Delhi High Court
Ms Khurmi Associates P Ltd vs Maharishi Dayanand Co-Operative Group ... on 6 April, 2022
Author: Amit Bansal
Bench: Amit Bansal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 06th April, 2022
+ CS(COMM) 281/2020, CC(COMM) 10/2020 & I.A. 6175/2020 (u/O-
XXXVIII R-5 of CPC)
KHURMI ASSOCIATES (P) LTD. ..... Plaintiff
Through: Mr. Akshay Makhija, Sr. Advocate
with Ms. Roshni Namboodiry,
Advocate.
versus
MAHARISHI DAYANAND CO-OPERATIVE
GROUP HOUSING SOCIETY ..... Defendant
Through: Mr. Ashish Mohan and Mr. Samarth
Chowdhary, Advocates.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
AMIT BANSAL, J. (Oral)
I.A. No. 2048/2021 (seeking leave to file an additional document with replication)
1. The present application has been filed on behalf of the applicant/plaintiff Company under Section 151 of Code of Civil Procedure, 1908 (CPC), seeking to place on record, the additional document filed, along with copy thereof.
2. The document in question is the register maintained by the plaintiff Company, which as per the plaintiff Company, maintains records of the documents handed over by the plaintiff Company to the defendant Society.
3. It is submitted by the senior counsel for the plaintiff Company that the Signature Not Verified Digitally Signed By:MAMTA ARYA CS(COMM) Signing Date:11.04.2022 18:11:02 281/2020 Page 1 of 9 additional document was to be filed together with the replication and reply to the defendant Society's counter-claim on 3rd February, 2021, however, as typed copies of the same could not be arranged at the time due to the prevailing circumstances owing to the COVID-19 pandemic, the additional document was filed together with the present application three working days later, on 8th February, 2021.
4. It is an admitted position that issues are yet to be framed in the present suit. It is also an admitted position that the plaintiff Company has stated in his pleadings that the aforesaid drawings having been supplied by the plaintiff Company to the defendant Society and the document, now sought to be placed on record, is just an additional document in support of the aforesaid pleadings. It is also an admitted position that the aforesaid document is not contrary to the pleadings of the plaintiff Company. Though the aforesaid documents should have been filed with the replication filed by the plaintiff Company, but on account of inadvertence, the aforesaid document could not be filed with the replication and the same was filed three working days after the replication was filed.
5. The counsel for the non-applicant/defendant Society submits that no reasons have been given by the plaintiff Company in the present application as to why the aforesaid document could not have been filed along with the replication. Reliance is placed on the judgment of a Co-ordinate Bench of this Court in Nitin Gupta Vs. Texmaco Infrastructure & Holding Limited, 2019 SCC OnLine Del 8367.
6. The senior counsel appearing on behalf of the plaintiff Company has sought to distinguish the aforesaid judgment from the facts of the present case and places reliance on the decisions of the Co-ordinate Benches of this Signature Not Verified Digitally Signed By:MAMTA ARYA CS(COMM) Signing Date:11.04.2022 18:11:02 281/2020 Page 2 of 9 Court in Hassad Food Company Q.S.C. & Anr. Vs. Bank of India & Ors., 2019 SCC OnLine Del 10647 and Mahesh Chaudhri & Anr. Vs. IMV India Pvt. Ltd., 2019 SCC OnLine Del 9813, where the aforesaid judgment in Nitin Gupta (supra) has been considered by the respective Co-ordinate Benches.
7. Having heard the counsels for the parties, in my view, the present case is squarely covered by the judgment in Hassad Food Company Q.S.C. (supra). The relevant observations in Hassad Food Company Q.S.C. (supra) are set out below:
"13. Perusal of Order XI as noted above reveals that the plaintiff is bound to file all documents in its power, possession, control or custody with the plaint and in case of urgent filing of a suit if some additional documents are to be filed under sub-rule (1) of Rule 1 of Order XI, the plaintiff may seek leave of the Court to rely on additional documents which additional documents are required to be filed within 30 days of filing of the suit. Under sub-rule (5) of Rule 1 of Order XI, 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 save and except by leave of the Court which leave can be granted only if the plaintiff establishes reasonable cause for non-disclosure along with the plaint. The language used in the sub-rule (5) is that the plaintiff is required to show "a reasonable cause" and not a "sufficient cause" as is ordinarily provided in other provisions.
