Calcutta High Court

Smt. Nioti Chanda vs Spml Infra Limited on 18 August, 2023

                 IN THE HIGH COURT AT CALCUTTA
                 (Ordinary Original Civil Jurisdiction)
                       COMMERCIAL DIVISION


Present:

The Hon'ble Justice Krishna Rao



                         IA No: GA 7 of 2023

                             In CS 86 of 2018


                          Smt. Nioti Chanda
                                  Versus
                         SPML Infra Limited




           Mr. Swatarup Banerjee
           Mr. Sukanta Ghosh
           Mr. Swarvanu Saha
           Mr. Argha Chakraborty
                                           ... For the plaintiff.

           Mr. Ishaan Saha
           Mr. Tanuj Kakrania
           Mr. Karanjeet Sharma
           Mr. Nabbendu Das
                                           ... For the defendant.


Hearing Concluded On : 09.08.2023

Judgment on          : 18.08.2023
                                        2


Krishna Rao, J.:


1.

The plaintiff has filed the present application being G.A No. 7 of 2023

praying for leave to allow the plaintiff to tender the work orders and

rent agreement in the affidavit in chief and to be marked as exhibits.

2. The plaintiff has filed the suit against the defendant for recovery of an

amount of Rs. 42,59,680/- along with interest. The plaintiff says that in

the plaint, the plaintiff has pleaded about the various work orders for

the manufacturing/fabrication of BPL Kits that were given by the

defendant to the plaintiff on the basis of which the plaintiff has

manufactured /fabricated the BPL Kits and the details of the said work

orders prepared by the plaintiff and the list has been annexed with the

plaint.

3. The plaintiff further contended that the said work orders are old

documents and the plaintiff requires some time to arrange the said

documents but the plaintiff did not wait for arranging all those work

orders since that would affect the limitation period for filing of suit.

Thus, the plaintiff has filed the suit without annexing the said

documents.

4. The plaintiff contended that in the pleading, the plaintiff has pleaded

that the said work orders and detailed chart of the work orders are also

annexed with the plaint.

5. The plaintiff further contended that in the plaint, the plaintiff has also

pleaded that a godown was taken on rent by the plaintiff in the year

2014, for keeping the BPL Kits manufactured/ fabricated for supply of

the same to the defendant but the suit was filed hurriedly to save the

limitation period due to which the plaintiff could not annexed the said

agreement with the plaint at the time of filing of the suit

6. The plaintiff submits that the said documents are necessary for the

purpose of adjudication of the suit and if this Court will not allow the

plaintiff to bring the said document in evidence, the plaintiff will suffer

irreparable loss and injury.

7. Per contra, the defendant says that the plaintiff has filed the suit in the

month of May' 2018 and there is no prayer for any urgent relief. As per

the averments made in the plaint that on 24th August, 2017, the

defendant has evinced an intention not to honour its obligation and

thus there is no hurry to file the suit as there was enough time with the

plaintiff to file the suit and question of limitation does not arise.

8. The defendant contended that the plaintiff had the knowledge that she

has not filed the document along with plaint, as per Order XI, Rule 1(4)

the plaintiff ought to have filed the application within 30 days from

filing of the suit but the plaintiff has filed the present application after

the period of five years.

9. The defendant further contended that it is the admitted case of the

plaintiff that the documents were in possession of the plaintiff and the

plaintiff has not disclosed the said documents within thirty days and in

the present application, no reasonable cause has been shown why the

plaintiff has not disclosed the documents and thus the application filed

by the plaintiff is liable to be rejected.

10. The defendant relied upon the judgment reported in 2022 SCC Online

Del 3089 (Anita Chhabra and Others -vs- Surender Kumar) and

submitted that in commercial suits, the time periods and other

formalities stipulated in the Commercial Courts Act, 2015 are binding

and required to be strictly followed. The defendant submitted that the

additional documents in the present case having not been filed with the

plaint as required under Order XI, Rule 1(1), the plaint having not been

filed as an "urgent filing" as envisaged by Order XI Rule 1(4) and no

sufficient cause for not filing the documents with the plaint within the

meaning of Order XI, Rule 1(5) having been adduced by the plaintiff.

