Essel Sports Pvt. Ltd. vs Union Of India & Ors. on 26 August, 2013

[Cites 5, Cited by 3]

Delhi High Court

Essel Sports Pvt. Ltd. vs Union Of India & Ors. on 26 August, 2013

1. This application has been preferred by defendant No.5 under Order XI read with Section 151 CPC for seeking leave to answer interrogatories contained in Form No.2 under Appendix „C‟ of the CPC, which are filed along with the application, and for a further direction that the said interrogatories be answered on oath by the plaintiff within the time prescribed under Rule 1 of Order XI CPC. The stage at which the present CS(OS) 1566/2007 Page 1 of 14 application has been filed by the applicant/defendant No.5 is set out in the application itself in paragraph 2 in the following words:

"That the Defendant No.5 submits that Plaintiff abovenamed has filed the above suit making various allegations against the Defendants. The Plaintiff examined six witnesses, namely, Mr. Kapil Dev (former cricketer), Mr. Himanshu Mody (Director of the Plaintiff Company), Mr. A. Mohan (Authorised Signatory - Director and Legal Head of the Plaintiff Company), Mr. D. D'Souza (Deputy Vice President, Legal of the Plaintiff Company), Mr. Shishir Gupta (Senior Manager, Business Development of the Plaintiff company) and Mr. Kiran More (former cricketer). The cross examination of the Plaintiff's witnesses was completed on 5.7.2010. The cross examination of one Defendant No.5's witnesses is complete. The cross examination of Defendant No.5's principal witness is underway and he was last cross examined on 08.08.2012."

(emphasis supplied)

2. The applicant submits that it received letter dated 07.07.2012 from Mr. Kiran S. More, inter alia, stating that he had disassociated himself from the plaintiff company and the activities of the Indian Cricket League (ICL). The said letter also, purportedly, states that the said Mr. Kiran S. More was under severe pressure to not only speak out for the benefit of the retired players, but also pressured to accuse defendant No.5 BCCI of not looking after the interests of cricketers in general.

3. The defendant No.5/ applicant further states that it also received letter dated 24.07.2012 from Mr. Kapil Dev, who was also one of the witnesses examined by the plaintiff, stating that he had ended his association with the plaintiff company. The letter dated 24.07.2012 has as its annexure - a letter dated 12.06.2012 from Mr. Kapil Dev to the plaintiff. The applicant submits CS(OS) 1566/2007 Page 2 of 14 that in his communication dated 24.07.2012 Mr. Kapil Dev has purportedly stated - with regard to the letter dated 12.06.2012, that he will not be associating with any legal proceedings against the BCCI.

4. The applicant further states that it verily believes that the plaintiff has exerted pressure on the two witnesses, namely Mr. Kiran S. More (PW-4) and Mr. Kapil Dev (PW-1) to falsely depose against defendant No.5. The applicant also states that the plaintiff deliberately concealed the facts of and relating to the resignations tendered by Mr. Kapil Dev and Mr. Kiran S. More. The applicant states that the information concealed by the plaintiff is relevant to the matter in hand, as it could be used by defendant No.5 to properly ascertain the case of the plaintiff and examine the material facts that pertain thereto. The applicant states that in view of the subsequent events it has become necessary for the proper adjudication of the case, that the plaintiff be directed to answer the interrogatories set out in Form No.2 under Appendix „C‟ of the CPC which is Annexure I to the application.

