Punjab-Haryana High Court
M/S Lamba Exports Pvt. Ltd vs M/S Kristan Auto on 21 April, 2025
Neutral Citation No:=2025:PHHC:050147
Page 1 of 31
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR-6805-2023 (O&M)
Reserved on: 27.03.2025
Date of pronouncement: 21.04.2025
M/s Lamba Exports Pvt. Ltd. & Another
...Petitioner(s)
Vs.
M/s Kristan Auto
...Respondent(s)
CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr. Lokesh Sinhal,, Advocate
Mr. Sukhandeep Singh, Advocate
for the petitioners.
Mr. Amit Jhanji, Senior Advocate with
Ms. Triyyambika Rao, Advocate
Ms. Nandita Verma, Advocate
for the respondent.
***
NIDHI GUPTA, J.
Present revision petition under Article 227 of the Constitution of India has been filed by the defendants/landlords challenging the order dated 22.09.2023 (Annexure P1) passed by the Commercial Court/ Additional District Judge Judge-cum-Presiding Judge Exclusive Commercial Court at Gurugram exercising jurisdiction under the Commercial Courts Act, 2015 (hereinafter referred to as 'the Act Act'), whereby the objection raised by the counsel for the respondent/plaintiff respondent/plaintiff/tenant has been accepted accepted; and the petitioners have been denied the permission to put a video clip during the cross- examination of plaintiff/PW1.
2. Brief facts of the case are that the respondent/plaintiff had filed a suit dated 30.05.2022 (Annexure P2) against the 1 of 31 ::: Downloaded on - 23-04-2025 23:41:27 ::: Neutral Citation No:=2025:PHHC:050147 Page 2 of 31 petitioners/defendants before the Commercial Court seeking recovery of Rs.1,39,94,230/ which includes Rs.1,32,00,000/ Rs.1,39,94,230/- Rs.1,32,00,000/- as security deposit; Rs.2,12,400/-- for seweragee repair cost; and Rs.5,81,830/ Rs.5,81,830/- as accumulated interest @ 18% per annum. The said suit was filed under the Commercial Courts Act, 2015. Facts as pleaded in the plaint were that plaintiff was inducted as a tenant in the suit premises and for that purpose a Lease Deed eed dated 24.12.2018 was executed for a period of 9 years. Ass per the terms of the lease deed there was a lock-in lock in period of 36 months from the commencement of the lease deed. The respondent/tenant/plaintiff espondent/tenant/plaintiff used the premises for operating an Audi vehicle workshop. An advance rent of Rs.22 lakh was paid by the respondent. As per the case of the plaintiff the dispute arose during the COVID period.
period. As such, vide ide email dated 31.08.2021, the respondent had informed the petitioner petitioners that hat he shall vacate the premises by 15.01.2022. On 17.01.2022, another email was sent by the respondent to the petitioners petitioner stating that the premises w were vacated and ready for handover. Pursuant to which, on 01 01.02.2022, .02.2022, possession was officially handed over to the petitioner No.1. It was the pleaded case of the respondent in the plaint that despite vacating the premises, the security deposit of Rs.1,32,00,000/-
Rs.1,32,00,000/ and sewerage repair costs were not refunded. Accordingly, the respondent had filed the present suit for recovery.
3. The petitioner/defendants contested the suit and filed written statement (Annexure P-3) wherein it was pleaded that the plaintiff has not only caused damage to the suit property but has also stolen the movable properties therefrom. Counter claim (Annexure P-4) for recovery 2 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 3 of 31 of Rs.2,79,25,536/-
Rs.2,79,25,536/ along with interest @ 18% interest per annum was also filed for: a) damages to property; b) unpaid rent for April 2020, May 2020 and January 2022. It was the allegation of the petitioner petitioners in the counter claim that the property was damaged beyond repair at time of handover; that there was theft of moveable property belonging to petitioner No.1; that there was damage to fire safety system, electr electrical ical system, sewerage, water harvesting and drainage systems.
system
4. During the course of trial, the evidence of the respondent/plaintiff commenced in which PW1-Nitish Nitish Bhardwaj, Authorised Person of the plaintiff-Firm, tendered Affidavit dated 13.03.2023 (Annexure nexure P5/Ex.PW1/A) in which he reiterated that the property was handed over to the petitioners petitioner in its original condition without damage. During his cross-examination, cross , a specific question was put to Mr. Nitish Bhardwaj PW-1 PW that during the occupation of the plaintiff various electrical equipment were stolen from the premises for which a police complaint was also lodged. When the plaintiff witness denied the factum of stealing of electrical equipment, the defendant, defendant in order tto confront the said witness,, had put to him the disputed video clip in his cross examination (Annexure P--
6).. An objection was then raised by the counsel for the respondent that since the video clip was not part of the written statement the same cannot now be put to the plaintiff witness.
