Delhi High Court
Reckitt Benckiser (India) Ltd. vs Hindustan Unileverltd on 22 November, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 22nd November, 2017
+ CS(COMM) 629/2016
RECKITT BENCKISER (INDIA) LTD. ..... Plaintiff
Through: Mr. Chander M. Lall, Sr. Adv.
with Ms. Nancy Roy & Mr.
Rupin Bahl, Advs.
Versus
HINDUSTAN UNILEVERLTD ..... Defendant
Through: Ms. Rukhmini S. Bobde & Ms.
Pratyusha Priyadarshini, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.10980/2014 (of the defendant under Section 151 CPC)
1.
This application has been filed for rejection of evidence by way
of affidavit filed by the plaintiff‟s witness.
2. The counsels have been heard.
3. The contention of the counsel for the applicant / defendant is i)
that certain portions of the affidavit by way of examination-in-chief
are beyond pleadings; ii) that additional documents have been filed
along with the affidavit, without permission having been sought
therefor; iii) that portions of the affidavit by way of examination-in-
chief are argumentative in nature and extracts of certain documents;
iv) that the documents are sought to be proved without complying
with Section 65B of the Indian Evidence Act, 1872; and, v) that the
affidavit by way of examination-in-chief is accompanied with
documents of which the witness is not the author.
4. I have enquired from the counsel for the applicant / defendant
whether not as per the amended Code of Civil Procedure, 1908 (see
the Order XVIII Rule 4 of the CPC) all the said objections are not to
come in the way of recording of evidence particularly when it has
been ordered to be recorded before the Commissioner and the
objections if any of the applicant / defendant are to be decided at the
stage of final arguments.
5. The counsel for the applicant / defendant has drawn attention to
Order XVA of the CPC as applicable to commercial disputes, within
the meaning of Commercial Courts, Commercial Division and
Commercial Appellate Division of High Courts Act, 2015, in exercise
of powers under Rule 6 whereof the Court, in a Case Management
hearing, is empowered to reject any affidavit of evidence filed by the
parties for containing irrelevant, inadmissible or argumentative
material and to strike off any parts of the affidavit of evidence filed by
the parties containing irrelevant, inadmissible or argumentative
material.
6. Rule 5 of Order XVA supra provides for holding of a Case
Management hearing anytime during the trial to issue appropriate
orders "so as to ensure adherence by the parties to the dates fixed
under Rule 2 and facilitate speedy disposal of the suit". Thereafter in
Rule 6, the powers of the Court in a Case Management hearing are
listed.
7. A combined reading of Rules 5 and 6 of Order XVA of the CPC
shows the same to have been devised with the objective of speedy
disposal of the suit. Thus, while exercising powers vested in the Court
under Rule 6 of Order XVA of the CPC, the said objective cannot be
lost sight of.
8. If it is to be found that the objection, on the ground of affidavit
by way of examination-in-chief containing irrelevant, inadmissible or
argumentative material, taken is not such which prejudices the cross-
examining party and which objection is more properly dealt with at
the time of final hearing of the suit, the Court ought not to stall the
trial and hold a mini trial, going into the respective contentions of the
parties as to the relevancy and admissibility of the portions of the
affidavit. Any such adjudication at an interim stage on the said
aspects may lead to appeals thereagainst and which would ultimately
result in delaying the disposal of suit and not expediting the hearing of
the suit which as aforesaid is the objective of Rule 5 of Order XVA of
the CPC.
9. The applicant / defendant, during the hearing, has not pointed
out any prejudice which would be caused and in fact has rather herself
stated that she would have her objection recorded and will not cross-
examine the witness on the said aspect.
10. The counsel for the applicant / defendant during the hearing has
drawn attention to the judgment dated 7th April, 2014 of a Single
Judge of the Bombay High Court in Suit No.3598/1996 titled Harish
Loyalka Vs. Dileep Nevatia. However, on enquiry whether the same
considers Order XVIII Rule 4(4) of the CPC, the counsel for the
applicant / defendant though initially stated that it has not but now
states that it has been referred to in para no.11 of the judgment and has
thereafter referred to para no.20 of the judgment which is not on the
controversy. The counsel for the defendant / applicant has next
referred to para no.29 of the judgment where the Court has given
liberty to the cross-examining counsel to not cross-examine the
witness on certain portions of the affidavit.