11. Heard the learned Counsel for the respective parties, perused the

materials on record and the judgment relied by the defendant. Order

XI, Rule 1(1), (4) and (5) CPC as amended by the Commercial Courts

Act, 2015 reads as follows :

"1. Disclosure and discovery of documents.-- (1) Plaintiff 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 plaint, including:--

(a) documents referred to and relied on by the plaintiff in the plaint;

(b) 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;

(c) nothing in this Rule shall apply to documents produced by plaintiffs and relevant only--

(i) for the cross-examination of the defendant's witnesses, or

(ii) in answer to any case set up by the defendant subsequent to the filing of the plaint, or

(iii) handed over to a witness merely to refresh his memory.

(4) In case of urgent filings, the plaintiff may seek leave to rely on additional documents, as part of the above declaration on oath and subject to grant of such leave by Court, the plaintiff shall file such additional documents in Court, within thirty days of filing the suit, along with a declaration on oath that the plaintiff has produced all documents in its power, possession, control or custody, pertaining to the facts and circumstances of the proceedings initiated by the plaintiff and that the plaintiff does not have any other documents, in its power, possession, control or custody.

(5) The plaintiff shall not 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 along with the plaint."

12. Similar question was came up for hearing before the Hon'ble Supreme

Court in the case of Sudhir Kumar alias S. Baliyan -vs- Vinay

Kumar G.B. reported in (2021) 13 SCC 71 and in the said case the

Hon'ble Supreme Court held that :

"9.4 However, the additional documents can be permitted to be bought on record with the leave of the court as provided in Order XI Rule 1 (4). Order XI Rule 1 (4) provides that in case of urgent filings, the plaintiff may seek leave to rely on additional documents as part of the above declaration on oath [as provided under Order 11 Rule 1 (3)] and subject to grant of such leave by Court, the plaintiff shall file such additional documents in Court, within thirty days of filing the suit, along with a declaration on oath that the plaintiff has produced all documents in its power, possession, control or custody, pertaining to the facts and circumstances of the proceedings initiated by the plaintiff and that the plaintiff does not have any other documents, in its power, possession, control or custody.

9.5 Order XI Rule 1 (5) further provides that the plaintiff shall not be allowedto 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 along with the plaint. Therefore on combined reading of Order XI Rule 1 (4) read with Order XI Rule 1 (5), it emerges that (i) in case of urgent filings the plaintiff may seek leave to rely on additional documents; (ii) within thirty days of filing of the suit; (iii) making out a reasonable cause for non disclosure along with plaint.

9.6 Therefore a further thirty days time is provided to the plaintiff to place on record or file such additional documents in court and a declaration on oath is required to be filed by the plaintiff as was required as per Order XI Rule 1 (3) if for any reasonable cause for non disclosure along with the plaint, the documents, which were in the plaintiff's power, possession, control or custody and not disclosed along with plaint. Therefore plaintiff has to satisfy and establish a reasonable cause for non disclosure along with plaint. However, at the same time, the requirement of establishing the reasonable cause for non disclosure of the documents along with the plaint shall not be applicable if it is averred and it is the case of the plaintiff that those

documents have been found subsequently and in fact were not in the plaintiff's power, possession, control or custody at the time when the plaint was filed. Therefore Order XI Rule 1 (4) and Order XI Rule 1 (5) applicable to the commercial suit shall be applicable only with respect to the documents which were in plaintiff's power, possession, control or custody and not disclosed along with plaint. Therefore, the rigour of establishing the reasonable cause in non disclosure along with plaint may not arise in the case where the additional documents sought to be produced/relied upon are discovered subsequent to the filing of the plaint.

10. Having considered the statutory provisions in detail, the order passed by the learned Commercial Court, confirmed by the High Court, rejecting the application of the plaintiff for leave to rely on the additional documents is required to be tested and considered.

