Delhi High Court
Ms. Ritu Bhagat vs M/S Divyani Estates And ... on 24 May, 2022
$~4(Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 422/2022 & CMN o. 21668/2022
MS. RITU BHAGAT ..... Petitioner
Through: Mr.Akhil Sachar, Mr.Sunanda,
Mr.Akshar Bhatt, Mr.Sangram Singh and
Mr.Navin Bainsla, Advs.
versus
M/S DIVYANI ESTATES AND PROPERTIES PVT. LTD &
ANR. ..... Respondents
Through: Mr.Lalit Valcha and
Mr.Pranshu Gosai, Advs.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
J U D G M E N T(O R A L)
% 24.05.2022
1. The impugned order, dated 29th April, 2022, passed by the
learned District Judge (Commercial Courts), (the "learned
Commercial Court") rejects an application under Order XVIII Rule 17
of the Code of Civil Procedure, 1908 (CPC) filed by the petitioner for
permission to recall PW-2, the second witness of the petitioner [as the
plaintiff in CS (Comm) 362/2020 wherefrom the present proceeding
emanates].
2. The learned Commercial Court has proceeded on the basis of an
averment, in the plaint, to the effect that the only relevant transactions
were those covered by a memorandum of understanding dated 28 th
January, 2015.
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:24.05.2022
17:16:36
3. Learned Counsel for the respondent submits that there is no
error, whatsoever, in the impugned decision of the learned
Commercial Court, as there is, in fact, such a specific averment,
contained in para 3(iii) of the plaint.
4. Nonetheless, the plaintiff has placed reliance on the bank
statement of the plaintiff for the period 8th November, 2008 to 8th
March, 2020. As to whether this bank statement is relevant, in view
of the assertions in the plaint and the case made out by the plaintiff in
the plaint, is a matter to be examined by the Court during trial. It is,
however, the prerogative of the parties to a litigation to choose the
documents on which they seek to place reliance and it would always
be open to the opposite party to dispute the relevance of the
documents. Once a party seeks to place reliance on documents and
places the said documents on record, whether with the plaint or with
the written statement, the party is entitled to an opportunity to prove
the said documents in accordance with law.
5. The submission of the petitioner in the present case is that,
though the bank statement for the period 8th November, 2008 to 8th
March, 2020 was placed on record with the plaint, PW-2 was, owing
to an inadvertence on the part of the plaintiff, called upon to produce
the certified copies of the bank statement of the plaintiff for the period
6th January, 2015 to 29th January, 2015. He submits that, in order for
the plaintiff to be able to prove the statement for the period 8 th
November, 2008 to 8th March, 2020, the interests of justice would
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:24.05.2022
17:16:36
warrant one opportunity to bring PW-2 back into the witness box.
6. Though learned Counsel for the respondent vociferously
opposed the petition, he acquiesced, during the proceedings, to grant
of one opportunity to the petitioner to recall PW-2 to the witness box,
as prayed before the learned Commercial Court.
7. The matter is now stated to be listed before the learned
Commercial Court on 28th May, 2022. Accordingly, the learned
Commercial Court is directed, on the said date, to issue summons to
PW-2, recalling him into the witness box for 3rd June, 2022, so that he
could be questioned by the petitioner.
8. It is made clear that the petitioner should be ready to examine
PW-2 on the said date and that he would not be entitled to any further
opportunity or adjournment for the said purpose.
9. This petition stands allowed to the aforesaid extent.
10. Copy of this order be given dasti to Counsel for the parties
under signatures of the Court Master.
C.HARI SHANKAR, J
MAY 24, 2022/kr
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:24.05.2022
17:16:36