5. Thus, the bone of contention in the present Revision Petition is that during the cross-examination cross examination of Nitish Bhardwaj Bhardwaj, counsel for the petitioner had tried to confront him with a video recording stored in a 3 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 4 of 31 pen drive; to which the counsel for the respondent had objected. Vide impugned order dated 22.09.2023, the objection raised by counsel for the respondent/plaintiff was accepted and the petitioner/defendants were denied permission to put the video clipping to the PW1 during his cross-- examination. The said objection of the respondent/plaintiff was accepted by the learned trial Court primarily on two grounds grounds: a) that no certificate in the form of Section 65B of the Indian Evidence Act had been tendered proving the authenticity authenticity of the video clipping clipping. Besides non-compliance of Section 65B,, no declaration under Order XI Rule 6(3) CPC had been filed; and b) since the video clip is not part of the written statement, Order XI CPC as amended by the Commercial Courts Act bars production of such document.
6. It is submitted by learned counsel for the petitioner petitionerss that so far as Section 65-B 65 B of the Indian Evidence Act is concerned, the said provision does not contemplate as to at at which stage the certificate is required to be produced. As such, said certificate could have been produced by the petitioners at a later stage; as also contemplated/permitted by the State of Karnataka Hon'ble Supreme Court in latest judgment reported as ""State vs. T. Naseer @ Nasir @ Thandiantavida @ Naseer @ Umarhazi @ Hazi & Ors. (2023 INSC 988) SLP(Crl) No.6548 of 2022 2022"; wherein it is held that certificate under Section 65-B 65 B can be produced at any stage if the trial is not over. It has been held that a certificate under Section 65 65-B B is not an evidence which has been created now. It is just a need for the requirement of law to prove the electronic document already on record. It is contended 4 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 5 of 31 that as such objection of counsel for the respondent could not ha have ve been accepted for non-production non of Certificate ertificate under section 65 65-B.
7. As far as Order XI CPC as amended by the Commercial Court Act is concerned, it is contended that the Trial Court has overlooked sub-Rule 7(c)
(c) of Order XI Rule 1 which specifically provides provides// creates an exception stipulating that:
that (c) "nothing in this Rule shall apply to documents produced by the defendants and relevant only only-
(i) for the cross-examination 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. Ld. Counsel submits that the case of the petitioner petitioners falls in the exception carved out under Order rder XI Rule 1 (7) (c) CPC as applicable to the Commercial Courts disputes disputes. It is submitted that the exception xception under Order XI Rule 1(7)(c)(i) clearly states that the requirement to disclose documents in advance does not apply to documents used solely for cross-examining examining a plaintiff's witness. Th Thus, the video clipping being used for cross-examination cross examination of plaintiff's witness, need not have been disclosed earlier. It is further argued that in compelling the petitioners to previously disclose the said evidence evidence, is violation of principles of cross-examination cross examination as the right to cross cross-examine includes confronting a witness with new evidence to test credibility. Trial Court's restructure approach undermines this fundamental right and truth truth-
seeking function of cross-examination.
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9. It is further submitted that the provisions of Order XI CPC as amended by the Commercial Courts Act are pari pari-materia to the already existing provisions of Order VII Rule 14(4) 14(4);Order VIII Rule 1(A)(4);
as well as Order XIII Rule 1(3) of the CPC. It is submitted that the Delhi "Subhash Chander v. Bhagwan Yadav" 2010 (114) DRJ 306 High Court in "Subhash has held that these provisions requiring the parties to file documents along with pleadings and /or before the settlement of issues do not apply to the documents produced for cross-examination cross examination of the witnesses of the other party. It has been held that the legislative intent behind these provisions is to permit an element of surprise which is very important for the cross-examination examination of witnesses.
wi It is submitted that in case the petitioners had not confronted the respondent with the video recording during his cross-examination, cross examination, the element of surprise which was the intent behind the pen drive would have been lost. If the respondent had admitted itted the video during his cross-examination cross examination then the said video clipping would have been admitted into evidence and if the respondent had denied the said video clipping, then the petitioner petitioners would have evidence.Relevant Paras 8 to 11 of Subhash proved the same during his evidence.Relevant Chander supra read as follows:
"8.
8. Order 7 Rule 14(4), Order 8 Rule 1 (A) (4), as well as Order 13 Rule 1(3) provide that the provisions requiring parties to file documents along with their pleadings and/or before the settlement of issues do not apply to documents produced for the cross-examination examination of the witnesses of the other party. To the same effect, Section 145 of the Evidence Act also permits 6 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 7 of 31 documents to be put to the witnesses, though it does not provide whether such documents shoul shouldd be already on the court record or can be produced / shown for the first time. However, in view of the unambiguous provisions of the CPC, it cannot be held that the document cannot be produced/shown for the first time during cross examination. If the witn witness ess to whom the said document is put, identifies his handwriting/ signature or any writing/ signatures of any other person on the said document or otherwise admits the said documents, the same poses no problem, because then the document stands admitted into o evidence. However, the question arises as to what is the course to be followed if the witness denies the said document. Is the document to be kept on the court file or to be returned to the party producing the same?
