Calcutta High Court
Narsingh Ispat Udyog Private Limited vs Jwala Coke Private Limited on 11 March, 2025
OCD- 6
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
CS-COM NO. 307 OF 2024
(OLD NO. C.S. 180 of 2021)
NARSINGH ISPAT UDYOG PRIVATE LIMITED
-VS-
JWALA COKE PRIVATE LIMITED
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Hearing Concluded On : 07.03.2025
Order On : 11.03.2025
Appearance:
Mr. Dhruba Ghosh, Sr. Adv.
Mr. Altamash Alim, Adv.
Mr. Nilay Sengupta, Adv.
Mr. Sujit Banerjee, Adv.
... for the plaintiff.
Mr. Tapas Banerjee, Sr. Adv.
Mrs. Suparna Mukherjee, Sr. Adv.
Mr. Rajarshi Dutta, Adv.
Mr. Sarbajit Mukherjee, Adv.
Mr. Shayak Mitra, Adv.
Mr. Triptimoy Talukdar, Adv.
Ms. Archita Chel, Adv.
...for the defendant.
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ORDER
1. The dispute raised in the present case with regard to the document exhibited during the cross-examination of the plaintiff's witness on Commission as "Exhibit-1" (with objection.).
2. At the time of cross-examination of the plaintiff's witness before the Commissioner at question No. 285, the Learned Counsel appearing for the defendant has shown an original bill-cum-road challan being the consignee copy dated 15th January, 2021 and put the question to the witness about the vehicle number and the weight of LAM Coke in the said document. The witness has answered the said question stating that "the weight mentioned is 24.650 MT, vehicle number is not clear".
3. Again a question was put that a truck no. is WB-810653 and the witness has answered "Yes, I shall agree". In question No. 292, a question was put to the plaintiff's witness - please take a look at the entirety of the document, you will find and endorsement on the remark column which says that the reject material return to the party and witness answered "Yes, it is so written".
4. In question No. 294, the Counsel for the defendant by handing over another branch of bill-cum-challans dated 12th January, 2021; 2nd January, 2021; 1st January, 2021 and 2nd January, 2021 and put the question to the witness that all these are original bill-cum-challans being consignee copies with the endorsement material rejected and returned to the party. Please take a look at these documents and tell us 3 what do you have to say about it? The witness has answered "Yes, the consignee's copies, the same is written".
5. On confronting the said document to the witness during cross-
examination, five (5) bill-cum-challans being the consignee copies were marked as "Exhibit 1" subject to objection by the Learned Counsel appearing for the plaintiff on the ground that the documents disclosed by the defendant were not disclosed in the written statement and as such no new document can be disclosed at this stage. The Learned Counsel for the plaintiff further objected that the witness was not directed to produce such documents. Learned Counsel for the defendant before the Commissioner has submitted that the tenor of cross-examination would establish that the witness has admitted that he has not disclosed the bill-cum-road challans in respect of the 2nd set of invoices and in order to refresh the memory of the witness, the documents were confronted to the witness. Learned Counsel for the defendant stated that the witness has not disputed such consignee copies of the bill-cum-road-challans and therefore, the documents are to be exhibited.
6. As there was a dispute with regard to exhibit the document i.e. five number of bill-cum-road-challans, the Commissioner has deferred the cross-examination of the plaintiff's witness. The Counsel for the plaintiff has mentioned the matter before this Court after notice to the Learned Counsel for the defendant and submitted that the documents produced by the Learned Counsel for the defendant at the time of 4 cross-examination of the plaintiff's witness, the Commissioner has wrongly marked as "Exhibit- 1" (with objection) as the said documents were not disclosed by the defendant in the written statement or has not taken leave from this Court.
7. Learned Counsel for the defendant submits that in the evidence on affidavit of the plaintiff's witness in paragraph 22, the plaintiff has disclosed copies of the bills-cum-road-challans which are appearing at page nos. 78 to 119 of the Judges Brief of Documents and the same were marked as "Exhibit- H" collectively. During the cross-examination, the plaintiff's witness in question No. 267, has admitted that "Exhibit- H" does not contain any bill-cum-challan as stated in paragraph 22 of the evidence on affidavit of the plaintiff's witness. In question No. 268, the plaintiff's witness has further admitted that in "Exhibit- H", bill- cum-road-challans were not enclosed, only tax invoices and E-Way bills have been enclosed.
