Calcutta High Court
Danish Export Corporation vs Mohammed Pervez And Ors on 20 May, 2025
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
(COMMERCIAL DIVISION)
PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK
CS-COM/37/2024
IA NO: GA-COM/17/2024
DANISH EXPORT CORPORATION
VS
MOHAMMED PERVEZ AND ORS.
For the plaintiff : Mr. S. Ghosh, Advocate
Ms. Suchismita Chatterjee Ghosh, Advocate
For the defendant no.4 : Mr. Rupak Ghosh, Advocate
Mr. Ayan Dutta, Advocate
Ms. Sarmistha Das, Advocate
Reserved on : 13th November, 2024
Delivered on : 20th May, 2025
ORDER
Bivas Pattanayak, J. :-
1. The petitioner-plaintiff by the present application prays for following orders:
"(a) Allowing the instant application by directing the Plaintiff/Petitioner to disclose the list of documents mentioned in paragraph 4 above on the grounds as stated above in paragraphs 6, 7, 8, 9 and 10.
(b) Permitting the Plaintiff/Petitioner to recall its witness on account of proving the said additional documents mentioned in paragraph 4 hereinabove.
(c) Plaintiff/Petitioner be directed to give inspection and copies of the said list of documents mentioned in paragraph 4 above to the defendant no.4, within 5 working days from the passing of the order, allowing the instant application.
(d) Ad-interim orders in terms of prayers above.
(e) Such further or other order and/or orders be passed, direction and/or directions be given, as this Hon'ble Court may deem fit and proper."
2. The petitioner-plaintiff contends as follows.
2
(i) In response to the new disclosures made by defendant no.4 by way of its covering letter dated 20th December, 2023 and 26th February, 2024 whereby a new case has been sought to be made out in the course of trial by defendant no.4, after completion of plaintiff's witness action, certain additional documents are required to be proved and exhibited before the Court.
(ii) The petitioner-plaintiff intends to rely on the following list of documents:
"4. After perusing the documents which have been brought on record, some of the documents need to be dealt with by the Plaintiff/Petitioner and in response Plaintiff/Petitioner wishes to rely on the following list of documents:
(a) Exchange Control Declaration (GR) Forms issued by RBI in respect of 9 Letters of Credit which have not been honoured by the Defendant no.4.
(b) Reserve Bank of India forwarding the complaint of Punjab National Bank against the Defendant no.4 to Indo-Bangladesh Joint Business Council (Banking Sub-Group) on 18.03.2005.
(c) Reserve Bank of India writing to Punjab National Bank on 23.02.2006 for non-payment by LC opening bank, Defendant no.4 of Bangladesh.
(d) Letter from Reserve Bank of India, Foreign Exchange Department, Kolkata Regional Office to Plaintiff/Petitioner dated 16.10.2008 regarding non-realisation of export proceeds.
(e) Punjab National Bank, being the negotiating Bank of the Plaintiff/Petitioner followed up with the Reserve Bank of India, inter alia, on 16.11.2005 requesting for extension of the due date for recovery of foreign exchange into India.
(f) Extension granted by the Reserve Bank of India, Foreign Exchange Department for realizing export proceeds, against the aforesaid GRs, from time to time, in respect of the 9 LCs which are not honoured by the Defendant no.4.
(g) Notice received by Plaintiff/Petitioner from the Directorate of Enforcement on 23.04.2013 regarding outstanding export proceeds for consignments sent to the importers in Bangladesh being the Defendant nos. 2 and 3 herein.
(h) Response given by the Plaintiff/Petitioner to the Directorate of Enforcement on 6.05.2013.
(i) Documents disclosed to Directorate of Enforcement on 20.08.2010 in response to their letter dated 5.08.2010.
(j) Audited Balance Sheet of the Plaintiff/Petitioner for the years 2004-
2005 to 2023 along with Income Tax Returns from 2007 to 2023." 3
(iii) The petitioner-plaintiff did not press for a formal application being taken out by the defendant no.4, with regard to such late disclosures of documents, for the only reason that the petitioner- plaintiff wanted to avoid further delay in hearing of the suit. It was incumbent upon the defendant no.4 to give reasons for such belated discovery in a suit instituted in the year 2005 and discovery and inspection been completed.