5. The application has been vehemently opposed by the plaintiff. The plaintiff submits that the present application has been filed mala fide and to improve upon the cross-examination conducted by it of the aforesaid two witnesses. The plaintiff contends that the present application is gross abuse of the process of law and is a blatant attempt to bring on record additional facts/ documents at a belated stage, much after the issues have been framed; admission/ denial of documents completed, and; cross examination of the plaintiff‟s witnesses concluded. It is also argued that the interrogatories raised by defendant No.5 have no correlation with the material facts of the present suit. The interrogatories could be served either to demolish the case CS(OS) 1566/2007 Page 3 of 14 of the plaintiff, or to support the case of the defendant. The plaintiff submits that the present suit relates to various acts of omission & commission of the defendant No.5 BCCI in allegedly threatening and intimidating players associated with the plaintiff‟s league, i.e. ICL and thus, the subsequent status of employment of PW-1 and PW-4 with the plaintiff is not relevant to the matter in question. It submitted that the interrogatories sought to be served by the defendant BCCI are nothing more than a roving inquiry sought to be undertaken post-closure of the plaintiff‟s evidence. The plaintiff submits that the present application has been moved only with the purpose of delaying the trial of the suit.

6. Mr. Amit Sibal, learned counsel for the defendant No.5/ applicant, firstly, submits that there is no limitation contained in Order XI CPC with regard to the stage at which interrogatories may be served upon a party. He submits that merely because the trial in the case is on, and the plaintiff has closed its evidence, it does not follow that interrogatories cannot be served upon the plaintiff at this stage.

7. In support of this submission, Mr. Sibal places reliance on the judgment of the Allahabad High Court in Aluminium Corporation of India Ltd. Vs. Lakshmi Ratan Cotton Mills Co. Ltd, AIR 1968 All 601. The Allahabad High Court had observed that, in England, interrogatories are allowed, firstly, to ascertain the nature of the opponent‟s case or the material facts constituting his case and, secondly, to support the applicant‟s case either - by obtaining an admission directly, or by impeaching or destroying the adversary‟s case indirectly. Mr. Sibal places reliance on the CS(OS) 1566/2007 Page 4 of 14 observations of the Allahabad High Court in paragraph 4 of this decision, which reads as follows:

"4. Order XI of our Civil Procedure Code closely follows the rules of practice and procedure evolved in England. I have, therefore, considered it not improper to refer to the object of interrogatories according to the rules which prevail in England. The power to serve interrogatories is not meant to be confined within narrow technical limits. The subject-matter of Order XI, Civil Procedure Code, is: "Discovery and Inspection ". It has to be remembered that these remedies were evolved by the Chancellor's Court of Equity. The power to order discovery by means of interrogatories should certainly be used liberally whenever it can shorten litigation and serve the interests of justice as observed in Jamaitrai v. Motilal Chamaria MANU/WB/0141/1960., by A.N. Ray J. of the Calcutta High Court." (emphasis supplied)

8. Mr. Sibal further submits that at present, this Court is only examining the aspect whether leave should be granted to the defendant No.5/ applicant to deliver interrogatories to the plaintiff. At this stage, the Court is not concerned with the objections that the plaintiff may have to answering all or any of the interrogatories. Once the said interrogatories have been served, upon grant of leave by the Court, such objection could be raised, and adjudicated.

9. In support of this submission, Mr. Sibal places reliance on Smt. Sharda Dhir Vs. Sh. Ashok Kumar Makhija and Others, 99 (2002) DLT

350. In this case, the Joint Registrar had rejected the application filed by the plaintiff under Order XI Rule 1 for service of interrogatories on defendant No.1. A chamber appeal had been preferred by the plaintiff. The Court in the aforesaid decision had, inter alia, observed as follows:

