Calcutta High Court
Merchem Limited vs Pulinat Ettan Thomas on 4 April, 2024
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
COMMERCIAL DIVISION
Present:s
The Hon'ble Justice Krishna Rao
IA No. G.A. (COM) 3 of 2023
In
CS-COM 175 of 2024
(Old No. CS 6 of 2020)
Merchem Limited
Versus
Pulinat Ettan Thomas
Mr. Aritra Basu
Mr. Patita Paban Bishwal
Ms. Suranjana Chatterjee
... For the plaintiff.
Mr. Aniruddha Mitra
Mr. Hiranyak Gangopadhyay
... For the defendant.
Hearing Concluded On : 05.03.2024
Judgment on : 04.04.2024
2
Krishna Rao, J.:
1. The defendant has filed the present application being G.A. (COM) 3 of 2023 in CS No. 6 of 2020 praying for leave to disclose additional documents. The plaintiff has filed the suit praying for a decree for a sum of Rs. 55,47,442/- along with interest against the defendant. The defendant has filed written statement along with counter claim for a sum of Rs. 2,81,16,238/- along with interest as the defendant had rendered services and have discharged his duties and responsibilities towards the plaintiff since the date of appointment till November 2019.
2. Defendant says that during the conference with the Learned Counsel in the last week of November, 2023 when it was discussed about the documents in support of the case of the defendant in terms of Issue No.8, the Learned Counsel had instructed the defendant to search documents and on search, the defendant got the e-mail communications which were made from the e-mail of the defendant and it was found that the said e-mails were not enclosed with the written statement along with the counter claim.
3. Defendant says that the defendant has annexed some WhatsApp conversations and the same are in a piecemeal and the said communications are in between 28th August, 2019 to 2nd September, 2019. He says that there had been WhatsApp communications between the defendant and on Shri Narain Holani, the Managing Director of the 3 plaintiff since 1st August, 2019 till 19th December, 2019 and the said WhatsApp communications are in support of the case of the defendant.
4. He submits that he is a senior citizen and is a resident of Kochi and on receipt of writ of summons, he has appointed an Advocate on Record at Calcutta and had given instructions to file written statement as per the time line provided under the Act and due to which the defendant has filed written statement along with counter claim in haste. He further submits that written statement is filed during the Covid-19 period and he was also tested Covid-19 positive in the month of February, 2021 and at that point of time, the movement of the defendant was restricted due to which he could not come to Kolkata for affirming the written statement. He submits that all the instructions were given to the Learned Advocate over phone and the documents which were in the hands of the defendant were given to the Learned Advocate at the time of drafting of the written statement.
5. He says that entire transcription of the WhatsApp conversations were not filed along with written statement and he could not get the same at the relevant point of time. He submits that the defendant has not made out any new case or new defence. The documents which the defendant intend to disclose are vital documents and are relevant for the purpose of proper adjudication of the suit. He submits that if leave is granted to the defendant to disclose the documents, the plaintiff will not be prejudiced in any manner as examination of the plaintiff's witness is still going on.
46. The defendant relied upon the following judgments in support of his submissions:
a. (2020) 10 SCC 706 (Sugandhi (Dead) by Legal Representatives And Another vs. P. Rajkumar Represented by his Power Agent Imam Oli).
b. (2002)1 SCC 535 (Madanlal vs. Shyamlal).
c. 2023 SCC OnLine Del 7914 (Agva Healthcare Private Limited and Others vs. Agfa- Gevaert NV and Another).
7. Plaintiff says that the application filed by the defendant is not maintainable as the defendant has neither disclosed the documents at the time of filing of the written statement along with the counter claim nor had taken leave to disclose the said documents subsequent to filing of written statement. He says that at the time of filing written statement, the defendant has also filed statement of truth affirming that all documents which are in power, possession, control or custody pertaining to the suit have been disclosed.
8. He says that after completion of pleadings, discovery and inspection of the documents were carried out by the parties and affidavit of admission and denial of the documents have also been filed and at that point of time also the defendant has not disclosed the documents. He says that the case is at the stage of evidence and evidence of the plaintiff is also concluded and the defendant has also cross examined the plaintiff's witness in full.
