Bombay High Court
Prash Logistics vs R.V. Akademik Boris Petrov And Anr on 31 January, 2018
Bench: K.R. Sriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ADMIRALTY AND VICE-ADMIRALTY JURISDICTION
NOTICE MOTION NO. 2269 OF 2015
IN
ADMIRALTY SUIT NO. 31 OF 2013
Rasesh Shipping Services .. Plaintiff
Vs.
R.V. Akademik Boris Petrov & Anr. .. Defendants
WITH
NOTICE MOTION NO. 2268 OF 2015
IN
COMMERCIAL SUIT NO. 31 OF 2013
Prash Logistics .. Applicant
In the matter between :
Prash Logistics .. Plaintiff
Vs.
R.V. Akademik Boris Petrov & Anr. .. Defendants
Mr. Arnab Ghosh a/w. Mr.Manoj Khatri i/b Manoj R. Khatri for plaintiff.
Mr. V.K. Ramabhadran i/b Subra Karmakar for defendants.
CORAM : K.R.SHRIRAM, J.
RESERVED ON : 24TH JANUARY 2018
PRONOUNCED ON : 31st JANUARY 2018.
P.C.
1 These notices of motion are for identical reliefs in two separate suits
and both suits have been tagged together because the plaintiff in both suits
are sole proprietory concern of two brothers who are carrying on business
together from the same premises and defendants are also common. The
Shraddha Talekar PS 1/23
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cause of action also is identical. The documents proposed to be introduced
in evidence through these notices of motion are also common. The
affidavits in support are also identical except that they are affirmed by two
different persons, viz., Ashish Khialani in notice of motion No. 2269 of
2015 and Pratap Khialani in notice of motion No. 2268 of 2015. Therefore,
I am considering the facts in notice of motion No.2269 of 2015 in
Admiralty Suit No. 31 of 2015 and and my findings will apply squarely to
notice of motion No. 2268 of 2015 in Admiralty Suit No.11 of 2013
converted into Commercial Suit No. 31 of 2013 also.
2 The suit has been filed on the basis that plaintiff was a ship chandler
and supplied various goods/necessaries and rendered services to 1 st
defendant vessel and there are amounts still unpaid.
3 After the issues were settled on 14th March 2014, plaintiff filed
evidence of their first witness. As recorded in the order dated 16 th April
2014, plaintiff informed the Court that there will be two witnesses. The
first witness was Mr.Ashish Khialani in Admiralty Suit No.31 of 2013 and
Mr. Pratap Khialani in Commercial Suit No.13 of 2013 as PW-1 and the 2 nd
witness in both the suits will be one Mr. Mohnish Mackdani.
With the evidence of PW-1 in Admiralty Suit No.31 of 2013, plaintiff
had filed a compilation of about 147 documents and in Commercial Suit
Shraddha Talekar PS 2/23
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No.31 of 2013, plaintiff had filed a compilation in two volumes containing
a total of about 900 pages. Plaintiff thereafter on 12 th August 2014 sought
liberty of the Court to withdraw the affidavit of evidence of Ashish Khialani
(PW-1) filed in Admiralty Suit No.31 of 2013 because the averments did
not include averments regarding various documents and invoices. In the
interest of justice, this Court permitted plaintiff to withdraw the affidavit of
evidence of Mr.Ashish Khialani and granted liberty to file fresh evidence
affidavit. Therefore, fresh evidence affidavit was filed of Mr.Ashish Khialani
in Admiralty Suit No. 31 of 2013. On 31 st October 2014, the 147
documents were received in evidence and marked as exhibits in Admiralty
Suit No.31 of 2013 and on 7 th May 2014, the 900 (approx.) pages were
received in evidence and marked as exhibits in Commercial Suit No.31 of
2013.
4 The evidence of Mr.Ashish Khialani and Mr.Pratap Khialani, who
were PW-1 in Admiralty Suit No. 31 of 2013 and Commercial Suit No.31 of
2013, respectively, was recorded before the Court appointed Commissioner
and the cross-examination of PW-1 in both suits was concluded on 5 th
September 2015 and the witnesses were discharged. Subsequent thereto,
plaintiff filed the affidavit of one Mr.Mohnish Mackdani in lieu of
examination in chief in both the suits on 26 th October 2015. At that stage, it
Shraddha Talekar PS 3/23
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is the case of plaintiff that they realized that there are approximately 22
documents which have not been even referred to in the affidavit of
documents and consequently as they have not been received in evidence,
are required to be brought through Mr.Mohnish Mackdani, proposed PW-2.