(iv) Such disclosures by defendant no.4 ought to have been made prior to the closure of the plaintiff's witness action. Be that as it may, since the petitioner-plaintiff did not get the opportunity to deal with the same earlier, the petitioner-plaintiff seeks to bring on record the aforesaid list of documents in response to the new disclosures made by defendant no.4 and re-examine the plaintiff's witness only limited to the aforesaid documents. The non-disclosure of documents by the petitioner-plaintiff was due to following reasons, firstly, the plaintiff did not realize the importance of the same, secondly, the petitioner- plaintiff forgot about the existence of the same and lastly, most of the documents were not with the plaintiff at the time of preparation and filing of the plaint.
3. The aforesaid application has been keenly contested by opposite party-defendant no.4 contending, inter alia, as follows:
(i) The documents disclosed under the covering letter dated 20th December, 2023 and 26th February, 2024 are the documents which had been relied upon by the defendant no.4 at the time of filing its 4 written statement. The defendant no.4 had only sought to disclose some of those documents only which have not been disclosed on any earlier occasion. As such, the issue of new case being made out by defendant no.4 does not arise at all.
(ii) Although the suit was filed in the year 2005, the examination-in-
chief of the only witness of the plaintiff was concluded sometime in the year 2023 and as such disclosures made by the covering letters cannot be said as belated in any manner. In any event, defendant no.4 had relied on these documents from the very beginning as would be evident from the written statement itself and as such the petitioner-plaintiff had the knowledge about defendant no.4 relying on such documents from the time of filing of the written statement.
(iii) The documents which the petitioner seeks to rely upon do not form part of the affidavit submitted by the petitioner-plaintiff. In fact, majority of the documents dates back to the years 2005, 2006, 2008, 2010 and 2013 except the audited balance sheet of the petitioner- plaintiff for the recent years. At this stage, when the plaintiff's witness action has already been closed and the witness of defendant is being cross-examined on behalf of the petitioner-plaintiff no new disclosures can be made by the petitioner-plaintiff.
(iv) The reasons stated by the petitioner-plaintiff for disclosing additional documents are of no use since it is due to belated steps taken by the petitioner-plaintiff in the suit that such a long gap between the filing of the suit and the disclosure took place. Although such documents were not there at the time of preparation or filing of 5 the plaint in the suit, the same were available with the plaintiff at the time of the filing of the affidavit before the Hon'ble Court. Hence the plaintiff cannot take advantage of the reasons enumerated in the petition.
(v) The documents sought to be disclosed by the plaintiff has no connection since none of the documents could shade any light on the validity of the seals of the Bangladesh customs or with regard to payment at site which is only dependent upon the documents and the terms of the concerned letters of credit and as such the question of granting leave to the plaintiff for disclosure of these documents cannot arise.
In light of the above, the opposite party-defendant no.4 prayed for dismissal of the application.
4. Mr. Swarnendu Ghosh, learned advocate for the petitioner-plaintiff submitted that the defendant no.4 during the course of his cross- examination tried to make out a case of money laundering and collusion against the petitioner-plaintiff which has not been pleaded. No case has been made out by the importer of deception. Whereas the bank which issued the letters of credit makes out a case of deception which is unacceptable. The documents which the plaintiff sought to disclose additionally though some were within the knowledge and possession of the petitioner-plaintiff but that was not produced since the importance was not realized by the petitioner-plaintiff. However, with the deposition of the defendant no.4-bank making out a case of money laundering, upon relying on the judgment passed by Metropolitan Magistrate, Rajsahi, it 6 necessitated for disclosing additional documents to establish the credential of the petitioner-plaintiff. The documents as mentioned in paragraph no.4 of the petition are very much required for just adjudication of the case. In the written statement there is no reflection of the aforesaid criminal cases before the Metropolitan Magistrate. Although in the affidavit-in-evidence of defendant no.4 there is mention of the aforesaid criminal proceedings but the findings and the judgment/order has not been mentioned and thus it is subsequent finding of the Court which was not within the knowledge of the petitioner-plaintiff till the examination of the defendant no.4. Order XI of Civil Procedure Code (hereinafter referred to as the 'Code') though restricts the plaintiff from relying on a document not disclosed along with the plaint save and except by the leave of the Court, but such leave can be granted by the Court if the plaintiff establishes reasonable cause for non- disclosure along with the plaintiff. In the facts and circumstances of the case, the documents enumerated in paragraph no.4 was not disclosed since there was no requirement at the first instance but with the examination of the defendant no.4 deposing of money laundering the disclosure of additional documents as enumerated in paragraph no.4 becomes imperative. He seeks for appropriate orders in terms of prayers made hereinabove in the Notice of Motion.
