Calcutta High Court

Fixopan Management Pvt. Ltd. & Ors vs The New India Assurance Company Limited on 22 August, 2024

                  IN THE HIGH COURT AT CALCUTTA
                ORDINARY ORIGINAL CIVIL JURISDICTION
                           ORIGINAL SIDE
                       (COMMERCIAL DIVISION)


PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK


                        IA NO. GA-COM/8/2024
                                  IN
                           CS-COM/39/2024
                FIXOPAN MANAGEMENT PVT. LTD. & ORS.
                                  VS
              THE NEW INDIA ASSURANCE COMPANY LIMITED


For the plaintiffs/petitioners      : Mr. S.R. Kakrania, Advocate
                                      Mr. Sukrit Mukherjee, Advocate
                                      Mr. Karanjeet Sharma, Advocate

For the defendant/respondent        : Mr. S.N. Ganguly, Advocate
                                      Mr. Siddhartha Goswami, Advocate
                                      Mr. Jit Ray, Advocate

Reserved on                         : 4th July, 2024

Delivered on                        : 22nd August, 2024


                                   ORDER

Bivas Pattanayak, J. :-

1. This is an application filed by the plaintiff under Order XI Rule 1(5) of

the Code of Civil Procedure, 1908 (hereinafter referred to as the 'Code') as

amended by Commercial Courts Act, 2015 (hereinafter referred to as the

'Act of 2015') seeking leave, inter alia, to disclose certain documents noted

in paragraph no.16 of the application, which were not disclosed along with

the plaint.

2. The brief fact of the plaintiff-petitioners' case is that the plaintiff in or

about in the year 2007 filed a suit for a decree for eviction, mesne profits,

arrears of municipal rates and taxes and other reliefs. After enactment of

the Commercial Courts Act, 2015, the suit was transferred to the

Commercial Division of this Court under Section 15 of the said Act.

Thereafter on 6th April, 2022, amendment was carried out with the leave of

the Court and list of documents as per Order XI Rule 1(1) and 2 of the

Code as amended by the Commercial Courts Act, 2015 was also furnished.

The documents which are sought to be relied by the plaintiff as additional

documents and forming the basis for the instant application, were neither

in the possession, power, control and custody of the plaintiff at the time

when the plaint was amended nor would such documents take the

defendant by surprise since the documents relate to a previous court

proceedings involving the self-same parties. On the aforesaid grounds, the

plaintiffs-petitioners have prayed for leave to disclose additional

documents in terms of Order XI Rule 1(5) of the Code.

3. The aforesaid application of the plaintiff has been keenly contested by

the defendant by filing its affidavit-in-opposition. It is contended by the

defendant that the suit has reached the stage of examination of witnesses.

The additional documents namely the certified copy of the order of learned

City Civil Court at Calcutta dated 19th July, 2011 was within the

knowledge of the plaintiff since the passing of the said order and thus such

obtaining of certified copy of the said order in the year 2024, at a later

stage, cannot entitle the plaintiffs-petitioners to disclose such documents

since it is not permitted under the purview and scope of Order XI of the

Code as amended by the Commercial Courts Act, 2015. The plaintiff filed

the plaint supported by verification and statement of truth under Order VI

Rule 15A read with Order XI Rule 1(3) of the Code and declared on oath all

documents in power, possession, control and custody of the plaintiff and,

therefore, at this stage, the plaintiff shall not be allowed to disclose any

additional document beyond the mandatory provisions of the Act of 2015.

4. Mr. S.R. Kakrania, learned advocate for the petitioner-plaintiff

submitted that as per the provisions of the Order XI Rule 1(5) of the Code

as amended by the Commercial Courts Act, 2015, the plaintiff with the

leave of the Court can disclose additional documents on record upon

establishing reasonable cause for non-disclosure of the documents along

with the plaint. The documents sought to be disclosed by the plaintiffs-

petitioners is an application of defendant under Section 151 of the Code

and order passed therein, by the City Civil Court at Calcutta on 19th July,

2011 and the bank statements pursuant to passing of the aforesaid order.

