Delhi High Court
Psa Nitrogen Ltd vs Maeda Corporation & Ors. on 27 September, 2022
Author: C. Hari Shankar
Bench: C. Hari Shankar
NEUTRAL CITATION NO: 2022/DHC/004168
$~5 & 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 957/2022 & CM APPL. 40329/2022
INDCON BOILERS LTD ..... Petitioner
Through: Mr. Sujeet Kumar Gupta, Adv.
versus
MAEDA CORPORATION & ORS. ..... Respondents
Through: Mr. Mayank Sapra, Mr. Aditya
Sharma and Mr. Avanish Kr. Singh, Advs.
for R-1 to 4
+ CM(M) 962/2022 & CM APPL. 40345/2022
PSA NITROGEN LTD .... Petitioner
Through: Mr. Sujeet Kumar Gupta, Adv.
versus
MAEDA CORPORATION & ORS. .... Respondents
Through: Mr. Mayank Sapra, Mr. Aditya
Sharma and Mr. Avanish Kr. Singh, Advs.
for R-1 to 4
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
J UD G M E N T( ORAL)
% 27.09.2022
1. The orders impugned in these two suits have been passed on
applications filed by the respondent in these petitions, Maeda
Corporation Ltd. (hereinafter referred to as ―Maeda‖), under Order
VIII Rule 1-A1 of the Code of Civil Procedure, 1908. By the said
1
1-A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him. -
CM(M) 957/2022 & CM(M) 962/2022 Page 1 of 11
This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004168
application, Maeda sought to place on record certain documents in
addition to the documents filed by them with the written statement,
filed in response to the suit instituted by PSA Nitrogen Ltd (―PSA‖,
hereinafter) and Indcon Boilers Ltd. (―Indcon‖, hereinafter), the
petitioners in these petitions.
2. Before proceeding further, it is necessary to point out that
though the suits, in which the impugned orders have come to be
passed, are registered as commercial suits, they are, in fact, non-
commercial suits.
3. There are, in all, four registered suits, in which the impugned
orders have been passed, two being suits instituted by Indcon and PSA
against Maeda and the other two being counter claims by Maeda filed
in the said suits which have been separately registered as suits.
4. The suits, as well as counter claims, are required to be
registered as ―non-commercial suits‖, though they have been
registered, and are proceeding, as ―commercial suits‖. This may be
explained, with respect to these two petitions, thus:
(1) Where the defendant bases his defence upon a document or relies upon any document in
his possession or power, in support of his defence or claim for set-off or counter-claim, he shall
enter such document in a list, and shall produce it in Court when the written statement is presented
by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the
written statement.
(2) Where any such document is not in the possession or power of the defendant, he shall,
wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the defendant under this rule, but, is
not so produced shall not, without the leave of the Court, be received in evidence on his behalf at
the hearing of the suit.
(4) Nothing in this rule shall apply to documents--
(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory.
CM(M) 957/2022 & CM(M) 962/2022 Page 2 of 11
This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004168
CM (M) 962/2022 (PSA Nitrogen Ltd. v. Maeda Corporation & Ors.)