Hence, are seeking leave of this Court to file further affidavit of documents.
5 Admittedly, these documents have not even been referred to in
plaint. There is not even a foundation laid in the plaint. In the affidavit in
support of the notices of motion, it is stated that the documents that are
required to be filed are computer print out of email correspondence
exchanged between the representative/proprietor of plaintiff and
representative/agent of defendants; the documents are integral part of the
correspondence exchanged between the parties; defendants had admitted
to clear the outstanding due to plaintiff and had failed to do so; these
documents were inadvertently left out in the affidavit of documents filed by
plaintiff and the same were under the care and control of Mr.Mohnish
Mackdani the Operation Manager who was responsible for the day-to-day
operation of plaintiff and he was not consulted before the filing of affidavit
of documents; and if these documents are not allowed to be taken on
record, great prejudice will be caused to them.
In the affidavit in rejoinder, it is also stated that the present
documents are filed in order to enable plaintiff to rectify its mistake or
Shraddha Talekar PS 4/23
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inability to produce the documents in support of the plaint which ought to
have been produced along with the plaint and defendants have ample
opportunity to meet these documents in course of recording of evidence
including the cross-examination of the witness.
Defendants are strongly opposing the notices of motion.
6 Shri Ghosh appearing for plaintiff relied on the following
judgments :-
(i) Vitorino Rodrigues & Ors. Vs. Nirmalabai Shivajirao Dessai
(deceased)1,
(ii) Chitrakala Fal Dessai Vs. Balu Marathe alias Mane s/o Jyotiba
Marathe 2,
(iii) Asman Investment Ltd. Vs. K.L. Suneja 3 ; and
(iv) United India Insurance Company Ltd. Vs. M/s. Madgavkar
Salvage and Towage Co. Pvt. Ltd. 4
and submitted that it is settled law that the Court will have to ensure that
all documents which assist it to resolve the controversy before it in an
efficient manner are available for its perusal. The Court should not
generally deny leave to produce documents because ultimately it is always
open to the other side to cross-examine the party who produces the
1 [2017(7) Mh.L.J.813]
2 2006(6) Mh.L.J.
3 1998 (44) DRJ
4 1996 4 Bom.CR 50
Shraddha Talekar PS 5/23
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documents to establish that the said documents are not relevant or that the
case based on the said documents is not true. Shri Ghosh submitted that
mere inadvertence or oversight which may be human error caused by lack
of professional advice or directive or party's lack of knowledge of the
urgency of a document being filed early or oblivion of consequences of not
doing so cannot come in the way of the party knocking at the doors of this
Court for justice. Shri Ghosh submitted that non-filing of the documents
earlier was not a design or motivated and was inadvertent and not gross
negligence. Shri Ghosh also submitted that defendants have not stated how
prejudice will be caused to them, if the application was allowed.
7 Shri Ramabhadran appearing for defendants submitted :-
(a) plaintiff had ample opportunity to produce these documents;
(b) these documents do not even form part of the plaint and there is no
reference in the plaint that such correspondence was exchanged between
plaintiff and the representatives of defendants and that representatives had
admitted liability. Therefore, no evidence with regard to the facts not
pleaded can be looked into;
(c) there will be miscarriage of justice and grave prejudice will be
caused to defendants inasmuch as, if these facts were in the plaint,
defendants would have got an opportunity to place the facts and
contentions necessary to repudiate or challenge such a claim or relief and
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in such a situation, the Court would have framed issues as to whether
plaintiff proves that they sent such emails to defendants and whether
defendants admitted its liability;
(d) it is settled law that Courts cannot permit parties to lead further
evidence to fill up lacuna or mistakes in their evidence and in the affidavit
in rejoinder plaintiff has admitted that these documents are only being
introduced to rectify its mistake.
(e) the basis of these applications is that Mr.Mohnish Mackdani was
responsible for day-to-day operation of plaintiff and he was not consulted
before the affidavit of documents. At the same time, plaintiff has not stated
that PW-1 who are sole Proprietors, in both the suits, did not even discuss
with Mr.Mohnish Mackdani before they filed affidavit in lieu of
examination in chief or compilation of documents. Shri Ramabhadran also
submitted that even during the cross-examination, PW-1 in both the suits
have stated that they are in-charge of day-to-day operations and in any
event in M/s.Rasesh Shipping (Admiralty Suit No.31 of 2013), PW-1 has
stated that there are only 5 employees; 2 in Accounts Department, 1
handles operation, 1 procures materials and 1 is the Peon and in M/s.
