Calcutta High Court
Ashutosh Gayen vs State Of West Bengal & Ors on 11 September, 2025
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
(COMMERCIAL DIVISION)
PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK
IA NO: GA-COM/6/2024
In
CS-COM/688/2024
ASHUTOSH GAYEN
VS
STATE OF WEST BENGAL & ORS.
For the plaintiff : Mr. Sarathi Dasgupta, Advocate
Mr. Narojit Mukherjee, Advocate
Mr. Sourav Chatterjee, Advocate
For the defendant nos.2 & 4 : Ms. Suparna Mukherjee, Senior Advocate
Mr. S. Ghosh, Advocate
Reserved on : 19th March, 2025
Delivered on : 11th September, 2025
ORDER
Bivas Pattanayak, J. :-
1. By the present application the applicants-defendant nos. 2 & 3 prayed as follows.
"a) The evidence of Sk. Mohammed Hossain, the witness of the defendant nos. 2 and 3, already on record be expunged and the said Exhibits 7-13 tendered by him during his examination-in-chief be returned to the defendant nos. 2 and 3.
b) The plaintiff be directed to file his affidavit of admission and denial with regard to the documents disclosed in the Defendants' Judge's Brief of Documents within such time as may be deemed fit and proper by this Hon'ble Court.
c) Leave may kindly be given to the defendant nos. 2 and 3 to file the Affidavit on Evidence of their witness within such time as may be fit and proper by this Hon'ble Court.
d) Any other relief and/or reliefs and direction and/or directions which to this Hon'ble Court may deem fit and proper."2
2. The applicants contend as follows. The plaintiff-respondent filed a suit for declaration that the imposition of liquidated damage is illegal and void ab initio and contrary to the terms of the contract and not binding on the plaintiff; declaration to the effect that the purported retention of power to terminate the contract by party to contract is void; decree for Rs.71,90,911/- and decree for refund of bank guarantee bond of Rs.7,00,000/- and interest along with consequential reliefs. In the said suit, the applicants-defendant nos. 2 & 3 entered appearance and filed written statement along with a counter-claim of an amount of Rs.3,64,281/-. In support of his case, the plaintiff adduced his evidence which was completed. The plaintiff did not adduce any further witness. The examination-in-chief of the defence witness namely Sk. Mohammed Hossain commenced on 16th December, 2019 and continued on 9th January, 2020 and 12th February, 2020 but was not concluded. Due to Covid Pandemic, the hearing of the suit was adjourned, however, in the meantime, the said witness retired from service on 31st July, 2023. The applicants-defendant nos. 2 & 3 requested the witness to resume his evidence. However, due to various ailments the said witness could not attend the hearings and resume his evidence in order to conclude the same. In the said backdrop, the applicants-defendant nos. 2 & 3 have made a prayer as indicated in paragraph no.1 hereinabove.
3. The aforesaid application had been keenly contested by the respondent-plaintiff by filing affidavit-in-opposition denying, inter alia, the pleadings of the applicants and contending as follows. The defendants had a prior knowledge that the said witness would retire on superannuation on 3 31st July, 2023 and, therefore, it ought to have taken proper steps for resuming the evidence of the said witness for its conclusion. It is the duty of the defendants to produce its witnesses and instead of doing the same, the defendants have cooked up the story of ailment of the said witness as a ground for not examining the said witness. Neither any scrap of paper has been produced nor disclosed pertaining to the kind of ailment the said witness is suffering. Thus, with ulterior motive to stop his examination the present application has been filed which is not at all tenable in the eye of law. On such score, the respondent-plaintiff sought for dismissal of the application.
4. In response, an affidavit-in-reply is filed by the applicants-defendant nos. 2 & 3 as follows. The applicants-defendant nos. 2 and 3 had every intention of getting the evidence of the said witness completed irrespective of the fact of his retirement and had also requested him to do so. It is only because the witness informed the applicants-defendant nos. 2 and 3 that he was suffering from various ailments and because of the same, he would not be able to attend the hearings, the defendant nos. 2 and 3 find themselves in a position where they are unable to complete the examination-in-chief of the said witness. It is evident that the applicants- defendant nos. 2 and 3 had no intention to withhold in producing the said witness. On the contrary, they made all attempts for adducing the evidence of the said witness through several correspondences.
