Payal International Ltd. vs Sardanas Art Centre Pvt. Ltd.
2011 Latest Caselaw 143 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+               IA No. 5187/2010 in CS(OS) NO. 365/2008



                                       Date of Decision : 11.01.2011

Payal International Ltd.                         ......     Plaintiff
                              Through:     Mr. Ashok Chhabra, Adv.


                                 Versus

Sardanas Art Centre Pvt. Ltd.                     ...... Defendant
                          Through:         Mr. Shailendra Paul, Adv.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.   Whether Reporters of local papers may be
     allowed to see the judgment?                                NO
2.   To be referred to the Reporter or not ?                     NO
3.   Whether the judgment should be reported
     in the Digest ?                                             NO

V.K. SHALI, J. (Oral)

IA No. 5187/2010 (U/o XIII Rules 1 and 3 CPC)

1. This order shall dispose of an application filed by the defendant

seeking a direction to remove the letter dated 09.01.2007 filed by

the plaintiff along with an affidavit by way of evidence.

2. Briefly stated the facts of the case are that the plaintiff has filed

the present suit for recovery of Rs.23,00,000/- as damages and

interest. The allegation in the plaint was that the plaintiff in order

to participate in an exhibition at Frankfurt (Germany) had engaged the defendant for construction of a stall and because of the inferior

quality of work and acts of the defendant, the plaintiff suffered in

his business and consequently claimed damages. Issues in the

matter were framed on 27.10.2009 and the plaintiff was directed to

adduce evidence.

3. Before framing of issues, the plaintiff had filed some documents

which included a photocopy of the letter purported to have been

written by the defendant herein. There is an admission attributed

to the defendant that booth which was to be built by the defendant

was not according to the design. The inconvenience caused to the

plaintiff was regretted and it was also undertaken by the defendant

to refund the advance. The exact language of the said letter is as

under:

"M/s Payal International, New Delhi.

Dear Sir,

Due to some unavoidable circumstances, the booth has not been made as per design and we authorize you to use other making.

Inconvenience is deeply regretted,

Sd/-

(Vivek)

The advance given will be refunded."

4. This letter was put to the defendant for admission and denial. The

letter was denied by the defendant on 19.08.2009. The plaintiff at the time of filing his affidavit by way of evidence has filed the

original letter dated 9.1.2007. The letter has been given the exhibit

mark Ex.PW1/65 in the affidavit by way of evidence of the plaintiff,

although the letter is slightly torn from one side and has some

writings/notes made by the pencil at the bottom. It is this letter

that the defendant has objected to by filing the present application.

5. The contention of the defendant is that the letter which has been

filed by the plaintiff is a forged and fabricated letter. Apart from

this, it is urged that this original letter should have been filed in

the beginning itself, before framing of the issues in terms of the

order XIII Rule 1 CPC and since this was not done, therefore, the

letter may be taken off the record.

6. The plaintiff filed a reply to the application and contested the claim

of the defendant. It was contended that the filing of the

application is a gross abuse of the processes of law. On merits, it

was contended that the letter dated 09.01.2007 which has been

filed in original by the plaintiff became necessary on account of the

fact that the photocopy of the same was denied by the defendant.

It is stated that this letter was in a locker and in the process of

handling, the letter got torn.

7. No doubt, some writings/notes have been made by pencil on the

bottom of the letter but it is alleged that these are internal notes of

the office of the plaintiff which do not in any manner detract from the contents of the letter. The application of removing the letter in

question from the record is totally misconceived and illogical.

8. I have heard the learned counsel for the parties and perused the

record.

9. The order XIII Rule 1 CPC read as under:

ORDER XIII-PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS

1. Original documents to be produced at or before the settlement of issues-- (1) The parties or their pleaders shall produce, at or before the settlement of issues, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.

(2) The Court shall receive the documents so produced : Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs."

10. A perusal of the aforesaid Order XIII Rule 1 clearly shows that the

parties or their pleaders to the suit have to produce the documents

in original before framing of issues. But there have been

judgments passed by this Court where this provision has been

interpreted that admission /denial of documents could be

conducted on the basis of photocopies while as the original can be

produced at that time. Reliance in this regard can be placed on

Aktiebolaget Volvo & Ors. Vs. R. Venkatachalam & Anr. 160

(2009) DLT 100.

11. The admission and denial of the document is essential in order to reduce the scope of controversy between the parties before the

framing of issues. It is also possible that in a given case, the party

on account of sensitive nature of the documents may file only

photocopies and produce the original for inspection, if the same

are demanded by the opposite side at the stage of admission and

denial. If this is the legal position then at the time of carrying out

the admission and denial, it was open to the defendant to have

asked for the production of the original letter dated 09.01.2007

which was denied by him. On the contrary, the defendant not

only failed to ask for the production of the original letter but also

denied existence of the letter dated 09.01.2007 which necessitated

the proof of this letter by the plaintiff. This is a letter in which

admission has been made by the defendant against his own

interest which will have a very vital bearing on the issues framed in

the instant case.

12. It is only when the plaintiff was asked to file affidavit by way of

evidence that the defendant has chosen to raise this objection to

the production of the original letter by the plaintiff along with the

affidavit which has been given the exhibit mark Ex.PW1/65. The

reason for discomfort of the defendant on account of the

production of the aforesaid document, along with the affidavit by

the plaintiff is not far to seek. This is on account of the fact that

this letter dated 09.01.2007 contains an admission purported to have been made by the defendant against his own interest, which

will be not only admissible but also have a vital evidentiary value

and hence bearing on the decision as to whether the plaintiff is

entitled for recover damages as claimed by him or not. It is in this

context that the defendant has now in order to wriggle out from the

difficult situation raised the present objection that the letter dated

09.01.2007 be taken off the record, as it was not produced before

the settlement of the issues or alternatively that the same is not

genuine on account of the writings allegedly made with the pencil

at the bottom.

13. So far as the writings, which are made at the bottom are

concerned, I have seen the documents and find that the writings at

the bottom of the order are the internal notes of the office of the

plaintiff and do not in any manner detract from the main contents

of the documents, and therefore, it cannot be said that the

document is either inadmissible or that its genuineness is

doubtful. But this is only a prima facie view, as the defendant is

yet to cross examine the witness and during the course of cross

examination, he can bring sufficient answers on record, if he so

desires, to show that the document in question is fabricated,

manipulated, forged, and therefore, ought not to be taken

cognizance of. At this stage, I find no merit in the contention of

the learned counsel for the defendant, that as the original document was not produced at the time of admission and denial or

that the document has not been filed earlier therefore, it must be

removed from the affidavit completely.

14. For the reasons mentioned above, I am of the view that the

application filed by the defendant is totally misconceived, and

accordingly, the same is dismissed.

15. Expression of any opinion herein may not be treated as an

expression on the merits of the case.

                                                      V.K. SHALI,J
      JANUARY     11, 2011
      kp