9. This question also in my view is a also lso not difficult to answer. It cannot possibly be said that the document should be returned to the party. If the document is so returned it will not be possible for the court to at a subsequent stage consider as to what was the document put and what was d denied enied by the witness. In a given case, it is possible that the answer of the witness on being confronted with the document may not be unambiguous. It may still be open to the court to consider whether on the basis of the said answer of the witness, the document ument stands admitted or proved or not and/or what is the effect to be given to the said answer. Thus, the document cannot be returned and has to be necessarily placed on the court file.
10. The next question which arises is that if the document is so placed ced on the court file, whether it becomes / is to be treated as the document of the party producing the same and is that party entitled to prove the said document notwithstanding 7 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 8 of 31 having not filed the same earlier, as required by law, or the use of the said document is to be confined only to confront the witness to whom it was put and it cannot be permitted to be proved by that party in its own evidence.
11. The legislative intent behind order 7 Rule 14(4) and Order 8 Rule 1A (4) and Order 13 Rule 1(3) appears to be to permit an element of surprise, which is very important in the cross examination tion of witnesses. A litigant may well be of the opinion that if the document on the basis whereof he seeks to demolish the case of the adversary is filed on the co court urt record along with pleadings or before framing of issues, with resultant knowledge to the adversary, the adversary may come prepared with his replies thereto. On the contrary, if permitted to show/produce the document owing to element of surprise, the a adversary dversary or witness, may blurt out the truth. Once it is held that a litigant is entitled to such right, in my view it would be too harsh to make the same subject to the condition that the litigant would thereafter be deprived of the right to prove the sai saidd documents himself. Thus, if the witness to whom the document is put in cross examination fails to admit the document, the party so putting the document, in its own evidence would be entitled to prove the same. However, the same should not be understood ass laying down that such party for the said reason and to prove the said document would be entitled to lead evidence which otherwise it is not entitled to as per scheme of CPC and evidence law. For instance, if the document is shown by the defendant to the plaintiff's witness and the plaintiff's witness denies the same, the defendant can prove the document in his own evidence. Conversely, if the plaintiff puts the document to the defendant's witness and the defendant's witness denies the same, the plaintiff if entitled to lead rebuttal evidence would in 8 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 9 of 31 his rebuttal evidence be entitled to prove the same. However, if the plaintiff has no right of rebuttal evidence in a particular case, the plaintiff would not be entitled to another chance to prove the document.
t. In such a case, the plaintiff has to make a choice of either relying upon the surprise element in showing the document or to file the document along with its pleadings and/or before the settlement of issues and to prove the same. Similarly, if the defendant dant chooses to confront the document to the plaintiffs witness in rebuttal, merely because the witness denies the document would not entitle the defendant to a chance to prove the document subsequently.
subsequently."
(Emphasis added)
10. It is pointed out that similarly the Bombay High Court in "Havovi Kesri Sethna v. Kesri Gustad Sethna" Law Finder Doc ID # 261408, has held that the very purpose of cross-examination cross examination will be frustrated if the document of the other side which is to be confronted confronted, is shown to or inspected nspected by that party earlier.
11. Ld. Counsel for the petitioners then refers to "Mohd. Abdul Wahid v. Nilofer and Anr. (2023 SCC Online SC 1672)" to submit that in the said judgment, while considering the scope of Order VII Rule 14 (4);
);
Order VIII Rule 1-A(4)(a);
1 Order XIII Rule 1(3) of the CPC, 1908 the Hon'ble Apex Court has held that so long as the document has been produced for the limited purpose of cross-examination cross examination or to jog the memory of the witness at the stand, stand and is not completely divor divorced ced from or foreign to the pleadings made, the same cannot be said to fly in the face of this established position. Save and except the cross cross-examination examination part of a civil 9 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 10 of 31 suit, at no other point shall such confrontation be allowed without such document having having accompanied the plaint/written statement filed before the Court. Reliance in particular is placed upon following para 49 of said judgment:-
"49.
49. A reading of the judgments above would imply that substance is what the courts need to look into, and theref therefore, ore, in reference to the production of documents, in the considered view of this court, so long as the document is produced for the limited purpose of effective cross cross-examination examination or to jog the memory of the witness at the stand is not completely divorced from or foreign to the pleadings made, the same cannot be from said to fly in the face of this established proposition.
proposition."
12. It is lastly contended that as regards the declaration required to be filed as per Order XI Rule 6(3) CPC as amended by the Commercial Courts Act, the said requirement applies to the documents disclosed and not to other documents. Since the video clip sought to be put to the plaintiff's witness in cross-examination cross examination is not a 'disclosed' document and falls within the exception under Order XI Rule 1 (7) (c) CPC as amended, the provisions of Order XI Rule 6(3) would not apply. It is argued that thus, t there is misapplication isapplication of Order XI Rule 6(3); which applies only to electronic records forming part of disclosed evidence requiring on oath declaration for proof. Since defendants were not yet leading evidence but merely confronting the witness, this provision was inapplicable.