5. On the contrary, Mr. Rupak Ghosh, learned advocate for the opposite party-defendant no.4 submitted that in the affidavit-in-evidence the details of the criminal proceedings before the Metropolitan Magistrate at Rajsahi, had been clearly mentioned and, therefore, the petitioner-plaintiff should not be allowed to make a ground of reasonableness on the basis of lack of 7 knowledge of the pending proceedings. Most of the documents as enumerated in the paragraph no.4 was within the knowledge and possession of the plaintiff. The petitioner-plaintiff has not made out any reasonable ground for the Court to grant leave to disclose the additional documents. In the affidavit-in-evidence of defendant no.4, the case numbers of the criminal proceedings were mentioned, however, no such application was filed by the petitioner-plaintiff within the extended period of 30 days after the suit was converted under the Commercial Division of this Court. The written statement in paragraph no.24 clearly spells out a case of fraud and/or forgery by the petitioner-plaintiff. Paragraph no. 32 of the written statement equally pleads fraudulent paper transaction created by the petitioner-plaintiff. The copy of both the complaint cases before the Metropolitan Magistrate's Court at Rajsahi were made part of Judge's Brief of Documents served upon the plaintiff. The plaintiff thus was aware of the case of the defendant no.4-bank of fraud and forgery. Despite having such knowledge, the plaintiff did not disclose the documents enumerated in paragraph no.4. Further no case has been made out that the documents were not in possession, power, and control of the petitioner-plaintiff. He seeks for dismissal of the application. In support of his contention, he relied on the decision of this Court passed in Star Paper Mills Ltd. versus Eastern Coalfields Limited1.
6. In reply to aforesaid contention of the opposite party-defendant no.4, Mr. Ghosh, learned advocate for the petitioner-plaintiff argued that the importers have admitted of receipt of the goods in question which is 1 2023 SCC OnLine Cal 841 8 evident from the letter namely Exhibit PP & QQ. The defendant-Bank cannot be a decision maker whether to honour the Letters of Credit or not. The judgment passed in the criminal proceedings by Metropolitan Magistrate, Rajsahi holds that the accused Akram Hossain has conspired with the exporter (i.e. the plaintiff) in such transaction, which is a subsequent event and therefore additional documents would be required to establish the sanctity, authenticity and genuineness of the transaction. The petitioner-plaintiff did not have the occasion to disclose those documents since no case of conspiracy and/or money laundering was made out.
7. Having heard learned advocates for the respective parties, the only issue which falls for consideration is whether the test of reasonable cause as required under Order XI Rule 1(5) of the Code for non-disclosure of documents stood satisfied.
8. Before delving into the merits of the application, it would be profitable to reproduce the relevant provision of order XI Rule 1(5) of the Code which read hereunder:
"(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."
9. Upon bare reading of the aforesaid provision, it manifest that the plaintiff has to satisfy and establish a reasonable cause for non-disclosure along with plaint the documents which the plaintiff intends to place on record by way of additional documents. At the same time, the requirement 9 for establishing a reasonable cause for non-disclosure of the documents along with the plaint shall not be applicable if it is averred and it is the case of the plaintiff that those documents have been found subsequently and in fact were not in the plaintiff's power, possession, control or custody at the time when the plaint was filed. Reasonable cause necessarily must refer to a cause which was outside the control of the petitioner and which prevented the petitioner from disclosing the concerned documents along with the plaint.
