Gujarat High Court
Kunjal Shubhashchandra Shah vs Gujarat Industrial Investment ... on 9 June, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/4985/2019 ORDER DATED: 09/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4985 of 2019
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KUNJAL SHUBHASHCHANDRA SHAH
Versus
GUJARAT INDUSTRIAL INVESTMENT COPORATION
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Appearance:
JAY J JANI(9303) for the Petitioner(s) No. 1
MS TEJAL A VASHI(2704) for the Petitioner(s) No. 1
MR RD DAVE(264) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 3,7,8,9
NOTICE UNSERVED for the Respondent(s) No. 2,5,6
UNSERVED EXPIRED (N) for the Respondent(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 09/06/2022
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. The petitioner is the original defendant No.5 and the respondent No.1 is the original plaintiff and the respondent Nos.2 to 9 are the original defendants of the Commercial Civil Suit No.76 of 2018 (Old Civil Suit No.5394 of 2000).
2. By way of the present writ application, the challenge is to the order dated 28.12.2018 passed below Exh.218 application by the Commercial Court, Ahmedabad in the Commercial Civil Suit No.76 of 2017 whereby the Trial Court allowed the application dated 28.12.2018 filed by the original plaintiff vide Exh.218 seeking production of Page 1 of 16 Downloaded on : Sat Dec 24 18:28:34 IST 2022 C/SCA/4985/2019 ORDER DATED: 09/06/2022 the documents at the time of the appointment of the Court Commissioner and the filing of the affidavit-in-chief by the defendant No.5 and the other defendants. Taking of the documents produced vide List Exh.219 on record is challenged by the petitioner.
3. The Civil Suit No.5394 of 2000 seeks a decree in favour of the plaintiff for the sum of Rs.2,07,10,810/- as on 26.05.2000 together with interest thereon at the rate of 18.50% per annum from 27.03.1998 till payment or realization. The plaintiff also filed list of documents along with the list. He was not aware of the aforesaid proceedings and, therefore, did not appear initially.
4. In the year 2015, the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 came into force. The suit since valued at Rs.2.07 Crores (rounded off), it was transferred to the Commercial Court at Ahmedabad and the same has been numbered as Commercial Civil Suit No.76 of 2017.
The Commercial Court issued the summons as well as public notice to the defendants. The original defendant No.5 came to know about the suit and entered its appearance. The petitioner gave an application below Exh.75 seeking condonation of delay in filing the written statement, and the Commercial Court vide its order dated 09.10.2018, allowed the same and condoned the delay subject to the cost of Rs.50,000/-. The right to file the Page 2 of 16 Downloaded on : Sat Dec 24 18:28:34 IST 2022 C/SCA/4985/2019 ORDER DATED: 09/06/2022 written statement also has been opened.
The petitioner sought leave of the Court seeking permission to file the counter claim vide Exh.77 and the same also had been granted. The written statement and the counter-claim along with the documents were placed before the Commercial Court, Ahmedabad. The respondent No.1 also filed a written statement to the counter-claim filed by the present petitioner on 15.03.2018 vide Exh.100. The rejoinder Exh.105 was filed by the petitioner on 18.04.2018. The Rojnama dated 09.01.2018, written statement and the counter-claim along with the list of documents and replies so also the rejoinder all have been placed on record.
5. The defendant No.3 expired during the pendency of the suit on 13.01.2018. Since the plaintiff did not take any steps to bring the legal representatives of the defendant No.3 on record, the suit qua the defendant No.3 had abated. The order to that effect came to be passed on 19.06.2018. The parties were asked to file the affidavit of admission and denial and, accordingly, the matter had been kept on 10.07.2018. On that day, the Commercial Court granted the last opportunity to the defendants to file the original documents and posted the matter on 23.07.2018. On 23.07.2018, the petitioner and the defendant No.1 filed documents vide Exhs.111 and 112 and also filed an application Exh.113 seeking permission to lead secondary evidence.
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6. At that stage, the plaintiff filed an application vide Exh.110 seeking time to file original documents and to file reply to the application Exh.113. The last opportunity was granted to the plaintiff to file the original documents subject to the cost of Rs.5000/-. The matter was kept on 16.08.2018.
