3. The plea taken by the defendants in support of their claims are
stated in the petition. The relevant portion is quoted below:
IA No. GA-COM/4/2025
[Old No. CS/204/2019]
In CS-COM/162/2024
A.R., J.
b) It, however, came to the notice of the defendants' witness that
some of the invoices disclosed did not have the weigh bridge
slips and/or kata slips appended to them. Mrs. Sudipa Saha
the Junior Engineer of the defendants who was entrusted
with looking after the legal cases of the defendants including
the above suit had left the services of the defendants on or
about November 30, 2024 and as such the issue as to why the
weigh bridge slips and/or kata slips had not been annexed to
some of the invoices could not also be clarified from her.
However, since the Defendants' witness had personally dealt
with the matter he was aware that weigh bridge slips and/or
kata slips were appended to all the invoices. A list of the
invoices which did not have the weigh bridge slips and/or
kata slips appended them is annexed hereto and marked as
Annexure "K".
c) The defendants' witness Mr. Kanak Changlani conducted
extensive search at the various offices of the defendants
including at its office at 16/4, Mandol Temple Lane, Vinayak
Apartment, 1st Floor, New Alipore, Kolkata 700053. After
extensive search, the original weigh bridge slips and/or kata
slips appended to the invoices mentioned in Annexure 'K'
hereof were discovered at the said office premises.
d) Particulars of the weigh bridge slips and/or kata slips which
had not been disclosed earlier and which the Defendants No.
1 to 6 are seeking leave to disclose in the Annexure 'K'.
Copies of the aforesaid weigh bridge slips and/or kata slips
with the invoices are annexed hereto and collectively marked
as Annexure - "L".
e) All the above mentioned weigh bridge slips and/or kata slips
had been appended to the invoices which had been served
IA No. GA-COM/4/2025
[Old No. CS/204/2019]
In CS-COM/162/2024
A.R., J.
upon the Defendants and which have already been disclosed
by both the plaintiff and the Defendants.
f) The aforesaid weigh bridge slips and/or kata slips are
extremely relevant for the purpose of determining the actual
weight of the material supplied and are, relevant documents
and therefore, pertinent adjudication of the above suit."
4. The application has been opposed by the plaintiff. Parties have
filed and exchanged their affidavits. Objection raised on behalf
5. Thus, in view of the restrictive and/or prohibitive provisions of
the Commercial Courts Act, 2015 amending the provisions of
the Code of Civil Procedure, 1908, no documents as sought by
the defendants can be permitted to be disclosed in the instant
suit. There is also no foundation pleaded in the written
statement, which supports the documents which the defendants
IA No. GA-COM/4/2025
[Old No. CS/204/2019]
In CS-COM/162/2024
A.R., J.
have now sought to introduce in the instant suit. Thus, the
defendants have no right to disclose or produce the said
documents in the instant suit in any manner. As such, the said
application deserves to be dismissed.
*** *** ***
*** *** ***
*** *** ***
8. With reference to the allegations made in paragraph no. 16 of
the said application, save and except what are matters of record
and what would specifically emanate therefrom, I deny and
dispute each and every allegation made therein. It is denied
that the defendants have any material to substantiate the case
pleaded in the written statement. It is denied that there was
any short supply of materials. By their own admission, the
defendants have stated that it is only after the evidence of the
plaintiff was concluded, that the defendants wanted to
introduce the new documents. The same is not permissible in
law. It is denied that any Junior Engineer of the defendants
was entrusted with looking after the matter. It is denied that
the entrusted person left the services of the defendants on 30th
November, 2024, or the same is a reason for not disclosing the
new documents along with the written statement.
The defendants have also admitted that the new documents
were also in possession of the defendants. Such fact would be
evident from the averments made in paragraph 16(c) of the
said application. The defendants have admitted that they found
the new documents at their office premises itself. It is denied
that any of the new documents are extremely relevant for the
purpose of determining the actual weight of the materials
supplied."
IA No. GA-COM/4/2025
[Old No. CS/204/2019]
In CS-COM/162/2024
A.R., J.
5. Defendants have not yet submitted its evidence on affidavit.
Examination-in-chief of the sole witness of the plaintiff has been
complete, who has also been cross-examined already. At this
stage, the instant application has been filed.
SUBMISSIONS :
6. Ms. Hashnuhana Chakraborty, learned Counsel appearing for
the defendants/applicants relying upon the amended provisions
laid down under Order XI Rule 1 to the Code of Civil
Procedure (CPC) submits that in view of the promulgation of the
Commercial Courts Act, 2015 (for short 'CC Act') the
amendment had taken place in CPC.