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13. Per contra, learned rned Senior Counsel representing the respondent/plaintiff firstly submits that the argument of learned counsel for the petitioner regarding element of surprise, is ill ill-founded founded as the respondent was already aware of the video clipping. This was so because the petitioner had previously filed a complaint dated 24.03.2022 (Annexure P7) in which he had referred to the alleged video recording. The petitioner had also sent an email dated 08.04.2022 (Annexure P8) to the ACP with copy to the Deputy Commissioner Commissioner of Police in respect of the alleged damage caused by the respondent to the demised premises in which again the video contained in a Compact Disk and pen drive was mentioned. It is contended that therefore, there was no "element "element of surprise surprise" left contrary ary to what has been sought to be portrayed by the petitioners.
14. It is next submitted by learned Senior Counsel that the Civil Suit (Annexure P2) was filed on 30.05.2022 in which written statement (Annexure P3) was filed on 02.09.2022;
02.09.2022; counter claim ((Annexure Annexure P4) was also filed on 02.09.2022; which was accompanied by Statement of Truth as required under Order XI CPC on 02.09.2022 itself in which a positive declaration/Statement of Truth was made by the petitioner to the effect that:
"5. I say that all the documents in my power, possession, control or custody, pertaining to the facts and circumstances of the counter claim initiated by the defendant have been disclosed and copies thereof are annexed with the list of documents filed with the counter claim, and that the defendant 11 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 12 of 31 does not have any other documents in its power, possession, control or custody.".
15. Learned Senior Counsel submits that unlike civil proceedings, a Statement of Truth is required to be filed in commercial proceedings oceedings to obviate the very element of surprise. It is contended that as such, there could have been no element of surprise.
16. Learned Senior Counsel further submits that the provision of Order XI Rule 1(7) CPC has to be read along with the provisions of Order XI Rule 1 (10) CPC in which a definite exception is created as per which the defendant cannot be allowed to rely on documents which are in his possession, control or custody and are not disclosed with the written statement or counterclaim, "save save and except by leave of Court and such leave shall be granted only upon the defendant establishing reasonable cause for non-disclosure non disclosure along with the written statement or counterclaim". It is contended that therefore,, the said pen drive/video clipping could not have been relied upon by the petitioner except with leave of Court Court,, which leave could have been granted only upon the petitioner establishing reasonable cause for non-disclosure non disclosure of the said video clipping aalong long with his written statement and counterclaim.
counterclaim Moreover, from the facts as shown above, it is clear that prior to filing of the written statement and counterclaim on 02.09.2022, the petitioner was already in knowledge and possession of the said video clipping/pen drive as evident from his complaint dated 24.03.2022 24.03.2022 (Annexure P7) and email dated 08.04.2022 12 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 13 of 31 (Annexure P8). It is reiterated that provision of Order XI Rule 1(7)(c)
(c) CPC cannot be read in exclusion of Order XI Rule 1(10) CPC.
17. Learned Senior Counsel further submits that even Rule 6 of the Commercial Commercial Courts Act stipulates disclosure. Rules 6 and 7 of the Act are as follows:-
follows:
"6. Electronic records.--(1)) In case of disclosures and inspection of Electronic Records (as define definedd in the Information Technology Act, 2000 (21 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 nished 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 nner 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 as 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 suc suchh data on the computer or computer resource;
(g) deponent's knowledge of contents and correctness of contents;
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(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 ut 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 declarat declaration ion is made by such party that 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 irections 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 electroni electronic record.
7.. Certain provisions of the Code of Civil Procedure, 1908 not For avoidance of doubt, it is hereby clarified that to apply.--For 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 igh Court or Commercial Courts."
18. It is lastly contended that the provisions of the Commercial Courts Act are mandatory in nature and have to be strictly complied with. In the present case even no application was filed by the petitioner for producing producing the pen drive. The petitioner cannot be permitted 14 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 15 of 31 to just pull the pen drive out of his pocket and confront the respondent with the same during his cross-examination.
cross examination.
19. In support of his contentions, learned Senior Counsel judgment off Delhi High Court in "Great Gatsby Club of India relies upon judgments Vs. Mahesh Prefab Pvt. Ltd." 2022 SCC OnLine Del 2099 2099;; "Phonepe Private Limited Vs. EZY Services & Another" 2022 SCC OnLine Del 2638 2638;; "Eli Lilly and Company and Anr. Vs. Maiden Pharmaceuticals Limited" Law Finder Doc ID # 816101;
816101 "Entertainment Network (India) Ltd Vs. HT Media Limited" Law Finder Doc ID # 2029006; judgment of Gujarat High Court in "Jay Krishna Printers Vs. S.N. Tradelink Pvt. Ltd." Law Finder doc ID # 2121370; judgment of Bombay High Court iin "Khanna Rayon Industries Pvt. Ltd. Vs. Swastik Associates & Others" Law Finder Doc ID # 2264937;
"Bank of Baroda Vs. Gujarat Cables and Enamelled Products Pvt. Ltd."
2023(2) Mh. L.J. It is accordingly prayed that the present petition be dismissed.
20. In rebuttal, learned counsel for the petitioners submits that Order XI Rule 1(10) CPC will apply when defendant evidence is going on and defendant witness produces a document. It is submitted that it is only then an objection can be made by the plaintiff that document was not included with the written statement.