7. As averred, the last opportunity although granted, the plaintiff did not file the original documents and on 16.08.2018, he filed affidavit of admission and denial vide Exh.114. Production application vide Exh.60 had been filed which was allowed and exhibited. The chronology as it goes, on 27.09.2018, the Trial Court had posted the matter for exhibiting the documents and on that day, the plaintiff filed affidavit of admission and denial in respect of the documents filed by the petitioner-original defendant No.5 and original defendant No.1. The matter had been posted on 04.10.2018 for suggesting the issues. The suggested issues had been tendered to the Court on 04.10.2018 and the matter was fixed on 11.10.2018. On 01.11.2018, the issues have been framed vide Exh.211. The list of witnesses was to be given on 16.11.2018 which was given on the scheduled date vide Exh.212. The defendants were given the last opportunity to produce the list of witnesses. Accordingly, on 20.11.2018, the matter had been fixed. Yet another opportunity was given for filing the witness list in the interest of justice at the cost of Rs.5,000/-. The petitioner-defendant No.5 deposited the amount of Rs.5,000/- of cost, and on 30.11.2018, filed a Page 4 of 16 Downloaded on : Sat Dec 24 18:28:34 IST 2022 C/SCA/4985/2019 ORDER DATED: 09/06/2022 witness list. For filing the affidavit of witnesses, the matter was scheduled on 07.12.2018 which was the last opportunity to file the affidavit of witnesses. On 15.12.2018, the petitioner filed affidavit of examination-in- chief (Exh.217) and the defendant No.1 filed the same vide Exh.216. For suggesting the name of the Court Commissioner, the matter was posted on 28.12.2018.
8. On the scheduled date of 28.12.2018, after about 17 years delay, the plaintiff after filing of original documents and secondary evidence and after framing the issues and also after filing admission and denial of documents, when the list of witnesses had been presented, this application Exh.218 has been given for production of documents in the nature of statement of account of the defendants.
9. This has been severely challenged and questioned as an afterthought to fill up the lacuna. This also is attacked on the ground that it has failed to produce any proper calculation and filed at a belated stage.
10. The Trial Court had allowed the application and taken the statement of account on record. The opportunity has also been granted to the plaintiff to file an affidavit in examination-in-chief subject to the cost of Rs.5,000/- and the matter was scheduled on 04.01.2019. Aggrieved by this order, the present petition has been preferred under Articles 226 and 227 of the Constitution of India.
11. Essentially questioning the belated production, Page 5 of 16 Downloaded on : Sat Dec 24 18:28:34 IST 2022 C/SCA/4985/2019 ORDER DATED: 09/06/2022 absence of any grounds for putting forth this application and the lack of reasons in the award of the Trial Court while allowing the application. This is also challenged and questioned on the ground that it de hors the provisions of law which is prevalent. Relying heavily on the provisions of the Civil Procedure Code (C.P.C. hereinafter), a request is made to quash and set aside the order passed by the Trial Court.
12. Notice for final disposal came to be issued on 08.03.2019 by this Court (Coram:S.R. Brahmbhatt & V.B. Mayani, J.J.).
13. We have heard extensively learned senior advocate Mr. Jal Unwalla appearing with learned advocate Ms. Tejal Vashi for the petitioner and Mr. R.D. Dave, the learned advocate appearing for the respondent-Gujarat Industrial Investment Corporation.
14. Order VII under the heading of plaint provides for the particulars to be contained in the plaint in Rule 1. Rule 2 provides for the details of money suits and Rule 2-A provides the interest sought in the suit. Rule 14 provides for the production of documents on which the plaintiff sues or relies. Rule 14(1) clearly provides that where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, such document needs to be entered in a list and to be produced in a Court when the plaint is presented by him. The Page 6 of 16 Downloaded on : Sat Dec 24 18:28:34 IST 2022 C/SCA/4985/2019 ORDER DATED: 09/06/2022 document also needs to be delivered at the same time, a a copy thereof is to be filed with the plaint. Rule 14 (2) provides that where any such document is not in possession of the plaintiff, if possible, he should state, in whose possession or power it is. Rule 14(3) provides that a document which is sought to be produced in the Court by the plaintiff when the plaint is presented or to be entered in the list to be added or annexed to the plaint and is not produced or entered accordingly, the same cannot be done without the leave of the Court In evidence such document cannot be received on his behalf at the hearing of the suit. Rule 14(4) provides that nothing in this rule shall apply to the document produced for the cross-examination of the plaintiff's witnesses or to be handed over to a witnesses merely to refresh his memory. Here the question arises is of the production of a document which otherwise the plaintiff is required to produce in the Court when the plaint is presented or to be entered in the list to be added or annexed to the plaint but is not produced or entered and the same shall not be produced without the leave of the Court nor to be received in evidence on his behalf at the hearing of the suit.
