Finance Corporation Ltd vs Uco Bank
2023 Latest Caselaw 2728 Cal/2

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


Present:

The Hon'ble Justice Krishna Rao



                           IA No: GA 8 of 2023

                            In CS 169 of 2013


               West Bengal Infrastructure Development
                         Finance Corporation Ltd.
                                  Versus
                                UCO Bank



           Mr. Tilak Bose, Sr. Adv.
           Mr. Vineeta Mehria
           Ms. Sharmistha Ghosh
           Mr. Amit Ghosh
           Mr. Tirthankar Nandi
                                           ... For the plaintiff/petitioner.

           Mr. Sabyasachi Choudhury
           Mr. Rajarshi Dutta
           Mr. Arjun Mookherjee
           Mr. S. Roy
           Mr. Prabir Chandra Ghosh
                                       ... For the defendant/respondent.

Hearing Concluded On : 26.09.2023

Judgment on : 29.09.2023

Krishna Rao, J.:

1. The plaintiff has filed the present application for recall of the

plaintiff's witness no. 3 namely Sobhan Poddar for further

examination of the said witness and for taking two

documents dated 19th March, 2021 and 11th January, 2023

on record by exhibiting the same as Exhibits II and JJ.

2. That during the cross examination of the plaintiff's witness

no. 3, on 23rd February, 2021, the Counsel for the defendant

has put the two questions being question Nos. 505 and 506

which reads as follows :

"505. I take it since you are aware of inter banking mode of transfer you must be aware of R.41 and R.42 manner and method of transfer by way of RTGS?/ No.

506. Did you give any instruction to your banker to transmit this Rs.59 crores after banking hours through the inter banking mode?/ No, I did not."

3. The cross-examination of the plaintiff's witness no. 3 was

deferred. On 19th March, 2021, the plaintiff's witness no.1

and witness no. 3 have jointly wrote a letter to the Bank of

India requesting for clarification of Real Time Gross

Settlement System (RTGS) made on 30th August, 2012

regarding transfer of Rs. 59 crores from the Bank of India to

UCO Bank. The said RTGS dated 30th August, 2012 was

already marked as Exhibit 'V'.

4. On 11th January, 2023, the Bank of India issued a letter to

the plaintiff giving clarification of R-42 transaction dated 30th

August, 2012 regarding RTGS transfer of a sum of Rs. 59

Crores. The letters dated 19th March, 2021 and 11th January,

2023 were duly served by the Learned Counsel for the

plaintiff to the Learned Counsel for the defendant vide letter

dated 22nd June, 2023.

5. On 23rd June, 2023, the cross-examination of the plaintiff's

witness no. 3 was completed and the Counsel for the plaintiff

has re-examined the plaintiff's witness no. 3 and asked the

following questions:

"1218. (Shown the deposition dated 3rd March, 2021, answer to question nos. 505 and

506) - What is R-42 referred to in the aid question?/ R-42 refereed in the said question is inter-bank mode of RTGS transaction.

1219. Which Transaction?/ R-42 mentioned here is the transaction meant from over draft account of my company WBIDFC to

the bank account of UCO Bank, Circus Avenue Branch for the purpose of creation of term deposit in the name of WBIDFC.

1220. What Sum?/ For a sum of Rs.59 Crores.

1221. (Shown the deposition dated 3rd March, 2021, answer to question no. 1122) During cross-examination when you did not agree with account ending with 496 as that of WBIDFC - why did you say that?/ This question was of your fraudulent representation, based on, on the basis of your fraudulent representation, the Bank of India thinking account ending with 496 as that of WBIDFC and have transferred money. I do not agree with this question of fraudulent representation and I volunteered one document.

1222. Kindly come to your answer no. 508 where you have mentioned about letter for creation of fixed deposits with reference to account ending 496. Can you clarify your answer?/"

6. Counsel for the plaintiff asked the question No. 1222 to the

plaintiff's witness no. 3 which is connected with the letter

dated 19th March, 2021 and letter dated 11th January, 2023

but this Court has not allowed the said question as the

witness has already given his answer in question No. 508.

