Delhi High Court
Zee Entertainment Enteprises Ltd vs Saregama India Ltd on 11 September, 2019
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th September, 2019.
+ CS(COMM) 1674/2016
ZEE ENTERTAINMENT ENTEPRISES LTD ..... Plaintiff
Through: Mr. Joy Basu, Sr. Adv. with Ms. Petal
Chandhok, Mr. Kanak Bose & Ms. Smridhi
Sharma, Advs. with Ms. Kriti, Mr. Mudit,
POA Holder.
Versus
SAREGAMA INDIA LTD ..... Defendant
Through: Mr. Vikas Mehta with Mr. Ankur Sangal,
Ms. Sucheta Roy & Ms. Richa Bhargava,
Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.12490/2019 (of plaintiff u/O XI R-5 CPC)
1. The plaintiff in this commercial suit, after framing of issues on 9th
October, 2017 and after commencement of the recording of evidence, seeks
leave to file additional documents.
2. The counsel for the defendant appears on advance notice and
considering the nature of the application, need for a reply is not felt.
3. The counsels have been heard.
4. The plaintiff, in paragraphs 3 and 4 of the application, has pleaded as
under:-
"3. It is stated that the pleadings are complete in the present
proceedings and the matter is listed for cross examination of PW-1.
CS(COMM) 1674/2016 Page 1 of 10
It is pertinent to note that the documents filed by the Plaintiff along
with its pleadings includes, but are not limited to, assignment
agreements executed by and between the plaintiff or its
predecessors-in-interest with the producers/production houses or
their successors-in-interest. It is humbly submitted that in view of the
age of such documents, two assignment agreements were left out
from the list of documents filed along with the present plaint in lieu
of which one other agreement with the same party was placed on
record erroneously.
4. It is stated that considering the nature of such inadvertent
error, the plaintiff is moving the present Application and seeks
liberty of this Hon'ble Court to place on record the following
documents along with the Additional Evidence by way of Affidavit:
(a) Agreement dated 02.04.1995 between M/s Bombay Finvest
Enterprises and M/s Essel Vision for the assignment of Negative
& other rights of movie "Dil Ka Heera" may be marked in the
Additional Evidence Affidavit as Exhibit PW 1/19.
(b) Agreement dated 02.04.1995 between M/s Bombay Finvest
Enterprises and M/s Essel Vision for the assignment of Negative
& other rights of movie "Sacchai" may be marked in the
additional Evidence Affidavit as Exhibit PW 1/20."
5. The senior counsel for the plaintiff has argued, (i) that the plaintiff has
instituted this suit to restrain the defendant from infringing the copyright of
the plaintiff in 29 cinematograph films named in paragraph 18 of the plaint;
(ii) that the plaintiff, in paragraph 19 of the plaint has disclosed the
agreements vide which the copyright in the said films stood assigned to the
plaintiff or its predecessor-in-interest M/s Essel Vision; (iii) that the
plaintiff, while filing the agreements of assignment of copyright in each
films, filed wrong agreements with respect to two of the films namely „Dil
Ka Heera‟ and „Sacchai‟ and is now seeking to file the correct assignment
agreements with respect to the subject films; and (iv) that it is the case of
CS(COMM) 1674/2016 Page 2 of 10
inadvertence simplicitor. Reliance is placed on Nitin Gupta Vs. Texmaco
Infrastructure and Holding Limited 2019 SCC OnLine Del 8367 and
Sadhu Forging Ltd. Vs. Continental Engines Ltd. 2017 SCC online Del
10039.
6. However, Sadhu Forging Ltd. supra pertains to ordinary suits as
distinct from a „commercial suit‟ within the meaning of the Commercial
Courts Act, 2015 and would thus have no application to the controversy in
hand.
7. The senior counsel for the plaintiff, with reference to Nitin Gupta
supra has contended that this Court has carved out a difference between non-
disclosure of documents and non-filing of documents; this is a case of non-
filing or inadvertent filing, the plaintiff having disclosed the assignment
agreements in its favour in paragraph 19 of the plaint.