15. The Apex Court in the case of Sudhir Kumar @ S. Baliyan vs. Vinay Kumar GB., AIR 2021 SC 4303, where the High Court of Delhi had dismissed the petition preferred by the appellant-original plaintiff confirming the order of the Commercial Court, dismissing the application filed by the appellant under Order VII Rule 14(3) of the Page 7 of 16 Downloaded on : Sat Dec 24 18:28:34 IST 2022 C/SCA/4985/2019 ORDER DATED: 09/06/2022 CPC where leave was sought to place additional documents on record and when denied, the appeal had been preferred before the Apex Court.
15.1 The appellant-original plaintiff had filed the commercial suit before the Commercial Court pending in the Court of the Addl. District Judge claiming a decree of permanent injunction against the defendant from using the Trade Mark. The earlier suit of trade mark also claimed the adoption and use of trade mark, however, that was withdrawn and was not filed in conformity with the provisions of the Commercial Courts Act, 2015. The subsequent suit from which this appeal had arisen was preferred in the year 2019 where the claim was of adoption and use of trademark since 2006. As per the provisions of Order XI Rule 1 applicable to the suits before the Commercial Division of a High Court or a Commercial Court, the plaintiff was required to 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 or certain documents including the invoices which were not produced along with the plaint and, therefore, the appellant preferred the application under Order VII Rule 14(3) read with Section 151 of the CPC seeking leave of the Court to file the additional documents. The Commercial Court dismissed the said application seeking leave of the Court to file additional documents. Thereafter, the defendant filed the written statement in the month of January, 2020, and as per Order Page 8 of 16 Downloaded on : Sat Dec 24 18:28:34 IST 2022 C/SCA/4985/2019 ORDER DATED: 09/06/2022 XI Rule 7, the defendant also was required to file list of all documents, photocopies in its power, possession and control pertaining to the suit along with the written statement. These documents were not produced along with the written statement and he also filed an application under Order XI Rule 1(10), seeking leave of the Court to produce additional documents. However, that was partly rejected in the month of October, 2020.
15.2 The appeal was preferred before the Delhi High Court which allowed the said appeal taking on record all documents filed by the defendant. Thereafter, the Commercial Court dismissed the interim injunction application filed by the plaintiff therein. Thereafter, the appellant-original plaintiff preferred the application before the Delhi High Court challenging the order of 13.11.2019, dismissing the application seeking leave of the Court to file additional documents. The High Court dismissed the same and confirmed the order of the Commercial Court dismissing the leave to file additional documents.
15.3 This was argued extensively before the Apex Court that the documents which are sought to be relied upon were necessary for the purpose of just decision. Permission granted to the defendant for production of the additional documents along with the written statement in exercise of powers under Order XI Rule 1(10) was also pressed into service. It was further argued that the additional documents were sought to be filed within 10 Page 9 of 16 Downloaded on : Sat Dec 24 18:28:34 IST 2022 C/SCA/4985/2019 ORDER DATED: 09/06/2022 days of filing of the suit and, therefore, both the Courts were in error to hold that it was at a belated stage or the same was an afterthought. The same was to be preferred within 30 days of filing of the suit as per the requirement of Order XI Rule 1(4) of the CPC. It was also argued before the Court that when the documents are sought to be produced, the Trial Court or the Commercial Court are not required to consider the genuineness of the documents sought to be produced which are to be decided and considered during the trial of the suit. At the stage of production of the additional documents, the documents cannot be suspected. The cogent reasons given by the plaintiff for non-production were also the grounds put forth.