8. Mr. Dhruba Ghosh, Learned Senior Advocate representing the plaintiff submits that the defendant during the cross examination of the plaintiff's witness is not entitled to disclose any document which neither the defendant nor the plaintiff has disclosed the said documents. He submits that as per Order XI, Rule 1(7) of the Code of Civil Procedure, 1908 as amended under the Commercial Courts Act, 2015, the defendant is required to file a list of all documents and photocopies of all documents, in its power and possession, control or custody, pertaining to the suit, along with written statement. He 5 submits that the documents which the defendant has disclosed before the plaintiff's witness is not filed along with the written statement and no leave is taken from this Court.
9. He submits that as per submissions made by the Learned Counsel for the defendant before the Commissioner at the time of exhibiting the documents, the defendant has relied upon the Order XI, Rule 1(7)(c)(iii) to refresh the memory of the plaintiff's witness but normally the documents are shown to the witness to refresh the memory of its own witness but not during the cross-examination of the plaintiff's witness.
10. Mr. Ghosh submits that Order XIII Rule 1, Order VII Rule 14 and Order VIII Rule 1A permits the parties to produce documents during cross- examination but the said provisions are not applicable to the suits of Commercial matters.
11. Mr. Ghosh submits that in the commercial suit, no documents can be produced after filing of written statement without the leave of the Court. He submits that the witness who is not the author of the document, the same cannot be proved and marked as an Exhibit through the said witness.
12. Mrs. Suparna Mukherjee, Learned Senior Advocates representing the defendant submits that in paragraph 22 of the Affidavit on Evidence of the plaintiff's witness has made a false statement on affidavit that bill- cum-road challans have been disclosed in the Judges Brief of Documents at pages 78 to 119 but actually the said documents were 6 not disclosed. She submits that in question No. 265 at the time of cross-examination, the plaintiff's witness admitted that bill-cum- challans in the bunch of documents as "Exhibit-H" are not tendered.
13. Mrs. Mukherjee submits that in question No. 284, the plaintiff's witness admitted that the plaintiff has not disclosed the bill-cum- challans in respect of the 2nd set of invoices as mentioned in page 77 of the Judges Brief of Documents due to mistake. She submits that the documents which the defendant has disclosed during the cross- examination of the plaintiff's witness are the same documents which the plaintiff has not produced. She submits that the plaintiff has officially tendered the bill-cum-challans but has surreptitiously not disclosed the same.
14. Mrs. Mukherjee submits that the plaintiff's witness during the cross- examination has admitted the documents with regard to the contents of the same and thus the documents are required to be exhibited without any objection.
15. Mrs. Mukherjee submits that the plaintiff in his affidavit of evidence has disclosed two (2) sets of bill-cum-challans i.e. at pages 11 to 73 and pages 78 to 119 of the Judges Brief of Documents but the bill-cum- challans are available from pages 11 to 73 but no bill-cum-challans are available from pages 78 to 119.
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16. Mrs. Mukherjee submits that the document as per Order XI, Rule 1 (7)(c)(iii), the documents were handed over to the witness to refresh his memory and after going through the said documents, the plaintiff's witness has admitted the contents. She submits that as per Order XI Rule 1(10) of the Code of Civil Procedure, 1908 save and except for sub- rule 7(c)(iii), the defendant shall not be allowed to rely upon the documents which were power, possession, control or custody and not disclosed with the written statement, save and except with the leave of the Court. She submits that, the defendant has disclosed the documents to the witness for refresh his memory and the plaintiff's witness has admitted the said document, thus no leave is required to disclose the said documents.
17. Mr. Mukherjee submits that when the documents were handed over to the witness during the cross-examination and the witness identified the documents and given proper answer by referring to the said documents, the same is required to be exhibited and question of exhibiting the same with objection does not arise.
18. The issue raised by the parties whether the document produced by the defendant during the cross-examination of the plaintiff's witness is to be taken on record by exhibiting the same or the defendant cannot be allowed to bring the said document or record.
