Gujarat High Court
Angira Axim vs Pioneer Cashew Processors on 12 April, 2022
Author: N.V.Anjaria
Bench: N.V.Anjaria, Samir J. Dave
C/SCA/19260/2021 JUDGMENT DATED: 12/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19260 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ANGIRA AXIM
Versus
PIONEER CASHEW PROCESSORS
==========================================================
Appearance:
MR MRUGEN K PUROHIT(1224) for the Petitioner(s) No. 1
MR P B KHANDHERIA(5228) for the Respondent(s) No. 2
MR PRATIK Y JASANI(5325) for the Respondent(s) No. 1,7,8
NOTICE SERVED for the Respondent(s) No. 3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 12/04/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) The challenge in this Special Civil Application filed by the petitioner-original plaintiff is addressed to order dated 17.08.2021 passed Page 1 of 6 Downloaded on : Tue Apr 19 20:06:25 IST 2022 C/SCA/19260/2021 JUDGMENT DATED: 12/04/2022 by learned Principal Senior Civil Judge, Commercial Court, Jetpur below application Exh. 25 and application Exh. 27 in Commercial Suit No. 3 of 2019, whereby the court allowed the respondents-defendants to produce the documentary evidences.
2. The Commercial Suit came to be instituted by the petitioner plaintiff for recovery of Rs. 41,33,000/- from the defendants. The plaintiff firm is the manufacturer and seller of plastic threads. The order was placed by the defendants for purchase of goods from the plaintiff in the year 2016. Invoice was raised on 19.2.2016. The goods were to be supplied to the consumer in South Africa as per the instructions of the defendants-purchasers. The goods were transported. It is the case of the plaintiff that Rs. 24 Lakhs were due and payable. Counting together interest thereon, the total amount was sought to be recovered by the petitioner plaintiff in the suit to the tune of Rs. 41,33,000/-.
3. Issues were framed by the court on 1.1.2022 at Exh. 19. On 13.01.2020 Exh. 24 came to be filed by the defendants seeking permission to produce the documents on record. Again on 20.1.2020 and 5.2.2020 applications Exh. 25 and Exh. 27 respectively were filed by the defendants for production of the documents. The application Exh. 24 was allowed. Finally, the impugned order came to be passed below Exh. 25 and 27 allowing the production of documents.
3.1 The list of the documents proposed to be produced by the defendants figures on record of the present petition, which are total 57 documents in the nature of receipts, invoices etc..
4. Assailing the impugned order permitting the defendants to produce Page 2 of 6 Downloaded on : Tue Apr 19 20:06:25 IST 2022 C/SCA/19260/2021 JUDGMENT DATED: 12/04/2022 the documents, it was submitted by learned advocate Mr. Mrugen Purohit on behalf of the petitioner that it was incumbent on part of the defendants to produce relevant documents, which they wanted to produce alongwith the written statement. When the written statement was filed, it was stated, neither documents now sought to be produced were shown in the list, nor they were produced. It was submitted that the issues have already been framed, and at such later stage the court was not justified in granting permission to produce the documents. He wanted to emphasis that no explanation or any good reason has been forthcoming from the defendants as to why they failed to produce the documents alongwith the written statement.
4.1 Learned advocate for the petitioner referred to the provisions of Order VIII Rule 1A of the Code of Civil Procedure, 1908, which provides that it is the duty of the defendant to produce the documents upon which relief is claimed or relied upon him. When the written statement is presented by the defendant, it was submitted, at that time itself the documents were required to be produced and were required to be delivered to the plaintiff also so that the total defence of the defendant is made known to the plaintiff. He then referred to Order XIII, CPC as well and finally the provisions of Order XI as amended in the Code of Civil Procedure by virtue of section 16 of the Commercial Courts Act, 2015 to be applied to the Commercial Suit.