15.4 The Court, after a detailed examination of the issue involved, partly allowed the appeal. The judgment and order of the High Court confirming the order of the Commercial Court dismissing the application submitted by the plaintiff to allow the documents as additional documents has been quashed to the extent that it did not grant original plaintiff to rely on the invoices mentioned in the application dated 13.09.2019. The Apex Court has held that Order XI Rule 1 of the CPC as applicable to the commercial suits brought about a radical change and it mandates the plaintiff to file a list of all documents, photocopies of all documents in its power, possession, control and custody pertaining to the suit along with the plaint and a procedure is provided under Order XI Rule 1 Page 10 of 16 Downloaded on : Sat Dec 24 18:28:34 IST 2022 C/SCA/4985/2019 ORDER DATED: 09/06/2022 which is to be followed by the plaintiff and the defendant when the suit is a commercial suit. However, the plaintiff in case of urgent filings may seek to rely on additional documents as part of a declaration on oath, and subject to the grant of such leave by the Court, the plaintiff shall file such additional documents in the Court within 30 day 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. Those which are in his possession, power and control within the extended period set out, save and except by the leave of the Court and the leave to be granted only upon the plaintiff establishing reasonable cause for non-disclosure along with the plaint is not to be allowed. The plaintiff is required to set out the details of the documents which the plaintiff believes to be in his possession. Order XI Rule 1(3) also provides that the plaint shall contain a declaration on oath from the plaintiff that all the 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 are annexed with the plaint and he does not have any other documents in its power, possession, control or custody. Order XI Rule 1(3) requires as per the explanation, a declaration on oath under this sub-rule to be contained in Page 11 of 16 Downloaded on : Sat Dec 24 18:28:34 IST 2022 C/SCA/4985/2019 ORDER DATED: 09/06/2022 the Statement of Truth as set out in the Appendix. It is thus made clear that the plaintiff is required to produce all the documents along with the plaint and when the additional documents are to be permitted, it is based on his declaration on oath that such documents were not in his power, possession, control or custody which pertain to the facts and circumstances. Further thirty days is provided to place on record or file such additional documents in a Court and a declaration on oath to be required to be filed. He needs to satisfy and establish the reasonable cause for non-disclosure along with the plaint and on requirement of establishing the reasonable cause for non-disclosure of the documents along with the plaint, he can be permitted to bring those documents on record. In a matter before the Apex Court, additionally the Commercial Court had doubted the the invoices. The Court said that was not the stage where this could have been doubted. Admittedly, the request was made within the stipulated period of thirty days under Order XI Rule 1(4) and hence some of the documents which the Court found relevant and were wrongly denied, had been permitted. Here is a case where the suit had been preferred as a money suit and later in the year 2015, the same had been converted into a commercial suit with the coming of the Commercial Courts Act. The application was moved under Order VII Rule 14(3) seeking leave of the Court to place the additional documents on record.
16. Yet another decision which is required to be Page 12 of 16 Downloaded on : Sat Dec 24 18:28:34 IST 2022 C/SCA/4985/2019 ORDER DATED: 09/06/2022 considered is of Bagai Construction vs. Gupta Building Material Store, (2013) 14 SCC 1. It was the case where the matter was posted for judgment where the respondent-plaintiff filed an application to submit some more documents under Order VII Rule 14 and recall PW No.1 for proving those documents. The Trial Court had rejected such application whereas the High Court permitted it. When traveled to the Apex Court, it held that though application was filed for filing of the original copies of the bills, they were not placed on record even though they were in the exclusive possession of the plaintiff. Therefore, at such belated stage when the evidence had been concluded and argument were heard, submission of the bill was improper and the plaintiff cannot be permitted to fill up any lacuna of his case. The Court found no acceptable reasons or causes made out for accepting that application at such a belated stage was permissible despite sufficient opportunity being given to the plaintiff to prove its case. The Court also held that inherent power under Section 151 of the CPC cannot be used at such a belated stage. In the instant case, the application made by the party after about 18 years is questioned on the ground that it hardly gives any reasons much less any plausible explanation as to why at such a belated stage, the application is made. The Court's order also lacks sufficiency of the reasons to allow such application and thus it is urged that it may also rise a tendency of adding arbitrariness in the conduct of the Court. If in such a Page 13 of 16 Downloaded on : Sat Dec 24 18:28:34 IST 2022 C/SCA/4985/2019 ORDER DATED: 09/06/2022 fashion, the additional documents are permitted to be brought on the record after 18 years that too at a stage when the defendant had already disclosed its stand in examination-in-chief.
