Karnataka High Court
M/S Strategic Infra Services Pvt Ltd vs M/S Mphasis Limited on 5 August, 2024
Author: R Devdas
Bench: R Devdas
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WP No. 8057 of 2024
C/W WP No. 5899 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO. 8057 OF 2024 (GM-CPC)
C/W
WRIT PETITION NO. 5899 OF 2024 (GM-CPC)
IN WP NO. 8057/2024
BETWEEN:
M/S. STRATEGIC INFRA SERVICES PVT. LTD.,
(FORMERLY KNOWN AS M/S. STRATEGIC
OUTSOURCING SERVICES PVT. LTD.,),
A COMPANY REGISTERED UNDER
THE COMPANIES ACT, HAVING ITS
REGISTERED OFFICE AT NO.70/25,
80 FEET ROAD, CIRCULAR RING ROAD,
4TH BLOCK, KORMANAGALA,
BENGALURU - 560 034,
REPRESENTED BY ITS DIRECTOR
MR. PRADEEP PATIL.
Digitally signed
by
DHARMALINGAM ...PETITIONER
Location: HIGH (BY SRI. C.K. NANDAKUMAR, SENIOR COUNSEL FOR
COURT OF
KARNATAKA SRI. SANJAY KRISHNA V, ADVOCATE)
AND:
1. M/S MPHASIS LIMITED,
A COMPANY REGISTERED UNDER
THE COMPANIES ACT 1956,
HAVING ITS REGISTERED OFFICE AT:
BAGMANE WORLD TECHNOLOGY CENTRE,
MARATHAHALLI OUTER RING ROAD,
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WP No. 8057 of 2024
C/W WP No. 5899 of 2024
DODDANEKKUNDI VILLAGE,
MAHADEVAPURA, BENGALURU - 560 048,
REPRESENTED BY ITS CEO AND WHOLE TIME
DIRECTOR: MR. NITIN RAKESH.
2. MR. DAVINDER SINGH BRAR,
CHAIRMAN, M/S. MPHASIS LIMITED,
A COMPANY REGISTERED UNDER
THE COMPANIES ACT, 1956,
BAGMANE WORLD TECHNOLOGY CENTRE,
MARATHAHALLI OUTER RING ROAD,
DODDANEKKUNDI VILLAGE,
MAHADEVAPURA, BENGALURU - 560 048.
3. MR. NITIN RAKESH,
CEO AND WHOLETIME DIRECTOR,
M/S. MPHASIS LIMITED,
BAGMANE TECHNOLOGY PARK,
BYRASANDRA VILLAGE,
C.V. RAMAN NAGAR, BENGALURU - 560 093.
4. MR. NARAYANAN KUMAR,
DIRECTOR, M/S. MPHASIS LIMITED,
DLF SEZ IT PARK, TOWER IB,
LEVEL 1-5, 1/124, SHIVAJI GARDENM
MANAPAKKAM MOUNT POONAMALLEE ROAD,
CHENNAI - 600 089, TAMIL NADU.
5. MS. JAN KATHLEEN HIER,
DIRECTOR, M/S. MPHASIS LIMITED,
SEAR STREET, UNIT 35 B,
SAN FRANCISCO, CA 94105.
6. MR. DAVID LAWRENCE JOHNSON,
DIRECTOR, M/S. MPHASIS LIMITED,
10500 AVERY CLUB DRIVE.
AUSTIN, TX 78717.
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WP No. 8057 of 2024
C/W WP No. 5899 of 2024
7. MR. PAUL JAMES UPCHURCH,
DIRECTOR, M/S. MPHASIS LIMITED,
NORTH LAKE SHORE DRIVE, UNIT 3014,
CHICAGO, IL - 60611.
8. MR. AMIT DIXIT,
DIRECTOR, M/S. MPHASIS LIMITED,
IMPERIAL FLAT NO.2102,
SOUTH TOWER, B.B. NAKASHE MARG,
TARDEO, MUMBAI - 400 034,
MAHARASHTRA.
9. MR. AMIT DALMIA,
DIRECTOR, M/S. MPHASIS LIMITED,
C 1306, OBEROI SPLENDOR,
JOGESHWARI VIKHROLI LINK ROAD,
OPP. MAJAS DEPOT, JOGESHWARI (EAST),
MUMBAI - 400 060, MAHARASHTRA.
