Order 8

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS (COMM) No. 89/25
M/S RAJ LAXMI METALS PVT LTD Vs. BHARMA PAL
10.10.2025
Present: Sh. Binod K. Agrawal, Counsel for the Plaintiff.
Defendant has already been proceeded
ex-parte vide
order dated 30.07.2025.
1. Matter is today fixed for consideration.
2. Hard copy of the interest calculation sheet has been
filed (e-filed on 01.10.2025).
3. Arguments heard on pending applications filed on
behalf of plaintiff U/o VI Rule 17 r/w Section 151 of CPC and
Section 16 of Commercial Courts Act and another application
U/o VII Rule 14 r/w Section 151 and Section 16 of Commercial
Courts Act.
4. It is well settled law that the application U/o VII
Rule 14 r/w Section 151 of CPC is not maintainable before the
Commercial Court. It is averred that the plaintiff wants to place
on record the additional documents i.e. Invoice no.2225 of
Rs.54,497/- dated 31.07.2021 alongwith E-way Bill
no.721202039466; Invoice no.3305 of Rs.92,158/- dated
07.09.2021 alongwith Bilty-GR No.0010698; Invoice no.3580 of
Rs.15,581/- dated 15.09.2021; Invoice No.7254 of Rs.40,344/-
dated 12.01.2022 alongwith Bilty-GR No.20567 and Invoice
No.7463 of Rs.5,140/- dated 18.01.2022. It has been stated that
during the course of ex-parte arguments it was came to the notice
of the plaintiff that these documents have not been filed
alongwith the plaint and that these documents are necessary for
just adjudication of the present matter. It has been further
Contd...2/-
-- 1 of 7 --
::2::
submitted that though these documents were in possession of the
plaintiff at the time of filing of the suit, however, the same could
not be filed inadvertently and thus, it is prayed that plaintiff be
permitted to place the additional documents on record.
5. I have perused the record.
6. Admittedly the documents which plaintiff seeks to
file now were in its power, possession, control and custody
despite which plaintiff failed to file the same on record. The
defendant has already been proceeded ex-parte vide order dated
30.07.2025. The documents sought to be placed on record were
already admittedly in power and possession of the plaintiff but no
plausible ground has been made for not filing those documents at
the time of the present suit.
7. In case tiltled as
Sudhir Kumar @ S. Baliyan Vs.
Vinay Kumar G. B., (2021) AIR (SC) 4303, Hon’ble Supreme
Court of India expounded the significance of Order XI Rule 1
CPC in para 7, relevant portion of which is reproduced as under:-
“
7.3 It is true that Order XI Rule 1 of the CPC as applicable to
the commercial suits brought about a radical change and it
mandates the plaintiff to file a list of all documents,
photocopies of all documents, in its power, possession, control
or custody, pertaining to the suit, along with the plaint and a
procedure provided under Order XI Rule 1 is required to be
followed by the plaintiff and the defendant, when the suit is
the commercial suit. Order XI Rule 1, as applicable to
commercial suits reads as under:
…………………………………………………………
…………………………………………………………………
…………………………………………………………………
…………………………………………………………………
…………………
Contd...3/-
-- 2 of 7 --
::3::
Therefore, the declaration on oath shall be part of the plaint.
The plaintiff has to declare on oath that all documents in
its/his power, possession, control or custody, pertaining to the
facts and circumstances of the proceedings, initiated by him/it
have been disclosed and the copies thereof annexed with the
plaint, and that he does not have any other documents in his
power, possession, control or custody. Therefore as such it is
mandated by Order XI Rule 1 for the plaintiff to disclose and
produce all the documents in his power, possession, control or
custody, pertaining to the facts and circumstances of the
proceedings.
7.4 However, the additional documents can be permitted to be
bought on record with the leave of the court as provided in
Order XI Rule 1 (4). Order XI Rule 1 (4) provides that in case
of urgent filings, the plaintiff may seek leave to rely on
additional documents as part of the above declaration on oath
[as provided under Order 11 Rule 1 (3)] and subject to grant
of such leave by Court, the plaintiff shall 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 that the plaintiff does not have
any other documents, in its power, possession, control or
custody.
7.5 Order XI Rule 1 (5) 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 plaint or within the extended period set
out above, save and except by leave of Court and such leave
shall be granted only upon the plaintiff establishing reasonable
cause for non disclosure along with the plaint. Therefore on
combined reading of Order XI Rule 1 (4) read with Order XI
Rule 1 (5), it emerges that (i) in case of urgent filings the
plaintiff may seek leave to rely on additional documents; (ii)
within thirty days of filing of the suit; (iii) making out a
reasonable cause for non disclosure along with plaint.
7.6 Therefore a further thirty days time is provided to the
plaintiff to place on record or file such additional documents
in court and a declaration on oath is required to be filed by the
plaintiff as was required as per Order XI Rule 1 (3) if for any
reasonable cause for non disclosure along with the plaint, the
documents, which were in the plaintiff’s power, possession,
control or custody and not disclosed along with plaint.