7. Referring to sub-Rules (9) and (10) to Rule 1 of Order XI of
CPC as amended, she submits that even if the documents
referred to in her application are found to be throughout in the
custody and control of the defendants, then also there is no
absolute bar in disclosing those documents by way of additional
documents, subject to the leave granted by Court.
8. Learned Counsel Ms. Chakraborty then with further reference to
the relevant rules under Order XI of CPC submits that if the
Court is satisfied with the explanation and the reasons shown by
the defendants to be bona fide, just or cogent, the Court can
grant leave to the defendants to disclose the additional
IA No. GA-COM/4/2025
[Old No. CS/204/2019]
In CS-COM/162/2024
A.R., J.
documents. In support, she has relied upon the following
judgments of the Hon'ble Supreme Court:
i. In The Matter of: Sudhir Kumar alias S. Baliyan vs.
Vinay Kumar G.B. reported at (2021) 13 Supreme
Court Cases 71;
ii. In The Matter of: Sugandhi (Dead) by Legal
Representatives & Anr. vs. P. Rajkumar
represented by His Power Agent Imam Oli reported
at (2020) 10 Supreme Court Cases 706;
9. She further submits that the foundation of the additional
documents now sought to be relied upon by the defendants are
already there in the written statement filed by the defendants.
10. In the light of the above, Ms. Hashnuhana Chakraborty, learned
Counsel appearing for the defendants submits that this
application should be allowed.
11. Par contra, Mr. Sourojit Dasgupta with Ms. Ranjana Seal,
learned Advocates appearing for the plaintiff submits that the
defendants' case is throughout that the documents which are
now sought to be disclosed as additional documents, were all
along in the possession and custody of the defendants. Had
those documents been so important to the defendants, the
defendants should have exercised their due diligence on those
and could have disclosed them with the written statement which
is a statutory provision under the law after promulgation of CC
IA No. GA-COM/4/2025
[Old No. CS/204/2019]
In CS-COM/162/2024
A.R., J.
Act. A mandatory declaration is also required to be made by the
defendants while filing written statements, if some documents
are not disclosed with the written statement whether they are
under the custody and possession of the defendants. The
declaration made in the written statement also does not show
that these additional documents which are sought to be relied
upon now, were not within the custody and possession of the
defendants.
12. Referring to the statements made in the application filed by the
defendants, Mr. Dasgupta submits that no sufficient cause has
been made out so that this Court can exercise its discretion and
grant leave to the defendants to disclose these additional
documents. In support, Mr. Dasgupta has placed reliance upon
a decision of a coordinate Bench of Delhi High Court In the
matter of: Great Gatsby Club of India vs. Mahesh Prefab
Pvt. Ltd. reported at 2022 SCC OnLine Del 2099.
13. In the light of the above, learned Counsel for the plaintiff prays
for dismissal of this application.
DECISION :
14. After considering the rival contentions of the parties and on
perusal of the materials on record, it appears to this
Court that, the guiding provisions necessary for adjudication of
IA No. GA-COM/4/2025
[Old No. CS/204/2019]
In CS-COM/162/2024
A.R., J.
the instant application are Sub-rules (9) and (10) to the
amended Order XI Rule 1 of CPC which are quoted below:
"..............................................................................
.................................................................................
.................................................................................
.................................................................................
(9) The written statement or counter-claim shall contain a
declaration on oath made by the deponent that all documents in the
power, possession, control or custody of the defendant, save and
except for those set out in sub-rule 7(c)(iii) pertaining to the fact
and circumstances of the proceedings initiated by the plaintiff or in
the counter-claim, have been disclosed and copies thereof annexed
with the written statement or counter claim and that the defendant
does not have in its power, possession, control or custody, any
other documents.
.................................................................................
.................................................................................
.................................................................................
.................................................................................
(10) Save and except for sub-rule 7(c)(iii), defendant shall not be
allowed to rely on documents, which were in the defendant's
power, possession, control or custody and not disclosed along with
the written statement or counter-claim, save and except by leave of
Court and such leave shall be granted only upon the defendant
establishing reasonable cause for non-disclosure along with the
written statement or counter-claim.
IA No. GA-COM/4/2025
[Old No. CS/204/2019]
In CS-COM/162/2024
A.R., J.
.................................................................................
.................................................................................
................................................................................"