5. Ms. Suparna Mukherjee, learned Senior Advocate appearing for the applicants-defendant nos. 2 and 3 submitted that in order to prove their case, the defendants produced one witness Sk Mohammed Hossain whose 4 examination-in-chief commenced on 16th December, 2019 and continued on several dates upto 16th March, 2020. Due to Covid Pandemic, the examination-in-chief of the said witness could not be concluded. In the meantime, the said witness retired from service on 31st July, 2023. The applicants-defendant nos. 2 and 3 tried their level best to produce the said witness, however, since the said witness was suffering from various ailments, the further examination of the witness could not be resumed. It is evident that it is beyond the authority and capacity of the applicants- defendant nos. 2 and 3 to compel the said witness to come to Court for conclusion of his witness. There was no laches and/or negligence on the part of the applicants-defendants in producing the said witness. The stand of the plaintiff that the defendants would be estopped from relying on a portion of the witness already on record and on the other hand the documents already on record as exhibits cannot be returned to the aforesaid defendant for re-tendering through a fresh witness, is nothing but an unfair and misconceived attempt on the part of the plaintiff to prevent the aforesaid defendants from bringing their best evidence in support of their defence and counter claim. It is the right of every litigant to bring on record the best material available to him for proving his own case.
Relying on the Halsbury Laws of India on Evidence Volume XV at page 456, she submitted that a witness should be examined-in-chief, then cross- examined if the adverse party so desires, then re-examined if the party calling him so desires. Tendering of a witness for cross-examination without examination-in-chief is not warranted by law; it would amount to 5 failure to examine the witness at the trial. The mere statement of the plaintiff's witnesses cannot constitute the plaintiff's evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintiff's witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiff's evidence cannot be acted upon. Therefore, any evidence not tested by cross-examination by the opponent party cannot be said to be a foolproof evidence. It is the right of a party adducing evidence to get their evidence tested by cross-examination by opposite party to dispel all doubts regarding the veracity of such evidence. Any evidence not tested by way of cross-examination cannot be used against the party who has brought the evidence on record in support of his own case. To buttress her contentions, she relied on the decision of Hon'ble Supreme Court passed in Modula India versus Kamakshya Singh Deo1. In such attending circumstances, the present application has been filed by the applicants-defendant nos. 2 and 3 for expunging the evidence of Sk Mohammed Hossain with liberty to adduce evidence of fresh witness and consequently also for return of exhibited documents marked Exhibits 7 to 13 and re-tendering the same on behalf of the defendants. As per Section 15(3) of the Commercial Courts Act, 2015, the provisions of the Act will apply to any procedure that were not completed at the time of transfer. In the present case, the suit was transferred to the Commercial Division by the Order of this Hon'ble Court by order dated 7th May, 2024 and re-numbered as CS-COM No. 688 of 2024. Prayer was made before the 1 (1988) 4 SCC 619 6 Court referring to Section 15(3) of the Commercial Courts Act, 2015 that affidavit of admission and denial of the documents disclosed by the defendants in its Judge's Brief of Documents may also be filed by the plaintiff. Upon hearing such oral prayer made on behalf of the defendants, Hon'ble Court inter alia was pleased to direct the aforesaid defendants to file an application in that regard for orders to be passed by the Hon'ble Court. Hence, prayer has been made seeking direction upon the plaintiff to file his affidavit of admission and denial with regard to the documents disclosed in the Defendants' Judges Brief of Documents within a specified period.
In light of her aforesaid submissions, she sought for prayers in terms of prayers (a), (b) and (c) of the Master's Summons.
6. On the contrary, Mr. Sarathi Dasgupta, learned advocate for the plaintiff-respondent, at the outset, submitted that the plaintiff does not stand in the way so far as the prayer (c) of the Master's Summons is concerned, since the Hon'ble Court is well entitled to pass such directions in exercise of its authority under Order XV-A of the Code of Civil Procedure, 1908 in its application to Commercial Division. As regards the prayer for expunging of the evidence of the witness already produced is concerned, he submitted that merely because the testimony is not subject to cross-examination, would not make such testimony liable to be expunged but its evidentiary value requires to be considered at the time of hearing. The instant application of the applicants-defendant nos. 2 & 3 have been proceeded with on the sole ground that the witness had retired from service and is unable to adduce evidence on account of his physical 7 condition and hence direction has been sought for examination of fresh witness. Correspondences have been annexed to the affidavit-in-reply. Be that as it may, those documents do not show in any manner that applicants-defendant nos. 2 & 3 have even sought to exhaust their remedy to compel attendance of the said witness either apropos Section 31 of the Code and/or make any effort for appointment of a Commissioner to examine such witness in terms of Order XXVI of the Code. Therefore, the applicants-defendant nos. 2 & 3, who have not exhausted their statutory remedy to produce witness, are not entitled to the prayer for expunging of the evidence of the said witness. In support of his contentions, he relied on the following decisions.