14. While dealing with Order XIII Rule 2 CPC wherein the words used are: "unless good cause is shown", the Supreme Court in the decision reported as (2002) 1 SCC 535 Madanlal v. Shyamlal, noted the distinction between "good cause" and "sufficient cause" and held that "good cause" requires a lower degree of proof as compared to "sufficient cause" and thus the power under Order XIII Rule 2 CPC should be exercised liberally. Sub-Rule (5) of Rule 1 of Order XI of the Commercial Signature Not Verified Digitally Signed By:MAMTA ARYA CS(COMM) Signing Date:11.04.2022 18:11:02 281/2020 Page 3 of 9 Courts Act, 2015 uses the phrase "reasonable cause" which would require even a lower degree of proof as compared to "good cause".
15. Thus it is to be seen in the present case whether the plaintiff who is required to file voluminous documents inadvertently misses out certain documents which are in line with the documents already filed and further the case of the plaintiffs and does not set up of a contrary case, would be a reasonable cause permitting the plaintiffs to file additional documents at this stage when pleadings are not complete as yet for the reason the replications of the plaintiffs have not been taken on record as yet. The plaintiffs along with suit has filed more than 2000 documents, the nature of the suit is commercial wherein the plaintiff No.1 furnished corporate guarantee and plaintiff No.2 invested money with Bush Foods pursuant to the representations of the BOI consortium who are the defendants. By these additional documents, the plaintiffs want to further demonstrate the conduct of the defendant banks which would show correspondence between Bush Foods and defendant Banks and that to the knowledge of the defendant banks the financial condition of Bush Foods was not healthy and the said facts were concealed from the plaintiffs rather representations were made that Bush Foods have assets justifying the investment inducing plaintiff No.1 which was made to execute a corporate guarantee and plaintiff No.2 to invest the money. The plaintiffs have thus made out a case of egregious fraud against the defendant banks.
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17. Learned counsel for the defendants have relied upon the decision of this Court in Nitin Gupta (supra) to contend that the additional documents cannot be permitted to be filed in a commercial suit. The two main reasons why a co-ordinate Bench of this Court declined to permit additional documents to be filed were, firstly that the issues had been settled, and secondly, that the additional documents sought to be filed by the plaintiff therein pleaded a case contrary to what had been pleaded in the plaint.
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18. In the pleas taken in the present application the defendants neither dispute the relevancy of the documents nor that the documents sought to be filed do not relate to them and the only objection taken is that the plaintiffs cannot be allowed to file the documents at the belated stage. As noted above in the present suit the pleadings are not complete as yet as the replications are yet to be taken on record and hence it cannot be said that the plaintiffs have filed the present application so belatedly that it cannot be allowed. Further the plaintiffs have very fairly taken the plea of administrative oversight which can occur when the number of documents is voluminous. Thus the plaintiffs have made out a reasonable cause for not filing the documents with the plaint."
8. To similar effect is the judgment of the Co-ordinate Bench of this Court in Mahesh Chaudhri (supra). The relevant observations in the same are set out below:
"7. Leave to file additional documents can be granted to the plaintiff on establishing reasonable cause for non-disclosure alongwith the plaint. The plea is that in the 130 page written statement filed by the defendant large number of claims are raised against the plaintiff. It is further pleaded by the applicant/plaintiff that the defendant has in the written statement raised various claims which are actually in the nature of counter-claims. Hence, it is pleaded, the need arose to file additional documents along with the replication. In my opinion, the explanation given is a plausible explanation.
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9. I may also note that the present application has been filed when the suit is at an initial stage. Issues are yet to be framed.
10. Another important factor is that it is not the case of the defendant that the documents which are sought to be filed are irrelevant or not bona fide.
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14. Clearly, sufficient and plausible explanation has been given for filing of the present application and the delay in filing the documents.
15. I may deal with the contention of the defendant who has relied upon a judgment of a Coordinate Bench of this court in Nitin Gupta vs. Texmaco Infrastructure & Holding Limited (supra). That was a case in which the application of the plaintiff for filing additional documents was filed post framing of issues.