4.2 On the other hand, learned advocate Mr. Pratik Jasani took the court through the list of documents highlighting that they are relevant to the controversy in the suit. He also pointed out the circumstances that the goods were to be sent to South Africa and since the documents were lying there, at the time of filling of the written statement, the defendants could Page 3 of 6 Downloaded on : Tue Apr 19 20:06:25 IST 2022 C/SCA/19260/2021 JUDGMENT DATED: 12/04/2022 not produce the same. Non-production of the said documents with the written statement was not intentional, it was submitted. The decision in Sugandhi (Dead) by Legal Representatives and Another vs. P. Rajkumar represented by his Power Agent Imam Oli (2020) 10 SCC 706, more particularly for its paragraph No. 7 to 10 was pressed into service by learned advocate for the respondents.
5. It was in the proceedings of the Commercial Suit which was for recovery of amount that the defendants wanted to produce certain documents at a later stage subsequent to filling their written statement. The list of 57 documents on record suggested that the documents included the letters intimating about the damaged goods, reply sent by the defendants to the plaintiff, receipts of the godown rent, bills showing the goods which according to the defendants were of sub-standard quality, the statement of accounts sent by the consumer of the defendants to the defendants and his letter about the sub-standard quality of goods and various invoices and receipts relating to the transaction of purchase of goods by the defendants.
5.1 From the bare perusal of the documents and seeing the kind and nature thereof listed to be produced, there is no gainsaying that they are directly related to the controversy in the suit and they have definite nexus with the dispute between the parties. The suit being the commercial suit, Order XI of the CPC, amended as per section 16 of the Commercial Courts Act, 2015, to be incorporated and to be applied in the proceedings of the commercial suit, would apply. The said Order XI as inserted in the Code of Civil Procedure by virtue of amendment in section 16 of the Commercial Courts Act, 2016, is titled as 'Discoveries and Inspection'. Rule 7 of Order XI, CPC contemplates that the defendant shall file a list Page 4 of 6 Downloaded on : Tue Apr 19 20:06:25 IST 2022 C/SCA/19260/2021 JUDGMENT DATED: 12/04/2022 of all documents and photocopies of all the documents in its power, possession, control or custody pertaining to the suit alongwith the written statement. Rule 8 and Rule 9 respectively of Order XI deals with the requirements to prove details in respect of the documents being produced by the defendant, mode of execution, issuance or receipt etc..
5.2 What is relevant is Rule 10 of Order XI, CPC. According to the said Rule 10, except for sub-rule 7 (c) (iii), the defendant shall not be allowed to rely on the documents which were in its power, possession, control or custody except with leave of the court. It is clearly suggested, therefore that the documents could be permitted to be produced eventhough no documents were produced at the time of filling of written statement, with the leave of the court. The production of the documents when they are relevant to the controversy would always help the court to adjudicate the controversy in wholesome manner. The exercise of discretion of the court for permitting or not permitting the documents by party would be guided by the said pre-dominent consideration. As seen above, the documents sought o be produced are all relevant to the controversy in the suit. They would throw the light on the dispute and would help the court in arriving at just and proper decision in the suit at the end of the trial.
5.3 Merely because the defendants failed to produce the documents at the time of written statement should not be a ground not to permit the defendants to produce on record the relevant documents and thereby to close their defence. In any view there was a valid reason given by the defendants that the documents were lying in South Africa and therefore, it was not possible for them to submit the same with the written statement.
Page 5 of 6 Downloaded on : Tue Apr 19 20:06:25 IST 2022C/SCA/19260/2021 JUDGMENT DATED: 12/04/2022 5.4 It would not be trite in the facts and circumstances of the case to
shut the defence of the defendants in the suit to be considered in light of the evidence which may be led at the trial. Not permitting the defendants to produce the documents would deprive them of raising their defence. On the other hand, the plaintiff would have right to rebut and therefore, would not be put to any prejudice.
6. For the reasons given by the Commercial Court and those supplied and supplemented by us hereinabove, we do not find any infirmity in the impugned order of the Commercial Court permitting the defendants to produce the documents. The challenge to the said order stands meritless.
7. The petition is dismissed. Notice is discharged. Interim relief is vacated.
(N.V.ANJARIA, J) (SAMIR J. DAVE,J) C.M. JOSHI Page 6 of 6 Downloaded on : Tue Apr 19 20:06:25 IST 2022