Karnataka High Court
M/S Strategic Infra Services Pvt Ltd vs M/S Mphasis Limited on 5 August, 2024
Author: R Devdas
Bench: R Devdas
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NC: 2024:KHC:30900
WP No. 8057 of 2024
C/W WP No. 5899 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO. 8057 OF 2024 (GM-CPC)
C/W
WRIT PETITION NO. 5899 OF 2024 (GM-CPC)
IN WP NO. 8057/2024
BETWEEN:
M/S. STRATEGIC INFRA SERVICES PVT. LTD.,
(FORMERLY KNOWN AS M/S. STRATEGIC
OUTSOURCING SERVICES PVT. LTD.,),
A COMPANY REGISTERED UNDER
THE COMPANIES ACT, HAVING ITS
REGISTERED OFFICE AT NO.70/25,
80 FEET ROAD, CIRCULAR RING ROAD,
4TH BLOCK, KORMANAGALA,
BENGALURU - 560 034,
REPRESENTED BY ITS DIRECTOR
MR. PRADEEP PATIL.
Digitally signed
by
DHARMALINGAM ...PETITIONER
Location: HIGH (BY SRI. C.K. NANDAKUMAR, SENIOR COUNSEL FOR
COURT OF
KARNATAKA SRI. SANJAY KRISHNA V, ADVOCATE)
AND:
1. M/S MPHASIS LIMITED,
A COMPANY REGISTERED UNDER
THE COMPANIES ACT 1956,
HAVING ITS REGISTERED OFFICE AT:
BAGMANE WORLD TECHNOLOGY CENTRE,
MARATHAHALLI OUTER RING ROAD,
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WP No. 8057 of 2024
C/W WP No. 5899 of 2024
DODDANEKKUNDI VILLAGE,
MAHADEVAPURA, BENGALURU - 560 048,
REPRESENTED BY ITS CEO AND WHOLE TIME
DIRECTOR: MR. NITIN RAKESH.
2. MR. DAVINDER SINGH BRAR,
CHAIRMAN, M/S. MPHASIS LIMITED,
A COMPANY REGISTERED UNDER
THE COMPANIES ACT, 1956,
BAGMANE WORLD TECHNOLOGY CENTRE,
MARATHAHALLI OUTER RING ROAD,
DODDANEKKUNDI VILLAGE,
MAHADEVAPURA, BENGALURU - 560 048.
3. MR. NITIN RAKESH,
CEO AND WHOLETIME DIRECTOR,
M/S. MPHASIS LIMITED,
BAGMANE TECHNOLOGY PARK,
BYRASANDRA VILLAGE,
C.V. RAMAN NAGAR, BENGALURU - 560 093.
4. MR. NARAYANAN KUMAR,
DIRECTOR, M/S. MPHASIS LIMITED,
DLF SEZ IT PARK, TOWER IB,
LEVEL 1-5, 1/124, SHIVAJI GARDENM
MANAPAKKAM MOUNT POONAMALLEE ROAD,
CHENNAI - 600 089, TAMIL NADU.
5. MS. JAN KATHLEEN HIER,
DIRECTOR, M/S. MPHASIS LIMITED,
SEAR STREET, UNIT 35 B,
SAN FRANCISCO, CA 94105.
6. MR. DAVID LAWRENCE JOHNSON,
DIRECTOR, M/S. MPHASIS LIMITED,
10500 AVERY CLUB DRIVE.
AUSTIN, TX 78717.
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NC: 2024:KHC:30900
WP No. 8057 of 2024
C/W WP No. 5899 of 2024
7. MR. PAUL JAMES UPCHURCH,
DIRECTOR, M/S. MPHASIS LIMITED,
NORTH LAKE SHORE DRIVE, UNIT 3014,
CHICAGO, IL - 60611.
8. MR. AMIT DIXIT,
DIRECTOR, M/S. MPHASIS LIMITED,
IMPERIAL FLAT NO.2102,
SOUTH TOWER, B.B. NAKASHE MARG,
TARDEO, MUMBAI - 400 034,
MAHARASHTRA.
9. MR. AMIT DALMIA,
DIRECTOR, M/S. MPHASIS LIMITED,
C 1306, OBEROI SPLENDOR,
JOGESHWARI VIKHROLI LINK ROAD,
OPP. MAJAS DEPOT, JOGESHWARI (EAST),
MUMBAI - 400 060, MAHARASHTRA.