21. No other argument is raised on behalf of the parties.
22. I have heard learned counsel for the parties and given my thoughtful consideration to the rival submissions advanced on behalf 15 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 16 of 31 of both the parties. I find the submissions made on behalf of the petitioners are liable to be rejected for the reasons recorded hereinbelow hereinbelow.
23. The Prayer in the present Civil Revision is for quashing Impugned Order dated 22.09.2023 (P-1) (P 1) passed by Ld. Additional District Judge-cum-Presiding Presiding Judge Exclusive Commercial Court at Gurugram whereby the Petitioners/Defendants have been denied permission to put video clipping in cross-examination of PW-1. 1.
24. The brief facts of the case are as follow follows:
a) 01.02.2022 - The Respondent/Plaintiff through its authorized signatory handed over the possession of the suit property to Defendant No.1 No.1.
b) 24.03.2022 - Police Complaint (P-7) was filed by the Petitioners against the Respondent/Plaintiff alleging that when the Petitioner Petitioners received possession of the said property the same was badly damaged and that certain movable properties were missing. The Complaint mentions the video clipping and goes on to describe its contents.
c) 08.04.2022 - E-mail (P-8) was sent by the Petitioners to ACP Udyog Vihar, Gurugram regarding the above-mentioned above mentioned Police Complaint. It mentions the video and the fact that the same was acqu acquired by the Police.
d) 30.05.2022-Present 30.05.2022 Suit (P-2) is filed by Respondent/Plaintiff for recovery of Rs.1,39,94,230/-
Rs.1,39 being the principal amount together with sewage repair cost of Rs.2,12,400/-
Rs.2,12,400 and Rs.5,81,830 Rs.5,81,830/- being the accumulated interest calculated @ 18% per annum thereupon from 01.02.2022 till 30.04.2022.
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e) 02.09.2022 - Written Statement (P-3)
3) and Counter Claim (P (P-4) are filed by Petitioners. The incident of vacation of premises is mentioned in both, the Written ritten Statement as a well as the Counter Claim Claim. However, the fact of existence of any such video does not find mention despite the same being in the knowledge and possession of the Petitioners. Even in the Statement of Truth attached with the said Written Statement and Counterclaim under Order XI Rule 3, it is averred that the Defendants have disclosed all documents in their power, possession, control and custody and the Defendants do not have any other documents.
documents.
f) 13.03.2023-During 13.03.2023 cross-examination examination of PW-1/Nitesh Bhardwaj authorized person of Plaintiff, who is present at the time of vacation of premises,, the Petitioners sought to confront PW PW-1 with the video clipping.
Upon which objections were raised by the Respondent against the same.
25. Vide the Impugned Order dated 22.09.2023 (P (P-1) passed by the Ld. Additional District Judge-cum Judge cum-Presiding Judge Exclusive Commercial Court at Gurugram exercising xercising Jurisdiction under the Commercial cial Courts Act, 2015, 2015 the objection raised by the Respondent was accepted and the Petitioners were denied to put the video clipping in the cross-examination examination of PW-1 PW 1 as the same was not a relied relied-upon document.
Hence, present Revision Petition.
26. During the course of hearing, it has been informed that the cross-examination examination of PW-1 PW 1 stands concluded on 04.04.2024 04.04.2024. Be that as it may, it has first been contended by ld. Counsel for the petitioners that the pen drive/video video clipping produced by the petitioners could not have been 17 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 18 of 31 rejected for want of Certificate under Section ection 65-B B of the Indian Evidence eliance has been placed upon T. Naseer supra wherein it is stated to Act. Reliance be held that the said Certificate u/s 65-B can be produced at any stage. I find no merit in the said argument as, as the provision of Section 65-B B of the Indian Evidence vidence Act serves a very important and useful purpose viz of attesting to the admissibility of the evidence produced. In the absence of such h a Certificate, the authenticity of the evidence produced cannot be determined// established;
established; thus, possibly compromising the outcome of trial trial..
Reliance eliance of ld. Counsel for the petitioners on judgment of the Hon'ble Apex Court in T. Naseer supra is based on a misreading/ misinterpretation of the same. Relevant extract of the above said judgment of the Hon'ble Supreme Court in T. Naseer supra is as under:-
"11. Coming to the issue as to the stage of production of the certificate under Section 65-B of the Act is concerned, this Court in Arjun Panditrao Khotkar's case (supra) held that the certificate under 65-B B of the Act can be produced at any stage if the trial is not over. Relevant paragraphs are extracted below:
"56.. Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting ev evidence idence to be filed at a later stage should not result in serious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution under Se Sections ctions 91 or 311 CrPC or Section 165 of the Evidence Act. Depending on the facts of each case, and the court exercising discretion after
18 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 19 of 31 seeing that the accused is not prejudiced by want of a fair trial, the court may in appropriate cases allow the prosecution tion to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case -- discretion to be exercised by the court in accord accordance with law.
59.. Subject to the caveat laid down in paras 52 and 56 above, the law laid down by these two High Courts has our concurrence. So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the learned Judge at any stage, so that information contained in electronic record form can then be admitted and relied upon in evidence.
evidence."