7. Now the plaintiff has filed the present application to bring the

two documents dated 19th March, 2021 and 11th January,

2023 on record by recalling the plaintiff's witness no. 3 for

exhibiting the said documents.

8. Mr. Tilak Bose, learned Senior Advocate representing the

plaintiff has relied upon the judgment reported in (1999) 8

SCC 649 (Rammi @ Rameshwar -vs- State of M.P) which

reads as follows :

"16. The very purpose of re-examination is to explain matters which have been brought down in cross-examination. Section 138 of the Evidence Act outlines the amplitude of re-examination. It reads thus:

Direction of re-examination.- The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

17. There is an erroneous impression that re-

examination should be confined to clarification of ambiguities which have been brought down in cross- examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when the ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court

in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination."

9. Mr. Bose, learned Senior Advocate relied upon the Oder XIII

Rule 3(a) and Order VII Rule 14(3) of the Code of Civil

Procedure, 1908 and submitted that the documents were not

in possession of the plaintiff when the plaintiff has filed the

suit and the same was obtained only during the cross

examination of the plaintiff's witness no. 3, thus the plaintiff

has filed the present application for leave to bring the said

documents on record and if the said documents are

exhibited, the defendant will get an opportunity to cross-

examine the plaintiff's witness no. 3 on the said documents.

10. Mr. Sabyasachi Choudhury, Learned Advocate representing

the defendant submitted that by filing the present

application, the plaintiff attempting to supplement the

examination-in-chief of the P.W.3 by introducing a new

evidence which was not done at the time of examination-in-

chief of the witness.

11. Mr. Choudhury submitted that the plaintiff's witness no. 3

during his cross-examination with the connivence of the

P.W.1 only to create evidence to fill up lacuna has wrote a

letter to the Bank of India but the Bank of India has not

given any reply for two years and after two years during the

further cross examination, the P.W.3 has obtained the said

document on 11th January, 2023 which itself proves that the

documents were created only to fill up the lacuna of the case.

12. Mr. Choudhury relied upon the judgment reported in (2011)

SCC 275 (K.K. Velusamy -vs- N. Palanisamy) and relied

upon paras 13 and 19 which reads as follows :

"13. The Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not previously known or the evidence which could not be produced despite due diligence. It enabled the court to permit a party to produce any evidence even at a late stage, after the conclusion of his evidence if he satisfied the court that even after the exercise of due diligence, the evidence was not within his knowledge and could not be produced by him when he was leading the evidence. That provision was deleted with effect from 1-7-.2002. The deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence.

19. We may add a word of caution. The power under section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs."

13. Mr. Choudhury further relied upon the judgment reported in

MANU/WB/0733/2015 (Shrikant Mantri -vs- Savitri Devi

Mantri & Ors.) and relied upon paragraphs 13,16 and 19 :

"13. How are you able to identify this signature to be that of Late Kamala Devi Mantri?/ In fact, we were handling her income tax and wealth tax files and in course of which various documents were sent to her and used to come back. On the basis of which her signatures I identified. A responsible officer from my office used to go to her residence for getting the income tax and wealth tax returns that were to be

filed annually for her signature and brought back to our office.

16. (shown a document which is disclosed at serial No.1 of plaintiff's Judge's Brief of Documents) What is this document about?/ This is the indemnity bond that has been signed by Smt. Kamala Devi Mantri to obtain credit in respect of tax deducted out of dividend of Rs.3,888/- by Birla Jute and Industries Limited.

19. Please see the document and tell whether you can identify the three signatures appearing on this document?/ The three signatures appearing on this bond are that of the Advocate on the left side to identify the signature of Smt. Kamala Devi Mantri, in the centre is that the Notary public and the right side is that of Smt. Kamala Devi Mantri."

14. Heard the Learned Counsel for both the parties, perused the

application, materials on record and the judgments relied by

the parties. By a letter dated 19th March, 2021, the P.W.3

with P.W.1 jointly requested the Bank of India to furnish

information. The said letter was received by the Bank of India

on 24th March, 2021. Though the Bank of India immediately

on receipt of the said letter has not given any clarification to

the plaintiff but the letter dated 11th January, 2023 reflects

that the same was provided by the Bank of India as per the

tele talk.