10. MR. SIVARAMAKRISHNAN P,
VICE PRESIDENT (BUSINESS FINANCE DIVISION),
M/S. MPHASIS LIMITED,
BAGMANE TECHNOLOGY PARK,
BYRASANDRA VILLAGE,
C.V. RAMAN NAGAR, BENGALURU - 560 093.
11. MR. HEMANTH ANANTH RAM,
VICE PRESIDENT (LEGAL),
M/S MPHASIS LIMITED,
BAGMANE WORLD TECHNOLOGY CENTER,
MARATHAHALLI OUTER RING ROAD,
DODDANEKUNDI VILLAGE,
MAHADEVAPURA, BENGALURU - 560 048.
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WP No. 8057 of 2024
C/W WP No. 5899 of 2024
12. MR. P. VELAYUDHAN,
M/S. MPHASIS LIMITED,
BAGMANE TECHNOLOGY PARK
BYRASANDRA VILLAGE,
C.V. RAMAN NAGAR,
BENGALURU - 560 093.
13. MR. VINOD KUMAR,
ASSOCIATE VICE PRESIDENT,
LEAD CORPORATE SECURITY AND INVESTIGATION,
CHIEF RISK OFFICE,
M/S. MPHASIS LIMITED,
BAGMANE WORLD TECHNOLOGY CENTER,
MARATHAHALLI OUTER RING ROAD,
DODDANEKUNDI VILLAGE,
MAHADEVAPURA, BENGALURU - 560 048.
14. MR. SETHU S RAMAN,
SUPERINTENDENT OF CHIEF RISK OFFICER,
M/S. MPHASIS LIMITED,
BAGMANE WORLD TECHNOLOGY CENTRE,
MARATHAHALLI OUTER RING ROAD,
DODDANEKUNDI VILLAGE,
MAHADEVAPURA, BENGALURU - 560 048.
...RESPONDENTS
(BY SRI. DHANANJAY JOSHI, SENIOR COUNSEL FOR
SMT. KAVITHA DAMODARAN, ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMON
ORDER DATED 23/02/2024, PASSED BY THE LEARNED LXXXIV
ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-85)
BENGALURU IN COM. OS NO. 215/2019 REJECTING IA NOS. 11
NC: 2024:KHC:30900
TO 13 PRODUCED UNDER ANNEXURE-A AND FURTHER SUCH
OTHER PASS SUCH OTHER ORDERS AND ETC.,
BETWEEN:
M/S. STRATEGIC INFRA SERVICES PVT. LTD.,
(FORMERLY KNOWN AS M/S. STRATEGIC
OUTSOURCING SERVICES PVT. LTD.,),
A COMPANY REGISTERED UNDER
THE COMPANIES ACT, HAVING ITS
REGISTERED OFFICE AT NO.70/25,
80 FEET ROAD, CIRCULAR RING ROAD,
4TH BLOCK, KORMANAGALA,
BENGALURU - 560 034,
REPRESENTED BY ITS DIRECTOR
MR. PRADEEP PATIL.
...PETITIONER
(BY SRI. C.K. NANDAKUMAR, SENIOR COUNSEL FOR
SRI. SANJAY KRISHNA V, ADVOCATE)
AND:
1. M/S MPHASIS LIMITED,
A COMPANY REGISTERED UNDER
THE COMPANIES ACT 1956,
HAVING ITS REGISTERED OFFICE AT:
BAGMANE WORLD TECHNOLOGY CENTRE,
MARATHAHALLI OUTER RING ROAD,
DODDANEKKUNDI VILLAGE,
MAHADEVAPURA, BENGALURU - 560 048,
REPRESENTED BY ITS CEO AND WHOLE TIME
DIRECTOR: MR. NITIN RAKESH.
2. MR. DAVINDER SINGH BRAR,
CHAIRMAN, M/S. MPHASIS LIMITED,
NC: 2024:KHC:30900
A COMPANY REGISTERED UNDER
THE COMPANIES ACT, 1956,
BAGMANE WORLD TECHNOLOGY CENTRE,
MARATHAHALLI OUTER RING ROAD,
DODDANEKKUNDI VILLAGE,
MAHADEVAPURA, BENGALURU - 560 048.
3. MR. NITIN RAKESH,
CEO AND WHOLETIME DIRECTOR,
M/S. MPHASIS LIMITED,
BAGMANE TECHNOLOGY PARK,
BYRASANDRA VILLAGE,
C.V. RAMAN NAGAR, BENGALURU - 560 093.