8. The counsel for the defendant, on enquiry, whether has any objection
to the application, has handed over a list of dates and on the basis thereof
opposed the application, contending (i) that the suit was filed as a
commercial suit, claiming urgent relief and came up before this Court
unaccompanied with any application under Order XI Rule 1(4) of the CPC
as applicable to the commercial suits, on 23rd December, 2016, when, while
dealing with the application of the plaintiff for interim relief, a condition
was imposed on the defendant to deposit a sum of Rs.20,00,000/- in this
Court and which has been deposited and remains deposited; (ii) that the
plaintiff, post-framing of issues on 17th July 2017, filed affidavit by way of
examination-in-chief of one Anurag Bedi but while his examination-in-chief
was underway, on 11th December, 2018 filed an application seeking to
CS(COMM) 1674/2016 Page 3 of 10
withdraw the affidavit by way of examination-in-chief of the said Anurag
Bedi on the grounds of errors therein, and which application was allowed on
21st January, 2019; (iii) that on 29th January, 2019, a fresh affidavit by way
of examination-in-chief of Anurag Bedi was filed and Anurag Bedi was also
partly examined-in-chief on 18th March, 2019 but subsequently on 8th May,
2019 an adjournment was sought by the plaintiff on the ground of the
original documents being not available; (iv) that it is only therafter that this
application for filing two additional documents has been brought on record;
and, (v) that no ground for allowing the plaintiff at this stage to file
additional documents is made out.
9. The counsel for the defendant has referred to Societe Des Produits
Nestle S.A. Vs. Essar Industries 2016 SCC OnLine Del 4279 holding that
though the Courts in the past have been liberal in allowing the documents to
be filed even at a late stage, beyond the time prescribed in law for filing
thereof, but the said view needs to be changed specially in the light of
coming into force of the Commercial Courts Act, the whole purport whereof
is to expedite the disposal of such suits and when certain edge has been
given to the said suits in the manner of disposal thereof.
10. The senior counsel for the plaintiff has sought to distinguish the
aforesaid judgment by contending that the suit therein was of 1993 vintage
and as compared thereto, the present suit is of 2016 vintage only.
11. On enquiry, whether any affidavit of disclosure as required to be filed
under Order XI Rule 1(3) & (6) as applicable to commercial suits has been
filed by the plaintiff, attention is drawn to the affidavit at page 41 and 43 of
Part IA file.
CS(COMM) 1674/2016 Page 4 of 10
12. I have considered the respective contentions.
13. The changes brought about by the Commercial Courts Act, 2015 in
respect of filing of documents having already been discussed in Nitin Gupta
and Societe Des Produits Nestle S.A. supra, need to reiterate the same is not
felt. Suffice it is to state that:
(a) while
Order VII Rule 14 of the CPC, applicable to ordinary suits,
requires a plaintiff, when suing upon a document or relying
upon documents in his possession or power in support of his
claim, to enter such documents in a list and to produce it in the
Court when the plaint is presented by him,
Order XI Rules 1 to 3 of the CPC as applicable to commercial
suits requires a plaintiff 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
including documents relating to any matter in question in the
proceedings, in the power, possession, control or custody of the
plaintiff, as on the date of filing the plaint, irrespective of
whether the same is in support of or adverse to the plaintiff‟s
case and to, in the said list also specify whether the documents
in the power, possession, control or custody of the plaintiff are
originals, office copies or photocopies and the list to also set
out in brief, details of parties to each document, mode of
execution, issuance or receipt and line of custody of each
document; the plaint is also required to contain a declaration on
CS(COMM) 1674/2016 Page 5 of 10
oath from the plaintiff that all documents in the power,
possession, control or custody of the plaintiff, pertaining to the
facts and circumstances of the proceedings initiated by him
have been disclosed and copies thereof annexed with the plaint,
and that the plaintiff does not have any other documents in its
power, possession, control or custody;
(b) while
Order VII Rule 14(3) of the CPC pertaining to ordinary suits
provides that a document which ought to be produced in Court
by the plaintiff 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 accordingly, such document, without the leave of the
Court, shall not be received in evidence on behalf of the
plaintiff at the hearing of the suit,
Order XI Rule 1(5) pertaining to commercial suits, bars the
Court from allowing the plaintiff to rely on documents which
were in the plaintiff‟s power, possession, control or custody and
not disclosed along with the plaint, save and except by leave of
the Court and which leave shall be granted only upon the
plaintiff establishing requisite cause for non-disclosure along
with the plaint.
It would thus be seen that the requirement for filing of
documents along with the plaint is much more detailed, precise
and specific in a commercial suit than in an ordinary suit. The
plaintiff in an ordinary suit is required to produce along with
CS(COMM) 1674/2016 Page 6 of 10
the plaint only such documents on which he is suing or on
which he intends to rely in support of his claim. On the
contrary, in a commercial suit, the plaintiff along with the
plaint is required to file all documents pertaining to the suit
irrespective of, whether the same are in support of or adverse to
the claim of the plaintiff. The list of documents required to be
filed by a plaintiff in an ordinary suit is only required to have
an entry of the document. On the contrary, the list of
documents required to be filed by a plaintiff in a commercial
suit is required to specify, whether the documents are originals
or office copies or photocopies and also contain details of
parties to each document, mode of execution and line of
custody of each document. The plaint in a commercial suit is
also required to contain a declaration on oath from the plaintiff
with respect to the documents, as aforesaid. There is no such
requirement in the ordinary suit.
