Hsil Ltd. vs Manish Vij And Ors.
2018 Latest Caselaw 504 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                             Pronounced on: 19.01.2018
+      CS(OS) 486/2014
       HSIL LTD.                                            ..... Plaintiff
                          Through      Mr.Manav Gupta, Advocate

                          versus

       MANISH VIJ AND ORS.                                  ..... Defendants
                     Through           Mr.R.S.Suri, Sr. Adv. with Mr.Rohit
                                       Agarwal, Advocate

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.

O.A. No.220/2016

1. The present appeal is filed under Rule 4 of Chapter II of the Delhi High Court (Original Side Rules) 1967 to impugn the order dated 20.10.2016 passed by the learned Joint Registrar dismissing the application under Order 8 Rule 1A (3) of the CPC filed by defendants No. 1 to 4 and 6.

2. The present suit is filed by the plaintiff seeking a decree for recovery of a sum of Rs.3,79,06,333/- along with future and pendente lite interest etc. from the defendants.

3. The case of the plaintiff is that defendant No.1 joined the plaintiff company in August, 2003 as a senior executive. It is urged that the plaintiff expressed concern on several occasions on outstanding dues from international clients to the tune of Rs.3,79,06,333/-. Defendant No.1 assured the plaintiff that he was regularly following up the issue. On 26.01.2012

CS(OS) 486/2014 Page 1 defendant No.1 tendered his resignation. When the plaintiff started following up for outstanding payments with international clients, it came to the light in October, 2012 that the customers had already made all the payments and there existed no outstanding in his books. On scrutiny of the documents sent by the customer, it was found that payments had been received from the foreign clients in the account of defendant No.5, which is a company of defendant No.1 and his wife i.e. defendant No.2 and their children who are the directors. The payment is said to have been misappropriated by defendant No.1 and No.2. Similarly, another customer informed about the same situation existing regarding defendant No.3 and defendant No.4 respectively.

4. It is the case of the plaintiff that defendant No.1 and No.2 have floated companies, namely, defendant Nos.3 to 5 and these companies have received payments from international clients of the plaintiff. Having received the said amount, these payments have been misappropriated by said defendant Nos.1 and 2. Hence, the present suit has been filed.

5. In the present case, the issues were framed on 07.05.2015. On that date, it was also directed that taking into account the nature of the issues, the defendants would lead evidence first. The evidence of defendants has been completed and the evidence of the plaintiff is now going on.

6. At this stage, defendant Nos.1 to 4 and 6 have moved an I.A.No.9005/2016 for an order to take on record additional documents with liberty to the defendants to file additional evidence in support of the said documents. It has been pleaded in the said application, which is filed under Order 8 Rule 1A(3) of the CPC, that the documents which are now sought to be brought on record could not be filed earlier since the defendants had no

CS(OS) 486/2014 Page 2 recollection whatsoever about existence of the said documents. The plaintiff filed a number of documents in criminal investigation which was underway pursuant to a criminal complaint filed by the plaintiff company. The court of Judicial Magistrate, First Class, Bahadurgarh rejecting the closure report filed by the Police took cognizance of the matter under Section 190(1)(b) of Cr.P.C and issued summons to defendant Nos.1 and 2. It is then that the petitioner claims to have received copies of the documents. It is urged that at that stage, defendant No.1 extensively searched his old email accounts and as a result of such search, most of the documents in issue were discovered. It is also urged that presently these documents are necessary and germane for a just and proper adjudication of the present matter. It is urged that these documents show that all payments have been received by the plaintiff company. Further, various payments claimed by the plaintiff have been directly made to the plaintiff company. Further, it is urged that in respect of some of the payments, international buyers have raised issues regarding the quality of the products. The documents which are now sought to be brought on record are mostly emails addressed to or from official email ids of the employees of the plaintiff company. It is also pleaded that these documents were sought to be confronted to Sh.A.K.Mohanty a witness of the plaintiff company. However, the objection was taken that these documents do not emanate or relate to the witness Sh.A.K.Mohanty.

7. It has also been pleaded that the learned counsel appearing for the petitioners had on 15.07.2014, 08.09.2014 and 07.05.2015 stated that no more documents were required to be filed by the petitioners. However, the occasion to file the present application arose on account of the fact that after an extensive search of old e-mail accounts, the present documents came to

CS(OS) 486/2014 Page 3 light and hence, the same were sought to be produced before the learned Joint Registrar.

8. The Joint Registrar by the impugned order dismissed the said application. The impugned order holds that the FIR against the applicant was registered on 09.04.2013 much prior to filing of the present suit. Further a perusal of the order dated 27.08.2013 passed by the Punjab & Haryana High Court dismissing the interim bail application of the applicant would show that the applicant had knowledge of all these documents and the submission of the applicant about recollecting the existence of the documents or taking cognizance on 18.12.2015 for the first time is incorrect. The impugned order further holds that some of the emails which are sought to be filed by the defendants are already on record having filed by the plaintiff company.

9. I have heard the learned counsel for the parties.

10. The learned senior counsel for petitioners/defendant Nos. 1 to 4 has vehemently argued that these documents are necessary for adjudication of the disputes between the parties. It is prayed that the same be taken on record as these documents emanate from the system of the plaintiff company and are crucial to the evidence of the petitioners/defendant Nos.1 to 4. Reliance is also placed on the judgment of the Supreme Court in the case of Billa Jagan Mohan Reddy & Anr. V. Billa Sanjeeva Reddy & Ors., (1994) 4 SCC 659.

