support of her such contention she places reliance on the decision of the Hon'ble Apex Court in the case of Shri. M.L. Sethi v. Shri. R.P. Kapur, reported in AIR 1972 SUPREME COURT 2379.
3. Mr. Surajit Nath Mitra, learned senior counsel appearing on behalf of the plaintiff/opposite party submits that the plaintiff has to prove his own case, therefore, according to him the duty casts upon the plaintiff to establish his claim in the suit by producing cogent evidences be it oral or be it documentary, and the petitioner is entitled to take inspection only of those documents on which the claim of the plaintiff is founded. Mr. Mitra, by referring to paragraph 28(X) of the written statement submits that the petitioner admittedly has taken access to his official laptop but he is again demanding production of the said laptop by the said application. He concludes by submitting that the learned Trial Judge has rightly dismissed the said application on the ground that the plaintiff is duty bound to prove his own case to get a decree in his favour.
Heard learned counsel for the parties. Perused the materials on record.
4. The issue which falls for consideration in the present revisional application is the scope of the Order 11 Rules 12 and 14 of the Code. The brief fact of the case which is necessary to answer the said issue needs to be recorded.
5. The plaintiff in the plaint has contended, inter alia, that it is a leading pharmaceutical company engaged in innovation and development of anti-cancer product of global standard. The defendant No. 1 was recruited in the year 2004 by the plaintiff company as Head of the Chemical Manufacturing and Projects. Even after the name change in the year 2008-09, the defendant No. 1 continued to carry on its employment under the plaintiff company and was the overall in charge of the pharmaceutical manufacturing plants at Sahibabad and kalyani. In or around 30th March, 2010 the defendant No. 1 was promoted to the position of Executive Vice President-APISs business. The overall responsibility of the defendant No. 1 included manufacturing, development and sales of API. Being over all in-charge of Kalyani plant, the defendant No. 1 was under implied and/or express obligation to duly carry out all such activities and functions and to discharge all such duties as required to be executed by a person having such critical and important responsibility. As the Executive Vice President APIs business the defendant No. 1 was at all material times responsible and accountable for technical and administrative management of the APIs manufacturing locations at Kalyani and Sahibabad. The defendant No. 1 was primarily responsible for directing and coordinating all activities at the plant and to ensure that the plant complies with all relevant laws and regulations and for global sales of key API products.
The plaintiff complains loss and damages suffered by it due to wilful and deliberate deleriction of duty by the defendant No. 1 coupled with his express misconduct and estimates such loos and damages at Rs. 78,00,00,000/- as on September 30, 2013.
6. The petitioner being the defendant No. 1 entered appearance and has been contesting the suit by filing written statement. The defendant No. 1 in his written statement has categorically denied and disputed the allegations of the plaint. The defendant in the written statement stated, inter alia, that he is promoted to the post of 'Executive Vice President API Business' and continued to discharge his responsibilities with respect to the Kalyani plant and manufacturing facility at Kalyani was doing extremely well and giving exemplary result to the Plaintiff Company resulting in yielding more profits for the Plaintiff Company. The plaintiff company sells its pharmaceuticals in the USA. Therefore, as per the statutory framework governing the permission to sell in the USA, the Plaintiff Company's facilities are subject to being inspected by the United States Food and Drug Administration Department (USFDA). The plaintiff company received a notice of inspection by the USFDA for the manufacturing site at Kalyani on January 9, of 2013. The Inspection was scheduled from January 14 through January 17, 2013. The said inspection of the USDFA investigator allegedly found violations in compliance with the current Good Manufacturing Practice. On the basis of the alleged observations of the USFDA and some third party investigation agencies, the Plaintiff Company temporarily suspended the defendant, immediately and simultaneously took away the official laptop, identity card issued by the Plaintiff Company, cell phone and all other documents/accessories issued to the defendant No. 1 during the term of his employment.
7. It is apparent from the averments of the plaint that the claim of damages of the plaintiff is for the recovery of the loss allegedly suffered by it on account of alleged misconduct and/or deleriction of duty by the defendant No. 1. The defendant No. 1 in his written statement is denying such allegations of the plaintiff. In view of nature of allegations on which the claim of the plaintiff is founded and the defense of the defendant No. 1 thereof, the documents in respect of which discovery on oath have been sought for by the said application, gain significance.