15. After completion of cross-examination of P.W.3, the Counsel

for the plaintiff has re-examined the P.W.3 by asking 5

questions i.e. question Nos. 1218, 1219, 1220, 1221 and

1222. This Court has not allowed the question No. 1222 as

the witness has already given answer in question No. 508 but

the Learned Counsel for plaintiff by way of question No. 1222

was intending to bring the two documents i.e. letter dated

19th March, 2021 and 11th January, 2023. The Counsel for

the plaintiff has not prayed for deferring the re-examination

and accordingly, this Court has discharged the P.W.3 as the

cross examination of P.W.3 was concluded.

16. The documents which the plaintiff intents to bring on record

by exhibiting the same was not with the plaintiff at the time

of filing of the case and has obtained subsequently. This suit

is a commercial suit. After promulgation of Commercial

Courts Act, 2015, Order XI of the Code of Civil Procedure,

1908 is amended and the same has been incorporated in the

Commercial Courts Act, 2015. Order XI reads as follows :

"O.11.R.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.

(2) The list of documents filed with the plaint shall specify whether the documents in the power, possession, control or custody of the plaintiff are originals, office copies or photocopies and the list shall also set out in brief, details of parties to each document, mode of execution, issuance or receipt and line of custody of each document.

(3) The plaint shall contain a declaration on 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. Explanation.--A declaration on oath under this sub-rule shall be contained in the Statement of Truth as set out in the Appendix.

(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.

(6) The plaint shall set out details of documents, which the plaintiff believes to be in the power, possession, control or custody of the defendant and which the plaintiff wishes to rely upon and seek leave for production thereof by the said defendant.

(7) ..................................................................... ......"

17. As per Clause (5), the plaintiff shall not be allowed to rely on

documents, which were in plaintiff's power, possession,

control or custody and not disclosed along with the plaint. In

the instant case, the documents which the plaintiff intents to

bring on record were not in possession of the plaintiff. In

question No. 505, the Counsel for the defendant has

specifically asked question to the P.W.3 that the P.W.3 is

aware of inter banking mode of transfer and he must be

aware of R.41 and R.42 manner and method of transfer by

way of RTGS but the P.W.3 has given answer as "No". The

P.W.3 has made request to the Bank of India for clarification

of RTGS and R-42 by a letter dated 19th March, 2021 and the

Bank of India has clarified the same by a letter dated 11th

January, 2023.

18. The documents which the plaintiff intent to bring on record

are connected with the suit and is nothing but a clarification.

In the case of Rammi @ Rameshwar (Supra), the Hon'ble

Supreme Court held that if the party who called the witness

feels that explanation is required for any matter referred to

cross examination he has the liberty to put any question in

re-examination to get the explanation. It is further held that

the Court cannot direct him to confine his questions to

ambiguities alone which arose in cross-examination.

19. In the case of K.K. Velusamy (Supra), the Hon'ble Supreme

Court held that where the application is found to be bona

fide and where the additional evidence, oral or documentary,

will assist the Court to clarify the evidence on the issue and

will assist in rendering justice and the Court is satisfied that

non production earlier was for valid and sufficient reasons,

the Court may exercise its discretion to recall the witness or

permit the fresh evidence.

20. In the present case, admittedly, the documents were not in

possession of the plaintiff when the plaintiff has filed the suit

or before the examination of P.W.3 and the said documents

are connected with the suit and clarified the process of RTGS

and R-41 and R-42 which will assist this Court in rendering

justice.

21. In view of the above the examination of P.W.3 namely,

Sobhan Poddar on recall is allowed and he is permitted to

examine himself only with respect of two documents dated

19th March, 2021 and 11th January, 2023 and the plaintiff is

allowed to bring the said documents on record with the

liberty to the defendant to cross examine the said witness.

22. G.A No. 8 of 2023 is thus disposed of.

(Krishna Rao, J.)

Later :

Counsel for the defendant has prayed for stay of the operation of the

order. Considering the nature of the order, prayer is allowed. The operation

of the order is stayed for a period of two weeks from date.

(Krishna Rao, J.)