CS(OS) 1566/2007 Page 5 of 14

"9 ..... ..... ..... It is now well settled that administering of Interrogatories is to be encouraged as it is a means of obtaining admissions of parties and tends to shorten litigation. As a general rule the Interrogatory should be allowed, whether the answer to them would either strengthen the case of the party administering them or to destroy the case of the adversary. The court should not be hyper-technical at the stage of the service of the Interrogatories. This rule is to be used liberally whenever it could shorten the litigation and serve the interest of justice. Indeed, it cannot be used as a means of obtaining information which may be admissible during the oral cross-examination of a party and his witnesses. Interrogatories cannot be disallowed merely because the party interrogating has other means of proving the facts in question. One of the important purpose of interrogatories is to obtain admission of material fact of a case. Under this rule the Interrogatories may be served with the leave of the court by one party to the other in a suit: (1) to ascertain the nature of his opponent's case and material facts Constituting it and (2) to support his own case by obtaining admissions or by impeaching or destroying his opponent's case. The Interrogatories which do not relate to any matter in question involved in the suit, indeed, would be deemed irrelevant even though they might be admissible in oral cross- examination of the witnesses. Rule (6) of Order 11 makes it further clear. It provides that objection to answer an Interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or with the matter inquired into are not sufficiently material at that stage or on the ground of privilege, or on any other ground will be taken in the affidavit in answer. Leave to deliver interrogatories does not imply an order to answer them and any objection to answer can be taken under the Rule. The court is required to decide whether the appellant should be allowed to interrogate the other side, but it is not to determine what question should the opposite party to be compelled to answer.

CS(OS) 1566/2007 Page 6 of 14

10. As observed above at the preliminary stage of hearing on the application the court is required to decide whether the applicant should be allowed to interrogate the other side, but is not to determine what question should the opposite party be compelled to answer. Interrogatories may then be served on the other party for his answer to that on affidavit. The party, who has been served with Interrogatories, will then answer the Interrogatories on affidavit or raise objections about the relevancy or they being of scandalous nature, irrelevant, not bona fide, or not to be answered on the ground of privilege etc., in answer. The court then may consider and dispose of the Interrogatories. It will not for the court at this stage of granting leave to consider what particular questions the party interrogated should be compelled to answer. Proper time for considering that question is after the party interrogated has filed its affidavit in answer." (emphasis supplied)

10. Mr. Sibal also places reliance on the decision of this Court in Canara Bank Vs. Rajiv Tyagi & Associates and Another, 166 (2010) DLT 523, wherein the Court was dealing with a case for recovery of balance amount stated to be due on a large number of bills raised by the plaintiff on the defendant bank. The queries/ questions with respect to the accounts, it was held, are best answered by delivery of interrogatories. The Court was of the view that it would be better that such queries are answered by delivering interrogatories rather than in cross-examination. Mr. Sibal submits that it is no answer to the present application, that the answers to the various queries are available in the record of the defendant No.5/ applicant. The Court rejected a similar argument in Canara Bank (supra) by observing that:

"Even if it is the case that the Bank need not serve the interrogatories because it can find the answer thereto in its own records, interrogatories would still lie. As laid down in the judgment cited above, the Bank is entitled to know the case of CS(OS) 1566/2007 Page 7 of 14 the respondent No. 1/plaintiff qua each and every bill so as to meet the same at the time of trial."

11. Ms. Prathiba M. Singh, learned counsel for the plaintiff, on the other hand, submits that the interrogatories sought to be raised by defendant No.5/ applicant are scandalous and irrelevant. She submits that the applicant is accusing the two witnesses PW-1 & PW-4 to have resorted to perjury inasmuch, as, it is claimed that they had deposed before this Court under duress and coercion from the plaintiff. She relies on the definition of the expression of „scandal‟ contained in Oxford English Reference Dictionary, Second Edition Revised, which means:

"1a a thing or a person causing general public outrage or indignation. b the outrage etc. so caused, esp. as a subject of common talk. c malicious gossip or backbiting. 2 Law a public affront, esp. an irrelevant abusive statement in Court".

12. She further submits that the two witnesses PW-1 & PW-4 were cross- examined at length by defendant No.5/ applicant, whereafter they were discharged. She submits that a perusal of the letter allegedly issued by Mr.Kiran S. More itself shows that the said letter may have been issued under duress & coercion, as it was issued by Mr. Kiran S. More to seek amnesty.