59. He says that as per the case of the defendant, the documents which the defendant intend to disclose were in possession of the defendant and the defendant has not disclosed the same at the time of filing of written statement and thus no leave can be granted to the defendant to disclose the said documents. He says the evidence of the plaintiff's witness is completed and at this stage, the defendant is allowed to disclose the said documents, the plaintiff will be badly prejudiced.
10. The plaintiff in support of his case has relied upon the Judgment reported in (2021) 13 SCC 71 (Sudhir Kumar Alias S. Baliyan vs. Vinay Kumar G.B).
11. Order XI of Commercial Courts Act, 2015 reads as follows :
"ORDER XI DISCLOSURE, DISCOVERY AND INSPECTION OF DOCUMENTS IN SUITS BEFORE THE COMMERCIAL DIVISION OF A HIGH COURT OR A COMMERCIAL COURT O.11 R.1. Disclosure and discovery of documents.--(1) Plaintiff shall file a list of all documents and photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the plaint, including:--
(a) documents referred to and relied on by the plaintiff in the plaint;
(b) documents relating to any matter in question in the proceedings, in the power, possession, control or custody of the plaintiff, as on the date of filing the plaint, irrespective of whether the same is in support of or adverse to the plaintiff's case;6
(c) nothing in this Rule shall apply to documents produced by plaintiffs and relevant only--
(i) for the cross-examination of the defendant's witnesses, or
(ii) in answer to any case set up by the defendant subsequent to the filing of the plaint, or
(iii) handed over to a witness merely to refresh his memory.
(2) The list of documents filed with the plaint shall specify whether the documents in the power, possession, control or custody of the plaintiff are originals, office copies or photocopies and the list shall also set out in brief, details of parties to each document, mode of execution, issuance or receipt and line of custody of each document.
(3) The plaint shall contain a declaration on oath from the plaintiff that all documents in the power, possession, control or custody of the plaintiff, pertaining to the facts and circumstances of the proceedings initiated by him have been disclosed and copies thereof annexed with the plaint, and that the plaintiff does not have any other documents in its power, possession, control or custody.
Explanation.--A declaration on oath under this sub-rule shall be contained in the Statement of Truth as set out in the Appendix.
(4) In case of urgent filings, the plaintiff may seek leave to rely on additional documents, as part of the above declaration on oath and subject to grant of such leave by Court, the plaintiff shall 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 that the plaintiff does not have any other documents, in its power, possession, control or custody.
(5) The plaintiff shall not be allowed to rely on documents, which were in the plaintiff's power, possession, control or custody and not disclosed 7 along with plaint or within the extended period set out above, save and except by leave of Court and such leave shall be granted only upon the plaintiff establishing reasonable cause for non-disclosure along with the plaint.
(6) The plaint shall set out details of documents, which the plaintiff believes to be in the power, possession, control or custody of the defendant and which the plaintiff wishes to rely upon and seek leave for production thereof by the said defendant.
(7) The defendant shall file a list of all documents and photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the written statement or with its counterclaim if any, including--
(a) the documents referred to and relied on by the defendant in the written statement; 1. Subs. by Act 28 of 2018, s. 18, for "Provided further that" (w.e.f. 3-5-2018). 15
(b) the documents relating to any matter in question in the proceeding in the power, possession, control or custody of the defendant, irrespective of whether the same is in support of or adverse to the defendant's defence;
(c) nothing in this Rule shall apply to documents produced by the defendants and relevant only--
(i) for the cross-examination of the plaintiff's witnesses,
(ii) in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or
(iii) handed over to a witness merely to refresh his memory.
(8) The list of documents filed with the written statement or counterclaim shall specify whether the documents, in the power, possession, control or custody of the defendant, are originals, office copies or photocopies and the list shall also set out in brief, details of parties to each document being produced by the defendant, mode of execution, issuance or receipt and line of custody of each document.