5. PSA filed CS (OS) 1750/2015 before this Court, prior to
enhancement of pecuniary jurisdiction of trial courts, for recovery of ₹
37,01,686/- on 26th May 2015. Consequent on enhancement of
pecuniary jurisdiction of trial courts, CS (OS) 1750/2015 was
transferred to the court of the learned ADJ on 2nd December 2015 and
was registered as CS 9404/2016. At that time, Section 12(1)2 read
with Clause (i) of Section 2(1)3 of the Commercial Courts Act treated
any dispute which conformed to clause (c) of 2(1), the value of the
subject matter in respect of which was not less than ₹ 1 crore, as a
―commercial dispute‖. CS 9404/2016 was, therefore, at that time of
its original filing as well as at the time of its renumbering consequent
to being transferred to the Court of the learned ADJ, a non-
commercial suit. It was only thereafter that, by Section 4(ii)4 of the
2
12. Determination of Specified Value. -
(1) The Specified Value of the subject-matter of the commercial dispute in a suit, appeal or
application shall be determined in the following manner--
(a) where the relief sought in a suit or application is for recovery of money, the
money sought to be recovered in the suit or application inclusive of interest, if any,
computed up to the date of filing of the suit or application, as the case may be, shall be
taken into account for determining such specified value;
(b) where the relief sought in a suit, appeal or application relates to movable
property or to a right therein, the market value of the movable property as on the date of
filing of the suit, appeal or application, as the case may be, shall be taken into account for
determining such specified value;
(c) where the relief sought in a suit, appeal or application relates to immovable
property or to a right therein, the market value of the immovable property, as on the date
of filing of the suit, appeal or application, as the case may be, shall be taken into account
for determining specified value; and
(d) where the relief sought in a suit, appeal or application relates to any other intangible
right, the market value of the said rights as estimated by the plaintiff shall be taken into
account for determining specified value;
3
2. Definitions. -
(1) In this Act, unless the context otherwise requires,--
(i) ―Specified Value‖, in relation to a commercial dispute, shall mean the value of
the subject-matter in respect of a suit as determined in accordance with Section 12 which
shall not be less than one crore rupees or such higher value, as may be notified by the
Central Government.‖.
4
4. Amendment of Section 2. - In Section 2 of the principal Act, in sub-section (1),--
(II) in clause (i), for the words ―which shall not be less than one crore rupees‖, the words
―which shall not be less than three lakh rupees‖ shall be substituted.
CM(M) 957/2022 & CM(M) 962/2022 Page 3 of 11
This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004168
Commercial Courts (Amendment) Act, 2018 that, w.e.f. 3 rd May 2018,
Section 2(i) of the Commercial Courts Act was amended to reduce the
minimum pecuniary value of commercial suits from ₹ 1 crore to ₹ 3
lakhs. This amendment would not, however, affect CS 9404/2016
instituted by the petitioner against the respondent, as the relevant date
for determining whether the suit would be treated as a commercial suit
or non-commercial suit would, by operation of Section 12(i)2 of the
Commercial Courts Act, be the ―date of filing‖.
6. In the case of the suit instituted by the petitioner against the
respondent, the suit was liable to be treated as a non-commercial suit
not only on the date of filing but also on the date of its registration
both before this Court as well as consequent to its transfer to the
learned ADJ.
7. I may observe that the Division Bench of this Court as already
held, in Satyanarain Khandelwal v. Prem Arora5, that the suit which
were instituted prior to the amendment of the Commercial Courts Act
with effect from 3rd May 2018 would be treated as commercial or non-
commercial suits based on Section 2(i)3 of the Commercial Courts Act
as it stood on the date of institution of the suit.
8. This issue is, therefore, no longer res-integra.
9. The respondent filed a counter claim in CS 9404/2016, which
came to be registered in 2020 as CS(Comm) 45/2020 (in which the
5
2022 SCC OnLine Del 2142
CM(M) 957/2022 & CM(M) 962/2022 Page 4 of 11
This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004168
impugned order dated 7th May 2022 under challenge in CM(M)
962/2022 has been passed).
10. Reckoned on the basis of the date of its filing, it is clear that the
counter claim of the respondent ought also to have been registered as
non-commercial suit and not as a commercial suit.
11. The learned ADJ is directed, therefore, to ensure that
CS(Comm) 45/2020 is renumbered as a non-commercial suit.
CM (M) 957/2022 (Indcon Boilers v. Maeda Corporation & Ors.)
12. Indcon filed CS (OS) 1752/2015 before this Court, prior to
enhancement of pecuniary jurisdiction of trial courts, for recovery of ₹
65,52,856/- in May 2015. Consequent on enhancement of pecuniary
jurisdiction of trial court, CS (OS) 1752/2015 was transferred to the
Court of the learned ADJ on 2nd December 2015 and was registered as
CS 78/2016. Applying what has been noted hereinabove mutatis
mutandis, CS 78/2016 was rightly registered as a non-commercial suit.
It continues to stand registered as such, and has not been renumbered
as a commercial suit.