(i) Mt. Horil Kuer and another versus Rajab Ali and others2
(ii) Mangal Sen versus Emperor3
(iii) Bhaswati Ray versus Smt. Tapasee Chowdhury & Anr.4 Further with regard to return of the admitted documents, he submitted that the applicants-defendant nos. 2 & 3 would have to satisfy the provisions contained in Order XIII Rule 9 of the Code. Otherwise merely because the applicants are allegedly unable to present such witness cannot be a ground to return the admitted documents for further re-
tendering.
Moreover, so far as filing of Statement of admission and denial is concerned, he submitted that Order XI Rule 4 of the Code comes into effect after the stage of inspection and discovery under Rules 1, 2 and 3 which 2 1935 SCC OnLine Pat 208 (Decision of Patna High Court) 3 AIR 1929 Lah 840 (2) (Decision of Lahore High Court) 4 2017 SCC OnLine Cal 20416 (Decision of Calcutta High Court) 8 comes upon filing of the written statement. In any event these stages are all prior to the stage of trial and/or the commencement thereof. The overall scheme of the Code as to the different stages of the suit has not at all been disturbed by the amendments brought forth by the Commercial Courts Act, 2015. Admittedly, witness action has started since long. The examination-in-chief of the plaintiff commenced in or around 13th October, 2015 and his examination has been concluded. The examination-in-chief of the witness of the applicants has commenced but not concluded. Thereafter on 7th May, 2024, the suit was transferred to Commercial Division by the Hon'ble Court. Therefore, the stage for admission and denial of documents has long since passed. As the suit having been transferred to the Commercial Division much after the witness action has commenced, there is no scope of making any further admission or denial of documents. Though under Rule 4 of Order XI of the Code, each party is called upon to file Statement of admission and denial but the witness action on behalf of the plaintiff having been completed, the plaintiffs surely cannot be called upon to file such statement of admission or denial of documents with regard to the documents disclosed on behalf of the defendants. Thus, it is clear that calling upon the plaintiff to file such statement at this stage would be contrary to the mandate of the statute and prejudicial to the plaintiff. This Hon'ble Court in Sayan Sarker versus Austin Distribution Private Limited5 has reiterated that legislature intended to make a separate provision with regard to transferred suits. The Hon'ble Madras High Court in its decision in M/s. 5 AIR 2021 Cal 169 9 Kapoor Imaging Private Limited versus M/s. Kodak Polychrome Graphics Asia Export Pvt. Ltd. and Others6 opined that the employment of phrase "those procedures" in the plural instead of singular shows inter alia that not any particular single procedure is being talked about but the various different procedures that necessarily govern the various stages of a suit. If by the time a suit is transferred, a particular stage of the suit is already over, there is no question of revisiting such stage. The rigours of the Commercial Courts Act and/or the Code in its application to Commercial Division would only apply to such stages and such procedures which are yet to take place. Order XV-A deals with the conduct of the suit which arises after filing of pleadings. The aforesaid provision confers an additional power upon the Commercial Division receiving such transferred suits to also make any order with respect to filing of written statement in exercise of its powers under Order XV-A, for a suit instituted in the Commercial Division.
In light of his aforesaid submissions, he prayed for dismissal of the application.