Prash Logistics (Commercial Suit No.31 of 2013), PW-1 stated that there
are only 2 employees and they manage supplies, accounts and the paper
work. Hence one cannot believe that Mr. Mackdani was not consulted
Shraddha Talekar PS 7/23
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before filing affidavit of documents; and
(f) the documents are manufactured and cooked up documents for
being introduced at this stage and the Court should not exercise its
discretion in favour of plaintiff even though it is settled law that the Court
may based on facts and circumstances of a case, allow the parties to lead
evidence at any stage in the interest of justice. Shri Ramabhadran also
submitted that the Apex Court in Bagai Construction through its
Proprietor Lalit Bagai Vs. Gupta Building Material Store 5 held that as a
matter of routine, if parties are allowed to recall witnesses or introduce
further documents at any stage, the purpose of speedy trial will be defeated
and certainly not to fill up lacunae or mistakes.
In any event, the thrust of the arguments of Shri Ramabhadran is
that these are cooked up documents after plaintiff realized that they did
not have any evidence filed to prove interest was payable.
8 As stated earlier, in Admiralty Suit No.31 of 2013, plaintiff has
produced 147 documents and in Admiralty Suit No.11 of 2013 now
Commercial Suit No.31 of 2013, plaintiff has produced about 900 pages of
documentary evidence. The documents now being introduced are common
to both the suits. In the affidavits of documents in the two suits filed by
PW-1, it is stated as under :
5 (2013) 14 SCC
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"Admiralty Suit No.31 of 2013
I, Ashish Khialani, the Proprietor of Rasesh Shipping Services
having its office at 1, Rex Chambers, Ground floor, Walchand
Hirachand Marg, Ballard Estate, Mumbai 400 001 do hereby on
solemn affirmation state as under :-
1. I am the Proprietor of the Plaintiff above-named. I am aware
of the facts and circumstances of the present suit and I am able to
depose as under :
2. According to the best of my knowledge, information and
belief, I do not have now, nor have ever had in my possession,
custody or power or in the possession, custody or power of my
pleader, or in both possession, custody or power of any other
person on behalf of myself any receipt, letter, paper or writing or
any copy of or extract from any such document, or any other
document whatsoever, relating to the matter in question wherein
any entry has been made relating to such matter or any of them,
other than and except the documents set forth in the first and
second parts of the first schedule hereto."
II)
"Admiralty Suit No.11 of 2013/
Commercial Suit No.31 of 2013
I, Pratap Khialani, the Proprietor of Prash Logistics having its
office at 1st, 2nd floor, Zakariya Building, 7 Chakala Street,
Mumbai 400 003 do hereby on solemn affirmation state as
under :-
1. I am the Proprietor of the Plaintiff above-named. I am aware
of the facts and circumstances of the present suit and I am able to
depose as under :
2. According to the best of my knowledge, information and
belief, I do not have now, nor have ever had in my possession,
custody or power or in the possession, custody or power of my
pleader, or in both possession, custody or power of any other
person on behalf of myself any receipt, letter, paper or writing or
any copy of or extract from any such document, or any other
document whatsoever, relating to the matter in question wherein
any entry has been made relating to such matter or any of them,
other than and except the documents set forth in the first and
second parts of the first schedule hereto."
9 In the affidavit in lieu of examination in chief, PW-1, Ashish Khialani,
Shraddha Talekar PS 9/23
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who has also affirmed the affidavit in support of notice of motion has
averred that he was in charge of the day-to-day affairs of the proprietory
concern. It is also stated that the said emails were sent to
defendants/agents from the email address '[email protected]'.
He also stated that "The aforesaid emails were addressed by the Plaintiff
having email address '[email protected]'. I certify that the
computer of Plaintiff vide which the electronic mails were sent was
operating in proper working condition during the relevant period and the
information contained in the print outs of the electronic mails were
received in the ordinary course of business. As I am the Proprietor of the
Plaintiff, I have access to all the correspondence in the regular course of
business and therefore I am producing the same. I can identify the same
and certify the same to be true and correct..............................."