13. Ms. Singh submits that defendant No.5/ applicant had virtually suffocated the ex-cricketers by withdrawing their pensions and other benefits because of their association with the plaintiff. She submits that by exploiting their dominant position, defendant No.5 appears to have extracted the said letters attributed to Mr.Kiran S. More (PW-5) and Mr. Kapil Dev (PW-1) with a view to use the same in the present litigation against the CS(OS) 1566/2007 Page 8 of 14 plaintiff. She submits that if the applicant wishes to rely on these communications, it is for them to produce their authors, and it is for the alleged authors to stand by their communications and the statements made by them in these communications.

14. In his rejoinder, Mr. Sibal submits that what has to be examined by the Court is whether the interrogatories are scandalous, or not, and not whether the averments made in the application under Order XI are scandalous. He submits that the plaintiff has not pointed out even a single interrogatory, which according to the plaintiff, is scandalous.

15. Having heard learned counsel for the parties, I am of the view that the present application is wholly misconceived and is an endeavour on the part of the defendant No.5/ applicant to rake up issues which do not appear to arise in the present suit; to make up the deficiency and shortcomings in the cross-examination of PW-1 and PW-4; and to avoid putting up PW-1 and PW-4 as its own witnesses.

16. Whether, or not, to grant leave to serve interrogatories to a party would depend on the facts and stage of each case. There cannot be a hard and fast rule that in every case the court must - mechanically, grant such leave to the applicant. As noticed hereinabove, the plaintiff examined six witnesses, including Mr. Kapil Dev as PW-1 and Mr. Kiran S. More as PW-

4. Whereas the cross-examination of PW-1 Mr. Kapil Dev was concluded on 13.012.2009, the cross examination of PW-4 Mr. Kiran S. More was concluded on 19.05.2010. The reason for filing the present application by defendant No.5/ applicant is stated to be two communications attributed to CS(OS) 1566/2007 Page 9 of 14 Mr.Kiran S. More of 07.07.2012 and Mr. Kapil Dev of 24.07.2005. Much before this date, the plaintiff had closed its evidence. Therefore, there is no merit in the applicant‟s assertion that the plaintiff had "concealed" anything, as the said alleged communications are purported to have been issued on dates well beyond dates when these witnesses were examined and cross- examined, and the plaintiff closed its evidence. If the said two communications are anything to go by, it is open to the defendant No.5/ applicant to produce the purported authors of these letters as their own witnesses. In that eventuality, the plaintiff would be entitled to cross- examine the said witness as hostile witnesses.

17. A bare perusal of Rule 1 of Order XI itself shows that there are certain limitations on the right of a party to deliver interrogatories. Firstly, no party shall deliver more than one set of interrogatories, without an order from the Court for that purpose. This clearly shows that a party is not permitted to engage in a roving inquiry by serving interrogatories on the opposite party. The mechanism of service of interrogatories is also not to be resorted to as a substitute for cross-examination. The second proviso in the said Rule states that the interrogatories, which do not relate to any matters to the question in the suit, shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness. Consequently, the scope of the interrogatories is much narrower, when compared to the scope and width of the questions which could be posed during cross-examination of a witness.

18. In the present case, firstly, there is no issue arising or framed with regard to the terms of engagement of PW-1 or PW-4 by the plaintiff, much CS(OS) 1566/2007 Page 10 of 14 less about their resignation (which had not even taken place when issues were struck), or the reasons for the alleged resignation. There are no pleadings in the plaint in these respects. Interrogatories could be served to know what the case of the opposite party is, or to shorten the trial. In the present case, the stage is well past the stage of knowing what the case of the plaintiff is. When the cross-examination of PW-1 and PW-4 has already been concluded, and the witnesses discharged, i.e. after the defendant No.5/ applicant has exhausted its wider right of cross-examination, there is no question of defendant No.5 being now permitted to serve interrogatories qua the plaintiff‟s association and dealings with PW-1 and PW-4 at this belated stage. May be, in the light of the said communications dated 07.07.2012 and 24.07.2011 allegedly issued by PW-4 and PW-1, post the closure of their cross-examination, the defendant No.5/ applicant could, possibly, seek their recall for further cross-examination. However, without production of the said witnesses, and by way of interrogatories, the defendant No.5/ applicant- cannot at this stage, seek leave to serve the interrogatories upon the plaintiff on the basis that the said two documents have come into existence when the defendant was in the process of leading its own evidence.