10. MR. SIVARAMAKRISHNAN P,
VICE PRESIDENT (BUSINESS FINANCE DIVISION),
M/S. MPHASIS LIMITED,
BAGMANE TECHNOLOGY PARK,
BYRASANDRA VILLAGE,
C.V. RAMAN NAGAR, BENGALURU - 560 093.
11. MR. HEMANTH ANANTH RAM,
VICE PRESIDENT (LEGAL),
M/S MPHASIS LIMITED,
BAGMANE WORLD TECHNOLOGY CENTER,
MARATHAHALLI OUTER RING ROAD,
DODDANEKUNDI VILLAGE,
MAHADEVAPURA, BENGALURU - 560 048.
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C/W WP No. 5899 of 2024
12. MR. P. VELAYUDHAN,
M/S. MPHASIS LIMITED,
BAGMANE TECHNOLOGY PARK
BYRASANDRA VILLAGE,
C.V. RAMAN NAGAR,
BENGALURU - 560 093.
13. MR. VINOD KUMAR,
ASSOCIATE VICE PRESIDENT,
LEAD CORPORATE SECURITY AND INVESTIGATION,
CHIEF RISK OFFICE,
M/S. MPHASIS LIMITED,
BAGMANE WORLD TECHNOLOGY CENTER,
MARATHAHALLI OUTER RING ROAD,
DODDANEKUNDI VILLAGE,
MAHADEVAPURA, BENGALURU - 560 048.
14. MR. SETHU S RAMAN,
SUPERINTENDENT OF CHIEF RISK OFFICER,
M/S. MPHASIS LIMITED,
BAGMANE WORLD TECHNOLOGY CENTRE,
MARATHAHALLI OUTER RING ROAD,
DODDANEKUNDI VILLAGE,
MAHADEVAPURA, BENGALURU - 560 048.
...RESPONDENTS
(BY SRI. DHANANJAY JOSHI, SENIOR COUNSEL FOR SMT. KAVITHA DAMODARAN, ADVOCATE) THIS WP IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMON ORDER DATED 23/02/2024, PASSED BY THE LEARNED LXXXIV ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-85) BENGALURU IN COM. OS NO. 215/2019 REJECTING IA NOS. 11 -5- NC: 2024:KHC:30900 WP No. 8057 of 2024 C/W WP No. 5899 of 2024 TO 13 PRODUCED UNDER ANNEXURE-A AND FURTHER SUCH OTHER PASS SUCH OTHER ORDERS AND ETC., IN WP NO. 5899/2024 BETWEEN:
M/S. STRATEGIC INFRA SERVICES PVT. LTD., (FORMERLY KNOWN AS M/S. STRATEGIC OUTSOURCING SERVICES PVT. LTD.,), A COMPANY REGISTERED UNDER THE COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT NO.70/25, 80 FEET ROAD, CIRCULAR RING ROAD, 4TH BLOCK, KORMANAGALA, BENGALURU - 560 034, REPRESENTED BY ITS DIRECTOR MR. PRADEEP PATIL.
...PETITIONER (BY SRI. C.K. NANDAKUMAR, SENIOR COUNSEL FOR SRI. SANJAY KRISHNA V, ADVOCATE) AND:
1. M/S MPHASIS LIMITED, A COMPANY REGISTERED UNDER THE COMPANIES ACT 1956, HAVING ITS REGISTERED OFFICE AT:
BAGMANE WORLD TECHNOLOGY CENTRE, MARATHAHALLI OUTER RING ROAD, DODDANEKKUNDI VILLAGE, MAHADEVAPURA, BENGALURU - 560 048, REPRESENTED BY ITS CEO AND WHOLE TIME DIRECTOR: MR. NITIN RAKESH.
2. MR. DAVINDER SINGH BRAR, CHAIRMAN, M/S. MPHASIS LIMITED, -6- NC: 2024:KHC:30900 WP No. 8057 of 2024 C/W WP No. 5899 of 2024 A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956, BAGMANE WORLD TECHNOLOGY CENTRE, MARATHAHALLI OUTER RING ROAD, DODDANEKKUNDI VILLAGE, MAHADEVAPURA, BENGALURU - 560 048.
3. MR. NITIN RAKESH, CEO AND WHOLETIME DIRECTOR, M/S. MPHASIS LIMITED, BAGMANE TECHNOLOGY PARK, BYRASANDRA VILLAGE, C.V. RAMAN NAGAR, BENGALURU - 560 093.
