Gujarat High Court
Shalby Limited vs Dr. Dhiraj Marothi on 1 July, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/8507/2025 ORDER DATED: 01/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8507 of 2025
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SHALBY LIMITED
Versus
DR. DHIRAJ MAROTHI
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Appearance:
MR. G.H.VIRK WITH MR.S.H.VIRK with MR. JAGRAT SHAH with MR
SIMRANJITSINGH H VIRK(11607) for the Petitioner(s) No. 1
MR D K TRIVEDI(5283) for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 01/07/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. Having heard the learned counsels for the parties and perused the record, we may note that, at the outset, the challenge to the judgment and order dated 19.04.2025 passed by the Judge, Commercial Court, City Civil Court, Ahmedabad in application at Exh. 46 filed by the defendant is on the premise that the provision of Order XI Rule 21 of Code of Civil Procedure, 1908 (CPC) had wrongly been invoked by the Commercial Court in entertaining the application at Exh. 46 filed by the defendant under the said provision. Attention of the Court is invited to Section 16 of the Commercial Courts Act, 2015, which reads as Page 1 of 13 Uploaded by VARSHA DESAI(HC01393) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:05:41 IST 2025 NEUTRAL CITATION C/SCA/8507/2025 ORDER DATED: 01/07/2025 undefined under:-
AMENDMENTS TO THE PROVISIONS OF THE CODE OF CIVIL PROCEDURE, 1908
16. Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes.--(1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a Specified Value, stand amended in the manner as specified in the Schedule.
(2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a Specified Value.
(3) Where any provision of any Rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908 (5 of 1908), by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail.
2. The schedule under Section 16 amended Order XI of the CPC contained in the schedule to the Commercial Courts Act, 2015 further reads as under:-
ORDER XI DISCLOSURE, DISCOVERY AND INSPECTION OF DOCUMENTS IN SUITS BEFORE THE COMMERCIAL DIVISION OF A HIGH COURT OR A COMMERCIAL COURT
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 Page 2 of 13 Uploaded by VARSHA DESAI(HC01393) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:05:41 IST 2025 NEUTRAL CITATION C/SCA/8507/2025 ORDER DATED: 01/07/2025 undefined 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 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 the 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.
Page 3 of 13 Uploaded by VARSHA DESAI(HC01393) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:05:41 IST 2025NEUTRAL CITATION C/SCA/8507/2025 ORDER DATED: 01/07/2025 undefined (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 counterclaim 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 defense;
(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.
(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, any other documents;
(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 Page 4 of 13 Uploaded by VARSHA DESAI(HC01393) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:05:41 IST 2025 NEUTRAL CITATION C/SCA/8507/2025 ORDER DATED: 01/07/2025 undefined 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;
(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.
2. Discovery by interrogatories.--(1) In any suit the plaintiff or defendant by leave of the court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer:
Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose:
Provided further that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross- examination of a witness.
(2) On an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the court, and that court shall decide within seven days from the day of filing of the said application, in deciding upon such application, the court shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the court shall consider necessary either for disposing fairly of the suit or for saving costs.
(3) In adjusting the costs of the suit inquiry shall at the instance of any party be made into the propriety of exhibiting such interrogatories, and if it is the opinion of the taxing officer or of the court, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault.
(4) Interrogatories shall be in the form provided in Form No. 2 in Appendix C to the Code of Civil Procedure, 1908 (5 of 1908), with such variations as circumstances may require.Page 5 of 13 Uploaded by VARSHA DESAI(HC01393) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:05:41 IST 2025
NEUTRAL CITATION C/SCA/8507/2025 ORDER DATED: 01/07/2025 undefined (5) Where any party to a suit is a corporation or a body of persons, whether incorporated or not, empowered by law to sue or be sued, whether in its own name or in the name of any officer of other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation or body, and an order may be made accordingly.
(6) Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, or on the ground of privilege or any other ground may be taken in the affidavit in answer.
(7) Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous and any application for this purpose may be made within seven days after service of the interrogatories.
(8) Interrogatories shall be answered by affidavit to be filed within ten days, or within such other time as the court may allow.
(9) An affidavit in answer to interrogatories shall be in the form provided in Form No. 3 in Appendix C to the Code of Civil Procedure, 1908 (5 of 1908), with such variations as circumstances may require.
(10) No exceptions shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the court.
(11) Where any person interrogated omits to answer, or answers insufficiently, the party interrogating may apply to the court for an order requiring him to answer, or to answer further, as the case may be, and an order may be made requiring him to answer, or to answer further, either affidavit or by viva voce examination, as the court may direct.
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 Page 6 of 13 Uploaded by VARSHA DESAI(HC01393) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:05:41 IST 2025 NEUTRAL CITATION C/SCA/8507/2025 ORDER DATED: 01/07/2025 undefined 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 wilfully 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 custody or where a Court holds that inspection or copies of any documents had been wrongfully or unreasonably withheld or refused.