4. MR. NARAYANAN KUMAR,
DIRECTOR, M/S. MPHASIS LIMITED,
DLF SEZ IT PARK, TOWER IB,
LEVEL 1-5, 1/124, SHIVAJI GARDEN
MANAPAKKAM MOUNT POONAMALLEE ROAD,
CHENNAI - 600 089, TAMIL NADU.
5. MS. JAN KATHLEEN HIER,
DIRECTOR, M/S. MPHASIS LIMITED,
SEAR STREET, UNIT 35 B,
SAN FRANCISCO, CA 94105.
6. MR. DAVID LAWRENCE JOHNSON,
DIRECTOR, M/S. MPHASIS LIMITED,
10500 AVERY CLUB DRIVE.
AUSTIN, TX 78717.
7. MR. PAUL JAMES UPCHURCH,
DIRECTOR, M/S. MPHASIS LIMITED,
NORTH LAKE SHORE DRIVE, UNIT 3014,
CHICAGO, IL - 60611.
NC: 2024:KHC:30900
8. MR. AMIT DIXIT,
DIRECTOR, M/S. MPHASIS LIMITED,
IMPERIAL FLAT NO.2102,
SOUTH TOWER, B.B. NAKASHE MARG,
TARDEO, MUMBAI - 400 034,
MAHARASHTRA.
9. MR. AMIT DALMIA,
DIRECTOR, M/S. MPHASIS LIMITED,
C 1306, OBEROI SPLENDOR,
JOGESHWARI VIKHROLI LINK ROAD,
OPP. MAJAS DEPOT, JOGESHWARI (EAST),
MUMBAI - 400 060, MAHARASHTRA.
10. MR. SIVARAMAKRISHNAN P,
VICE PRESIDENT (BUSINESS FINANCE DIVISION),
M/S. MPHASIS LIMITED,
BAGMANE TECHNOLOGY PARK,
BYRASANDRA VILLAGE,
C.V. RAMAN NAGAR, BENGALURU - 560 093.
11. MR. HEMANTH ANANTH RAM,
VICE PRESIDENT (LEGAL),
M/S MPHASIS LIMITED,
BAGMANE WORLD TECHNOLOGY CENTER,
MARATHAHALLI OUTER RING ROAD,
DODDANEKUNDI VILLAGE,
MAHADEVAPURA, BENGALURU - 560 048.
12. MR. P. VELAYUDHAN,
M/S. MPHASIS LIMITED,
BAGMANE TECHNOLOGY PARK
BYRASANDRA VILLAGE,
C.V. RAMAN NAGAR,
BENGALURU - 560 093.
NC: 2024:KHC:30900
13. MR. VINOD KUMAR,
ASSOCIATE VICE PRESIDENT,
LEAD CORPORATE SECURITY AND INVESTIGATION,
CHIEF RISK OFFICE,
M/S. MPHASIS LIMITED,
BAGMANE WORLD TECHNOLOGY CENTER,
MARATHAHALLI OUTER RING ROAD,
DODDANEKUNDI VILLAGE,
MAHADEVAPURA, BENGALURU - 560 048.
14. MR. SETHU S RAMAN,
SUPERINTENDENT OF CHIEF RISK OFFICER,
M/S. MPHASIS LIMITED,
BAGMANE WORLD TECHNOLOGY CENTER,
MARATHAHALLI OUTER RING ROAD,
DODDANEKUNDI VILLAGE,
MAHADEVAPURA, BENGALURU - 560 048.
...RESPONDENTS
(BY SRI. DHANANJAY JOSHI, SENIOR COUNSEL FOR
SRI. VACHAN H.U, ADVOCATE AND
SMT. KAVITHA DAMODARAN, ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMON
ORDER DATED 02/09/2023, PASSED IN COM. OS NO.
215/2019 BY THE LEARNED LXXXIV ADDITIONAL CITY CIVIL
CIVIL AND SESSIONS JUDGE (CCH-85) BENGALURU
REJECTING THE INTERLOCUTORY APPLICATIONS UNDER I.A.
NOS. 8 AND 9 PRODUCED UNDER ANNX-A AND ETC.,
THESE PETITIONS, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
NC: 2024:KHC:30900
CORAM: HON'BLE MR JUSTICE R DEVDAS
ORAL COMMON ORDER
The petitioner who is plaintiff before the Commercial
Court in O.S.No.215/2019 has filed these two writ petitions
aggrieved of two common orders dated 23.02.2024 and
02.09.2023.