The aforesaid documents were not in possession, power, control and

custody of the plaintiff and, therefore, the plaintiff could not disclose such

documents at the time of furnishing list of documents and the statement of

truth. Despite due diligence, the plaintiff were unable to apply for certified

copies of the aforementioned documents in the concerned Court at any

prior point of time since the plaintiffs were not advised to do so. The

documents of bank statements is a subsequent one. It was purely a

coincidental mistake or inadvertent error for not disclosing the aforesaid

documents, which was neither deliberate nor intentional, for which the

plaintiff cannot be faulted. As such, in view of the sufficiency of the cause

shown, necessary orders be passed granting leave to the plaintiffs-

petitioners to disclose and rely on record additional documents. He seeks

for order in terms of prayer (a), (b) and (c) of the Master's Summons.

5. In reply to aforesaid contentions of the plaintiffs-petitioners, Mr. S.N.

Ganguly, learned advocate for the defendant-respondent submitted that

the application under Section 151 of the Code filed before the learned City

Civil Court at Calcutta as well as the orders passed therein and the sums

of money deposited in the bank account pursuant to such order was

within the knowledge of the plaintiff. Order XI Rule 1(5) of the Code as

amended by the Act of 2015 provides that 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 as set out in the provisions of the Code, save and except

by leave of Court and such leave shall be granted only upon the plaintiff

establishing reasonable cause for such non-disclosure of documents along

with the plaint. The cause shown in the application is of oversight and

inadvertent error which is an unreasonable cause and cannot be accepted.

Negligence, oversight, inadvertence on the part of the plaintiff cannot be

permitted to be reasonable cause. In the absence of such reasonable

cause, the prayer of the plaintiff to disclose and rely on record certain

additional documents with the leave of the Court should be dismissed in

limini. In support of his aforesaid contentions, he relied on the following

decisions:

      (i)    Sudhir Kumar versus Vinay Kumar G.B.1



1 (2021) 13 SCC 71

(ii) TTK Prestige Limited versus Baghla Sanitaryware Private

Limited & Ors.2

(iii) Khanna Rayon Industries Pvt. Ltd. versus Swastik

Associates and Ors.3

6. Having heard learned advocates for the respective parties, the only

issue which has fallen for consideration is whether the test of reasonable

cause as required under Order XI Rule 1(5) of the Code for non-disclosure

of documents stood satisfied.

7. Before delving into the merits of the application, it would be profitable

to reproduce the relevant provision of Order XI Rule 1(5) of the Code which

read hereunder:

"(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."

Upon bare reading of the aforesaid provision, it manifest that the plaintiff

has to satisfy and establish a reasonable cause for non-disclosure along

with plaint the documents which the plaintiff intends to disclose at a

subsequent stage. At the same time, the requirement for establishing a

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

2 2024:DHC:1149

3 MANU/MH/3854/2023

were not in the plaintiff's power, possession, control or custody at the time

when the plaint was filed.

8. The plaintiffs-petitioners in the present application have sought leave

to disclose the following additional documents:

(i) An application under Section 151 of the Code of Civil

Procedure,1908 filed by the defendant against the plaintiff before

the learned City Civil Court at Calcutta in Title Suit No. 1877 of

2006.

(ii) The order dated 19th July, 2011 passed in respect of the

aforesaid application.

(iii) Copies of recent bank statements showing acceptance and

receipt of sums made over by the defendant to the plaintiff no.1

pursuant to the aforesaid order.

9. It is not in dispute that the defendant herein filed the Title Suit No.

1877 of 2006 before the learned City Civil Court at Calcutta and in the

said suit it took out an application seeking leave to tender and deposit the

periodical monthly rents and the arrears of rent which was disposed of

vide order dated 19th July, 2011. Upon bare perusal of Order No. 63 dated

19th July, 2011 appended to the application, it is found that the petition

under Section 151 of the Code was disposed of in presence of the plaintiff

and the defendant herein. Therefore, the plaintiff had the knowledge of the

said application under Section 151 of the Code filed in the Title Suit No.

1877 of 2006 before the learned City Civil Court at Calcutta as well as

order passed therein. Annexure-C at page 106 i.e. the certified copy of the

said order dated 19th July, 2011 was made available to the plaintiff on 14th

February, 2012.