8(9) The written statement or counterclaim shall contain a declaration on oath made by the deponent that all documents in the power, possession, control or custody of the defendant, save and except for those set out in sub-rule (7) (c)
(iii) pertaining to the facts and circumstances of the proceedings initiated by the plaintiff or in the counterclaim, have been disclosed and copies thereof annexed with the written statement or counterclaim and that the defendant does not have in its power, possession, control or custody, any other documents.
(10) Save and except for sub-rule (7) (c) (iii), defendant shall not be allowed to rely on documents, which were in the defendant's power, possession, control or custody and not disclosed along with the written statement or counterclaim, save and except by leave of Court and such leave shall be granted only upon the defendant establishing reasonable cause for non-disclosure along with the written statement or counterclaim.
(11) The written statement or counterclaim shall set out details of documents in the power, possession, control or custody of the plaintiff, which the defendant wishes to rely upon and which have not been disclosed with the plaint, and call upon the plaintiff to produce the same.
(12) Duty to disclose documents, which have come to the notice of a party, shall continue till disposal of the suit.
O.XI R.2.-Discovery by interrogatories.--(1) In any suit the plaintiff or defendant by leave of the court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer:
Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose:
Provided further that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that 9 they might be admissible on the oral cross- examination of a witness.
(2) On an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the court, and that court shall decide within seven days from the day of filing of the said application, in deciding upon such application, the court shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the court shall consider necessary either for disposing fairly of the suit or for saving costs.
(3) In adjusting the costs of the suit inquiry shall at the instance of any party be made into the propriety of exhibiting such interrogatories, and if it is the opinion of the taxing officer or of the court, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault.
(4) Interrogatories shall be in the form provided in Form No. 2 in Appendix C to the Code of Civil Procedure, 1908 (5 of 1908), with such variations as circumstances may require.
(5) Where any party to a suit is a corporation or a body of persons, whether incorporated or not, empowered by law to sue or be sued, whether in its own name or in the name of any officer of other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation or body, and an order may be made accordingly.
(6) Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, or on the ground of privilege or any other ground may be taken in the affidavit in answer.10
(7) Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous and any application for this purpose may be made within seven days after service of the interrogatories.
(8) Interrogatories shall be answered by affidavit to be filed within ten days, or within such other time as the court may allow.
(9) An affidavit in answer to interrogatories shall be in the form provided in Form No. 3 in Appendix C to the Code of Civil Procedure, 1908 (5 of 1908), with such variations as circumstances may require.
(10) No exceptions shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the court.
(11) Where any person interrogated omits to answer, or answers insufficiently, the party interrogating may apply to the court for an order requiring him to answer, or to answer further, as the case may be, and an order may be made requiring him to answer, or to answer further, either affidavit or by viva voce examination, as the court may direct.
O.XI R.3. Inspection.--(1) All parties shall complete inspection of all documents disclosed within thirty days of the date of filing of the written statement or written statement to the counterclaim, whichever is later. The Court may extend this time limit upon application at its discretion, but not beyond thirty days in any event.
(2) Any party to the proceedings may seek directions from the Court, at any stage of the proceedings, for inspection or production of documents by the other party, of which inspection has been refused by such party or documents have not been produced despite issuance of a notice to produce.
(3) Order in such application shall be disposed of within thirty days of filing such application, 11 including filing replies and rejoinders (if permitted by Court) and hearing.
(4) If the above application is allowed, inspection and copies thereof shall be furnished to the party seeking it, within five days of such order.
(5) No party shall be permitted to rely on a document, which it had failed to disclose or of which inspection has not been given, save and except with leave of Court.
(6) The Court may impose exemplary costs against a defaulting party, who wilfully or negligently failed to disclose all documents pertaining to a suit or essential for a decision therein and which are in their power, possession, control or custody or where a Court holds that inspection or copies of any documents had been wrongfully or unreasonably withheld or refused.