In the cross-examination of PW-1-Ashish Khialani, his answers to
question Nos.7, 8, 13, 14, 15, 21 to 24, 27, 28, 37, 38, 73, 77, 79 to 83, 95
are as under:-
Q.7 : What does the person working in the operations do ?
Ans. Operation person attends the vessel and looks into all the
supplies and repairs, etc.
Q.8 : What do you do?
Ans. : I do overall and look at all the departments.
..
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Q.13 : You had filed affidavit in May 2014 which was
withdrawn on the ground that further facts came to your
light after the affidavit was filed. Could you please tell,
what were the further facts which came to your light
after the affidavit was filed?
Ans. : After going through the affidavit we saw some things
were missing and wanted to put them and re-file the
affidavit.
Q.14 : When you filed the first affidavit, did you or did you not
read it?
Ans. : I had gone through, but that time did not realize that
some things were missing.
Q.15 : What were those some things?
Ans. : We wanted to incorporate delivery challans, invoices and
all relevant documents in that affidavit.
Q.21 : Have you produced all the documents, correspondence,
Books of Accounts in relation to the suit transaction?
Ans. : We have submitted invoices, delivery challans,
quotations, some approvals and some email
correspondence with the owners, agents and vessels.
Q.22 : Have you produced all the documents, correspondence,
Books of Accounts in relation to the suit transaction?
Ans. : We have submitted all invoices, all delivery challans, all
written quotations, all written approvals and all email
correspondence with the owners, agents and vessels.
Q.23 : I am putting it to you that you are deliberately avoiding
to answer the question.
Ans. : I deny.
Q.24 : Have you produced the Books of Accounts?
Ans. : No.
....
Q.27 : Have you produced all correspondence?
Ans. : As per my knowledge, yes.
Q.28 : Who else in your office will have knowledge in relation
to the suit transaction?
Ans. : It's only me who was handling it directly with my
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Advocate.
.....
Q.37 : I put it to you that there was no outstanding invoices and
therefore you have not sent any reminders.
Ans. : I deny.
Q.38 : Who instructed your lawyer from your firm when the
purported notice of demand was made against EMS
Seacrest Marine Services?
Ans. : I instructed my lawyer to issue a notice against master
and owners.
.....
Q.73 : Is it correct that all your purported invoices were sent
only to the office of EMS Seacrest Marine Services?
Ans. : Yes.
.....
Q.77 : Have you produced before this Court any purported
statement having been sent to the Owners?
Ans. : Yes. It is Exhibit "H" to the Plaint.
...
Q.79 : Have you produced any document in these proceedings,
in the nature of statement of accounts, having been sent
to the owners, which has been duly acknowledged, other
than the purported statement which you claim tohave
sent (Exhibit "H")?
Ans. : Two notices have been sent legally to the owners for
these outstanding payments.
Q.80 : Above question is repeated.
Ans. : No.
Q.81 : What is a relation between Rasesh Shipping Services and
Prash Logistics?
Ans. : They are sister concerns, operating from same office.
Q.82 : Is Prash Logistics a sole proprietory firm?
Ans. : Yes.
Q.83 : Is the sole proprietor of Prash Logistics is your brother?
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Ans. : Yes.
...
Q.95 : In the Plaint you have claimed that you placed order for
supply of necessaries upon third parties raised invoices
and you claimed to have made payments. Have you
produced any purported invoices raised by third party
upon your firm and any document establishing that you
have made he purported payment?
Mr. Manoj Khatri, Advocate for the Plaintiff objects that the
Plaintiff has not mentioned about any orders being placed
upon third parties and therefore the said question is only
being asked to confuse the witness as there are no
averments in the Plaint to that effect?
Mr. V.K. Ramabhadran, Sr. Advocate appearing for the
Defendants states that in paragraph 6 of the Plaint it is
clearly stated that Plaintiff would rely upon invoices raised
by the third parties upon the Plaintiff.
The witness is asked to answer, subject to the objection.
Ans. : No. I have not produced.
(emphasis supplied)
10 It is true that the Courts have been generous, in the interest of justice
to permit parties to lead evidence even at a belated stage in certain cases. I
also believe in that. At the same time, there cannot be a strait jacket
formula for allowing any such application. That would depend on the
explanations given in the application as to why those documents could not
be produced earlier.