4. Admission and denial of documents.--(1) Each party shall submit a statement of admissions or denials of all documents disclosed and of which inspection has been completed, within fifteen days of the completion of inspection or any later date as fixed by the Court.
(2) The statement of admissions and denials shall set out explicitly, whether such party was admitting or denying:--
(a) correctness of contents of a document;
(b) existence of a document;
(c) execution of a document;
(d) issuance or receipt of a document;
(e) custody of a document.
Explanation.--A statement of admission or denial of the existence of a document made in accordance with sub-rule (2) (b) shall include the admission or denial of the contents of a document.
(3) Each party shall set out reasons for denying a document under any of the above grounds and bare and unsupported denials shall not be deemed to be denials of a document and proof of such documents may then be dispensed with at the discretion of the Court.
(4) Any party may however submit bare denials for third party documents of which the party denying does not have any personal knowledge of, and to which the party denying is not a party to in any manner whatsoever.
(5) An Affidavit in support of the statement of admissions and denials shall be filed confirming the correctness of the contents of the statement.
(6) In the event that the Court holds that any party has unduly refused to admit a document under any of the above criteria,-costs Page 7 of 13 Uploaded by VARSHA DESAI(HC01393) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:05:41 IST 2025 NEUTRAL CITATION C/SCA/8507/2025 ORDER DATED: 01/07/2025 undefined (including exemplary costs) for deciding on admissibility of a document may be imposed by the Court on such party.
(7) The Court may pass orders with respect to admitted documents including for waiver of further proof thereon or rejection of any documents.
5. Production of documents.--(1) Any party to a proceeding may seek or the Court may order, at any time during the pendency of any suit, production by any party or person, of such documents in the possession or power of such party or person, relating to any matter in question in such suit.
(2) Notice to produce such document shall be issued in the Form provided in Form No. 7 in Appendix C to the Code of Civil Procedure, 1908 (5 of 1908).
(3) Any party or person to whom such notice to produce is issued shall be given not less than seven days and not more than fifteen days to produce such document or to answer to their inability to produce such document.
(4) The Court may draw an adverse inference against a party refusing to produce such document after issuance of a notice to produce and where sufficient reasons for such non-production are not given and order costs.
6. Electronic records.--(1) In case of disclosures and inspection of Electronic Records (as defined in the Information Technology Act, 2000 (21 of 2000)), furnishing of printouts shall be sufficient compliance of the above provisions.
(2) At the discretion of the parties or where required (when parties wish to rely on audio or video content), copies of electronic records may be furnished in electronic form either in addition to or in lieu of printouts.
(3) Where Electronic Records form part of documents disclosed, the declaration on oath to be filed by a party shall specify--
(a) the parties to such Electronic Record;
(b) the manner in which such electronic record was produced and by whom;
(c) the dates and time of preparation or storage or issuance or receipt of each such electronic record;
(d) the source of such electronic record and date and time when the electronic record was printed;
(e) in case of email ids, details of ownership, custody and access to such email ids;
(f) in case of documents stored on a computer or computer Page 8 of 13 Uploaded by VARSHA DESAI(HC01393) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:05:41 IST 2025 NEUTRAL CITATION C/SCA/8507/2025 ORDER DATED: 01/07/2025 undefined resource (including on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource;
(g) deponent's knowledge of contents and correctness of contents;
(h) whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document stored;
(i) that the printout or copy furnished was taken from the original computer or computer resource.
(4) The parties relying on printouts or copy in electronic form, of any electronic records, shall not be required to give inspection of electronic records, provided a declaration is made by such party that each such copy, which has been produced, has been made from the original electronic record.
(5) The Court may give directions for admissibility of Electronic Records at any stage of the proceedings.
(6) Any party may seek directions from the Court and the Court may of its motion issue directions for submission of further proof of any electronic record including metadata or logs before admission of such electronic record.
7. Certain provisions of the Code of Civil Procedure, 1908 not to apply.-- For avoidance of doubt, it is hereby clarified that Order XIII Rule 1, Order VII Rule 14 and Order VIII Rule 1A of the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to suits or applications before the Commercial Divisions of High Court or Commercial Courts.".
3. A perusal of amended Order XI Rule 5 as contained in the schedule to the Commercial Court Act, 2015, the only consequence provided in the sub-rule (4) is that the Court may draw an adverse inference against a party refusing to produce such document after issuance of a notice to produce and where sufficient reasons for non-production are not given and may order costs. A further perusal of the application moved by the defendant at Exh. 46 indicates Page 9 of 13 Uploaded by VARSHA DESAI(HC01393) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:05:41 IST 2025 NEUTRAL CITATION C/SCA/8507/2025 ORDER DATED: 01/07/2025 undefined that the defendant had pleaded that the plaintiff has failed to comply with the order dated 17.08.2023 on Exh. 27 and 29 passed by the Commercial Court whereby the directions have been issued as under:-
8. Having heard the learned Advocate for the parties and upon perusal of the case record, it transpires that there was Agreement between the Plaintiff and Defendant whereby medical services were to be provided by the Defendant to the Plaintiff. Prima facie it appears that the claim of the Defendant arises under Clause 10 of the Agreement, which provides for incentives and increments.