2. W.P.No.5899/2024 is filed in respect of the orders
passed in I.A.Nos.8 and 9 filed under Order XI Rule 1(5) of CPC
and Order XI Rule 5 of CPC for production of e-mails with
attachments, statement of accounts, teaming MOU, invoice
communications by NIELIT with affidavit under Section 65B of
the Indian Evidence Act, 1872, and in the other applications for
production of the original settlement agreement dated
15.07.2016, service agreement dated 23.11.2011, purchase of
order dated 21.11.2012 and the letter of intent dated
12.10.2012. It has been clarified that in I.A.No.9, the prayer
was to direct the defendant to produce such documents. In the
other set of applications in WP.No.8057/2024, the
petitioner/plaintiff is aggrieved of orders passed on I.A.Nos.11
to 13 filed under Order XVIII Rule 17 to recall PW-1;
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applications filed under Section 151 of CPC to recall the orders
dated 02.02.2024 and 14.02.2024 and I.A.No.13 is filed under
Order XI Rule 1 of CPC seeking permission to produce
additional documents. All the applications have been dismissed
by the Commercial Court.
3. Learned Senior Counsel Sri.C.K.Nandakumar, appearing
for the petitioner, submits that insofar as I.A.Nos.11 to 13 are
concerned, more particularly, having regard to the provisions
contained in Order XI Rule 1 of CPC that, admittedly, the
petitioner/plaintiff did not have in its custody the additional
documents sought to be brought on record, as on the date of
the suit was filed. Therefore, it is contended that the reasoning
found in the impugned order for rejecting the application
cannot be sustained. The trial Court has simply said that it has
gone through the judgment cited by the learned counsels,
including the case of Sudhir Kumar @ S.Baliyan Vs. Vinay
Kumar G.B., reported in (2021) 13 SCC 71, and it has also
considered the observations made by this Court in the earlier
round of litigation in W.P.No.4281/2021. It has held that since
the arbitral award has been placed on record as Ex.D.1, there
was no need for the Court to permit the plaintiffs to bring on
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record the depositions recorded by the arbitral tribunal, and it
has further held that the plaintiff-Company wants to produce
these documents at a belated stage, and therefore, the
application is rejected.
4. Learned Senior Counsel Sri.C.K.Nandakumar,
contended that even in the case of S.Baliyan (Supra) it has
been held that in the case of urgent filings, the plaintiff may
seek leave to rely on additional documents. As part of the
declaration on oath and subject to grant of such leave by Court,
the plaintiff is required to file such additional documents in
Court, within thirty days of filing the suit along with a
declaration on oath that the plaintiff has produced all
documents in its power, possession, control or custody,
pertaining to the facts and circumstances of the proceedings
initiated by the plaintiff and the plaintiff does not have any
other documents, in its power, possession, control or custody.
Learned Senior Counsel would therefore submit that even in
terms of the said judgment of the Hon'ble Supreme Court,
since admittedly the plaintiff did not have in its possession the
depositions that were recorded by the arbitral tribunal
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subsequently, the plaintiff is entitled to seek leave of the Court
to bring on record such documents.
5. Per contra, Learned Senior Counsel Sri.Dhananjay
Joshi, appearing on behalf of the respondents-defendants,
would submit that on the previous occasion, this Court in
W.P.No.4281/2021 has noticed the scope of the suit and the
prayer made in the suit by the plaintiff before the Commercial
Court in O.S.No.215/2019, that the prayer is for initiating
malicious prosecution against the defendants, and this Court
declined to accept the contention of the defendants herein. It
was noticed that the suit filed before the Commercial Court was
essentially for respondent No.1 vindication for damages not just
from the petitioner but also from its directors to be clubbed
with the proceedings under Section 34 of the Arbitration and
Conciliation Act, 1996, as against the arbitral award dated
26.11.2019. Such a request was allowed by the Commercial
Court, and this Court set aside such an order passed by the
Commercial Court. That being the position, it is a futile exercise
on the part of the plaintiff to seek to bring on record the
depositions recorded by the arbitral tribunal, when the arbitral
award itself has been placed before the Commercial Court.
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Moreover, it has been held by the Hon'ble Supreme Court in the
case of S.Baliyan (Supra) that Order XI Rule 1(5) of CPC,
further provides that the plaintiff shall not be allowed to rely
on documents, which were in the plaintiff's power, possession,
control, or custody and not disclosed along with the plaint or
within the extended period set out in the judgment therein,
save and accept by leave of Court, and such leave shall be
granted only upon the plaintiff establishing reasonable cause
for non-disclosure along with the plaint. Even in such cases, the
documents should be produced within a period of thirty days of
filing of the suit.