11 It is settled law that these are discretionary orders which the Court
should pass considering the facts and circumstances of the case. Of course,
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even while exercising this discretion, the Court will look into the pleadings
in the plaint and no evidence with regard to facts not pleaded can be
looked into.
12 In this case, I am not inclined to grant the application for the
following reasons :
(a) The documents which are proposed to be introduced at this stage are
to show that these were emails that were sent to one Mr. Karyakin, a
representative/employee of defendant no.2 before October 20, 2012. It is
the case of plaintiff that said Mr. Karyakin had visited plaintiff's office
representing defendant no.2 to resolve the the issue of payments due to
plaintiff and defendant no.2 had not objected to the exchange of emails
with Mr. Karyakin. According to plaintiff, by these emails, defendant no.2
had admitted to clear plaintiff's dues but defendant no.2 failed to do so.
Admittedly, there is no reference to any these emails in the plaint.
Admittedly, it is not mentioned anywhere in the plaint that these emails
were sent to Mr. Karyakin and defendant no.2 never objected to that and
defendant no.2, vide these emails admitted to clear plaintiff's dues.
Moreover, as it is plaintiff's case that by these emails, defendant no.2
admitted to clear plaintiff's dues, all the more reason they should have
been mentioned in the plaint, and as a result of not mentioning defendants
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have not got an opportunity to repudiate or challenge such a case. In fact,
to a pointed question posed by the Court, the counsel for plaintiff-applicant
admitted that there is no foundation laid in the plaint. In Bacchaj Nahar
Vs. Nilima Mandal & Anr.,6 the Apex Court has held as under :-
"10. The High Court, in this case, in its obvious zeal to cut delay
and hardship that may ensue by relegating the plaintiffs to one more
round of litigation, has rendered a judgment which violates several
fundamental rules of civil procedure. The rules breached are :
(i) No amount of evidence can be looked into, upon a plea
which was never put forward in the pleadings. A question
which did arise from the pleadings and which was not the
subject matter of an issue, cannot be decided by the court.
(ii) A Court cannot make out a case not pleaded. The court
should confine its decision to the question raised in
pleadings. Nor can it grant a relief which is not claimed
and which does not flow from the facts and the cause of
action alleged in the plaint.
(iii) A factual issue cannot be raised or considered for the
first time in a second appeal.
11 XXX
12 The object and purpose of pleadings and issues is to ensure
that the litigants come to trial with all issues clearly defined and to
prevent cases being expanded or grounds being shifted during trial.
Its object is also to ensure that each side is fully alive to the questions
that are likely to be raised or considered so that they may have an
opportunity of placing the relevant evidence appropriate to the issues
before the court for its consideration. This Court has repeatedly held
that the pleadings are meant to give to each side intimation of the
case of the other so that it may be met, to enable courts to determine
what is really at issue between the parties, and to prevent any
deviation from the course which litigation on particular causes must
take.
13 The object of issues is to identify from the pleadings the
questions or points required to be decided by the courts so as to
6 (2008) 17 SCC 491
Shraddha Talekar PS 15/23
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enable parties to let in evidence thereon. When the facts necessary to
make out a particular claim, or to seek a particular relief, are not
found in the plaint, the court cannot focus the attention of the
parties, or its own attention on that claim or relief, by framing an
appropriate issue. As a result the defendant does not get an
opportunity to place the facts and contentions necessary to repudiate
or challenge such a claim or relief. Therefore, the court cannot, on
finding that the plaintiff has not made out the case put forth by him,
grant some other relief. The question before a court is not whether
there is some material on the basis of which some relief can be
granted. The question is whether any relief can be granted, when the
defendant had no opportunity to show that the relief proposed by the
court could not be granted. When there is no prayer for a particular
relief and no pleadings to support such a relief, and when defendant
has no opportunity to resist or oppose such a relief, if the court
considers and grants such a relief, it will lead to miscarriage of
justice. Thus it is said that no amount of evidence, on a plea that is
not put forward in the pleadings, can be looked into to grant any
relief."
(b) In the affidavit in lieu of examination in chief, Mr.Ashish Khialani has
stated that he was in charge of the day-to-day affairs of the proprietory
concern. It is also stated that the said emails were sent to
defendants/agents from the email address '[email protected]'.