(Emphasis added)""
27. Read as a whole it is clear that the Hon'ble Supreme Court, while relying upon 3-Judge Bench judgment in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (SC) : Law Finder Doc Id # 1731377 has granted discretion to the Court to permit production of the Certificate at a later stage, however, subject to the conditions that no prejudice is caused to the other party in the trial, and such discretion is to be exercised in accordance with law. Permission to produce documents/evidence evidence at a later stage is also subject to the caveat contained in paragraph para 52 of the judgment in Arjun Panditrao (supra), which reads as follows:
"52.
52. It is pertinent to recollect that the stage of admitting documentary evidence in a criminal trial is the filing of the charge-sheet.
sheet. When a criminal court summons the accused to stand trial, copies of all documents which are entered in the 19 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 20 of 31 charge-sheet/final sheet/final report have to be given to the accused. section 207 of the CrPC, 1973 which reads as follows, is mandatory[6*]. Therefore, the electronic evidence, i.e. the computer output, has to be furnished at the latest before the trial begins. The reason is not far to seek; this gives the accused a fair chance to prepare and defend the charges levelled against him during the ttrial. The general principle in criminal proceedings therefore, is to supply to the accused all documents that the prosecution seeks to rely upon before the commencement of the trial. The requirement of such full disclosure is an extremely valuable right an and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement.
commencement."
28. It would therefore, appear that the argument of ld. Counsel for the petitioners is based on a piecemeal reading reading/misreading of the above judgment.
judgment
29. It has next been submitted that the case of the petitioners falls under the exception carved out under Order XI Rule 1(7)(c)(i) which explicitly allows documents to be produced for first time during cross-examination.
cross Said Order XI Rule 1(7) as applicable to commercial disputes reads as under:
"(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 including-
(a) the documents referred ferred to and relied on by the defendant in the written statement;
(b) the documents relating to any matter in question in the proceeding in the power, possession, control or custody of the 20 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 21 of 31 defendant, irrespective of whether the same is in support of or adverse verse to the defendant's defence;
(c) nothing in this Rule shall apply to documents produced by the defendants and relevant only only-
(i) for the cross-examination 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."
30. It is my considered view that th this argument of ld.
Counsel for the petitioners is also misconceived nceived inasmuch as the above said provision cannot be read in isolation; and has to be read in conjunction with Order XI Rule 1(9) and Order XI Rule 1 (10). Order XI Rule 1(9) and Order XI Rule 1(10) CPC as applicable to commercial disputes disputes, read as follows:-
follows:
"(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 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 counter claim and that the defendant does not have in its power, possession, control or custody, any other documents.
(10) Save and except for sub-rule rule (7) (c) (i
(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 ith the written statement or counterclaim, 21 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 22 of 31 save and except by leave of Court and such leave shall be granted only upon the defendant establishing reasonable cause for non-disclosure disclosure along with the written statement or counterclaim."
31. Thus, as per the above provisions, it is clear that the defendant is required to disclose and annex with the written statement/ counterclaim all the documents relevant to the lis which are in his power, possession etc. No exception is permissible save and except under sub- rule (7)(c)(iii). Further, any document not so disclosed cannot be relied upon except with leave of Court; and which leave can be granted only upon the defendant establishing reasonable cause for previous non non-
disclosure. It is a fairly settled settled position of law that the proscription under Order XI Rule 1 (10) is absolute and has to be applied stringently. The Commercial Courts Act, 2015 is special statute brought in with the object and purpose of speedy disposal of suits relating to commercia commercial disputes and it cannot be plagued with the same malaise of lengthy trials as Civil Procedure Code.
32. It is also to be noted that the Legislature in its wisdom has limited exception only to sub-rule sub rule (7)(c)(iii), and not to sub sub-rule (7)(c)(i) and sub-rule sub rule (7)(c)(ii). Thus, reliance placed by the petitioners upon the said provision of Order XI Rule 1(7)(c) is misconceived. It would appear that the Petitioners are trying to surpass the proscription that video had to be disclosed with the Written Statemen Statement/Counter Claim by unfairly taking advantage of Sub-rule Sub rule (7)(c)(i) of Rule 1 Order XI. Further, the he only exception to Order XI Rule 1(10) as mentioned in the statute, is 22 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 23 of 31 Order XI Rule 1(7)(c)(iii);
1(7)(c)(iii) and no exception is given qua Order XI Rule 1(7)(c)(i) and (ii).
(i ). To remove any ambiguity around the same, reference could also be made to Order XI Rule 1(5) which deals with disclosure and discovery of documents by plaintiff. Notably, no parallel exception is given to the plaintiff as given to the defendant under Order XI Rule 1(10). The explicit inclusion of Order XI Rule 1(7)(c)(iii) aas an exception only in case of defendants while leaving out Order XI Rule 1(7)(c)(i) and (ii), is telling. The Judgments of Subash Chander and Pandharinath Laxman Bhandari (supra) relied upon by the Petitioners Petitioner have no applicability to the facts at hand. It may also be mentioned that these judgments do not deal with Commercial Disputes to begin with.