6. Learned Senior Counsel would further draw the
attention of this Court to a decision of a Co-ordinate Bench of
this Court in the case of M/S. Bangalore Metropolitan
Transport Corporation and Another Vs. V.E. Commercial
Vehicles Limited and Others in W.P.No.3930/2022 dated
08.04.2022, wherein the Co-ordinate Bench was of the opinion
that the Commercial Court was required to consider the parties
hardship and the prejudice that could be caused to the party if
such prayer for production of additional documents is not
considered.
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7. The Co-ordinate Bench therefore held that to
mitigate the hardship being caused to the parties and also
taking into consideration the law declared by the Hon'ble Apex
Court in the case of Uday Shankar Triyar Vs. Ram Kalewar
Prasad Singh and Another reported in (2006) 1 SCC 75, it
was of the opinion that the procedural defects and irregularities
which are curable, should not be allowed to defeat the
substantive rights of the parties or to cause injustice. With
these reasons, such an application was allowed by the Co-
ordinate Bench. However, the said order was considered by the
Hon'ble Supreme Court at the instance of V.E. Commercial
Vehicles Limited in Civil Appeal No.93/2023 @ SLP
(C)No.10129/2022 dated 05.01.2023, and it was held that
as per the provisions of the 2015 Act, the provisions of Order
VII Rule 14 of C.P.C., shall not be applicable, and the parties
shall be governed by the provisions of Order XI of C.P.C., as
applicable to Commercial Courts. Learned Senior Counsel
submits that the Hon'ble Apex Court has further clarified the
position by stating that assuming that the Order VII Rule 14
can be made applicable, in the facts and circumstances of the
case and considering the averments made in the applications
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filed by the respondent herein permitting him to file additional
documents, the Hon'ble Apex Court is of the opinion that the
conditions set out in Order VII Rule 14 are not satisfied. It was
noticed that the cross-examination was conducted in the year
2019 and an application to bring on record, the said deposition
was filed in the year 2021. It was therefore held that, it is a
clear attempt on the part of the respondents herein to fill in
lacuna.
8. Learned Senior Counsel submits that in the present
case, the depositions which are sought to be brought on record
were recorded by the arbitral tribunal in the year 2019 and
these applications are filed in the year 2023, and therefore the
issue stands squarely covered by the judgment of the Hon'ble
Apex Court in the case of V.E. Commercial Vehicles Limited
v/s M/s Bangalore Metropolitan Transport Corporation
and others in Civil Appeal No.93/2023.
9. The learned senior counsel would further submit that
insofar as the other writ petition is concerned, it is clear that
the documents sought to be brought on record were already
available with the plaintiff. They are of the years 2011 and
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2015, much before the filing of the suit before the Commercial
Court. Therefore, no fault can be found in the impugned orders
passed by the Commercial Court.
10. Having heard the learned senior counsels on both
sides and on perusing the petitioner herein, this Court is of the
considered opinion that having regard to the law laid down by
the Hon'ble Apex Court in the case of S.Baliyan (supra) and
V.E. Commercial Vehicles Limited (supra), wherein it has
been held that insofar as the Commercial suits are concerned,
Order VII Rule 14 of C.P.C will have no application. What is
required to be considered is the provisions contained in Order
XI of the C.P.C., which are applicable to the Commercial
Courts. That being the position, the applications filed by the
plaintiff in I.A.Nos.8 and 9 for seeking leave of the Commercial
Court to produce documents dated 15.07.2016, 23.11.2011,
21.11.2012, and 12.10.2012 and the emails and other
documents, which are all admittedly dated prior to the final of
the suit, it was impermissible for the Commercial Court to allow
such an application. The Commercial Court has rightly rejected
such an application.
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11. Insofar as the other I.A.'s are concerned, i.e.,
I.A.Nos.11 to 13, seeking to bring on record the depositions
recorded by the arbitral tribunal in the year 2019 are
concerned, the issue also squarely stands covered by the
judgment of the Hon'ble Apex Court in the case of V.E.
Commercial Vehicles Limited (supra). The Hon'ble Apex
Court has clearly held that after the amendments were brought
into the Commercial Courts Act and the requirement of the
Commercial Courts following the provisions of Order XI of the
C.P.C., and having held that Order VII Rule 14 of the C.P.C
shall not be applicable to the parties before the Commercial
Court, this court does not find any infirmity in the orders
passed by the Commercial Court.
Consequently, both the writ petitions are dismissed.
Sd/-
(R DEVDAS)
JUDGE
rv,KVR
CT: BHK