He also stated that "The aforesaid emails were addressed by the Plaintiff
having email address '[email protected]'. I certify that the
computer of Plaintiff vide which the electronic mails were sent was operating
in proper working condition during the relevant period and the information
contained in the print outs of the electronic mails were received in the
ordinary course of business. As I am the Proprietor of the Plaintiff, I have
access to all the correspondence in the regular course of business and therefore
Shraddha Talekar PS 16/23
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I am producing the same. I can identify the same and certify the same to be
true and correct..............................."
In answer to Q.8, Mr. Ashish Khialani (Proprietor/PW-1 and person
who has affirmed the affidavit in support and rejoinder) has said "I do
overall and look at all the departments". In response to Q.22, he says "We
have submitted all invoices, all delivery challans, all written quotations, all
written approvals and all email correspondence with the owners, agents and
vessels." To Q.28 in his cross-examination, Mr. Ashish Khialani has, in
response to the question 'Who else in your office will have knowledge in
relation to the suit transaction?', answered "It's only me who was handling it
directly...". He has also in his cross-examination stated that all invoices
were sent only to the office of the agents, EMS Seacrest Marine Services,
the only purported statement sent to the owners is at Exh.'H' to the plaint
and no invoices have been sent to the owners. The stand of the witness has
been that he was handling the transaction as the Proprietor and he had
access to all the correspondence in regular course of business. The reason
according to plaintiff, they did not produce these 22 documents earlier
because the same were under the care and control of Mr. Mohnish
Mackdani who was the Operation Manager who was responsible for the
day-to-day operation of plaintiff and he was not consulted. But in his cross-
examination, PW-1 says "Operation person attends the vessel and looks into
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all the supplies and repairs etc.". He does not say say he was corresponding
with defendant no.2 or its representatives. Even in the affidavit in support
to notice of motion, he does not say Mohnish Mackdani was corresponding
with defendant no.2 or its representative. This is also contradictory to the
stand taken by PW-1/Ashish Khialani, who has also affirmed the affidavit in
support, in his evidence that as he was the Proprietor of plaintiff, he had
access to all the correspondence in the regular course of business. In fact,
based on this averment in the affidavit in lieu of examination in chief, the
documents which were brought through him were also taken on record and
marked in evidence.
Further, in the affidavit in support, Ashish Khialani/PW-1 only states
that he did not consult Mr.Mohnish Mackdani before he filed the affidavit
of documents but is conveniently silent as to whether he consulted before
plaintiff filed its evidence affidavit and compilation of documents. If he had
only stated in the affidavit in support that he had not consulted him then
that would be in direct contradiction to what he had stated in the affidavit
in lieu of examination in chief, viz., "As I am the Proprietor, I have access to
all the correspondence in the regular course of business".
Moreover, the documents that are being introduced now, if one
considers, are all one sided and addressed to one Mr. Karyakin except 5 or
6 messages which apparently are allegedly from Mr. Karyakin on behalf of
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defendant no.2 in response to the emails sent by plaintiff. Even these
emails are just one/two line with nothing material in that. It should be
noted that in almost all the emails that are being introduced now, the
sender or one of the recipient is [email protected]/
[email protected]/[email protected]
There is no explanation in the affidavit in support as to why these
emails were not produced earlier when they were from or marked copy to
Mr.Ashish Khialani at [email protected] and also to
[email protected] It should be noted that in the affidavit in
examination in chief, PW-1-Ashish Khialani has stated that all emails were
addressed to/from [email protected] and he had access to each
of the emails. Plaintiff has conveniently chosen to be silent about this and I
would say economical with truth.
(c) As recorded in the order dated 16th April 2014, the counsel for
plaintiff had stated that his second witness will be Mr.Mohnish Mackdani.
The cross-examination of Ashish Khialani (PW-1) took place on 5 th
September 2015. Certainly, when plaintiff had decided that Mr.Mohnish
Mackdani will be their second witness still plaintiff did not apply earlier to
introduce these documents. Only when in cross-examination it came out
that there are no other documents and plaintiff realized that they may have
a problem in proving their claim for interest etc., this notice of motion has
Shraddha Talekar PS 19/23
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been taken out. Considering the above, it does appear, though we cannot
conclude at this stage for sure, the documents to be manufactured or
cooked up documents.