7. In reply to the contentions raised on behalf of the respondent-plaintiff, learned Senior Advocate appearing for the applicants-defendant nos. 2 & 3 submitted that the judgments relied upon relate to criminal appeals. The standard of proof in civil cases is preponderance of probabilities while in criminal cases the standard of proof is beyond reasonable doubt. Further in the decision of the Hon'ble Patna High Court in Mt. Horil Kuer (supra), the witness expired before cross-examination, and in Mangal Sen (supra), 6 O.S.A. Nos.235 and 239 of 2020 10 examination-in-chief was completed. In Bhaswati Ray (supra), part cross- examination was conducted. In the instant case, the examination-in-chief was not concluded and the stage of cross-examination on behalf of the plaintiff has not reached. Hence, those decisions are distinguishable. Moreover, no specific point has been taken by the plaintiff in its affidavit- in-opposition with regard to the compliance of the provisions under Section 15(3) of the Commercial Courts Act, 2015, pursuant to prayer of the applicants-defendant nos. 2 & 3 seeking direction upon the plaintiff to file affidavit of admission and denial with regard to the documents disclosed in the Defendants' Judge's Brief of Documents. The decisions of this Hon'ble Court in Sayan Sarker (supra) and M/s. Kapoor Imaging Private Limited (supra) do not support the case of the plaintiff-respondent. Relying on the decision of the Hon'ble Supreme Court passed in B. Premanand and Others versus Mohan Koikal and Others7, she submitted that, if the provision is unambiguous, there is no scope to further interpretation of the statute.
Provisions of Order XIII Rule 9 of the Code of Civil Procedure has no manner of application in the present case, since the premise on which the applicants-defendants have prayed for return of documents is completely different.
8. Upon hearing the learned advocates for the respective parties, it is found that following issues are to be considered, examined and assessed in the instant application.
7 (2011) 4 SCC 266 11
(i) Whether the evidence of witness Sk Mohammed Hossain, the witness of defendant nos. 2 & 3, already on record be expunged and defendants be allowed to re-tender the documents?
(ii) Whether the exhibited documents namely Exhibit nos. 7 to 13 tendered by the witness during his examination-in-chief be returned to defendant nos. 2 & 3?
(iii) Whether the plaintiff be directed to file his affidavit of admission and denial with regard to the documents disclosed in Defendants' Judge's Brief of Documents within a stipulated period?
(iv) Whether leave be granted to the defendants to file the evidence on affidavit of their witnesses within a stipulated time? Issue No.(i) : Whether the evidence of witness Sk Mohammed Hossain, the witness of defendant nos. 2 & 3, already on record be expunged and defendants be allowed to re-tender the documents?
9. It is the contention of the applicants-defendant nos. 2 & 3 that examination-in-chief of the defence witness namely Sk. Mohammed Hossain commenced on 16th December, 2019 and continued on 9th January, 2020 and 12th February, 2020 but was not concluded. Due to Covid Pandemic, the hearing of the suit was adjourned, however, in the meantime, the said witness retired from service on 31st July, 2023. The applicants-defendant nos. 2 & 3 requested the witness to resume his evidence. However, due to various ailments, the said witness could not attend the hearings and resume his evidence for concluding the same. Per contra, respondent-plaintiff contended that no scrap of paper has been placed on record pertaining to the ailments of the witness and, therefore, the same is totally cooked up stories.
129.1. From the aforesaid averments of the applicants-defendant nos. 2 & 3, it is clear that the only ground pressed into service for expunging the evidence of the said witness is of inability of the witness to attend Court due to various ailments.
9.2. It is found from annexure 'A' of the affidavit-in-reply that correspondence have been made from the side of the applicants-defendant nos. 2 & 3 with the said witness intimating him of the date of 'Witness Action' and requesting him to remain present on such date. Though the said witness did not turn up to adduce evidence in Court, yet he replied to the aforesaid correspondence on 16th April, 2024. In his reply, the said witness stated that he is suffering from chronic low back pain due to disc bulge at L4/L5 level which increases on movement and prolonged sitting. About eight months before retirement he suffered from Dengue Haemorraghic fever. He was affected twice with Covid during the pandemic. Further witness also stated that he underwent surgery for removal of stone in the gallbladder. Therefore, it manifests from the letter under reference that the said witness is suffering from various ailments. 9.3. Relying on Mt. Horil Kuer (supra), Mangal Sen (supra) and Bhaswati Ray (supra), it has been strenuously argued on behalf of the respondent- plaintiff that the evidence of the said witness cannot be expunged automatically as such evidence is admissible but the weight to be attached to it depends upon the circumstances of each case. On the contrary, learned Senior Advocate appearing for the applicants-defendant nos. 2 & 3 with reference to Halsbury Laws of Evidence, Volume 15 and Modula India (supra) submitted that it is settled proposition of law that no oral testimony 13 can be considered satisfactory or valid unless and until it is tested by cross-examination. Mere statement of the party's witness cannot constitute party's evidence in the case unless and until it is tested by cross- examination.
