Calcutta High Court
Vikram Solar Limited vs Ecgc Limited on 16 January, 2024
OCD-8
ORDER SHEET
CS/141/2019
IA No. GA/9/2023
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
[Commercial Division]
VIKRAM SOLAR LIMITED
-VS-
ECGC LIMITED
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : January 16, 2024.
Appearance:
Mr. Rudradeb Chowdhury, Adv.
Mr. Sarosij Dasgupta, Adv.
Mr. Samrat Mukherjee, Adv.
Ms. Dakshayani Basu, Adv.
Mr. Rik Mukherjee, Adv.
... for the plaintiff
Mr. Dhruba Ghosh, Sr. Adv.
Mr. Soumajit Ghosh, Adv.
Ms. Shrayashee Das, Adv.
Mr. Himanshu Bhawsinghka, Adv.
Mr. Rohan Kumar Thaker, Adv.
... for the defendant
The Court: Mr. Sarosij Dasgupta, learned Advocate, is appearing for
the plaintiff.
Mr. Dhruba Ghosh, learned Senior Advocate, is appearing for the
defendant.
The plaintiff has filed the present application being GA/9/2023
praying for leave to disclose and rely on one document as appearing at page
no.22 which is the e-mail dated 13th January, 2023.
Counsel for the plaintiff submits that prior to filing of the present
application being GA/9/2023, the plaintiff had preferred an application being
GA/8/2023 for leave to disclose some additional documents and this Court by
an order dated 17th July, 2023 has allowed the said application. After allowing
the said application, the plaintiff has proceeded with the evidence but at the
time of the evidence of the plaintiff, the plaintiff found that at the time of filing
of the application being GA/8/2023 inadvertently, the plaintiff has not
disclosed the documents i.e. the e-mail dated 13th January, 2023 and as such
the plaintiff has filed the present application to allow the plaintiff to disclose
the said documents. The plaintiff submits that if the plaintiff is allowed to
disclose the document, none of the parties will be prejudiced and if this Court
will not allow the plaintiff to disclose the said documents, the plaintiff will be
badly prejudiced as the said document is very much necessary for appropriate
adjudication of the suit.
The plaintiff has relied on the judgment reported in 2023 SCC
OnLine Del 7914 and submitted that in the said case also the Hon'ble
Division Bench of the Delhi High Court has given an opportunity to the
defendant to disclose the document.
Learned Senior Advocate Mr. Dhruba Ghosh, appearing for the
defendant raised objection and submits that as per the provisions of Order XI
Rule 3 when the parties admitted that the documents were in the possession
of the parties and has not disclosed at the appropriate stage, the same cannot
be allowed to disclose by the parties at the subsequent stage. This Court has
already allowed the plaintiff to disclose additional documents by an order
dated 17th July, 2023 but the plaintiff failed to disclose the document.
Considered the submission made by the counsel for the respective
parties. Perused the application filed by the plaintiff.
Admittedly, the e-mail dated 13th January, 2023 which the plaintiff
is intending to bring on record was in possession of the plaintiff at the time of
filing of the suit and application being GA/8/2023. In the judgment relied by
the plaintiff in the case of Agva Healthcare Private Limited and Others
(Supra), the Hon'ble Division Bench of the Delhi High Court held as follows:
"It may be seen from the order of the learned District Judge that
the contentions/arguments of the defendants were duly considered
and dealt by the Court before granting permission to the plaintiffs to
place the documents on record. Hon'ble Supreme Court in the case
of Sugandhi (Dead) by Legal Representatives v. P. Rajkumar [(2020)
10 SCC 706] held as under :-
"8. Sub-rule (3), as quoted above, provides a second
opportunity to the defendant to produce the documents which
ought to have been produced in the court along with the written
statement, with the leave of the court. The discretion conferred
upon the court to grant such leave is to be exercised judiciously.
While there is no straightjacket formula, this leave can be granted
by the court on a good cause being shown by the defendant.
9. It is often said that procedure is the handmaid of justice.
Procedural and technical hurdles shall not be allowed to come in
the way of the court while doing substantial justice. If the
procedural violation does not seriously cause prejudice to the
adversary party, courts must lean towards doing substantial
justice rather than relying upon procedural and technical
violation. We should not forget the fact that litigation is nothing
but a journey towards truth which is the foundation of justice
and the court is required to take appropriate steps to thrash out
the underlying truth in every dispute. Therefore, the court should
take a lenient view when an application is made for production of
the documents under sub-rule (3)."
It is true that this is a commercial suit and is to be governed under
the amended provisions of Order XI of the Code of Civil Procedure as
incorporated in the Commercial Courts Act. This Court had allowed some
additional documents by an order dated 17th July, 2023 in connection with
GA/8/2023 and finds that the e-mail which the plaintiff is intending to bring
on record is having some bearing with regard to the earlier additional
disclosed documents by the plaintiff and this Court also finds that the said
document is also necessary for adjudication of the dispute between the
parties. In the peculiar circumstances of the case, one further opportunity
should be given to the plaintiff to disclose the said document but subject to
putting condition by way of costs.
In view of the above, prayers (a) to (c) of the Master's Summons are
allowed subject to payment of costs of Rs.10,000/-.
GA/9/2023 is thus disposed of.
List the suit on 13th February, 2024 for witness action.
(KRISHNA RAO, J.)
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