(d) Moreover, all the emails that are being introduced have been sent by
Ashish Khialani. There is no explanation in the affidavit in support or in the
rejoinder as to how these could be in control of Mohnish Mackdani, when
sent by Ashish Kehlani or copy sent to [email protected] Ex-
facie, it has been sent by PW-1-Ashish Khialani but they are now cooking
up a story that they were in the control of Mr. Mohnish Mackdani.
(e) The Apex Court in Bagai Construction (supra), though considering an
application primarily under Order 18 Rule 17 of the Code of Civil
Procedure, has held that the powers to recall witnesses or opportunity to
put additional evidence to prove documents have to be sparingly exercised
and in appropriate cases and not as a general rule merely on the ground
that his recall and re-examination or putting in additional evidence to
prove documents would not cause any prejudice to the parties just because,
other side will be able to cross-examine the witness. The Apex Court stated
that the provisions are not intended to be used to fill up omissions in the
evidence of a witness who has already been examined and such powers is
to be invoked not to fill up the lacunae in the evidence of the witness. In
the affidavit in rejoinder, plaintiff has admitted that these documents are
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being introduced only to rectify it mistake. In Bagai Construction (supra),
plaintiff wanted to place on record the original bills, copies whereof were
already on record. Even in such a situation, the Supreme Court concurred
with the views of the Trial Court that when those documents have
remained in exclusive possession of plaintiff but for reasons known to it has
not placed those bills on record, cannot be permitted to file such
application to fill the lacunae because in its pleadings and evidence led.
The Apex Court concurred with the views of the Trial Court that there is no
acceptable reason or cause which has been shown by plaintiff as to why
these documents were not placed on record by plaintiff during the entire
trial. Therefore, even when copies were already on record, still the Apex
Court did not accept the originals at a later stage as plaintiff could have
produced the original earlier itself. In this case, the situation is much worse
as observed earlier. The affidavit in support also exposes plaintiff's economy
with truth.
(f) Moreover, Order 18 Rule 17-A prior to the amendment with effect
from 1st July 2002 read as under :-
"17-A. Production of evidence not previously known or which could
not be produced despite due diligence.-- Where a party satisfies the
Court that, after the exercise of due diligence, any evidence was not
within his knowledge or could not be produced by him at the time
when that party was leading his evidence, the Court may permit that
party to produce the evidence at a later stage on such terms as may
appear to it to be just."
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This Rule 17-A was introduced by an amendment that came into force with
effect from 1st February 1977 in the Code of Civil Procedure (Amendment)
Act, 1976. This Rule was omitted with effect from 1 st July 2002 and object
was to speed up the trial. Otherwise, a party will keep on producing
evidence at every stage which will cause prejudice to the other side.
13 Shri Ghosh kept saying that defendants can cross-examine the
witness on these documents and no prejudice will be caused to defendants.
But the fact is there are no pleadings in the plaint to the effect that these
correspondence were sent to Mr. Karyakin and defendant no.2 has
admitted his liability. Only if such averment were there, defendants would
have denied in the written statement and an issue would have been framed
as to whether plaintiff proves that they sent these emails to defendants and
whether defendants by these emails have admitted liability. Therefore,
certainly, grave prejudice will be caused to defendants because it could be
argued that there is no denial in the plaint. And it is settled law that
evidence cannot be led on facts which have not been pleaded in the plaint
or in the written statement.
14 Moreover, in the affidavit in support, it says that the documents to be
introduced were under the control of Mr. Mohnish Mackdani as he was
responsible for the day-to-day operations of plaintiff. However, plaintiff
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does not explain why only these 22 documents were in the control of
Mr.Mohnish Mackdani wherein in Admiralty Suit No.31 of 2013 about 147
documents and in Admiralty Suit No.11 of 2013 about 900 pages of
documentary evidence were in control of Ashish/Pratap Khialani.
The plaintiff has been economical with truth.
15 In the circumstances, even if these 22 documents proposed to be
introduced cannot be termed as cooked up documents, still, these
documents were very well available with the plaintiff throughout and in
view of the contradictions or incongruity as noted above, the notices of
motion have to be rejected.
In K.K.Velusamy vs. N.Palanisamy 7, the Apex Court held that if the
application is found to be mischievous or frivolous or to cover up
negligence or lacunae, it should be rejected with heavy costs. In this case,
however, I do not intend to impose any costs.
16 Both notices of motion dismissed.
(K.R. SHRIRAM, J.)
7 2011(11) SCC 275
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