Interim Order 21

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS (COMM) 540/24
7
CNR No.: DLCT01-006565-2024
CS (COMM) 540/24
M/S GREATEX SYNTHETICS PVT. LTD.
Vs.
M/S DAMY ROYAL STYLE PVT. LTD.
17.09.2026
Present: Shri Subhash Chandra, Ld. counsel for plaintiff with AR of the
plaintiff, Shri Vijay Kumar Sharma.
Shri Deepanshu Joshi, Ld. counsel for defendants.
Despite directions, AR of the defendant is not present.
Further submissions on the pending applications of defendants are
made.
Put up in post lunch session for perusal of file and for orders on
the applications.
(Sunil Chaudhary)
District Judge (Commercial Court)-04
(Central District) Tis Hazari Courts, Delhi
17.09.2026
At 4:00 pm.
Present : None.
As per file, the summons of the suit were issued to the defendants
vide order dated 31.05.2024. Upon appearance of learned counsel for the
defendants through VC on 17.08.2024, he requested for supply of complete
copy of paper book and it was undertaken by the counsel for plaintiff that
the soft copy of complete paper book within two days will be supplied.
The defendants were directed to file written statement within 30 days from
the date of supply. The defendants did not file the written statement within
given time and approached the Court with one application for condonation
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of delay of 11 days in filing the written statement which was allowed
finding no serious objection to the same. In accordance with the objections
to the Statement of Truth and affidavit of admission / denial, the
defendants were directed to file proper affidavit of admission/denial and
Statement of Truth within two weeks vide order dated 23.10.2024. The
defendants also moved an application under Order VII Rule 10 CPC which
was dismissed vide order dated 09.7.2025.
On 23.07.2025, issues were framed as per pleadings of the parties
and the plaintiff was asked to lead its evidence. On 22.08.2025, affidavit
for the evidence of the plaintiff was filed and the Court was intimated that
one application has been filed on behalf of defendants under Order XIV
Rule 5 CPC for framing of additional issues. On 01.09.2025, Mr. Vijay
Kumar Sharma was examined as PW1 and his cross-examination was
deferred at the request of the Ld. Counsel for defendants, who appeared
through VC. On 15.09.2025, witness was cross-examined and evidence
was closed by the plaintiff and the matter was adjourned for the evidence
of the defendants.
On 06.11.2025, in place of leading of any evidence, the counsel
for the defendants, who appeared through VC, made submissions about the
application filed for framing of additional issues. The said application was
disposed of vide order dated 27.01.2026 by framing only one additional
issue. The matter was ordered to be listed on 12.03.2026 for evidence of
the defendant. On that day, exemption from physical appearance of the
witness as he was out of station, was sought and considering the
submissions and objections, the Ld. Predecessor of this court granted one
opportunity to the defendants to lead evidence by imposing cost.
On 28.04.2026, affidavit of one witness of the defendant was filed
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and matter was adjourned for his examination finding that copy of the
affidavit was supplied to the counsel for the plaintiff only on the last
evening itself.
On 04.06.2026, during the marking of the documents for the
evidence of the defendants, objections were raised on the basis of
requisition of certificate under Section 65 B of the Indian Evidence Act
and the Ld. Predecessor of this Court considering the facts of the case and
conduct of the defendants, declined to pass over the matter for filing the
affidavit for same and witness Shri Damneesh Yadav was examined and
was discharged after his cross-examination. The court was apprised that
one application has been filed by the defendant under Order XVI Rule 1 &
6 CPC for summoning the witness and production of documents. The
submissions were made by the Ld. counsel for the plaintiff that defendant
has not filed any list of witness within 15 days after framing of issues,
therefore, no new witness can be summoned at this stage and prayed for
closure of the evidence of the defendants. The counsel for the defendants
submitted that he wants to file some citation in support of his arguments
regarding summoning the witness without filing the list of witness within
15 days after framing of issues. Considering the submission, he was
granted opportunity to file the citation and the matter was adjourned for
15.07.2026
On 15.07.2026, Court was apprised that the defendants have
moved an application under Order XVIII Rule 17 CPC seeking permission
to place on record the certificate under Section 65 B in respect of the
electronic record and another application under Section 151 CPC for recall
of DW1.
By way of the application under Order XVI Rule 1 & 6 CPC, the
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defendants are seeking summoning of witnesses from M/s Vishal
Megamart with the plea of specific defence that a part of the fabric
supplied by the plaintiff was defective and unsuitable for the intended
purpose and the same resulted in rejection of goods, issuance of debit note
and dispute regarding payment. It is the contention that the goods supplied
by the plaintiff were utilized by the defendants for manufacture / supply of
finished products to Vishal Megamart and the quality issues pertaining to
the plaintiff's fabric form part of communication involving the officials of
Vishal Megamart. It is further contended that the defendants are not in
possession of the original records maintained by Vishal Megamart and the
same can only be produced by the concerned witnesses and no prejudice
shall be caused to the plaintiff if the application is allowed.