Considering that prima facie the relationship between the parties is governed by the Agreement, hence, what the Defendant would be entitled to, has to be considered essentially on the basis of Contract executed between the parties only. Hence, what Contract or Agreement the Plaintiff has entered into with other Doctors would not be relevant in the present case. Moreover, considering that such Contracts are entered by the Plaintiff with other Doctors the same are privy between the parties to the aid Agreement only. Hence, I am of the view that at this stage, the prayer of the Defendant, so far so third party documents is concerned, the same cannot be considered. However, it is kept open to the Defendant to establish at the trial the relevancy of any such document.
9. It may be noted that Defendant has also prayed for discovery of documents with respect to surgeries performed at all Branches of the Plaintiff/Company. So far so the said request is concerned, the Court deems it appropriate to direct the Plaintiff to produce the details of all the surgeris along with all the incentives, increments, etc. granted by the Plaintiff wherein, the Defendant was one of the panel Doctors. Also the Plaintiff shall file audited balance sheet for the period between years 2009- 2010 to 2018-2019. Plaintiff shall file compliance within two weeks. Hence, the prayer of the Plaintiff for discovery to that limited extend is hereby allowed.
10. The Defendant has also filed an Application for Page 10 of 13 Uploaded by VARSHA DESAI(HC01393) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:05:41 IST 2025 NEUTRAL CITATION C/SCA/8507/2025 ORDER DATED: 01/07/2025 undefined interrogatories at Exhibit-27 wherein also the Defendant has largely put up the interrogatories with respect to fees and incentives paid by the Plaintiff to other Doctors. Again the said interrogatories does not appear to be relevant to the present Suit. Hence prayer of the Defendant is required to be rejected. However, it is made clear that during cross examination Defendant may ask such questions to the Plaintiff witness, subject to proper foundation being laid and the same being found to be relevant. With the aforesaid observations, the Application Exhibit-27 is hereby disposed of.
4. It is submitted by the learned counsel for the petitioner that as far as Exh. 27 is concerned, the request made by the defendant had not been accepted. Prayer of the defendant for discovery of documents has been granted to a limited extent, as per the observation made in paragraph no. 9, extracted hereinabove.
5. The question as to whether the plaintiff has complied with the order dated 17.08.2023 passed by the Commercial Court and the documents produced by the plaintiff are sufficient compliance thereof is a question, which in our considered opinion, can be decided, at the time of evaluation of the evidence of the parties. The application under Order XI Rule 21 which has been filed with the prayer to dismiss the suit for non-prosecution on the failure of the plaintiff to comply with the order dated 17.08.2023 was completely misconceived, for the reliefs Page 11 of 13 Uploaded by VARSHA DESAI(HC01393) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:05:41 IST 2025 NEUTRAL CITATION C/SCA/8507/2025 ORDER DATED: 01/07/2025 undefined prayed therein.
6. However, as regards the observations made in the order impugned about non-compliance of the order dated 17.08.2023 in its letter and spirit, we leave this question open for evaluation by the trial Court at an appropriate stage. In our considered opinion, looking to the language employed in Order XI Rule 5 as contained in the Schedule to the Commercial Courts Act, 2015, on the application of any party, the Court may order at any time during the pendency of any suit for production of any document by any party, which is in the possession or power of such party or person, relating to any matter in question in such suit. In case of failure or refusal of such party to produce such document, where sufficient reasons for non production are not given, it is open for the Court to draw adverse inference and impose cost. It is the case of the plaintiff that the documents produced by it pursuant to the order dated 17.08.2023 is sufficient compliance of the directions of the trial Court. Be that as it may, on the question as to whether the documents produced by the plaintiff in compliance of the order dated 17.08.2023 are Page 12 of 13 Uploaded by VARSHA DESAI(HC01393) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:05:41 IST 2025 NEUTRAL CITATION C/SCA/8507/2025 ORDER DATED: 01/07/2025 undefined sufficient compliance of the directions therein and whether for non-production of any document summoned by the Court, adverse inference is to be drawn is the issue which can be decided by the trial Court at the time of evaluation of the evidence of the parties.
7. We, therefore, find it fit and proper to treat the application under Order XI Rule 21 of CPC dated 16.12.2023 at Exh.
46 filed by the defendant, as an application under Order XI Rule 5 of the Schedule to the Commercial Courts Act, 2015. While setting aside the order dated 19.04.2025, we provide that the trial Court shall consider the said application at the time of the final disposal of the suit. It is further clarified that we have not gone into the merits of the claim made by the defendant in the application at Exh.
46 that the plaintiff has failed to comply with the order dated 17.08.2023 in its true letter and spirit. With the above observations and directions, the present petition stands disposed of.
(SUNITA AGARWAL, CJ ) (D.N.RAY,J) VARSHA DESAI Page 13 of 13 Uploaded by VARSHA DESAI(HC01393) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:05:41 IST 2025