11. The counsel for the applicant / defendant has also referred to the
judgment dated 10th June, 2014 in Chamber Summons (L) No.67 of
2014 in Testamentary Suit No.26 of 1999 in Testamentary Petition
No.504/1998 titled Mahabanoo Navroz Kotwal Vs. Piloo Fali
Bomanji & Anr. of another Single Judge of the Bombay High Court
and states that the same is to the same effect.
12. While first of the aforesaid judgments is running into as many
as 18 pages, the second is running into as many as 37 pages. The
Courts today do not have the luxury of, at the interim stage, enter into
such lengthy adjudication and which orders are bound to be
challenged in higher Courts by the party interested in delaying the suit.
In fact, that is what has precisely happened in the present case. Owing
to this application having been filed, no cross-examination of the
witnesses has happened for the last over three years.
13. The Courts in the name of complying with provisions of
statutes, cannot forget the objective behind the said provision in the
statute and the very reason for the statute having been enacted. The
same would amount to acting mechanically. The Commercial Courts,
Commercial Division and Commercial Appellate Division of High
Courts Act, 2015 was enacted with the objective of speedy disposal of
high value commercial disputes, the disposal whereof was felt by the
legislature to require a special treatment. In the name of complying with
the provisions of the newly added Order XVA of the CPC, the
disposal of the suits cannot be made lengthier than that of a ordinary
suit.
14. The judgments cited cannot be read as the Court always being
required to decide such applications on merits. The provisions cited of
Order XVA only empower the Court and which power is to be
exercised in aid of and not to defeat speedy disposal of commercial
suits. If the contents of affidavit by way of examination-in-chief are
such, allowing which to remain causes irreversible prejudice to the
cross-examining party, the power will certainly be exercised. But not
in a routine manner. Any decision at this stage, even of granting
liberty to the applicant / defendant to not cross-examine the witness of
the plaintiff with respect to any portions of the affidavit, is likely to
cause more delay. It is therefore deemed appropriate to leave it open
to the applicant / defendant to take a call on the said aspect and to
have her objections noted before commencing the cross-examination
and if of the view that the applicant / defendant is ultimately likely to
succeed on the said objections, choose not to cross-examine the
witness on the said aspect.
15. As far as the argument, of the plaintiff having filed additional
documents along with affidavit is concerned, the senior counsel for the
plaintiff has drawn attention to order dated 13th August, 2013 by
which issues were framed in the suit and states that the parties were
expressly granted permission to file additional documents within three
weeks therefrom. It is stated that instead of filing the documents
within three weeks, the documents have been filed along with the
affidavit by way of examination-in-chief and no proceeding had taken
place in the suit in the interregnum.
16. Though, I would have considered burdening the plaintiff with
costs to compensate the said default but for the reason of the applicant
/ defendant itself having delayed the trial, that order also is not called
for.
17. Thus, leaving all objections open to the applicant / defendant,
the application is dismissed.
IA No. 14797/2014 of the plaintiff under Order VII Rule 14 of the
CPC)
18. The senior counsel for the plaintiff states that this application
was filed in view of the objection aforesaid taken in the application
aforesaid of the defendant qua late filing of documents,.
19. In terms of the aforesaid, this application has become
infructuous and is disposed of.
CS(COMM) 629/2016
20. The senior counsel for the plaintiff states that the witness whose
affidavit by way of examination-in-chief was filed three years back
has left the plaintiff and the plaintiff instead of summoning the said
witness would like to substitute the said affidavit with the affidavit of
another witness.
21. The counsel for the defendant has no objection.
23. The senior counsel for the plaintiff on enquiry states that no
other witness is to be examined.
24. The new affidavit by way of examination-in-chief be filed on or
before two weeks.
25. The parties to immediately contact the Commissioner appointed
for recording evidence, to proceed with the trial as already ordered.
26. Parties to appear before the Court Commissioner on 11 th
December, 2017.
RAJIV SAHAI ENDLAW, J.
NOVEMBER 22, 2017
„gsr‟..