9.4. Admittedly, the examination-in-chief of the said witness has not been completed. During examination-in-chief in part, certain documents have been exhibited by the said witness marked as Exhibit nos. 7 to 13 respectively. Thus, the stage of cross-examination of the witness has not reached at all.
9.5. Now the question which falls for consideration is whether in such circumstances the evidence of the said witness is at all valid and can be acted upon in trial.
9.6. Section 138 of the Evidence Act provides the order of examination-in- chief, cross-examination and re-examination which is the most important aspect of a trial and is very much relevant in this context and is thus reproduced for the sake of convenience of discussion.
"138. Order of examinations.
Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re- examined.
The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination. - The re-examination shall be directed to the explanation of the matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter."
9.7. The order of examinations laid down by this section is the same as that fixed by common law in England. The peculiar effect of this arrangement is, on the one hand, that it secures to each party the untrammelled pursuance of his own line of proof in the handling of each 14 witness and on the other hand, that it provides for the exhaustion of the entire knowledge of each witness at a single occasion by his successive examination by both parties before he leaves the stand and thus secure the concentrated attention of the Court to the significance of his testimony as a whole and the bearing of his general credit on his specific statements. 9.8. Cross-examination is universally accepted and acknowledged to be a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. The paramount object of cross examination is to halt falsehood in its tracks and discover the truth before the courts of justice. A right to cross examine a witness is an integral part of the examination of a witness so much so that whenever a witness is examined, any failure to provide opportunity to the opposite party to exercise such right to cross-examination will render the examination incomplete and ineffective unless such party waives or abandons such a right. Section 138 of the Evidence Act, confers a valuable right of cross examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned (i) to test his veracity;
(ii) to discover who is and what is his position in life; or (iii) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him a penalty of forfeiture. Section 138 of the Evidence Act impliedly lays down that the statement of witness would be read as evidence against a party only if it was tested on the anvil of cross-examination or opportunity was afforded for such purpose. All 15 witnesses are subject to cross-examination. The right of cross-examination could not be curtailed or circumscribed on one pretext or the other or in one way or the other, as shutting up of cross-examination would necessarily result in injustice to the cause and to the party against whom the statement is intended to be used. Cross-examination is one of the most useful and efficacious means for discovering truth. In the case at hand, the witness is only examined-in-chief in part and is unable to appear in Court due to his various ailments and thus his examination has remained incomplete. Needless to state that since the examination-in-chief could not be completed, no occasion arose for his cross-examination. Under such circumstances, in the event of witness being not put to cross-examination for any reason, his evidence cannot form integral part of evidence. 9.9. The Hon'ble Supreme Court in Modula India (supra) observed as follows.
" 18............. It is a well-established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross- examination. The mere statement of plaintiff's witness cannot constitute the plaintiff's evidence in the case unless and until it is tested by cross examination. The right of the defence to cross examine the plaintiff's witness can, therefore, be looked upon nought as a part of its own strategy of defence but rather as the requirement without which the plaintiff's evidence cannot be acted upon."
Such observation of the Hon'ble Supreme Court has also been expressed in Halsbury Laws of Evidence, Volume 15.
9.10. In the backdrop of the purpose of cross-examination as enumerated in the foregoing paragraphs and bearing in mind the observation of the Hon'ble Supreme Court, it can well be said that since the examination-in- chief of the said defence witness could not be completed and the witness has not been placed for cross-examination for the reasons of his ailments, 16 the part evidence of the said witness cannot be acted upon as it could not be tested in the anvil of cross-examination. For such reason, it would be unnecessary to keep such evidence as a part of the record which cannot form integral part of evidence. Needless to mention that no circumstances have been shown by the respondent-plaintiff that the prayer made by the applicants-defendant nos.2 & 3 for expunging of such evidence is cloaked with ulterior motive.