13. The respondent filed a counter claim in CS 78/2016, which
came to be registered in 2019 as CS (Comm) 87/2019 (in which the
impugned order dated 30th May 2022 under challenge in CM (M)
957/2022 has been passed).
14. Reckoned on the basis of the date of its filing, it is clear that the
CM(M) 957/2022 & CM(M) 962/2022 Page 5 of 11
This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004168
counter claim of the respondent ought also to have been registered as
non-commercial suit and not as a commercial suit.
15. Inasmuch as the counter claim of the respondent was required to
be treated as a non-commercial suit, the learned ADJ is directed to
ensure that CS (Comm) 87/2019 is renumbered as a non-commercial
suit.
The Issue in Controversy
16. Having thus cleared the air, with respect to registration of the
suits and counter claims in which the impugned orders have come to
be passed, one may advert to the actual issue in controversy.
17. As has already been noted towards the commencement of this
judgment, the impugned orders dated 7th May 2022 (in CM (M)
962/2022) and 30th May 2022 (in CM (M) 957/2022) have come to be
passed on applications filed by Maeda.
18. The latter order dated 30th May 2022 merely adopts the earlier
order dated 7th May 2022.
19. Maeda, by its application under Order VIII Rule 1-A1 of the
CPC, sought to bring on record further documents, in addition to those
which had been filed with their respective counter claims.
20. To appreciate the reason why the said documents were being
CM(M) 957/2022 & CM(M) 962/2022 Page 6 of 11
This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004168
sought to be introduced, a brief glance at the dispute is necessary.
21. In response to the claim of the petitioner against the respondent,
which related to alleged short-payment against work undertaken, the
respondents, as the defendants in the suit, stated that, as the petitioner
was not rectifying the defects in the work undertaken by it, Maeda
claimed to have found it necessary to award the contract for the
remaining work to Heat Max Engineering Company and Heat Max
Projects Pvt. Ltd (collectively referred to, hereinafter, as ―Heat Max‖).
22. Maeda, therefore, sought to claim, from PSA in one case and
Indcon in the other, the amounts that it had to expend for getting the
remaining work done by Heat Max.
23. In the replication to the written statement, PSA/Indcon referred
to certain approved isometric drawings. Maeda, in its application
under Order VIII Rule 1-A1 (which ought to have been under Order
VII Rule 14 of the CPC) contended that the aforesaid Annexure-A was
an enclosure to a letter dated 16th January 2014, which was written by
Heat Max to the Chief Inspector of Boilers, Haryana seeking approval
of the aforesaid Isometric drawings and permission to carry out the
works.
24. This permission, it was submitted, had been granted by Chief
Inspector of Boilers vide letter dated 23rd January 2014. Subsequently,
it was contended, in the application filed by the respondent, that the
Chief Inspector of Boiler, Haryana issued provisional certificates to
CM(M) 957/2022 & CM(M) 962/2022 Page 7 of 11
This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004168
the two boilers manufactured by the respondent, in Form-V. As such,
by the application, the respondent sought to place, on record, the
letters dated 16th January 2014 and 23rd January 2014 as well as the
aforesaid certificate issued by the Chief Inspector of Boiler, Haryana.
25. These details are identical in both the present petitions i.e. CM
(M) 957/2022 and CM (M) 962/2022.
26. The application filed in CS (Comm) 45/2020 was allowed by
the learned ADJ vide order dated 7th May 2022 which forms subject
matter of challenge in CM (M) 962/2022.
27. The said order reads thus:
―07.05.2022
Present: Sh. Lalit Chauhan, Sh. Adiya Sharma and Sh.
Manu Bajaj, Ld. counsels for plaintiff.
Sh. Devesh Kumara Malan Ld. counsel for defendant.
It is submitted that evidence is still pending before the
Local Commissioner for recording of evidence.
During the pendency of evidence an application has
been filed by the counsel for defendant/counter claimants for
taking certain documents on record. Reply to the same is filed
by plaintiff.
It is stated in the application that due to inadvertence
the documents could not be filed. In reply it is submitted that
these documents are not related to the transaction between the
parties and hence not relevant. It is also submitted that the
taking on record the said documents would delay the
proceedings.