19. Mrs. Mukherjee relied upon the judgment in the case of Bipin Shantilal Panchal Vs. State of Gujarat and Another reported in 8 (2001) 3 SCC 1 and submitted that the plaintiff is raising objection of the said documents, the same may be marked as "Exhibit-1" (with Objection) and the objection raised by the plaintiff can be adjudicated at the time of final argument of the case.
20. Mr. Ghosh relied upon the judgment in the case of Criminal Trials Guidelines regarding Inadequacies and Deficiencies, In Re Vs. State of Andhra Pradesh and Others reported in (2021) 10 SCC 598 and submitted that the Hon'ble Supreme Court held that the judgment of Bipin Shantilal Panchal (Supra) should not be considered as binding and the Court should decide the objections to questions, during the course of proceeding, or failing it at the end of the deposition of the witness concerned.
21. Considering the both judgments, this Court finds that in the present case, the recording of evidence is going on before the Commissioner appointed by this Court. The impugned document is marked by the Commissioner as "Exhibit-1" (With Objection) but further cross- examination is deferred as the plaintiff has mentioned the matter before this Court to decide the issue whether the document is to be taken on record and to be exhibited or not. Both the parties have argued the matter at length, thus this Court taken up the issue for final disposal.
22. In paragraph 22 of the affidavit of evidence of the plaintiff's witness pages 78 to 119 of the Judges Brief of Documents were marked as "Exhibit-H" Collectively. As per evidence of the plaintiff's witness, the 9 said documents are bill-cum-challans. During the cross-examination of the plaintiff's witness at question No. 263, it is specifically stated that the documents tendered in "Exhibit-H" Collectively are tax invoices along with E-way bills for supply of LAM Coke. In question No. 264, the plaintiff's witness also admitted that no bill-cum-challans are tendered in Exhibit-H. In question Nos. 281 and 284, the plaintiff's witness stated that at page 77 of the Judges brief of documents were not disclosed and tendered by mistake.
23. In question Nos. 285, 286, 291 and 292, the plaintiff's witness after going through the document has given answer to the questions raised by the defendant. In question No. 294, other four documents were shown to the witness and specific question was put to the witness that all these are original bill-cum-challans being consignee copies with the endorsement material rejected and returned to the party. After going through the said documents, the witness has answered that "Yes, in the consignee's copies, the same is written". After being identified the said documents by the witness, the defendant was intending to exhibit the said documents but on the objection raised by the plaintiff while exhibiting the said documents, the Commissioner has exhibited the documents as "Exhibit-1" Collectively (with objection) and recorded the objections raised by the plaintiff.
24. Order XI Rule 1(7), (8), (9) and (10) of the Code of Civil Procedure, 1908 as amended under the Commercial Courts Act, 2015 reads as follows: 10
"XI. (1) Disclosure and discovery of documents.- (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 counter claim if any, including-
a) The documents referred 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 defendant, irrespective of whether the same is in support of or adverse to the defendant's defence;
c) Nothing in this Rule shall apply to documents produced by the defendant and relevant only
-
(i) For the cross-examination of the
plaintiff's witnesses,
(ii) In answer to any case set up by the
plaintiff subsequent to the filing of the
plaint, or
(iii) Handed over to a witness merely to
refresh his memory.
(8) The list of documents filed with the written statement or counter claim shall specify whether the documents, in the power, possession, control or custody of the defendant, are originals, office copies or photocopies and the list shall also set out in brief, details of parties to each documents being produced by the defendant mode of execution, issuance or receipt and line of custody of each documents.
(9) The written statement or counterclaim shall contained a declaration on oath made by the deponent that all documents in the power, possession, control or custody of the defendant, save and except for those set out in sub-rule 7(c)(iii) pertaining to the facts and circumstances of the 11 proceeding initiated by the plaintiff or in the counter claim 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 7(c)(iii), defendant shall not be allowed to rely on documents, which were in the defendants power, possession, control or custody and not disclosed along with the written statement or counter claim, save and except by leave of Court and such leave shall be granted only upon the defendant establishing reasonable cause for non-disclosure along with the written statement or counter claim."
25. The contention of the plaintiff that the document which the defendant has shown to the witness during the cross-examination has not disclosed by the defendant in their written statement and no leave has been taken from this Court for production of additional document. It is also the contention of the plaintiff that the defendant has shown the said document to the witness during cross-examination, thus admittedly the defendant was in possession of the said document, and not obtained any leave from this Court to produce the said document, thus the same cannot be allowed to exhibit the same.