10. Admittedly, the documents under serial no.(b), (c), (d), (e), (f), (g), (h),
(i) and (j) of paragraph no.4 of the application are all subsequent documents to the date of filing of the suit on 8th February 2005. It is not in dispute that the documents under serial no.(a) of paragraph no.4 of the application were within the power, possession, control and custody of the petitioner-plaintiff. The nomenclature of the document being "Exchange Control declaration Form" issued by Reserve Bank of India in respect of 9 numbers of Letter of Credit which have not been honoured by defendant no.4.
11. In order to examine the aspect of reasonable cause of non-disclosure of the documents it would be profitable to have reference to the plaint case and the defence case.
12. The plaintiff's case is that in an around September 2004 it agreed to sell red whole lentils without husk and fresh cumin seeds of agreed specifications to defendant no. 1 to 3 under certain terms and conditions. It was agreed that the defendant nos. 1 to 3 would cause payment to be made by irrevocable Letter of Credit to be caused through defendant no.1's 10 banker namely Janata Bank PLC, Rajsahi Corporate Branch, Bangladesh (defendant no.4). At the request of defendant no.1 to 3, the said bank (defendant no.4) duly opened nine Letters of Credit aggregating to a total sum of US $ 3,44,770. As per the terms of the Letters of Credit the defendant no.4-Bank would honour the drafts on presentation and would remit payment of due dates on receipt of documents complying with the terms of the credit. The defendant n o.4-Bank did not honour the Letters of Credit alleging of discrepancies in the documents submitted and failed to make payment of the amounts payable under the said Letters of Credit. Per contra, the defence case is that there were discrepancies in the documents submitted by the plaintiffs particularly regarding absence of clearance from the Bangladesh Customs Authority. The Customs authorities of Hili informed the defendant No. 4 that no goods whatsoever were imported to the said Customs stations on the basis of the said Letters of Credit and further the signatures on the invoices alleged to have been of the Customs Authorities were completely fake.
13. Upon primary analysis of the pleadings it is found that the defendant no.4-Bank has tried to make out a case that the documents submitted by the plaintiff is forged and fake. In order to establish the defence case of forgery, the defendant no.4-Bank produced the certified copy of the judgement passed by Metropolitan Magistrate, Rajsahi, Bangladesh in Suit No. CR 107/2005 filed by it before such Court. Needless to mention that there is no reference of the aforesaid criminal proceeding in the written statement filed on 29th April, 2008 although such criminal proceeding was initiated by defendant no.4 prior to filing of the written statement. The 11 defence witness admits in cross-examination that the case pertaining to criminal proceedings have only been mentioned in the affidavit of evidence and that the order/judgement passed in the criminal proceedings by the Metropolitan Magistrate could not be mentioned in the affidavit of evidence since such order was pronounced subsequently. The defence witness also admits that the order of the Metropolitan Magistrate passed in criminal proceedings records the fact of money-laundering because it was found that the goods have not been exported to Bangladesh upon verification of the documents by the Customs Authority in connection with the Letters of Credit. It is relevant to note that the criminal cases were proceeded by the defendant no.4-Bank on the plea that accrued no.1, Akram Hossain (importer) informed verbally as well as in writing that he received all goods against the Letters of Credit and instructed to pay all the money to exporter's Bank though no goods reached to Bangladesh against such Letters of Credit. Further accused no.1 in collusion with related exporter in India (i.e. the plaintiff herein) tried to misappropriate valuable foreign currency for their own illegal gains. The accused no.1 has been held guilty of such offence. Thus, a document has been exhibited in the instant suit on behalf of the defence containing pronouncement of a decision of a criminal court holding collusion with and misappropriation of valuable foreign currency in respect of Letters of Credit in question in criminal proceedings the details of which has not been mentioned in the written statement. There cannot be any quarrel that the aforesaid pronouncement of the criminal court, Rajsahi is a subsequent event. Although the defendant no. 4 had pleaded of alleged forgery of documents by the 12 plaintiff but it is pertinent to note that no case of collusion and misappropriation of foreign currency has been made out by defendant no. 4 in its written statement and as such it appears that a new defence case is being made out. The plaintiff, therefore, in no circumstances would have disclosed further evidence regarding the authenticity and genuineness of the transaction. Now since a pronouncement of the criminal court of Rajsahi, Bangladesh has been exhibited holding collusion and misappropriation of valuable foreign currency in respect of Letters of Credit in question, which was not there earlier, the plaintiff ought to get an opportunity to place the documents in support of authenticity and genuineness of such transaction.