33. Additionally, it may be emphasized that there is a further non-compliance compliance of Order XI Rule 6(3) where any electronic record forming part of documents has to be dec declared on oath. It has been contended by the petitioners that such a declaration is required to be made only in respect of 'documents documents disclosed disclosed'. However, the said argument of the petitioners is a misnomer as, in terms of Order XI Rule 1 discussed above there is already a presumption that the defendant has necessarily disclosed disclose all documents/electronic electronic evidence relevant to the lis lis.
34. It has further her been submitted by ld. counsel for the petitioners that the provisions of Order XI CPC as amended by the Commercial Courts Act are pari-materia pari materia to the already existing provisions of Order VII Rule 14(4); Order VIII Rule 1(A)(4) 1(A)(4); as well as Order XIII Rule 1(3) of the CPC. However, in submitting as above, ld. Counsel for the 23 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 24 of 31 petitioners is ignoring the provision of Order XI Rule 7 CPC as applicable to the Commercial Courts which stipulates as follows:
"7.
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."
35. In the same vein it has also been submitted on behalf of the petitioners that the Delhi High Court in Subhash Chander (supra) has held that these provisions requiring the parties to file documents along with pleadings do not apply to the documents produced for cross cross-
examination of the opposite party witnesses witnesses; and that the legislative intent behind these provisions is to permit aan element of surprise. However, the said argument of the petitioners is also incorrect as admittedly, in the present case there was no element of surprise left. The record bears out that the Police Complaint filed by the Petitioners against the Respondent and the subsequent E-mail mail sent to ACP Gurguram pre pre-
date the Written Statement and Counter Claim, wherein not only the fact of existence of the video clipping is explicitly mentioned but also the contents of the same are elaborated.
elaborated. Thus, despite admitted kknowledge of these documents/ evidence, the same was neither disclosed nor produced. Further, this shows that the same is also in knowledge of the Respondent (as admitted by the Petitioners in para (xi), pg. 18 of the Civil 24 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 25 of 31 Revision). Hence, ence, the entire case of the petitioners etitioners based on the plea that the objective behind producing the video at the time of cross cross-examination is to affect an element of surprise, falls apart.
36. To sum up, from the above discussion it is clear that the Petitioners are barred from subsequently relying upon any document in their knowledge, possession or power unless the same was disclosed at the time of filing of the Written Statement/Counter Claim save and except by leave of Court which is subject to the defendants establishing a reasonable cause for non-disclosure.
non disclosure. From the perusal of the facts facts, it is clear that Petitioners did not at any given time time, even aver to the existence of any reasonable cause.
37. In addition to the judgments cited by ld. Counsel for the respondent, the above view(s) taken by this Court are supported by the following judgments/ precedential case law: Reliance is placed upon judgment of Hon'ble Supreme Court in "Sudhir Kumar @ S. Baliyan Vs. Vinay Kumar G.B." (2021) 13 SCC 71, 71 relevant part of which is as under:-
"9.2.
9.2. At the outset, it is required to be noted that as such the said application for leave to produce on record additional documents was preferred by the appellant herein, original plaintiff under Order 7 Rule 14(3) CPC. However, considering Order rder 11 Rule 1 as applicable to the commercial suits by which the Civil Procedure Code has been amended with respect to the suits before the Commercial Court and in view of Section 16 of the Commercial Courts Act, Order 7 Rule 14(3) CPC shall have no application cation at all. After Order 11 Rule 1 has been amended with respect to the suits before the 25 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 26 of 31 Commercial Courts and a specific provision/procedure has been prescribed with respect to the suits before the commercial division and before the Commercial Court, th the provision of the Code of Civil Procedure as has been amended by the Commercial Courts Act, 2015 shall have to be followed and any provision of any rule of the jurisdiction of the High Court or any amendment to the Code of Civil Procedure by the State Government ernment which is in conflict of the Code of the Civil Procedure as amended by Commercial Courts Act, the provision of the Code of the Civil Procedure as amended by the Commercial Courts Act shall prevail. Therefore, Order 11 Rule 1 as amended by the amendm amendment in the Commercial Courts Act, with respect to the suits before the commercial division and the Commercial Court, the provisions of Order 7 Rule 14(3) shall not be applicable at all. Therefore as such the plaintiff applied the wrong provision seeking le leave of the court to place on record the additional documents. However, considering the fact that thereafter, both the learned Commercial Court as well as the High Court treated and considered and even applied Order 11 Rule 1 CPC as amended by the Commerciall Courts Act and as applicable to the suits filed before the commercial division, Commercial Court, we proceed to consider the application submitted by the appellant herein, original plaintiff, as if the same was submitted under Order 11 Rule 1(4) CPC. 9.3.
3. It is true that Order 11 Rule 1 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 or custody, pertaining g to the suit, along with the plaint and a procedure provided under Order 11 Rule 1 is required to be 26 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 27 of 31 followed by the plaintiff and the defendant, when the suit is the commercial suit...
xxx 9.5. Order 11 Rule 1(5) further provides that the plaintiff shall not ot be allowed to rely on documents, which were in the plaintiff's power, possession, control or custody and not disclosed 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 disclosure along with the plaint.