15. The defendants want to disclose certain weigh-bridge slips
and/or other connected slips. The case made out in the
application is that most of the weigh-bridge slips or kanta slips
which were being relied on by the defendants had already been
disclosed by the plaintiff and the defendants and are available in
the suit records. It, however, has come to the notice of the
defendants that some of such invoices disclosed by the parties
did not have the weigh-bridge slips or kanta slips appended to
them. The concerned Junior Engineer of the defendants, who
was entrusted to look after the legal cases of the defendants
including the instant suit had left the employment on or about
November 30, 2024 and, as such, the documents could not be
looked upon while preparing disclosure of documents on behalf
of the defendants. When the defendants' witness personally dealt
with the matter, after searching the records and after going
through it, these additional documents were found to be there in
the records but not disclosed in the suit records. The
statements in the application have been denied by the plaintiff in
its affidavit-in-opposition.
16. On a meaningful reading of Sub-rules (9) and (10) to rule 1 of
Order XI of CPC, it appears to this Court that, depending upon
IA No. GA-COM/4/2025
[Old No. CS/204/2019]
In CS-COM/162/2024
A.R., J.
the fact situation, if the Court is satisfied with the explanations
offered before the Court, that non-disclosure of the documents is
not an act of suppression or deliberate or mala fide but owing to
a bona fide act, then upon the defendants establishing
reasonable cause for non-disclosure of these documents, the
Court has ample authority and jurisdiction to grant leave to the
defendants for such additional disclosure subsequently. Sub-
rules (9) and (10) also do not specify beyond what stage of
hearing of the suit such subsequent disclosures are not
permitted. On a meaningful and harmonious reading of the
provisions, this Court is of the firm view that there is no
absolute bar on the part of the defendants for not disclosing
relevant documents subsequently, but of course, subject to
satisfaction of Court and upon leave being granted by the Court
in this regard.
17. Right to defend a claim by a party against whom the claim is
lodged in an adversarial litigation, is a vested right which is
recognized by both substantive and procedural laws, unless
specifically excluded. To defend a claim, the defending party
should be granted opportunities to avail all the procedures
established by law. This is also in conformity with the
elementary principle of natural justice. Therefore, unless the
explanation offered by the defendants is totally illusory,
IA No. GA-COM/4/2025
[Old No. CS/204/2019]
In CS-COM/162/2024
A.R., J.
moonshine, prima facie contrary to records and fraudulent, the
explanations can be accepted by the Court as sufficient reasons.
18. In the matter of: Sudhir Kumar (supra) the Hon'ble Supreme
Court had held upon sufficient cause being shown the power is
conferred with the Court to allow to disclose documents at a
subsequent stage.
19. In the matter of: Sugandhi (Dead) (supra) the Hon'ble
Supreme Court had observed as under:
"9. It is often said that procedure is the handmaid of
justice. Procedural and technical hurdles shall not
beallowed 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).
10. Coming to the present case, the defendants have
filed an application assigning cogent reasons for
not producing the documents along with the written
statement. They have stated that these documents
IA No. GA-COM/4/2025
[Old No. CS/204/2019]
In CS-COM/162/2024
A.R., J.
were missing and were only traced at a later stage.
It cannot be dispute that these documents are
necessary for arriving at a just decision in the suit.
We are of the view that the courts below ought to
have granted leave to produce these documents."
20. The test is, as there is no absolute bar in law for disclosing
documents at a subsequent stage, the Court is to examine and
scrutinize the reasons shown by the applicants and if the
reasons are found to be just and cogent, the Court in exercise of
its discretion can grant leave for subsequent disclosure instead
of depriving the defendants from an opportunity to defend its
case to the fullest extent.
21. In the matter of: Great Gatsby Club of India (supra) an
application was filed for extension of time to file written
statement where the principles of Order XI Rule 1(10) of CPC
has been discussed. The Court there having found no sufficient
cause, the application was dismissed.
22. The finding of sufficient cause to be just and cogent is the
perception of a Court and there is no straight jacket formula to
arrive at such a finding. Perception may vary from Court to
Court in the facts and circumstances of the case.
23. In view of the foregoing reasons and discussions, this Court is of
the firm and considered view that the causes shown by the
defendants in its application are found to be just and cogent and
IA No. GA-COM/4/2025
[Old No. CS/204/2019]
In CS-COM/162/2024
A.R., J.
hence, the defendants are allowed to disclose the documents
positively within two weeks from date by following the due
procedure of law. In so far as the provisions for taking
inspection and discovery of documents are concerned, the
parties shall be at liberty to do so in accordance with law and
then the documents after being filed shall be taken on record as
part of the suit records by the department.
24. The application is allowed subject to payment of costs of
Rs.30,000/- to be paid by the defendants in favour of the
plaintiff which shall be the condition precedent for submission of
additional documents.
25. Accordingly, IA GA-Com/4/2025 stands allowed, on the above
terms.
(ANIRUDDHA ROY, J.)
Dg
IA No. GA-COM/4/2025
[Old No. CS/204/2019]
In CS-COM/162/2024
A.R., J.