O.XI R.4. Admission and denial of documents.--(1) Each party shall submit a statement of admissions or denials of all documents disclosed and of which inspection has been completed, within fifteen days of the completion of inspection or any later date as fixed by the Court.
(2) The statement of admissions and denials shall set out explicitly, whether such party was admitting or denying:--
(a) correctness of contents of a document;
(b) existence of a document; 17
(c) execution of a document;
(d) issuance or receipt of a document;
(e) custody of a document.
Explanation.--A statement of admission or denial of the existence of a document made in accordance with sub-rule (2) (b) shall include the admission or denial of the contents of a document.
(3) Each party shall set out reasons for denying a document under any of the above grounds and bare and unsupported denials shall not be deemed to be denials of a document and 12 proof of such documents may then be dispensed with at the discretion of the Court.
(4) Any party may however submit bare denials for third party documents of which the party denying does not have any personal knowledge of, and to which the party denying is not a party to in any manner whatsoever.
(5) An Affidavit in support of the statement of admissions and denials shall be filed confirming the correctness of the contents of the statement.
(6) In the event that the Court holds that any party has unduly refused to admit a document under any of the above criteria,-costs (including exemplary costs) for deciding on admissibility of a document may be imposed by the Court on such party.
(7) The Court may pass orders with respect to admitted documents including for waiver of further proof thereon or rejection of any documents.
O.XI R.5. Production of documents.--(1) Any party to a proceeding may seek or the Court may order, at any time during the pendency of any suit, production by any party or person, of such documents in the possession or power of such party or person, relating to any matter in question in such suit.
(2) Notice to produce such document shall be issued in the Form provided in Form No. 7 in Appendix C to the Code of Civil Procedure, 1908 (5 of 1908).
(3) Any party or person to whom such notice to produce is issued shall be given not less than seven days and not more than fifteen days to produce such document or to answer to their inability to produce such document.
(4) The Court may draw an adverse inference against a party refusing to produce such document after issuance of a notice to produce and where sufficient reasons for such non-production are not given and order costs.
O.XI R.6. Electronic records.--(1) In case of disclosures and inspection of Electronic Records (as defined in the Information Technology Act, 2000 (21 13 of 2000)), furnishing of printouts shall be sufficient compliance of the above provisions.
(2) At the discretion of the parties or where required (when parties wish to rely on audio or video content), copies of electronic records may be furnished in electronic form either in addition to or in lieu of printouts.
(3) Where Electronic Records form part of documents disclosed, the declaration on oath to be filed by a party shall specify--
(a) the parties to such Electronic Record;
(b) the manner in which such electronic record was produced and by whom;
(c) the dates and time of preparation or storage or issuance or receipt of each such electronic record;
(d) the source of such electronic record and date and time when the electronic record was printed;
(e) in case of email ids, details of ownership, custody and access to such email ids;
(f) in case of documents stored on a computer or computer resource (including on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource;
(g) deponent's knowledge of contents and correctness of contents;
(h) whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document stored;
(i) that the printout or copy furnished was taken from the original computer or computer resource.
(4) The parties relying on printouts or copy in electronic form, of any electronic records, shall not be required to give inspection of electronic records, provided a declaration is made by such party that 14 each such copy, which has been produced, has been made from the original electronic record.
(5) The Court may give directions for admissibility of Electronic Records at any stage of the proceedings.
(6) Any party may seek directions from the Court and the Court may of its motion issue directions for submission of further proof of any electronic record including metadata or logs before admission of such electronic record.
O.XI R.7. Certain provisions of the Code of Civil Procedure, 1908 not to apply.--For avoidance of doubt, it is hereby clarified that Order XIII Rule 1, Order VII Rule 14 and Order VIII Rule 1A of the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to suits or applications before the Commercial Divisions of High Court or Commercial Courts.".
12. In the present case, the defendant has filed an application to disclose additional documents and thus Order XI, Rule 1(7) to Rule 1(11) are to be looked into. Order XI, Rule 1(10) speaks that the defendant shall not be allowed to rely upon documents which were in possession, power, control and custody and were not disclosed along with the written statement or counter claim, save and except by leave of the Court and such leave shall be granted only upon establishing reasonable cause for non-disclosure along with written statement or counter claim. It is admitted that the documents were in possession of the defendant as the documents which the defendant intends to disclose are the e-mails which were available in the mail of the defendant at the time of filing of the suit.