Therefore on combined reading of Order 11 Rule 1(4) read with Order 11 Rule 1(5), it emerges that (i) in case of urgent filings the plaintiff may seek leave to rely on additional documents; (it) within thirty days of filing of the suit; (iii) making out a reasonable cause for non non-disclosure along with plaint."
38. Reliance may be placed upon judgment of Delhi High Court in "Nitin Gupta Vs. Texmaco Infrastructure & Holding Limited"
2019 SCC OnLine Del 8367, 8367 wherein it has been held as under:
under:-
"38.
38. Unless, the Commercial Divisions, while dealing with the commercial suits, so start enforcing Rules legislated for commercial suits, and refuse to entertain applications ffor 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 ring 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 27 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 28 of 31 filing of documents, without without any good cause being established for non-disclosure 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, d 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, 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 sclosure of such document was made, cannot be permitted to so file documents.
39. Order XIII Rules (1) & (2) of the CPC as it existed prior to amendment with effect from 1st July, 2002, required the documents to be filed at or before the settlement of issues and no documents could be received at any subsequent stage unless "good cause was shown to the satisf satisfaction of the Court for non-production non production thereof". Post amendment with effect from 1s July, 2002 of CPC, vide Order VII Rule 14(1)&(3) and Order VIII Rule 1A (1)&(3) a plaintiff was required to file documents along with plaint and a defendant required to fil file documents along with written statement and documents were not permitted to be received thereafter without leave of the Court. Prior to 2002, the parties, if had not filed the document prior to settlement of issues, were required to satisfy the Court as to o why the document was not filed till the stage of settlement of issues and were not required by language of Order XIII Rule (2) to satisfy whether the 28 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 29 of 31 document was within their knowledge or not. I emphasise, only reason for 'non-production' production' was to be stat stated and not the reason for 'non-disclosure'.
disclosure'. Though with effect from 1st July, 2002, for late filing of documents only leave of the Court was required to be taken but the test continued to be applied by the Courts for granting such leave continued to be as prior to 2002 i.e. of reasons for 'non-production' production' of documents at the stage provided therefor. Order XI Rule (1) of the CPC as applicable to commercial suits brought about a radical change. The late filing of documents thereunder is permitted applying the test of reasonable cause of 'non 'non-disclosure' of the document at the stage provided for filing thereof. An applicant now is required to satisfy the Court as to why the document was not in his knowledge and if in his knowledge why was the document not discl disclosed at the appropriate time.
Thereunder, documents, even if not immediately available, are required to be disclosed."
39. Reliance is also placed upon judgment of Delhi High Court in "Saregama India Limited Vs. ZEE Entertainment Enterprises Limited" 2023 SCC OnLine Del 2437, wherein it is held as follows:-
"38.
38. The plaintiff has invoked sub sub-Rule (1) (c) (ii) of Order XI Rule 1 read with sub-Rule Rule (5) of Order XI Rule 1 of the CPC to file additional documents. As is evident from the passages set file out above, it has specifically been pleaded by the plaintiff that the aforesaid documents are being filed to counter the case set up by the defendant and hence, could not be filed at the time of filing iling of the suit. However, no explanation has been given by the plaintiff as to why the aforesaid documents were not filed along with the replication. Further, the plaintiff 29 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 30 of 31 has failed to provide any reasonable cause for filing the aforesaid documents at this stage, 5 years after the replication was filed.
39. In a commercial suit, the plaintiff cannot be permitted to file additional documents at any stage of the suit on the ground that the same are in response to the case set up by the defendant in the written ritten statement. Permitting a party to file additional documents at any stage would make a complete mockery of Order XI of the CPC as applicable to commercial suits. The whole object of the aforesaid provisions of the CPC pertaining to commercial suits wo would be defeated if a party is permitted to file additional documents at any stage of the suit."
40. Thus, as the petitioners/ defendants had not disclosed or relied upon the video clipping in their pleadings or documents placed before the Court, they could not be permitted to rely upon the said video clipping/ evidence of such nature. Further, there is Non-compliance with Section 65B of Indian Evidence Act.
Act No certificate under Section 65 was tendered to establish the authenticity of electronic evidence making it admissible. The procedural requirements as stipulated for Commercial Suit have not been followed. Since ince the case is a commercial suit, it must adhere to Order XI CPC as amended which mandates prior disclosure, discovery and inspection of documents, including electronic records. Order XI Rule 6(3) further requires a declaration on oath regarding electronic ic evidence, evidence which was also not complied with. As such, the 30 of 31 ::: Downloaded on - 23-04-2025 23:41:28 ::: Neutral Citation No:=2025:PHHC:050147 Page 31 of 31 Defendants have been correctly barred from confronting witness with video clipping, clipping given the procedural lapses.
41. Dismissed.
42. Pending application(s) if any also stand(s) disposed of.
21.04.2025 (Nidhi Gupta)
Sunena Judge
Whether speaking/reasoned: Yes/No
Whether reportable: Yes
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