9.11. It has been vociferously argued on behalf of the respondent-plaintiff that the applicants have not exhausted the provisions as provided in the Civil Procedure Code for further examination of the witness by way of commission. It is true that the applicants-defendant nos. 2 & 3 could have taken steps for examination of the said witness through commission. However, such aspect could have arisen if the witness was willing to depose. In the present case as the witness is unable to adduce evidence due to his ailments and is not willing for reasons of his bad health, it would be a futile exercise to proceed for further examination of such witness by way of commission. That apart, it is informed by the learned advocate for the applicants-defendant nos. 2 & 3 that there are other witnesses on behalf of the defendants who may adduce evidence in Court in support of their case.
9.12. In Mt. Horil Keur (supra), the deposition was not taken in open Court but recorded by a commissioner, the witness being too ill to come to Court. He was examined-in-chief and cross-examined in part prior to his death. In the present case at hand, the examination-in-chief of the witness could not be concluded since he is unable to appear due to his illness. 17 Thus the facts of the cited decision is distinguishable with the case at hand.
9.13. The decision in Mangal Sen (supra) is in respect of a criminal trial. It is a settled proposition that the standard of proof in civil cases is of preponderance of probabilities whereas the standard of proof in criminal cases is beyond reasonable doubt. Further in the said decision, at least the examination-in-chief was completed, whereas in the case at hand that is not complete. Therefore, the cited decision is distinguishable from the case at hand.
9.14. In the decision of Bhaswati Ray (supra), the sole surviving attesting witness to the Will adduced evidence and was cross-examined on at least three occasions over a period of several years. Since the said witness failed to turn up for further cross-examination, his evidence was expunged by the learned trial court, which was challenged by way of a revisional application. In such circumstances, this Hon'ble Court observed that the well settled principle, that the evidence of a witness will not be expunged but its evidentiary value will be considered at the time of hearing, despite cross-examination of such witness having not been completed, holds good even in the context of non-party witness. The facts are quite distinguishable from the case at hand inasmuch as in the cited decision substantial cross-examination of the witness was done on several dates whereas in the case at hand the examination-in-chief of the witness has not been completed.
9.15. In the circumstances of the present case, the applicants-defendant nos. 2 & 3, who has taken steps for producing the said witness in Court 18 but could not secure his attendance as he is not willing due to his illness, cannot be kept lurching for an opportunity to adduce evidence in support of their case on such predicament of non-appearance of the said witness. A party is entitled to prove its case and set up its defence, which cannot be curbed in any manner.
9.16. The examination-in-chief of the applicants-defendant nos. 2 & 3 since cannot attain the status of evidence as the examination-in-chief is incomplete and no cross-examination could be held, accordingly, the examination-in-chief of the defendants' witness requires expunction from the records. In light of the above discussion, this Court is of the view that the evidence of the said defence witness should be expunged and the applicants-defendant nos. 2 & 3 should be allowed to re-tender the documents which were marked Exhibits 7 to 13 through some other witness.
Issue no. (ii): Whether the exhibited documents namely Exhibit nos. 7 to 13 tendered by the witness during his examination-in-chief be returned to defendant nos. 2 & 3?
10. It has been vociferously argued on behalf of the respondent-plaintiff that for return of the documents the provision under Order XIII Rule 9 of the Civil Procedure Code has to be complied with. On the contrary, it has been argued on behalf of the applicants-defendant nos. 2 & 3 that such contention of the respondent-plaintiff is misplaced since the premise on which the defendants have prayed for return of documents is completely different.
10.1. Order XIII Rule 4 of the Civil Procedure Code provides for appropriate endorsements on the documents which have been admitted as 19 evidence in a suit. Under Order XIII Rule 7, every document, which has been admitted in evidence, shall form part of the record of the suit. These provisions would show that marking a document as an exhibit is only for the purpose of identification and has no bearing with proof of the document. Hence, admission of documents as exhibits is not equivalent to the documents being proved and does not bind the parties. A document is proved - or disproved- only when the Court is called upon to apply its judicial mind to the document with reference to Section 3 of the Evidence Act. It is settled law that the rules of procedure are the handmaid to advance the cause of justice and not to put a resistance in the cause of justice. Proviso to Order XIII Rule 9 of the Code provides that the document may be returned at any time earlier than that prescribed by Rule if the person applying substitutes the original with the certified copy and under takes to produce the originals, if so required. Therefore, provision of Order XIII Rule 9 of the Code is not an absolute bar in return of the documents at any stage. Hence, the argument advanced on behalf of the respondent-plaintiff in this regard does not stand to reason. 10.2. This Court also takes note of the difficulty which the defendants would face with the striking out of the examination-in-chief of the defence witness. Accordingly, for the ends of justice, this Court is of the opinion that the documents marked as Exhibits 7 to 13 should be returned to the applicants-defendant nos. 2 & 3 by substituting the same with certified copy of the said documents with a direction to produce the original of the said documents during examination of the witness to be examined in due course of trial.
