Delhi High Court
P C Jeweller Ltd vs National Insurance Company ... on 22 February, 2019
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 1007/2016
P C JEWELLER LTD ..... Plaintiff
Through: Mr. Roshan Santhala, Adv.
versus
NATIONAL INSURANCE COMPANY LIMITED
..... Defendant
Through: Mr. Udit Grover &
Mr. Yogesh Malhotra, Advs.
SI Surender Kumar, PS Mayapuri.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 22.02.2019
IAs No.13702/2018(u/O.XI R5(1) CPC as applicable to
Commercial Suits r/w Section 151 CPC & 13703/2018(u/S.65A of
Indian Evidence Act filed by plaintiff)
1. The counsel for the plaintiff/applicant has been heard.
2. The counsel for the plaintiff/applicant has argued (I) that the
plaintiff, along with the plaint has filed its office copies of the
documents, listed at serial no.(i) to (xiv) of para 2 of IA
No.13702/2018 and originals of which were sent by the plaintiff to
the defendant; (II) that the defendant, at the stage of admission/denial
of documents, denied all the said office copies; (III) that the plaintiff,
in examination-in-chief of its witness, sought to exhibit the said
office copies but an objection was taken thereto by the counsel for the
defendants, of the same being only office copies and not originals;
and (IV) the plaintiff has thus filed IA No.13702/2018 for a direction
to the defendant to produce the originals of the said documents and IA
No.13703/2018 for permission of this Court to lead secondary
evidence qua the said documents.
3. I have enquired from the counsel for the plaintiff/applicant as to
how IA No.13702/2018 is maintainable under Order XI Rule 5(1) as
applicable to Commercial Suits, invoking which it has been filed.
4. Sub-Rule (1) of Rule (5) of Order XI entitles any party to seek
or the Court to order at any time during the pendency of any suit,
production by any party or person, of such documents in the
possession or power of such party or person, relating to any matter in
question in such suit. Sub-Rule (2) provides for the notice to produce
such document to be in Form No.7 in Appendix (C) to the CPC.
Sub-Rule (3) provides that any person to whom such notice is issued,
if does not produce the said document the Court may under Sub-Rule
(4) draw adverse inference against such party.
5. The Commercial Courts Act, while amending CPC, has not
provided any new format for notice to which reference is made in
Sub-Rule (2) of Rule 5 of Order XI. A perusal of Form No.7 in
Appendix (C) to the CPC shows the notice to be given by the
Advocate for the parties seeking production of documents to the
Advocate of the opposite party, of production of documents.
6. In operation of the entire Rule (5), no intervention of the Court
is called for. Merely issuing notice to the counsel for defendant, of
production of originals of office copies filed, would have sufficed.
7. The contention of the counsel for the plaintiff/applicant that "an
application will be on higher pedestal than merely issuing notice",
cannot be accepted. The underlying idea of the Commercial Courts
Act was/is expediency, and it appears that the plaintiff is not
interested in expeditious disposal of its claim in this suit. PW1 of the
plaintiff was under examination on 28th August, 2018 and whereafter
the recording of evidence has been interrupted on account of the
plaintiff having filed these applications and the Joint Registrar having
mechanically ordered pleadings to be completed on the said
applications. In the process, six valuable months have been lost.
8. Rule 5 of Order XI of the CPC as applicable to Commercial
Suits, is not a new provision and similar provision exists in Order XI
Rule 16 and in Order XII Rule 8 of CPC. The plaintiff, as the author
of the documents, office copies of which are already claimed to have
been filed by the plaintiff and originals of which are claimed to have
been sent to the defendant, merely by issuing a notice under Order XI
Rule 5 (supra), can proceed to prove the office copies in accordance
with law.
9. For the benefit of the counsel for the plaintiff, it is explained,
that the witness of the plaintiff is then required to prove (a) that the
originals of the document of which office copies are filed, were
delivered to the defendant; (b) the office copies produced are an exact
replica of the original; and, (c) service of the notice as aforesaid,
either under Order XI Rule 16 or Order XII Rule 8 or under Order XI
Rule 5 of CPC, as applicable to the Commercial Suits. Had the
plaintiff issued such notice prior to putting PW1 in the witness box,
and also filed such notice before the Court, PW1 in his examination-
in-chief could have proved the said documents.
10. Not only so, the application under Section 65 of the Evidence
Act, to lead secondary evidence is equally misconceived. It is
unfortunate that in spite of consistent judgments from this Court in
Prem Chandra Jain vs. Sri Ram 2009 (113) DRJ 617, Sanyogta
Prakash vs. Dhira Bala Malhotra, 2010 (115) DRJ 109; (SLP (C)
No.19721/2010 preferred whereagainst was dismissed on 30th July,
2010), Ansal Properties & Infrastructure Ltd. vs. Col. Y.L. Sud 2010
(114) DRJ 282 and Scindia Potteries & Services Pvt. Ltd. vs. Scindia
Investment Pvt. Ltd., 2017 SCC Online Del 10936, over the last
several years, such applications continue to be filed.
11. Though the counsel for the plaintiff states that he has read some
judgments requiring application to be filed for permission to lead
secondary evidence, but is not carrying any and is unable to cite any.
12. The applications are thus totally misconceived and are
dismissed. The petitioner being a jeweller, is burdened with costs of
10 gms of gold.
13. The counsel for plaintiff seeks waiver of costs. Since the
counsel is young, costs are waived.
CS(COMM) 1007/2016
14. List before the Joint Registrar on 11th March, 2019 for
scheduling further dates of trial.
RAJIV SAHAI ENDLAW, J
FEBRUARY 22, 2019
Ak..