4. MR. NARAYANAN KUMAR, DIRECTOR, M/S. MPHASIS LIMITED, DLF SEZ IT PARK, TOWER IB, LEVEL 1-5, 1/124, SHIVAJI GARDEN MANAPAKKAM MOUNT POONAMALLEE ROAD, CHENNAI - 600 089, TAMIL NADU.
5. MS. JAN KATHLEEN HIER, DIRECTOR, M/S. MPHASIS LIMITED, SEAR STREET, UNIT 35 B, SAN FRANCISCO, CA 94105.
6. MR. DAVID LAWRENCE JOHNSON, DIRECTOR, M/S. MPHASIS LIMITED, 10500 AVERY CLUB DRIVE.
AUSTIN, TX 78717.
7. MR. PAUL JAMES UPCHURCH, DIRECTOR, M/S. MPHASIS LIMITED, NORTH LAKE SHORE DRIVE, UNIT 3014, CHICAGO, IL - 60611.
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8. MR. AMIT DIXIT, DIRECTOR, M/S. MPHASIS LIMITED, IMPERIAL FLAT NO.2102, SOUTH TOWER, B.B. NAKASHE MARG, TARDEO, MUMBAI - 400 034, MAHARASHTRA.
9. MR. AMIT DALMIA, DIRECTOR, M/S. MPHASIS LIMITED, C 1306, OBEROI SPLENDOR, JOGESHWARI VIKHROLI LINK ROAD, OPP. MAJAS DEPOT, JOGESHWARI (EAST), MUMBAI - 400 060, MAHARASHTRA.
10. MR. SIVARAMAKRISHNAN P, VICE PRESIDENT (BUSINESS FINANCE DIVISION), M/S. MPHASIS LIMITED, BAGMANE TECHNOLOGY PARK, BYRASANDRA VILLAGE, C.V. RAMAN NAGAR, BENGALURU - 560 093.
11. MR. HEMANTH ANANTH RAM, VICE PRESIDENT (LEGAL), M/S MPHASIS LIMITED, BAGMANE WORLD TECHNOLOGY CENTER, MARATHAHALLI OUTER RING ROAD, DODDANEKUNDI VILLAGE, MAHADEVAPURA, BENGALURU - 560 048.
12. MR. P. VELAYUDHAN, M/S. MPHASIS LIMITED, BAGMANE TECHNOLOGY PARK BYRASANDRA VILLAGE, C.V. RAMAN NAGAR, BENGALURU - 560 093.
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13. MR. VINOD KUMAR, ASSOCIATE VICE PRESIDENT, LEAD CORPORATE SECURITY AND INVESTIGATION, CHIEF RISK OFFICE, M/S. MPHASIS LIMITED, BAGMANE WORLD TECHNOLOGY CENTER, MARATHAHALLI OUTER RING ROAD, DODDANEKUNDI VILLAGE, MAHADEVAPURA, BENGALURU - 560 048.
14. MR. SETHU S RAMAN, SUPERINTENDENT OF CHIEF RISK OFFICER, M/S. MPHASIS LIMITED, BAGMANE WORLD TECHNOLOGY CENTER, MARATHAHALLI OUTER RING ROAD, DODDANEKUNDI VILLAGE, MAHADEVAPURA, BENGALURU - 560 048.
...RESPONDENTS (BY SRI. DHANANJAY JOSHI, SENIOR COUNSEL FOR SRI. VACHAN H.U, ADVOCATE AND SMT. KAVITHA DAMODARAN, ADVOCATE) THIS WP IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMON ORDER DATED 02/09/2023, PASSED IN COM. OS NO. 215/2019 BY THE LEARNED LXXXIV ADDITIONAL CITY CIVIL CIVIL AND SESSIONS JUDGE (CCH-85) BENGALURU REJECTING THE INTERLOCUTORY APPLICATIONS UNDER I.A. NOS. 8 AND 9 PRODUCED UNDER ANNX-A AND ETC., THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: -9-
NC: 2024:KHC:30900 WP No. 8057 of 2024 C/W WP No. 5899 of 2024 CORAM: HON'BLE MR JUSTICE R DEVDAS ORAL COMMON ORDER The petitioner who is plaintiff before the Commercial Court in O.S.No.215/2019 has filed these two writ petitions aggrieved of two common orders dated 23.02.2024 and 02.09.2023.