20Issue no.(iii): Whether the plaintiff be directed to file his affidavit of admission and denial with regard to the documents disclosed in defendants' Judges Brief of Documents within a stipulated period?
11. Mrs. Mukherjee, learned Senior Advocate on behalf of the applicants- defendant nos. 2 & 3 submitted that Section 15(3) of the Commercial Courts Act mandatorily requires that the provisions of this Act shall apply to those procedures that were not complete at the time of transfer. At the time of transfer to the Commercial Division, the Statement of admission and denials as required were not completed by the plaintiff, hence the respondent-plaintiff should be directed to file the same in compliance to the aforesaid provisions. Referring to the decision of B. Premanand (supra), she submitted as the above provisions is unambiguous and the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. On the contrary, relying on the decision of this court in Sayan Sarker (supra) and M/s. Kapoor Imaging Private Limited (supra), it was argued on behalf of respondent-plaintiff that the provisions of the Act shall apply to procedures which were not complete at the time of transfer. Meaning thereby that the procedures adopted before the regular civil court prior to transfer is validly acceptable. Therefore, in the present case since already the examination of witnesses on behalf of the respondent-plaintiff has already been completed, he cannot be called again to file Statement of admission and denial by putting the clock back as that would be meaningless.
11.1. In Desh Raj versus Balkishan (dead) through proposed legal representative Ms. Rohini8, the Hon'ble Apex Court had laid down that 8 (2020) 2 SCC 708 21 Section 16 of the Commercial Courts Act is mandatory. Section 16 of the said Act is extracted below for reference:
"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." (emphasis supplied) 11.2. Section 16 of the Act deals with amendment to the provisions of Code of Civil Procedure, in so far as any suit in respect of a commercial dispute of a specified value which would come under the purview of a Commercial Court or a Commercial Division as designated or established, would stand governed by the provisions of the Civil Procedure Code as amended by the Act. When there is conflict with the provision of Code of Civil Procedure, 1908, the provisions of the Code as amended by the Commercial Courts Act shall prevail. Necessarily, what governs the respective area is the amended provisions of Code of Civil Procedure under Section 16 of the Act pertaining to a commercial dispute for a specified value, though the remaining area which was not dealt under the amended provision, would stand governed by Code of Civil Procedure, 1908. But at the same time, the provisions of the Act would operate only after the transfer of a pending litigation/suit from a regular civil court to the special court constituted and established/designated under the Act viz., the 22 Commercial Courts Act, 2015 and the provisions of amended Code would come into play only from that stage of transfer and not earlier. In short, there is no scope for insisting compliance of requirement under the amended provisions of the Code under Section 16 of the Act to a pending matter before the regular court/civil court.
11.3. The language employed in Section 15 of the Act makes it clear, which is extracted below for reference:
"15. Transfer of pending cases (1) All suits and applications, including applications under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of a Specified Value pending in a High Court where a Commercial Division has been constituted, shall be transferred to the Commercial Division. (2) All suits and applications, including applications under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of a Specified Value pending in any civil court in any district or area in respect of which a Commercial Court has been constituted, shall be transferred to such Commercial Court:
Provided that no suit or application where the final judgment has been reserved by the Court prior to the constitution of the Commercial Division or the Commercial Court shall be transferred either under sub-section (1) or sub-section (2).
(3) Where any suit or application, including an application under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of Specified Value shall stand transferred to the Commercial Division or Commercial Court under sub-section (1) or sub-
section (2), the provisions of this Act shall apply to those procedures that were not complete at the time of transfer.