The application is opposed with the contention that the plaintiff
has no concern with the Vishal Megamart and no reason is mentioned in
the application considering which the defendants may be granted
opportunity to examine the witnesses named in the application qua the
communications between the Vishal Megamart and the defendants. It is
contended that application is filed only to delay the trial. It is further
contended that no document issued by the Vishal Megamart has been
brought on record by the defendants within period to show that the articles
manufactured by the defendants using the fabric supplied by the plaintiff
was rejected by the Vishal Megamart.
In support of the application, the Ld. Counsel for defendants filed
the written submissions, in which he has referred three cases. Neither the
complete particulars of the said cases have been disclosed nor copies of the
said judgment has been made part of said submissions.
As per law, a list of witness is to be filed within 15 days by the
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parties from the date of settlement of issues and the parties can seek the
assistance of the court to summon only those witnesses whose names are
mentioned in the list of witnesses. The provision of Order XVI Rule 1 (3)
CPC provides that the Court may, for reasons to be recorded, permit a
party to call any witness other than those whose names appear in the list if
such party shows sufficient cause for the omission to mention the name of
such witness in the said list. It is settled law that if the court finds the
testimony of proposed witness relevant and essential to decide the dispute
before it the party may be allowed to call or summon the witness whose
name is not included in the list filed by it. In the present case, no list of
witness has been filed by the defendants nor any reason for not filing the
same is brought before the court, considering which the court may allow
the defendants to call the witnesses. It is the contention for the defendants
that the record relating to quality complaint and rejection / inspection
report are with Vishal Megamart and the same are to be produced and
proved by the witness from Vishal Megamart. The defendants have not
filed any inspection / rejection report issued by Vishal Megamart and
copy of any communication initiated by Vishal Megamart. The email
conversations filed with the written statement are initiated by the
defendants themselves and their copies are sent to the Vishal Megamart.
The examination of any witness from Vishal Megamart is not required qua
the said conversation. Thus, no ground is found to consider the
examination of witness from M/s Vishal Megamart Ltd. and to produce its
record necessary to adjudicate the present suit. The application is
dismissed accordingly.
By way of application under Section 151 CPC read with Order
XVIII Rule 17 CPC is seeking recall of DW1 for proving the original
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Board Resolution and exhibiting the copy already forming part of the
record with the submissions that the copy was marked during the
examination of witness and the original was not produced which has all
times remained in the custody of defendant company and is available for
production before the court. It is submitted that the omission to produce
the original Board Resolution during the examination of Mr. Damneesh
Yadav was inadvertent.
The application is opposed with the submissions that allowing the
application will amount to allow the defendants to fill the lacuna remained
in their evidence and discretionary power of the court cannot be exercised
for the same causing prejudice to the case of the plaintiff.
Considering the facts and circumstances of the case, where no
ground is disclosed as to why the Minute Book containing the Board
Resolution was not produced during the examination of the witness by the
defendants, the application stands dismissed finding the objection raised by
the plaintiff having merits.
By way of third application filed under Order XVIII Rule 17 read
with Section 151 CPC, the defendants are seeking permission to file the
certificate under Section 65 B of the Indian Evidence Act in respect of
email/ debit notes dated 31.07.2022 and 27.11.2022 and to recall the
witness in respect of said certificate. It is the contention made for the
defendant that the Ld. counsel sought pass over for filing the said
certificate on the day of examination of witness and the said prayer was
declined by the court. It is claimed that the certificate is statutory
requirement for the electronic evidence. It is contended that if the
application is allowed then there will be no prejudice to the plaintiff as it
shall retain its right to challenge and cross-examine the witness on this
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aspect. Reliance is placed on the case ‘Ram Kishan v. M/s Emaar MGF
Construction Pvt. Ltd.’, CMM 197/2019 decided on 28.06.2024 by the
Hon’ble High Court of Delhi.
It is contended on behalf of the plaintiff that the application is not
maintainable as the witness has already been examined and during his
examination, copy of email dated 08.12.2022 is exhibited as DW1/8 and
the certificate under Section 64 B of the Indian Evidence Act/63 of BSA,
2023 is Ex.DW1/9. It is further contended that the application is filed only
to fill up the legal lacuna and that the case law cited is not applicable to the
facts of the present case as the present case pertains to a commercial
dispute and there is time line to file documents by the parties.
Considering the submissions and the documents of the parties, I
am of view that even if the court finds that non filing of certificate qua the
electronic document is a curable defect and the defendants may be allowed
to cure the said defect at this stage, by allowing the application and to take
on record the affidavit/certificate filed with the application, the said
certificate will not cure the defect and will not assist the court for disposal
of the matter as the proposed affidavit/certificate signed by Damneesh
Yadav is not complying with the requirements of the law. The application
stands dismissed accordingly.
Now, put up for final arguments on 30.09.2026.
(Sunil Chaudhary)
District Judge (Commercial Court)-04
(Central District) Tis Hazari Courts, Delhi
17.09.2026
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