14. Again, bearing in mind the legal principles of pleadings, it must be noted that a plaintiff is not obligated to furnish a detailed disclosure of each document in the plaint itself. The core of a pleading lies in the enunciation of material facts and not the amplification of every document that supports those facts. Under Order XI of the Code, a duty is imposed upon the parties to a suit to disclose all relevant documents that are within their power, possession, control or custody, at the earliest opportunity. Therefore, though law requires a basic level of transparency qua critical documents, yet it does not insist on any exhaustive specification of every single document in the pleadings. One must be conscious that this requirement of disclosure serves to streamline the issues and prevent surprises at the stage of trial. The object behind such provision is to provide the parties to the suit, a fair notice of the case they need to meet, rather than to provide them with an exhaustive disclosure of 13 each document in the plaint. Moreover, the express provision under Order XI of the Code to take on record additional documents filed belatedly, with the leave of the Court, indicates the legislative acknowledgment of potential circumstances that could arise leading to delayed disclosure or submission of some documents on justifiable reasons. The restriction under Order XI Rule 1(5) of Code against filing of additional documents is not absolute, but conditional, allowing for their inclusion with permission of the Court.
15. Needless to say, that in order to seek leave of the Court to file additional documents under Order XI Rule 1(5) CPC, plaintiff is required to establish a reasonable cause for non-disclosure of the same along with the plaint and not to establish a reasonable cause for non-filing of the same along with the plaint. There is a significant distinction between the reason for non-disclosure of a document at the time of filing of the plaint and the reason for non-filing of the same along with the plaint as the furnished reason may be reasonable for non-filing of the same, but the same reason may not be reasonable for non-disclosure of the same.
16. The Court has now to determine if there was a justifiable reason for the delayed submission of these documents. Since the subsequent pronouncement of the criminal court, at Rajsahi, Bangladesh has been exhibited on behalf of the defence holding collusion with and misappropriation of valuable foreign currency in respect of Letters of Credit in question, which is a new case, hence the plaintiff now has to meet a new case of money laundering and misappropriate of valuable foreign currency upon producing evidence of higher quality to establish the 14 genuineness and authenticity of the transaction with defendant no1 to 3. Hence in the opinion of this court it is a reasonable cause for non- disclosure of document under serial no. (a) of paragraph no.4 i.e. "Exchange Control declaration Form" issued by Reserve Bank of India in respect of 9 numbers of Letter of Credit which have not been honoured by defendant no.4, which may not have been required had there been no case of collusion with and misappropriation of valuable foreign currency made out in evidence by defendant no.4. So far as the other documents under serial no.(b), (c), (d), (e), (f), (g), (h), (i) and (j) of paragraph no.4 of the application are concerned, those are all subsequent documents to the date of filing of the suit on 8th February 2005. The ground no.(A) and (B) of paragraph no.9 of the application may not be an acceptable ground, however, for the reason of a new case being made out by defendant no.4- Bank, a reasonable ground is established. Accordingly, the plaintiff should be permitted to bring on record additional documents as mentioned in paragraph no. 4 of the instant application.
17. In Star Paper Mills Ltd. (supra) all the documents were found to be of the year 2011 to 2015 i.e. prior to filing of the suit and were in possession of the plaintiff. The facts are distinguishable from the case at hand and hence does not apply to this case.
18. In light of the above discussion, the application being GA-COM 17 of 2024 is allowed as follows:
(i) The petitioner-plaintiff is directed to disclose the list of additional documents mentioned in paragraph no.4 of the application. 15
(ii) The petitioner-plaintiff is permitted to recall its witness on account of proving the said additional documents mentioned in paragraph no.4 of the application hereinabove.
(iii) The petitioner-plaintiff is directed to give inspection and copies of the said list of documents mentioned in paragraph no.4 above to the defendant no.4 within 5 working days from the passing of this order.
19. The application being GA-COM 17 of 2024 stands disposed of.
20. Urgent photostat certified copy of the order, if applied for, be given to the parties after completion of all necessary legal formalities.
(Bivas Pattanayak, J.)