10. Mr. Kakrania, learned advocate for plaintiffs-petitioners submitted

that the certified copies of the application under Section 151 of the Code

as well as the order dated 19th July, 2011 previously obtained was

misplaced by the erstwhile learned advocate which led to fresh filing of

application for obtaining certified copies of the aforesaid application and

orders only on or about 16th January, 2024. Thus, those documents are

subsequently obtained after furnishing list of documents and statement of

truth. Therefore, the requirement of establishing reasonable cause for non-

disclosure of documents along with the plaint shall not be applicable since

the 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. Let us examine such submission advanced on behalf of the

plaintiffs-petitioners. At the outset, the reason of obtaining certified copy

subsequently after misplacement of the previous copy does not and cannot

make the documents to have been found subsequently. The words

"document within the power" refers to document which the party has the

legal right to access or obtain them even if they are not physically in their

possession. The words "document in the control" refers to the documents

that the party has the ability to manage or direct the use of them, implying

that the party can access the document when needed. Therefore, the

plaintiff-petitioner had the power and control over those documents it

intends to disclose. Even if those documents were not physically in

plaintiff's possession as contented it had the legal right to access or obtain

those documents. Further the bank statements showing acceptance and

receipts corresponding to the period when the plaint was amended in April,

2022 were never disclosed by the plaintiff which was accessible by the

plaintiff. Moreover, the bank statements as sought to be disclosed and

relied upon is also bereft of specific period.

11. As already indicated that a bare perusal of the Order XI Rule 1(5)

mandatorily requires the plaintiff to establish a reasonable cause for non-

disclosure of the document along with plaint. It is found that the only

reason stated in the application for failure to disclose the documents

proposed to be disclosed by way of the present application are a

coincidental mistake and/or inadvertent error which were neither

deliberate nor intentional. Reasonable cause within the meaning of Order

XI Rule 1(5) of the Code cannot be extended to negligence in filing of

documents before the Court. Reasonable cause necessarily must refer to a

cause which was outside the control of the petitioner and which prevented

the petitioner from filing the concerned documents along with the plaint.

12. The Hon'ble Bombay High Court in Khanna Rayon Industries Pvt. Ltd.

(supra) in paragraph 31 observed as follows:

"31. The Supreme Court in the case of Sudhir Kumar alias S. Baliayn Vs. Vinay Kumar G.B. (supra) has referred to the strict requirement of Order XI Rule 1(5) of the CPC in the context of commercial suits and after referring to such strict requirement, the Supreme Court held in the said case that the Plaintiff therein could not be permitted to contend that it had reasonable cause for non- disclosure/filing of the documents along with the plaint, on the ground that the documents were voluminous. In a series of judgments i.e. Rishi Raj Vs. Saregama India Ltd. (supra), Anita Chhabra & Ors. Vs. Surender Kumar (supra), Saregama India Limited Vs. Zee Entertainment Enterprises Limited (supra) and Nitin Gupta Vs. Texmaco Infrastructure & Holding Limited (supra), the Delhi High Court has applied the rigor of Order XI Rule 1(5) of the CPC in commercial suits in various circumstances to examine as to

whether the Plaintiffs therein had made out reasonable cause for non-disclosure of documents with the plaint. It was found that when the Plaintiff failed to place on record proper reasons and reasonable cause, permitting additional documents to be placed on record at any stage, although they were in the power, possession, control or custody of the Plaintiff, would make a complete mockery of Order XI of the CPC, as made applicable to commercial suits. It was found that reasonable cause would have to be specifically pleaded and only when good cause was made out that the Plaintiff could be permitted to place on record such documents at a later stage. It was held in the said judgments that leniency in such matters would run counter to the very object and purpose for which such amendments in the CPC were introduced by the Commercial Courts Act."

Therefore, bearing in mind the aforesaid proposition of law vis-à-vis taking

into account the ground of coincidental mistake and/or inadvertent error

taken by the plaintiff appears to be unacceptable since those are casual

reasons. There cannot be any dispute that the documents proposed to be

disclosed as additional documents under Serial Nos. 1, 2 and 3 was within

the power, possession, control or custody of the plaintiffs-petitioners at the

time of disclosure of documents along with plaint.

13. In view of the aforesaid discussion, it is found that the plaintiffs-

petitioners have failed to establish any reasonable cause for non-disclosure

of the documents along with plaint. Thus, the prayer for leave to disclose

additional documents by way of leave falls short of merit. This Court finds

substance in the submissions of Mr. Ganguly, learned advocate for the