2. W.P.No.5899/2024 is filed in respect of the orders passed in I.A.Nos.8 and 9 filed under Order XI Rule 1(5) of CPC and Order XI Rule 5 of CPC for production of e-mails with attachments, statement of accounts, teaming MOU, invoice communications by NIELIT with affidavit under Section 65B of the Indian Evidence Act, 1872, and in the other applications for production of the original settlement agreement dated
15.07.2016, service agreement dated 23.11.2011, purchase of order dated 21.11.2012 and the letter of intent dated 12.10.2012. It has been clarified that in I.A.No.9, the prayer was to direct the defendant to produce such documents. In the other set of applications in WP.No.8057/2024, the petitioner/plaintiff is aggrieved of orders passed on I.A.Nos.11 to 13 filed under Order XVIII Rule 17 to recall PW-1;
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NC: 2024:KHC:30900 WP No. 8057 of 2024 C/W WP No. 5899 of 2024 applications filed under Section 151 of CPC to recall the orders dated 02.02.2024 and 14.02.2024 and I.A.No.13 is filed under Order XI Rule 1 of CPC seeking permission to produce additional documents. All the applications have been dismissed by the Commercial Court.
3. Learned Senior Counsel Sri.C.K.Nandakumar, appearing for the petitioner, submits that insofar as I.A.Nos.11 to 13 are concerned, more particularly, having regard to the provisions contained in Order XI Rule 1 of CPC that, admittedly, the petitioner/plaintiff did not have in its custody the additional documents sought to be brought on record, as on the date of the suit was filed. Therefore, it is contended that the reasoning found in the impugned order for rejecting the application cannot be sustained. The trial Court has simply said that it has gone through the judgment cited by the learned counsels, including the case of Sudhir Kumar @ S.Baliyan Vs. Vinay Kumar G.B., reported in (2021) 13 SCC 71, and it has also considered the observations made by this Court in the earlier round of litigation in W.P.No.4281/2021. It has held that since the arbitral award has been placed on record as Ex.D.1, there was no need for the Court to permit the plaintiffs to bring on
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NC: 2024:KHC:30900 WP No. 8057 of 2024 C/W WP No. 5899 of 2024 record the depositions recorded by the arbitral tribunal, and it has further held that the plaintiff-Company wants to produce these documents at a belated stage, and therefore, the application is rejected.
4. Learned Senior Counsel Sri.C.K.Nandakumar, contended that even in the case of S.Baliyan (Supra) it has been held that in the case of urgent filings, the plaintiff may seek leave to rely on additional documents. As part of the declaration on oath and subject to grant of such leave by Court, the plaintiff is required to 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 documents in its power, possession, control or custody, pertaining to the facts and circumstances of the proceedings initiated by the plaintiff and the plaintiff does not have any other documents, in its power, possession, control or custody. Learned Senior Counsel would therefore submit that even in terms of the said judgment of the Hon'ble Supreme Court, since admittedly the plaintiff did not have in its possession the depositions that were recorded by the arbitral tribunal
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NC: 2024:KHC:30900 WP No. 8057 of 2024 C/W WP No. 5899 of 2024 subsequently, the plaintiff is entitled to seek leave of the Court to bring on record such documents.
5. Per contra, Learned Senior Counsel Sri.Dhananjay Joshi, appearing on behalf of the respondents-defendants, would submit that on the previous occasion, this Court in W.P.No.4281/2021 has noticed the scope of the suit and the prayer made in the suit by the plaintiff before the Commercial Court in O.S.No.215/2019, that the prayer is for initiating malicious prosecution against the defendants, and this Court declined to accept the contention of the defendants herein. It was noticed that the suit filed before the Commercial Court was essentially for respondent No.1 vindication for damages not just from the petitioner but also from its directors to be clubbed with the proceedings under Section 34 of the Arbitration and Conciliation Act, 1996, as against the arbitral award dated 26.11.2019. Such a request was allowed by the Commercial Court, and this Court set aside such an order passed by the Commercial Court. That being the position, it is a futile exercise on the part of the plaintiff to seek to bring on record the depositions recorded by the arbitral tribunal, when the arbitral award itself has been placed before the Commercial Court.
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NC: 2024:KHC:30900 WP No. 8057 of 2024 C/W WP No. 5899 of 2024 Moreover, it has been held by the Hon'ble Supreme Court in the case of S.Baliyan (Supra) that Order XI Rule 1(5) of CPC, further provides that 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 the plaint or within the extended period set out in the judgment therein, save and accept by leave of Court, and such leave shall be granted only upon the plaintiff establishing reasonable cause for non-disclosure along with the plaint. Even in such cases, the documents should be produced within a period of thirty days of filing of the suit.