8. The substantial provision which is relevant to the present context is the Section 30 of the Code which authorises the Court to make such order as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence. The mandate contend in Section 30 of the Code has been further elucidated under Order 11 Rules 12, 13 and 14.
9. In the context of the issue involved in the present revisional application it is profitable to quote clause 1 of Volume. 27 of Corpus Juris Secundum.
"Discovery is the disclosure of facts, deeds, documents, or other things in the exclusive knowledge or possession of one party, which are necessary to the party seeking discovery as a part of a cause of action or defense in an action pending, or to be brought in another court, or as evidence of his rights or title in such proceedings."
10. Mrs. Lahiri, learned counsel for the petitioner has rightly placed reliance on AIR 1972 Supreme Court 2379 (Supra) to contend that a party is entitled to inspect all documents which do not themselves constitutes of his case or title and he cannot inspect them unless the other party produces them. She is also right in her submission that it is sufficient for an order of discovery on oath if the documents would be relevant for the purpose of throwing any light in the case on the matter in controversy, although such document may not be admissible in evidence. Relevant portions of Paragraph Nos. 5 and 6 of the aforementioned decision of the Hon'ble Apex Court are quoted below:-
"5. ...........this unless he knows what documents are in the possession or power of the opposite party? In other words, unless the party seeking discovery knows what are documents in the possession or custody of the opposite party which would throw light upon the question in controversy, how is it possible for him to ask for discovery of specific documents................
6. ......... It is sufficient if the documents would be relevant for the purpose of throwing light on the matter in controversy. Every document which will throw any light on the case is a document relating to a matter in dispute in the proceedings, though it might not be admissible in evidence. In other words, a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary's case or which may lead to a trial of enquiry which may have either of these two consequences. The word document in this context includes anything that is written or printed, no matter what the material may be upon which the writing or printing is inserted or imprinted..............."
11. In determining the question whether a party is obliged to disclose a document on oath or not two tests should be applied (i) whether the said document is relevant or not: (ii) whether it is in possession, custody or power of the party against whom an order of discovery on oath has been sought for.
12. The relevancy of the documents in respect of which the petitioner prayed discovery by the plaintiff on oath cannot be determined at this stage is one of the grounds on which the learned Trial Judge has refused the prayer of the petitioner made in the said application.
13. The Chapter VIII of Civil Rules and Orders deals with preparation for trial and recording of evidence and Rule 118 thereof lays down rules relating to discovery, inspection, admission etc. The said Rule 118 of the Civil Rules and Orders is reproduced below for ready reference:-
"118. Presiding Judges should be careful to see that steps in connection with Discovery, Inspection and Admission are taken at proper stage of suits before they come on for hearing. In comparatively big and complicated cases it will be usually advisable, after the documents have been lodged in Court, to allow at least one date (and more if necessary) before issues are framed for Admission, Discovery, Interrogatories or the like, and to fix, if necessary, one or more dates after the issues have been framed for the completion of this preliminary work."
The said rule, therefore, mandates completion of the stage of discovery before posting the suit for hearing or even before framing of issues in big and complicated cases.
14. The relevancy of the document in respect of which discovery has been sought for since is a condition precedent to invoke the provision of Order 11 Rule 12 of the Code, the question of relevancy of such document cannot be deferred to be decided at a later stage of the proceeding.
The refusal of the prayer of the petitioner for an order under Order 11 Rule 12 of the Code on the ground that the relevancy of each of the document vis a vis suit in hand cannot be determined at this stage is not justified.
15. The learned Trial Judge is, therefore, required to consider the prayer of the petitioner for discovery of the documents mentioned in the schedule of the said application on determination of the relevancy of the said documents with reference to respective cases of the parties in accordance with the provisions of the Indian Evidence Act, 1872 before proceeding with the suit further.