The court also recorded a finding that there is suspicion about the authenticity of the documents to be filed which are also inconsistent with the pleadings of the plaintiff. It was in those facts and circumstances that this court held as follows:-
"37. Unless, the Commercial Divisions, while dealing with the commercial suits, so start enforcing Rules legislated for commercial suits, and refuse to entertain applications for late filing of documents, especially with respect to documents of suspicious character and continue to show leniency in the name of „interest of justice‟ and „a litigant ought not to suffer for default of advocate‟, the commercial suits will start suffering from the same malady with which the ordinary suits have come to suffer and owing whereto the need for the Commercial Courts Act, 2015 was felt. Commercial Division is thus not required to entertain or allow applications for late filing of documents, without any good cause being established for non-disclosure thereof along with pleadings. The plaintiff herein has utterly failed in this regard. The application nowhere explains as to why the plaintiff, if had obtained the said letter from the defendant, did not remember the same and make disclosure of the same at the time of filing the police complaint and/or at the time of filing of this suit, even if the letter had been misplaced or was not immediately available. The form prescribed for filing affidavit of documents requires a litigant in a commercial suit to, Signature Not Verified Digitally Signed By:MAMTA ARYA CS(COMM) Signing Date:11.04.2022 18:11:02 281/2020 Page 6 of 9 even if not immediately possessed of a relevant document, disclose the same. A litigant who fails to do so and also does not satisfy the Court while seeking to belatedly file the document, why no disclosure of such document was made, cannot be permitted to so file documents."
9. Both the aforesaid judgments in Hassad Food Company Q.S.C. (supra) and Mahesh Chaudhri (supra) have considered the observations in Nitin Gupta (supra), but distinguished the same on the ground that the aforesaid judgment was passed in the context of the particular suit, where the aforesaid application was filed after the framing of issues and there was also a suspicion about the authenticity of the documents, which were inconsistent with the pleadings of the plaintiff in the said case.
10. Undoubtedly, there were other factors also that weighed with the Court in the Nitin Gupta (supra) to arrive at the conclusion that once, the plaintiff fails to file the documents in its power and possession in a commercial suit in a timely manner, the plaintiff should not be allowed to place such documents on record at a later stage. However, it cannot be denied that some of the factors that weighed with the Court in Nitin Gupta (supra) to arrive at the aforesaid conclusion were also based on the fact that the concerned document was sought to be placed on record after framing of issues in the suit and there was no pleading in respect of the aforesaid document. In this regard, reference may be made to paragraph 35 of the Nitin Gupta (supra) as follows:
"35. As would immediately be evident from the averments aforesaid, the plaintiff claims the letter now sought to be filed, to have been delivered to him only and is also pleading the circumstances in which it was so issued. The plaintiff having himself transacted qua the said letter, at the time of institution of the suit, must have been aware of the same and even if was Signature Not Verified Digitally Signed By:MAMTA ARYA CS(COMM) Signing Date:11.04.2022 18:11:02 281/2020 Page 7 of 9 immediately unable to find the document now sought to be filed, should have pleaded, in terms of the document now sought to be filed and should have in the affidavit of documents disclosed another letter dated 2nd September, 2013 and further stated that the same was immediately not available or untraceable. The plaintiff did nothing of the sort and on the contrary pleaded a case contrary to what emerges now and from the document now sought to be filed. Not a whisper was made in the declaration on oath in terms of Order XI Rule 1(3) of the CPC as applicable to Commercial Suits, of there being in existence, besides the document dated 2 September, 2013 being filed, also another document also dated 2nd September, 2013 and that the same had been lost or was not available. In this application also, there is no explanation or even a whisper as to non-disclosure along with the plaint. For a plaintiff to be entitled to leave of the Court under Order XI Rule 1(5) of the CPC for belatedly filing a document, it is essential for the plaintiff to not only plead but „establish‟ "reasonable cause for non-disclosure along with the plaint". Here, what to talk of establishing, the plaintiff has not even pleaded reasonable cause for non-disclosure along with the plaint."
11. In my view, the facts in the present case are similar to the facts in Hassad Food Company (supra) and Mahesh Chaudhri (supra). Admittedly, as noted above, issues are yet to be framed in the case and it is not the defendant Society's case that the aforesaid document is contrary to the pleadings of the plaintiff Company. The document so filed is just an additional document in support of the pleadings of the plaintiff Company.
12. Accordingly, I deem it fit to allow the present application and allow the plaintiff Company to place the aforesaid document on record, subject to the payment of costs of Rs.10,000/- to the defendant Society.
13. Needless to state, the relevancy and the admissibility of the aforesaid document would be a subject matter of trial.
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14. Accordingly, the application is disposed of in above terms. I.A. No. 8306/2021 (u/O XIII-A of CPC)
15. List for hearing on 25th August, 2022.
AMIT BANSAL, J.
APRIL 06, 2022 Sakshi R Signature Not Verified Digitally Signed By:MAMTA ARYA CS(COMM) Signing Date:11.04.2022 18:11:02 281/2020 Page 9 of 9