6. Learned Senior Counsel would further draw the attention of this Court to a decision of a Co-ordinate Bench of this Court in the case of M/S. Bangalore Metropolitan Transport Corporation and Another Vs. V.E. Commercial Vehicles Limited and Others in W.P.No.3930/2022 dated 08.04.2022, wherein the Co-ordinate Bench was of the opinion that the Commercial Court was required to consider the parties hardship and the prejudice that could be caused to the party if such prayer for production of additional documents is not considered.
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7. The Co-ordinate Bench therefore held that to mitigate the hardship being caused to the parties and also taking into consideration the law declared by the Hon'ble Apex Court in the case of Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh and Another reported in (2006) 1 SCC 75, it was of the opinion that the procedural defects and irregularities which are curable, should not be allowed to defeat the substantive rights of the parties or to cause injustice. With these reasons, such an application was allowed by the Co- ordinate Bench. However, the said order was considered by the Hon'ble Supreme Court at the instance of V.E. Commercial Vehicles Limited in Civil Appeal No.93/2023 @ SLP (C)No.10129/2022 dated 05.01.2023, and it was held that as per the provisions of the 2015 Act, the provisions of Order VII Rule 14 of C.P.C., shall not be applicable, and the parties shall be governed by the provisions of Order XI of C.P.C., as applicable to Commercial Courts. Learned Senior Counsel submits that the Hon'ble Apex Court has further clarified the position by stating that assuming that the Order VII Rule 14 can be made applicable, in the facts and circumstances of the case and considering the averments made in the applications
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NC: 2024:KHC:30900 WP No. 8057 of 2024 C/W WP No. 5899 of 2024 filed by the respondent herein permitting him to file additional documents, the Hon'ble Apex Court is of the opinion that the conditions set out in Order VII Rule 14 are not satisfied. It was noticed that the cross-examination was conducted in the year 2019 and an application to bring on record, the said deposition was filed in the year 2021. It was therefore held that, it is a clear attempt on the part of the respondents herein to fill in lacuna.
8. Learned Senior Counsel submits that in the present case, the depositions which are sought to be brought on record were recorded by the arbitral tribunal in the year 2019 and these applications are filed in the year 2023, and therefore the issue stands squarely covered by the judgment of the Hon'ble Apex Court in the case of V.E. Commercial Vehicles Limited v/s M/s Bangalore Metropolitan Transport Corporation and others in Civil Appeal No.93/2023.
9. The learned senior counsel would further submit that insofar as the other writ petition is concerned, it is clear that the documents sought to be brought on record were already available with the plaintiff. They are of the years 2011 and
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NC: 2024:KHC:30900 WP No. 8057 of 2024 C/W WP No. 5899 of 2024 2015, much before the filing of the suit before the Commercial Court. Therefore, no fault can be found in the impugned orders passed by the Commercial Court.
10. Having heard the learned senior counsels on both sides and on perusing the petitioner herein, this Court is of the considered opinion that having regard to the law laid down by the Hon'ble Apex Court in the case of S.Baliyan (supra) and V.E. Commercial Vehicles Limited (supra), wherein it has been held that insofar as the Commercial suits are concerned, Order VII Rule 14 of C.P.C will have no application. What is required to be considered is the provisions contained in Order XI of the C.P.C., which are applicable to the Commercial Courts. That being the position, the applications filed by the plaintiff in I.A.Nos.8 and 9 for seeking leave of the Commercial Court to produce documents dated 15.07.2016, 23.11.2011, 21.11.2012, and 12.10.2012 and the emails and other documents, which are all admittedly dated prior to the final of the suit, it was impermissible for the Commercial Court to allow such an application. The Commercial Court has rightly rejected such an application.
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11. Insofar as the other I.A.'s are concerned, i.e., I.A.Nos.11 to 13, seeking to bring on record the depositions recorded by the arbitral tribunal in the year 2019 are concerned, the issue also squarely stands covered by the judgment of the Hon'ble Apex Court in the case of V.E. Commercial Vehicles Limited (supra). The Hon'ble Apex Court has clearly held that after the amendments were brought into the Commercial Courts Act and the requirement of the Commercial Courts following the provisions of Order XI of the C.P.C., and having held that Order VII Rule 14 of the C.P.C shall not be applicable to the parties before the Commercial Court, this court does not find any infirmity in the orders passed by the Commercial Court.
Consequently, both the writ petitions are dismissed.
Sd/-
(R DEVDAS) JUDGE rv,KVR List No.: 1 Sl No.: 5 CT: BHK