14. What emerges is, that the plaintiff in a commercial suit, before
instituting the suit, is required to go through all the documents in his power,
possession, control or custody pertaining to the subject matter of the suit,
whether in support of or adverse to his case and make a declaration with
respect thereto on oath. The requirement in a commercial suit of declaration
on oath qua the documents is not an empty formality. The form of list of
documents and the particulars/specifications to be contained therein,
coupled with declaration on oath with respect thereto, in a commercial suit,
requires a plaintiff to, at the time of institution of suit, rather than stating
only the title and date of the document, which alone is required to be filled
CS(COMM) 1674/2016 Page 7 of 10
in the list of documents in an ordinary suit, peruse each document and only
then fill the particulars/specifications required to be filled in the list of
documents. The requirement of such contents being declared to be correct
on oath, places a more heavy onus on the plaintiff.
15. Preparation of such a list of documents as aforesaid, leaves no scope
of „inadvertent errors‟ as is pleaded by the plaintiff.
16. A plaintiff in an ordinary suit, if desirous of producing a document
required to be produced along with the plaint at a subsequent stage, is only
required to obtain the leave of the Court. The Legislature has not laid down
the grounds on which such leave is to be granted. I have however in Nitin
Gupta supra held that grant of such leave by the Court is not a ministerial
function and the Court has to be satisfied qua the reasons for non-production
of the documents along with the plaint. The same however places no
restriction on the power of the Court to grant such leave. As distinct
therefrom, under Order XI Rule 1(5) as applicable to commercial suits, there
is an embargo on the Court, not to allow the plaintiff to rely on any
document which was in plaintiff‟s power, possession, control or custody and
not disclosed along with the plaint. The disclosure under Rules 1(1) & (2)
has to be accompanied with listing and filing of the documents. The said
embargo placed on the Court can be lifted only upon the plaintiff
establishing reasonable cause for non-disclosure along with the plaint. The
use of the word „establishing‟ conveys that there should be something more
than a mere explanation for non-production along with plaint, amounting to
proof of the explanation.
CS(COMM) 1674/2016 Page 8 of 10
17. A reading of paragraphs 3 and 4 of the application which have been
reproduced here-in-above and in which alone the attempt, if any, at
establishing reasonable cause has been made, are not found to satisfy the
test. Not only is there no explanation as to why the inadvertent error now
alleged was not detected at the time of institution of the suit when the
plaintiff was required to sift through each document for entering its requisite
particulars in the list, on oath, but even now, at the stage of applying for
leave to file documents, no proper pleadings lest establishing a case have
been made out. All that is pleaded is that "in view of the age of such
documents, two assignment agreements were left out from the list of
documents along with the present plaint in lieu of which other agreement
with the same party was placed on record erroneously...". No particulars
have been given as to why the signatory of the plaint and of the affidavit in
terms of Order XI Rule 1(3) & (6) did not go through the documents as
required by law. In fact, no affidavit of Mr. Harsh Tripathi who had signed
and verified the plaint and sworn on affidavit of disclosure of document,
even has been filed, and the affidavit accompanying the application is of Mr.
Mudit Raizada who, save for describing himself as authorised signatory of
the plaintiff, has not even stated the position, if any, held by him in the
plaintiff. There is again no explanation as to why, when the first affidavit of
Mr. Anurag Bedi was drafted, the mistake or inadvertence even if any did
not come to light. There is no explanation as to why the mistake, though not
noticed at the time of filing the affidavit by way of examination-in-chief of
Anurag Bedi, did not still come to light while withdrawing the said affidavit
on the ground of errors therein. There is yet no explanation as to why even
CS(COMM) 1674/2016 Page 9 of 10
at the time of drafting the fresh affidavit of Mr. Anurag Bedi or at the time
of scheduling of examination-in-chief, the mistake did not come to light.
18. The plaintiff is thus found to have multiplied the inadvertence/mistake
five times than as pleaded, and the plaintiff has made no effort of
establishing any cause, lest reasonable cause, therefor.
19. If the Courts, in spite of the legislative mandate and change, continue
to overlook such deficiencies, in the name of interest of justice, the litigants
and practitioners of commercial suits would never wake up to the change
required to be brought about in the conduct of such suits. It is thus
necessary for the Courts to enforce such change and discipline, by ceasing to
exercise the discretion in this respect.
20. No ground for granting leave to the plaintiff for placing the
documents on record, at this stage, is made out. The application is
dismissed.
CS(COMM) 1674/2016
21. List before the Joint Registrar on 14th October, 2019 as already fixed.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 11, 2019 „ak/bs‟ CS(COMM) 1674/2016 Page 10 of 10