17. It would be appropriate at this stage now to refer to some of the factual aspects. Admittedly, the application seeking to bring on record the additional documents on record has been preferred after 18 years under Order VII Rule 14(3). It is also not in dispute that it was a stage when the defendant No.5, the present petitioner had also given his examination-in-chief and the matter was actually posted for appointing the Court Commissioner. The application lacks a detail as to why at such a belated stage, these additional document needed to be brought on record except that inadvertently the documents had not been brought on the record. The requisite reason and the details as required by the respondent-original plaintiff is missing and so is the sufficient reasonings although the satisfaction of the Court is the only requirement which is spelt out in the CPC. A long delay of 18 years would have demanded more if not the cogent details, the sufficient reasons and yet we could see that the petitioner had filed his appearance after due service in a suit which is filed in the year 2002, the appearance was in the year 2017. The initial notice had been served upon this petitioner at an address which was of his own and yet as a guarantor,after the public notice had been served, it had chosen to appear before this Court after 18 years. Therefore, for the Page 14 of 16 Downloaded on : Sat Dec 24 18:28:34 IST 2022 C/SCA/4985/2019 ORDER DATED: 09/06/2022 petitioner to say that the application had been moved after 18 years and that too after examination-in-chief has been preferred by the defendant No.5 would hardly according to us is the ground to weigh in his favour. This Court had an option of remanding the matter for the GIIC to move an appropriate application and the Court to give the specific reasons for allowing the additional documents. However, noticing the suit of the year 2000 as also the order being of the year 2019 when this Court is deciding in the year 2022, we have chosen not to so do it and instead specify the requirements of law and also for the future guideline have stated as to what otherwise would be required of the applicant which moves an application for additional evidence and the Court when it grants and expresses its satisfaction while permitting the additional evidence.
17.1 The decision of the Apex Court in the case of Sudhir Kumar (supra) has already covered the issue in relation to the additional documents under Order XI Rule 14 of the Commercial Courts Act. Order VII Rule 14(3) requires the documents to be produced in the Court by the plaintiff when the suit is presented, and if he fails to do so, then the such documents, shall not, without the leave of the Court be received on behalf of the party at the hearing of the suit. The leave of the Court is a phrase which can be permitted by the Court. We need to bear in mind that the document which is sought to be produced is a document which gives the detail of the account of the subsequent Page 15 of 16 Downloaded on : Sat Dec 24 18:28:34 IST 2022 C/SCA/4985/2019 ORDER DATED: 09/06/2022 period from the year 2002 to 2017. This account also includes some of the payments made by the present petitioner as a guarantor and it has taken note of those entries also. It is reflective of the details of the period from 2002 to 2017. It could not have been denied by the Court and in fact it could be property and happily worded by the plaintiff at the time of moving an application for additional evidence by stating that this document being reflective of the accounts of the interregnum period, it needs to be brought on the record as an additional evidence so that the adjudication could be done completely and fully and the Court also could have reflected that aspect not only thereby reflecting its satisfaction for allowing this document after a long time but, that would have also saved a lot of time of all concern as the absence of these details have given rise to the serious questioning to the order as well.
18. In our opinion, no illegality is noticed in the impugned order allowing such an application. The defect in the application and absence of elaborate reasonings on the part of the court concerned would hardly be the ground to disallow the end result by allowing this petition. Resultantly the same is dismissed. Let the matter be proceeded expeditiously. Both the sides to cooperate.
(SONIA GOKANI, J) (HEMANT M. PRACHCHHAK,J) Vahid Page 16 of 16 Downloaded on : Sat Dec 24 18:28:34 IST 2022