10.1 It emerges from the record that the first suit was filed by the plaintiff in the month of October, 2018, bearing TM No.236 of 2018, restraining the defendant from infringing and passingoff plaintiff's Trade Marks. That an exparte interim injunction was passed in favour of the plaintiff by order dated 29.10.2018. It appears having realized and found that the earlier suit was not in consonance with the provisions of the Commercial Courts Act, the plaintiff withdrew the said suit being TM No.236 of 2018 on 27.07.2019 with liberty to file a fresh suit as per the Commercial Courts Act, 2015. Therefore, the second suit was filed on 31.08.2019 and within a period of thirty days from filing of the second suit the appellant herein - original plaintiff preferred the present application seeking leave of the court to file additional documents. In the application, it was specifically mentioned that so far as the invoices are concerned, the same were not in its possession at the time of the filing of the plaint and so far as the other documents are concerned they were not filed due to they being voluminous. Therefore, so far as the invoices sought to be relied on/produced as additional documents ought to have been permitted to be relied on/produced as it was specifically asserted that they were not in his possession at the time of filing of the plaint/suit.

10.2 The submissions on behalf of the defendant that the cause shown for non production was an afterthought cannot be accepted for the simple reason that the application was filed within a period of thirty days from the date of filing of the second suit and at the time when the application for interim injunction under Order XXXIX Rule 1 was not fully heard and kept for orders

10.3 Even the reason given by the learned Commercial Court that the invoices being suspicious and therefore not granting leave to produce the said invoices cannot be accepted. At the stage of granting leave to place on record additional documents the court is not required to consider the genuineness of the documents/additional documents, the stage at which genuineness of the documents to be considered during the trial and/or even at the stage of deciding the application under Order XXXIX Rule 1 that too while considering prima facie case. Therefore, the learned Commercial Court ought to have granted leave to the plaintiff to rely on/produce the invoices as mentioned in the application as additional documents

10.4 Now, so far as the other documents sought to be relied on/produced as additional documents other than the invoices are concerned the same stands on different footing. It is not disputed and in fact it was specifically admitted and so stated in the application that those additional documents other than the invoices were in their possession but not produced being voluminous and that the suit was filed urgently. However, it is to be noted that when the second suit was filed, it cannot be said to be urgent filing of the suit for injunction, as the first suit was filed in the month of October, 2018 and there was an ex parte ad interim injunction vide order dated 29.10.2018 and thereafter plaintiff withdrew the said first suit on 27.07.2019 with liberty to file a fresh suit as per the Commercial Courts Act and the second suit came to be filed on 31.08.2019 after period of one month of the withdrawal of first suit. Therefore the case on behalf of the plaintiff that when

the second suit was filed, it was urgently filed therefore, the additional documents sought to be relied upon other than the invoices were not filed as the same were voluminous cannot be accepted. And therefore as such Order XI Rule 1 (4) shall not be applicable, though the application was filed within thirty days of filing of the second suit. While seeking leave of the court to rely on documents, which were in his power, possession, control or custody and not disclosed along with plaint or within the extended period set out in Order XI Rule 1 (4), the plaintiff has to establish the reasonable cause for non disclosure along with plaint

10.5 In view of the facts and circumstances narrated hereinabove and in view of the filing of the first suit in the month of October, 2018; the exparte ad interim injunction order in favour of the plaintiff dated 29.10.2018; withdrawal of the first suit on 27.07.2019 and subsequently the filing of the second suit on 31.08.2019, non filing of the additional documents other than the invoices on the ground of they being voluminous cannot be said to be a reasonable cause for non disclosure/filing along with plaint. There was sufficient time gap between the filing of the first suit and filing of the second suit i.e. approximately 10 months and therefore when the second suit was filed the plaintiff was having sufficient time after filing of the first suit, to file the additional documents other than the invoices at the time when the second suit was filed. Therefore as such, both the courts below have rightly not permitted the plaintiff to rely upon the documents, other than the invoices as additional documents in exercise of the powers under Order XI Rule 1 (4) read with Order XI Rule 1 (5)."

13. In the present suit admittedly, the documents were in possession of the

plaintiff but the same was not filed alongwith the plaint on the ground

that all those work orders of dates long back and it took some time to

arrange those work orders and the plaintiff could not have waited for

arranging since that would affect the limitation period for filing the suit.

The plaintiff has filed the suit for recovery of money. In the suit, the

plaintiff has not prayed for any urgent hearing. The verification and

affidavit of the suit was affirmed on 10th May, 2018 but the suit was

presented and admitted on 13th June, 2018 i.e. after 33 days after

affirmation of affidavit.

14. The plaintiff has filed the present application after the lapse of more

than five years that to when the case is at the stage of evidence and the