19. The decisions relied upon by the applicant do not advance the applicant‟s case and they are all distinguishable on their own facts. In Canara Bank (supra) the application under Order XI Rules 1, 2 & 4 had been preferred by the defendant bank after the completion of the pleadings, and before the framing of the issues. According to the defendant bank, out of 85 bills in respect of which the plaintiff had made a claim, majority had been settled/ paid and with respect to some of them the details/ CS(OS) 1566/2007 Page 11 of 14 information were yet to be furnished by the plaintiff, whereas in respect of others, nothing was payable. The case of the defendant bank was that the plaintiff, in his replication, had given vague and evasive reply to the specific averments made in the written statement. It was in this background that the application under Order XI had been moved by the defendant bank. Upon the said application being dismissed by the trial Court, the defendant bank had preferred the petition under Article 227 of the Constitution of India which came to be decided by the aforesaid decision in Canara Bank (supra).

20. Smt. Sharda Dhir (supra) is also a case where interrogatories had been sought to be served after the framing of issues, but before the recording of the evidence on Commission.

21. In Aluminium Corporation of India Ltd. (supra), the application under Order XI CPC had been preferred after the framing of issues in the winding-up petition of a creditor. Pertinently, the procedure adopted did not envisage conduct of a detailed trial. Thus, even this was not a case of service of interrogatories by one party upon the other, after the same party has already had the opportunity to cross-examine the witnesses of the latter.

22. In my view, the aforesaid is clearly a distinguishing feature in the present case, from those cases cited by Mr. Sibal. I also find merit in the plaintiff‟s submission that the defendant No.5 is now seeking to fill up the lacuna, if any, left by it in the cross-examination of PW-1 and PW-4. This is clearly evident from a reading of interrogatories sought to be served by the defendant No.5/ applicant contained in Appendix „C‟ Form No.2, i.e. Annexure-1 to the application. A large number of interrogatories do not CS(OS) 1566/2007 Page 12 of 14 even relate to the purported communications of PW-1 and PW-4 dated 24.07.2012 and 07.07.2012 respectively.

23. So far as the interrogatories relating to the said communications are concerned, the endeavour of the defendant No.5/ applicant is to discredit these two witnesses, and to nullify their testimonies. In my view, to achieve this objective, it is necessary for the defendant No.5 to produce the said witnesses either as their own witnesses, or to seek recall of the said witnesses for their cross-examination in the light of the said alleged communications - if they are so permitted in law, and defendant No.5/ applicant, cannot adopt the present indirect and circuitous method, as sought to be done by them.

24. In Aluminium Corporation of India Ltd. (supra), the Allahabad High Court was conscious of the distinction between the objective of Order XI CPC and of the right of cross-examination. In paragraph 5 of the said decision, the Court observed as follows:

"5. There are, however, limits to the utility of the power to order interrogatories to be answered. Those limits are set by the rules of relevancy, by the demands of decency and propriety, and by the even wider basic requirements of fair play, justice and equity. For example, although one of the objects of interrogatories is to ascertain an adversary's case, yet they cannot be permitted to be used by a party merely to obtain a disclosure beforehand of evidence supporting the adversary's case as this would give one party an unfair advantage over the other. The object of Order XI, Civil Procedure Code, is more akin to that of Order X, Civil Procedure Code, than to that of cross-examination."

(emphasis supplied) CS(OS) 1566/2007 Page 13 of 14

25. For all the aforesaid reasons, I find no merit in this application and dismiss the same with Costs of Rs.20,000/- to be paid to the plaintiff within two weeks.

(VIPIN SANGHI) JUDGE AUGUST 26, 2013 BSR CS(OS) 1566/2007 Page 14 of 14

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