(4) The Commercial Division or Commercial Court, as the case may be, may hold case management hearings in respect of such transferred suit or application in order to prescribe new timelines or issue such further directions as may be necessary for a speedy and efficacious disposal of such suit or application in accordance with Order XV-A of the Code of Civil Procedure, 1908 (5 of 1908):
Provided that the proviso to sub-rule (1) of Rule 1 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to such transferred suit or application and the court may, in its discretion, prescribe a new time period within which the written statement shall be filed. (5) In the event that such suit or application is not transferred in the manner specified in sub-section (1), sub-section (2) or sub-section (3), the Commercial Appellate Division of the High Court may, on the application of any of the parties to the suit, withdraw such suit or application from the court before which it is pending and transfer the same for trial or disposal to the Commercial Division or Commercial Court, as the case may be, having territorial jurisdiction over such suit, and such order of transfer shall be final and binding." (emphasis supplied) 11.4. Upon bare reading of the aforesaid provision, it manifests from Sub-
section (3) of Section 15 of the Act that the provisions of the Commercial 23 Courts Act shall apply "to those procedures that were not complete at the time of transfer". Necessarily, the steps or procedures which were completed at the regular civil court, would stand valid before the Commercial Court, a Commercial Division, as the case may be, and may not be available for any challenge on account of any of the requirements as mandated under the amended provisions of Code of Civil Procedures as per Section 16 of the Act. In the instant case, admittedly, transfer of the suit has been made at a stage when the evidence on behalf of plaintiff was already complete. Therefore, the requirement of disclosure and discovery of document under Order XI of the Code was already completed before the regular civil court. Accordingly, such steps or procedures, which were completed at the regular civil court, would stand valid before the Commercial Court. This Court finds substance in the submission of Mr. Dasgupta, learned advocate for the respondent-plaintiff relying on M/s. Kapoor Imaging Private Limited (supra) which has been taken note of that the provisions of Commercial Courts Act, 2015 shall apply to those procedures that were not complete at the time of transfer. As such, the prayer of the applicants-defendant nos. 2 & 3 seeking direction upon the respondent-plaintiff to file affidavit of admission and denial with regard to documents disclosed by defendants is not tenable.
11.5. In Sayan Sarker (supra), the defendant filed written statement in a Money Suit before the Court of learned Civil Judge (Senior Division), 4th Court, Alipore and a date was fixed for acceptance of the said written statement. While considering the application for acceptance of the written statement, the Court came to a conclusion that the suit was in the nature 24 of a commercial suit. Accordingly, the records were directed to be transmitted to the Commercial Court for trial and disposal. The learned Commercial Judge upon considering the amended provisions of the Civil Procedure Code came to a conclusion that the written statement ought to have been filed within 120 days from date of receipt of summons. As the written statement is filed after 141 days of receipt of summons, the written statement could not be accepted. The said order was challenged in revision. This Hon'ble Court set aside the impugned order and directed for acceptance of the written statement. The facts are distinguishable from the case at hand.
Issue no.(iv): Whether leave be granted to the defendants to file the evidence on affidavit of their witnesses within a stipulated time?
12. Under the amended Code applicable to Commercial Courts Act, in Order XVIII of the Code, in Rule 4, after sub-rule (1), the following sub- rules were inserted, namely:
"(1A) The affidavits of evidence of all witnesses whose evidence is proposed to be led by a party shall be filed simultaneously by that party at the time directed in the first Case Management Hearing."
Therefore, there is no bar in filing of evidence on affidavit. Moreover, the aforesaid prayer has not been objected by the respondent-plaintiff. Accordingly, the said prayer of the applicants-defendant nos. 2 & 3 needs to be allowed.
13. In view of the above discussion, following orders are passed.
(i) The evidence of the witness Sk Mohammed Hossain on behalf of applicants-defendant nos. 2 & 3 is hereby expunged.
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(ii) The documents marked as Exhibit nos. 7 to 13 be returned to the learned advocate-on-record for applicants-defendant nos.2 & 3 by substituting the same with certified copy of the said documents on proper endorsement and undertaking to produce the same as when required and with a further direction to produce the original of those documents during examination of the fresh witness and re-tender those documents before the Court.
(iii) The prayer seeking direction upon the plaintiff to file affidavit of admission and denial with regard to documents disclosed by the defendants is hereby rejected.
(iv) Leave is granted to the applicants-defendant nos. 2 & 3 to file evidence of witness on affidavit within the time as may be fixed by the Hon'ble Court having determination as per the convenience of Hon'ble Bench.
14. With the aforesaid direction, the application being GA-COM 6 of 2024 stands disposed of.
15. 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.)