Contd...4/-
-- 3 of 7 --
::4::
Therefore plaintiff has to satisfy and establish a reasonable
cause for non disclosure along with plaint. However, at the
same time, the requirement of establishing the reasonable
cause for non disclosure of the documents along with the
plaint shall not be applicable if it is averred and it is the case
of the plaintiff that those documents have been found
subsequently and in fact were not in the plaintiff’s power,
possession, control or custody at the time when the plaint was
filed. Therefore Order XI Rule 1 (4) and Order XI Rule 1 (5)
applicable to the commercial suit shall be applicable only with
respect to the documents which were in plaintiff’s power,
possession, control or custody and not disclosed along with
plaint. Therefore, the rigour of establishing the reasonable
cause in non disclosure along with plaint may not arise in the
case where the additional documents sought to be
produced/relied upon are discovered subsequent to the filing
of the plaint.”
8. Thus, in the light of abovesaid case law, the plaintiff
has not been able to show any reasonable cause for not filing of
the documents on record at the time of filing of the plaint and
could not explain the delay except making bald defence that
during the final arguments it came to the notice of the plaintiff
that those documents are necessary for the disposal of the present
case. Further, even the present application has not been filed in
conformity with the provisions of the Commercial Courts Act.
Therefore, application being without any merits and not being
filed under the provisions of the Commercial Courts Act, same is
dismissed.
9. By way of the application U/o VI Rule 17 r/w
Section 151 of CPC, plaintiff wants to amend para 5, 8 and
prayer clause of the plaint by incorporating details of the invoices
and calculation of interest. It is stated that proposed amendments
would not change the nature of the claim and is necessary for just
adjudication of the case.
Contd...5/-
-- 4 of 7 --
::5::
10. Heard. I have perused the record.
11. In the present amendment application, an averment
has been made that seeing the conduct of the defendant it was
decided and agreed between the parties that payments will be
made on bill to bill basis by the defendant to the plaintiff which
continued in the financial year 2022-23, 2023-24 and 2024-25 till
19.12.2024. For the said reason, the amendment is sought with
the calculation of interest. Thus, the plaintiff has come with a
new case which was earlier not pleaded in the plaint that there
was any agreement between the parties to make payment on bill
to bill basis and not on the running account basis and thereby the
entire nature of the suit is going to be changed. In a running
account case, it is the last transaction which gives rise the cause
of action for the purposes of limitation and if there was any such
agreement between the parties that the transaction between the
parties would not be treated as running account basis, there
would have been no need to file the ledger account showing the
running account between the parties and therefore, it appears that
plaintiff is now blowing hot and cold at the same time. The
present case has been filed on the basis of one single invoice
dated 01.11.2021 alongwith the ledger account and now plaintiff
wants to change the entire nature of the suit by way of present
amendment application from a suit for recovery on the basis of
running account to on the basis of agreed terms of payment on
bill to bill basis. Even for the said purposes there is no clear
pleadings in the amended application. There is no pleadings that
when the parties agreed that the bills payment would be on the
Contd...6/-
-- 5 of 7 --
::6::
basis of bill to bill basis. Perusal of the invoice placed on record
shows that even as per terms the interest was to be levied after
seven days from the date of issue of the invoice but the pleadings
in the amendment application is silent in this regard. Perusal of
the ledger account shows that since beginning of transaction
between the parties the payment on lump sum basis were being
made alongwith the payment on bill to bill basis and therefore, at
the best the parties were having running transaction. There is
nothing on record to show that in any of the bills or in the ledger
account the interest was charged on bill to bill basis or it was
intimated to the defendant. The invoice filed on record Ex.PW1/4
does not bear the signatures of the defendant nor any such copy
has been placed on record showing the agreement on behalf of
the defendant regarding the interest rate or payment on bill to bill
basis.
12. Therefore, in view of the aforesaid discussion,
though the defendant is ex-parte but the plaintiff cannot be
allowed to change the basic nature of the suit based on the
running account basis to the payment on bill to bill basis. Further,
even no amended plaint has been filed alongwith the application.
Ofcourse it is settled law that the technical view should not be
taken but in the present case at the time of issuing the notice by
the Ld. Predecessor Court has already observed that the present
case is for recovery of principal amount of only Rs.1,32,971/-
and remaining amount is for recovery of the interest payable on
balance and delayed payment towards invoice no.4995 dated
01.11.2021 while issuing the summons. Thus, the plaintiff was
Contd...7/-
-- 6 of 7 --
::7::
having knowledge of its case since the day of issuance of
summons.
13. Therefore, this Court is of the opinion that in the
facts and circumstances as discussed hereinabove and since
amendment sought is not in consonance with the suit and moreso
it is still ambiguous and unclear as to what amendment is being
sought for the purposes of recovery of interest without giving
details either on the basis of bill to bill or on the running account
basis, the present application is devoid of any merit and is
accordingly dismissed.
14. Be put up for
ex-parte final arguments on
14.11.2025.
(Devendra Kumar Sharma)
District Judge (Commercial Court-03)
Central/ THC/ Delhi
10.10.2025
-- 7 of 7 --