1513. Now this Court is to see whether the defendant has established reasonable cause for non-disclosure of the documents along with written statement and counter claim. The defendant says that the defendant is a permanent resident of Kochi, Kerala and during the Covid-19 period written statement was filed on the instructions provided to the Advocate-on-Record over phone and due to the time line provided under the Commercial Courts Act, 2015, the defendant has filed Written Statement in haste and the defendant has also suffered Covid-19 positive in the month of February 2021.
14. Mr. Anirudh Mitra, Learned Advocate representing the defendant has referred the definition of Reasonable and probable cause from The Law Lexicon which reads as follows:
"Reasonable and probable cause: Reasonable and probable cause means an honest belief founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man to the conclusion arrived at."
In the case of The State of Bihar through District Magistrate, Bhagalpur vs. Rameshwar Prasad Baidya reported in AIR 1980 Pat 267 held that Reasonable and probable cause means genuine belief, based on reasonable grounds, that the proceedings are justified.
15. The judgment relied by the defendant in the case of Sugandhi (Supra), the Hon'ble Supreme Court granted leave to produce documents which were not disclosed along with written statement but in the said case, it was the specific case of the defendant that the documents were missing 16 at the time of filing of written statement and were only traced out at a later stage but the facts of the instant case is distinguishable as in the present case, the documents were with the defendant but had not disclosed due to filing of the written statement in haste.
16. The Judgment relied by the defendant in the case of Madanlal (Supra) is also distinguishable from the facts of the present case. This case is govern by the Commercial Courts Act, 2015 wherein under Order XI Rule 1(10), the defendant shall not be allowed to rely on documents, which were in the defendant's power, possession, control or custody of the defendant and not disclose along with the written statement save and except leave is granted upon defendant establishing reasonable cause for non-disclosure along with written statement or counter claim.
In the present case, the documents were in possession of the defendant but the defendant has not shown any reasonable and probable cause as to why the defendant has not disclosed the said document.
Defendant has filed written statement along with counter claim on 28th August, 2021 and after filing of counter claim, discovery and inspection of documents was completed and the parties have filed their affidavit of admission and denial of the documents but at that point of time also the defendant has not taken any steps to disclose additional documents. After completion of all formalities, issues were framed. The plaintiff's witness was also examined and the defendant had cross examined the plaintiff witness .On completion of cross examination, the plaintiff has closed its evidence.
1717. The case relied by the defendant in the case of Agva Healthcare Private Limited and Others (Supra), the defendant has filed an application at the initial stage of the suit wherein issues were not framed but in the present case the plaintiff's witness is examined and cross examined and evidence on the side of the plaintiff is closed, thus the said judgment is also distinguishable from the facts of the present case.
18. Considering the above facts and circumstances mentioned above, this Court finds that the defendant has filed written statement along with counter claim on 24th August, 2021 and thereafter discovery and inspection of documents were completed and the parties have filed their affidavit of admission and denial of the documents and the evidence of the plaintiff is concluded and evidence of the plaintiff is closed. The defendant has not shown any reasonable and probable cause as to why the defendant has not disclosed the documents at the initial stage and had waited till the completion of examination of plaintiff's witness even the defendant has cross-examined the plaintiff's witness at length.
19. Mr. Mitra also relied upon Order XI, Rule 1(12) and submitted that as per this provision, duty to disclose documents, which have come to notice of a party, shall continue till the disposal of the suit but in the present case, it is admitted case of the defendant that the documents were available in the mail of the defendant. It is not the case of the 18 defendant that the same was come to the notice of the defendant subsequently, thus the contention of the defendant is not sustainable.
20. In view of the above, G.A. (COM) No. 3 of 2023 is dismissed.
(Krishna Rao, J.)