CM(M) 957/2022 & CM(M) 962/2022 Page 8 of 11
This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004168
I have gone through the documents filed by the
defendant. I am of the considered view that though these
documents are belatedly filed, however still an opportunity
will be given to the plaintiff to rebut these documents by way
of cross-examination of the defendant's witness who will
prove those documents. Moreover, taking on record these
documents does not imply that these documents are either
proved or admitted. Accordingly, application is allowed
subject to cost of Rs. 10,000/- to be paid by the defendant to
the plaintiff. Let evidence be concluded before the Local
Commissioner.
Be listed for report of Local Commissioner/final
arguments on 02.08.2022.‖
28. The identical application, filed by the respondents in CS
(Comm) 87/2019, was allowed merely following the allowing of the
prayer in CS (Comm) 45/2020.
29. Regarding the power to allow additional documents to be
brought on record, the law with respect to Order VII Rule 14 is no
longer res integra. It has been a settled position in law that a liberal
view is required to be taken, especially where the documents are not
brought on record at a highly belated stage6. In the present case, in
both the suits, the matter is yet at the stage of recording of plaintiff's
evidence. Introduction of aforesaid documents on record, at this stage,
would not result in any serious prejudice to either side.
30. Learned Counsel for the petitioner points out that the
applications filed by the respondents do not make out any ―sufficient
6
Chakreshwari Constructions Pvt. Ltd. V. Manohar Lal, (2017) 5 SCC 212; Kapil Kumar Sharma v. Lalit
Kumar Sharma, (2013) 14 SCC 612; Sadhu Forging Ltd. v. M/s. Continental Engines Ltd., 2017 SCC OnLine
Del 10039; Nishant Hannan v. South Delhi Municipal Corporation, 2014 SCC OnLine Del 4053;
CM(M) 957/2022 & CM(M) 962/2022 Page 9 of 11
This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004168
cause‖ for permitting the documents to be brought on record at this
stage.
31. In that regard, it is seen that in both the applications, the
respondents have contended that, by inadvertence, the documents
could not be brought on record, though references to other documents
which are connected to them are contained in the written statements
filed by the respondent.
32. Inadvertence has been held, in Varun Pahwa v. Renu
Chaudhary7 to be sufficient as a ground to permit amendment of a
Suit under Order VI Rule 17 of the Code of Civil Procedure, 1908.
Equally, therefore, inadvertence, in given case, may be a valid and
acceptable explanation for failure to file the documents with the
written statement.
33. It is made clear that, this position of law applies only to non-
commercial suits, and that applications for introducing additional
documents filed in commercial suits, which are subjected to the rigour
of Order XI Rule 1 of the CPC, as amended by the Commercial Courts
Act, chart an entirely different course.
34. The order dated 7th May 2022 in CS (Comm) 45/2020, which
forms subject matter of challenge in CM (M) 962/2022, has noted the
ground urged in the application filed by the respondent, as well as the
respondents' contention that the documents were related to the
7
(2019) 15 SCC 628
CM(M) 957/2022 & CM(M) 962/2022 Page 10 of 11
This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004168
disputed transactions and necessary for a holistic and complete
adjudication of the lis.
35. The learned ADJ has also observed that the documents would
have to be proved by the respondents through its witnesses and the
petitioner would have an opportunity to question the witness in cross
examination. Merely taking the document on record, it is noted by the
learned ADJ, does not amount either to admission or proof thereof.
As such, the learned ADJ has allowed the applications in both the
cases, subject to costs of ₹ 10,000/- in each case.
36. The impugned orders being discretionary in nature, and given
the fact that the jurisdiction of this Court under Article 227 of the
Constitution of India is, even otherwise, considerably circumscribed,
no occasion arises for this Court to interfere with the impugned orders.
37. The petitioners stand adequately compensated by costs in both
these matters.
38. As such, both these petitions are dismissed.
C. HARI SHANKAR, J.
SEPTEMBER 27, 2022 dsn CM(M) 957/2022 & CM(M) 962/2022 Page 11 of 11 This is a digitally signed Judgement.