26. The defendant during the cross-examination of the plaintiff's witness, has shown the documents to the witness. On showing documents to the witness, several questions were also put to the witness on said documents and the witness as categorically given answer by referring to the said documents.
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27. Order XI Rule 1(7)(c)(iii) provides that "handed over to a witness merely to refresh his memory". The said provision is also to be read with Section 159 of the Indian Evidence Act, 1872 which reads as follows:
"159. Refreshing memory. A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.
The witness may also refer to any such writing made by any other person and read by the witness within the time aforesaid, if when he read it he knew it to be correct.
When witness may use copy of document to refresh memory. - Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document :
Provided the Court be satisfied that there is sufficient reason for the non-production of the original.
An expert may refresh his memory by reference to professional treatises."
Section 145 of the Indian Evidence Act, 1872 is also relevant in the present circumstances. Section 145 of the Indian Evidence Act, 1872 reads as follows:
"145. Cross-examination as to previous statements in writing .- A witness may be cross-
examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
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28. The defendant under the provisions of Section 145 of the Evidence Act, 1872 draw the attention of the plaintiff's witness to his affidavit of evidence with reference to paragraph 22 vide question No. 266 and in connection with the said document, the defendant had put certain questions being question Nos. 267, 268 and 269. Corresponding to paragraph 22, the Counsel for the defendant has also shown the "Exhibit-H", page 77 and put questions being questions Nos. 281 and
284. Up till this, there was no problem as the said documents were on record of the case and the Counsel for the defendant shown the said documents to the plaintiff's witness to refresh memory.
29. The defendant has shown bill-cum-challans being the consignee copy dated 15th January, 2021 which was not disclosed by any of the parties. The defendant has disclosed the said document for the first time to the witness at the time of cross-examination. The witness is not the author or signatory of the document. The defendant has put questions to the witness what is written in the documents and on seeing the same, the witness has stated about what is written in the said documents.
30. It is very surprising that the defendant has shown the documents to the witness without any leave from this Court nor the copy of the same was supplied to the Counsel for the plaintiff. Admittedly, the said documents were not disclosed by any of the parties nor the said documents were available on record of the case.
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31. The defendant has taken the shelter of Order XI Rule 1(7)(c)(iii) of the Code of Civil Procedure, 1908 as amended under the Commercial Courts Act, 2015. The said provision provides merely to refresh his memory. The defendant without the leave of the Court and without supply of the copy of the same to the defendant shown the document to the witness at the time of cross-examination but the questions put to the witness with regard to the said document is no way connected with refresh his memory. The defendant put the questions on the contents of document and subsequently, other four documents were shown vide question No. 294 and put the question that to identify the said documents as bill-cum-challans being consignee copies. Considering the above, this Court finds that the documents shown to the witness during cross-examination and the question put to the witness is not covered under the purview of Order XI Rule 1(7)(c)(iii) as it was not for refresh of memory. From the trend of examination of witness with respect to the said documents, it is found that the defendant introduced new documents. It is not the case of the defendant that the documents were available on record and only to refresh the memory of the witness, the documents were shown to the witness.
32. The present case is commercial suit. Order XI of the Code of Civil Procedure, 1908 amended under the Commercial Courts Act, 2015. As per Rule 7 of Order XI, the defendant is required to file list of all documents and photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the written 15 statement or with its counter claim, if any. As per sub-rule 10 of Order XI, the defendant shall not be allowed to rely on documents, which were in defendants' power, possession, control or custody and not disclosed along with the written statement or counter claim, save and except by the leave of the Court.
33. The document which the defendant has shown to the witness was in possession of the defendant as the date of the said documents are also prior to the filing of the suit and the defendant without taking leave of this Court has shown the documents to the witness, thus this Court finds that the defendant cannot be allowed to bring the document which was in possession of the defendant and the defendant has not disclosed the same along with written statement and also not taken any leave from this Court before showing the same to the witness at the time of cross-examination of the witness.
34. In view of the above, the documents which were marked as "Exhibit-1"
(Collectively) by the Commissioner are deleted. The Commissioner is directed to expedite the examination of witness on commission and to file report by 21st May, 2025.
(KRISHNA RAO, J) p.d/-