11. The learned counsel for the respondent/plaintiff submits that the application is highly belated. The evidence of the defendants has been completed. The evidence of the plaintiff is substantially complete. At this belated stage, it is urged that the defendants now wants to file almost 250

CS(OS) 486/2014 Page 4 pages of the documents which would tantamount to reopening the entire evidence. Further it is pointed out that the plaintiff had filed all the documents, which are also on record with the Judicial Magistrate Bahadurgarh, in 2013 when an FIR was filed. The defendant had filed application for anticipatory bail before Punjab and Haryana High Court. Hence, defendant was earlier also aware of these documents.

12. Order 8 Rule 1A(3) of the CPC reads as follows:

"1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him

xxxxx

(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit."

13. The plea raised by the petitioners/defendant Nos.1 to 4 as to why these documents have been filed at a belated stage, does not inspire any confidence. It is claimed that defendant No.1 recollected these documents only after the plaintiff company filed a huge bunch of documents before the Judicial Magistrate, First Class, Bahadurgarh. Defendant No.1 then made an extensive search of his old email accounts and now these documents have come to the light. Hence, in my opinion, the impugned order has rightly come to the conclusion that this plea does not have any merit.

14. As rightly noted the present suit was registered on 19.02.2014. On the other hand, an FIR was registered against the defendants on 09.04.2013. The application for anticipatory bail was dismissed on 27.08.2013. Hence, the criminal proceedings were initiated at a much earlier stage and are going on

CS(OS) 486/2014 Page 5 parallel to the present proceedings. Defendant was aware of these documents. Now belatedly the petitioners/defendants have chosen to wake up to file the present application in July, 2016. The version of the defendants for the belated filing of the application cannot be believed.

15. Even otherwise, the defendants have not been able to show as to why and how these documents are necessary and important for the adjudication of the disputes. Other than to argue that these emails are generated from the system of the plaintiff company there is no other explanation as to why these documents are relevant. Only a general sweeping statement is made by the petitioners that these documents show that the plaintiff have received payments. Other than this sweeping statement, no other details of the documents are sought to be urged or pleaded. It is not clear as to why 250 or so pages of documents are required to show that the plaintiff have received payment from the foreign buyers directly or otherwise.

16. In my opinion, allowing the defendants to place on record these documents would tantamount to rehearing and restarting the evidence all over again. Even otherwise there is no merit in the contention of the petitioner.

17. I may now look at the judgment of the Supreme Court relied upon by the learned senior counsel for the petitioners/defendants in Billa Jagan Mohan Reddy & Anr. V. Billa Sanjeeva Reddy & Ors.(supra). That was a case where the documents which were sought to be brought on record were public documents. The court came to the conclusion that the documents are relevant to decide the real issue in controversy. In the present case, it is not possible to come to any such conclusion.

18. I may also note that this court in the case of Ramesh Kumar & Anr.

CS(OS) 486/2014 Page 6 v. Sangeeta Khanna, ILR (2014) II Delhi 1106, Durga Devi v. Lalita Rakyan, 2010 (8) AD (Delhi) 212 and Harkesh Singh & Anr. v. Ved Raj, MANU/DE/0303/2010, held that where the defendants have failed to show sufficient cause to produce the documents at a belated stage, no relief can be granted.

19. In Ramesh Kumar & Anr. v. Sangeeta Khanna (supra), the court held as follows:

"14. For exercise of discretion by the Court under Order VIII Rule 1A(3) of the Code in favour of a defendant, the defendant would have to satisfy the court to the following qualifying criteria:

i) that the documents were earlier not within the knowledge of the party; or

ii) that the documents could not be produced despite exercise of diligence on the part of the defendant.

15. In yet another case a similar view was taken by a learned Single Judge of this Court in Dr. J. K. Jain v Krishnaram Baldeo Investment & Finance Co. Ltd., (judgement dated 14th August, 2008 in CM(M) No. 217 of 2008), where it was observed:

"The Court may permit the production of such documents only on showing sufficient cause. In the present case, the documents sought to be produced by the petitioner later on were not such which were not in the power of the petitioner or could not have been obtained by the petitioner. The petitioner had not made any reference to these documents in the written statement neither filed a list of documents relied upon. I find no reason as to why the court should allow filing of such documents at a belated stage when the petitioner is not able to satisfy the court about the relevancy of these documents and reasons for not filing the same with the written statement or before framing the issues."

CS(OS) 486/2014 Page 7

16. The impugned order has clearly set out that the petitioner has failed to provide sufficient and cogent reasons for allowing the documents to be filed. It was not the case of the petitioner before the Trial Court that the documents were not within his power, nor has the petitioner made out any case of exercise of diligence, despite which the documents could not be filed. To the contrary, the impugned order observes the lack of diligence on the part of the petitioner, as the documents had not been filed for a period of eleven years from date of filing of the Written Statement and not even adverted to in the evidence filed later.

The only explanation proffered by the petitioner is inadvertence, which cannot be regarded as a ground for exercise of discretion under Order VIII Rule 1A(3) - a view echoed by a judgement of a learned Single judge of this Court in Harkesh Singh & Anr. v Ved Raj, (order dated 2nd February, 2010 in CM(M) No. 945 of 2007)."

20. There are no reasons to interfere in the impugned order. There is no merit in the present appeal and the same is dismissed. CS(OS) 486/2014

21. Parties to appear before the learned local commissioner for further proceedings on 08.02.2018.

JAYANT NATH, J.

JANUARY 19, 2018/v




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