16. This Court is unable to convince itself to accept the contention of Mr. Mitra, learned senior counsel for the plaintiff/opposite party that the learned Trial Judge is right in refusing the prayer of the petitioner for the discovery on the ground that the plaintiff has to prove his own case in order to get a decree as prayed for in the suit. Under Order 13 Rule 1 of the Code the parties are required to produce original documents at or before the settlement of issues on which they are relying on. The scope of Order 11 Rule 12 of the Code is considerably wider than Order 13 Rule 1 of the Code. It is quite conceivable that a party may only wish to rely on a limited number of documents relating to the matter in dispute and under Order 13 Rule 1 of the Code he will only be required to produce the said documents at the first hearing. On the other hand, the parties may apply for discovery of all documents of any description which have any bearing in the matter in dispute. In this context it is relevant to quote paragraph No. 8 of the decision of this Court in the case of Gobinda Mohun Roy v. Magneram Bangur & Co. reported in AIR 1940 CALCUTTA 331. Paragraph No. 8 of the said report being relevant is reproduced below:
"(8) It is to be observed that R. 12 O. 11 is considerably wider than that of O. 13 R. 1 of the Code. It is quite conceivable that a party may only wish to rely on a limited number of documents relating to the matter in dispute and which happen to be in his possession or power and, under the provisions of O. 13 R. 1 of the Code, he will only be required to produce at the first hearing those documents which he himself may consider requisite for his own purposes, unless the Court has expressly directed the production of any particular document. Under O. 11 R. 12 of the Code, on the other hand, the parties may apply for the discovery of all documents of any description which have any bearing on the matter in dispute and, if discovery is ordered, the affidavit of documents must contain a complete list of all documents relating to the matter in question, whether a party against whom discovery has been ordered intends to rely on them or not. The intention of the Legislature in enacting these provisions seems to have been to afford facilities to a party to the suit in proper cases to establish his own case by having access to his opponent's documents relating to a case unless such documents are legally exempted from production. In other words, as one party to a suit is permitted to prove his case out of the mouth of his opponents by means of questions put in cross-examination, so also may he seek to establish his case by the process of discovery, interrogatories and admissions, for which provision is made in Orders 11 and 12, Civil P.C. The right to obtain discovery of an adversary's documents is a very wide one and is not limited merely to those documents which may be held to be admissible in evidence when the suit is ultimately tried. The law on this point was very clearly stated by Brett J. in (1883) 11QBD 55 (A) as follows:
"I desire to give as large an interpretation as I can to the words of the rule, 'a document relating to any matter in question in the action' I think it obvious from the use of these terms that the documents to be produced are not confined to those which would be evidence either to prove or to disprove any matter in question in the action. The doctrine seems to me to go further than that and to go as far as the principle which I am about to lay down. It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose contains information which may not which must, either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary"
17. The Court has got ample power to make an order of production of a document but before making such an order must satisfy itself and record a finding to the effect that the documents are in possession or power of the party against whom the order is sought for, as has been held by the learned single Judge of this Court in the case of India Foils Ltd. V. The 5th Industrial Tribunal, West Bengal and others reported in AIR 1972 CALCUTTA 308. The relevant portion of paragraph No. 4 of the said report is quoted below:-
"4. ...............It seems to me that although the Court undoubtedly has a power to make an order for production of documents at any time during the pendency of any suit, such an order can be made only if two, pre-conditions as contemplated by Rule 14 are satisfied, namely, that the documents must be in the possession or power of the party against whom the order is made; and secondly, the documents must relate to the matter in question in the suit. It is amply clear from the text of the rule itself that wide power to direct production of documents at any stage of the suit has been given to the Court subject to the two conditions mentioned above."
18. In the present case on perusal of the said application it appears that the petitioner has claimed that the documents mentioned in the schedule appended to the said application are in exclusive possession of the plaintiff company. The said claim of the petitioner has been denied by the plaintiff company in it's written objection to the said application. In view of the said claim of the petitioner and denial thereof by the plaintiff/opposite party the learned Trial Judge is required to ascertain whether the documents in respect of which the discovery has been sought for is in the possession and control of the plaintiff/opposite party or not.
The learned Trial Judge has disposed of the said application by directing the plaintiff to supply copies of all such documents to the defendant No. 1 prior to place reliance upon or referring to the same, except with the leave of the Court without appreciating the scope of Order 11 Rules 12 and 14 of the Code. The order impugned, therefore, suffers from jurisdictional error and thus set aside.
C.O. No. 4083 of 2017 is allowed by directing the learned Trial Judge to decide the said application afresh in the light of the discussion made above expeditiously preferably within a period of four weeks from the date of communication of this order. No order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Biswajit Basu,J.)