Interim Order 34

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MS. NEELOFER ABIDA PERVEEN : DISTRICT
JUDGE (COMMERCIAL COURT)-01, CENTRAL / THC / DELHI.
CS (Comm.) No. 1176/2024
CNR NO. DLCT01-008121-2025
M/s M.L.J. & Sons ….Petitioner
Versus
M/s Bajaj Kagaj Ltd. ....Respondent
::- ORDER -::
22.04.2026
This is an application filed on 16.5.2025, on behalf of the plaintiff under Order
11 Rule 1 (5) CPC for taking on record certain additional documents.
1. Ld. Counsel for the plaintiff submitted that the plaintiff’s suit against
the defendant is for recovery of money and that the plaintiff has annexed all the
relevant documents along-with plaint in order to prove his case except for
Commission bills / invoices, Commission report and TDS certificate of
financial year 2017-18 and 2018-2019. That the defendant has raised objections
in the Written Statement, that the plaintiff deliberately has not filed invoices to
substantiate the amounts claimed as outstanding. That these documents
therefore have become necessary in light of the objection raised by the
defendant and towards a just and proper adjudication of the present case. That
the plaintiff will suffer irreparable loss and injury if the documents are not taken
on record.
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(i). That the reference of these documents is made clearly in the plaint and
the documents were even handed over to the earlier Counsel who has filed the
present suit. That the said Counsel did not file the documents on the record and
it is only after the objection was taken in the Written Statement that the
inadvertence on the part of previous Counsel came into light and the present
application was filed after change of Counsel. That application is made
bonafide. That the plaintiff ought not be penalized for over sight on the part of
the previous Counsel.
2. Ld. Counsel for the defendant on the other hand submitted that the
plaintiff’s application is an abuse of the process of law and has been filed at a
belated stage to delay the proceedings. That the suit is filed in 2024, that the
written statement of the defendant along with an application u/o. 7 rule 10, CPC
was filed in January, 2025 and in the month of May, 2025, the plaintiff filed the
present application. That there is not even a whisper of these additional
documents either in the plaint or in the Replication to the Written Statement.
That all these documents were well within the power control, possession and
custody of the plaintiff and the plaintiff deliberately chose not to file same with
the plaint or with Replication. That in the entire application it is nowhere
disclosed as to why the said documents could not be filed at the appropriate
stage. That no reasonable cause has been setup for non-disclosure of the
documents along with the plaint. That the documents have no relevance on
bearing on the adjudication of the present suit.
3. Heard.
4. The plaintiff seeks to recover from the defendant an amount of
Rs.27,06,403/- on a set of facts that plaintiff is a Partnership Firm duly
registered, and has been providing parties/clients on commission basis to the
defendant from the year of 2018 till April, 2022 and the defendant had been
making payment regularly by Cheque as well as in account transfer for the
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same. That the parties have been in business for the last many years, that in the
year-2018, the defendant had approached the plaintiff for providing
parties/clients on commission basis. That initially, the dealings were going on
in good faith but later the defendant began lingering on the payments on one
pretext or another.
5. That when the plaintiff requested for balance payment, defendant
expressed financial scarcity due to some personal reasons, but promised to
arrange the commission amount as soon as possible, that an amount of Rs.
27,06,403/- is due against the defendants regarding the commission. That the
defendants are unnecessarily harassing the plaintiff and is illegally withholding
the hard earned money of the plaintiff for their personal wrongful gain and
causing wrongful loss to the plaintiff. That the plaintiff was constrained to issue
legal notice dated 12.03.2024 demanding the outstanding payment.
6. The defendant filed written statement setting forth interalia that the
defendant commissioned an industrial plant in the year 2008 in Unnao District
along the Lucknow, Kanpur Highway for the manufacturing of writing and
printing paper and news print paper. That the plaintiff approached the defendant
in the year 2007 representating that the plaintiff is in contact with various
publishers who would require services of the defendant and offered to bring
clients to the defendant with the proposal that if the arrangement materializes
with the client the plaintiff would be given a percentage of commission on the
total amount invoiced, while assuring that the party introduced shall make
timely payment in terms of the contact executed with the said client.
7. That the plaintiff brought various clients, that purchase order used to be
prepared by the plaintiff mentioning the categorical terms and conditions of
sale of paper by the defendant to the respective clients and invoice used to be
raised by the defendant upon the said client. That upon the delivery of goods
and payments being received by the defendant the plaintiff used to raise its
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invoice towards commission in terms of the purchase order and invoice raised
by the defendant. That the invoices for which the plaintiff is claiming the
commission categorically stipulates that in case of any dispute the same are
subject to jurisdiction of Uttar Pradesh only.
8. That it was agreed between the parties that in case of any delay in
payment by the entity brought by the plaintiff, the interest to be paid for the
delay shall be adjusted in the amount to be paid to the plaintiff towards its
commission which agreement is evident from the email dated 17.02.2021 sent
by the plaintiff to the defendant admitting to adjustment of the interest @ 12 %
per annum for the delay in payment to be made by the respective clients brought
by the plaintiff. That the interest infact was to be calculated @ 18 % per annum
and not @ 12 % per annum. That no amount whatsoever is due and payable by
the defendant to the plaintiff. On the contrary, due to enormous delay, the
defendant suffered loss of over 45 lakhs. That the defendant has already paid a
total amount of Rs. 4191618/- in terms of the Commission invoices and towards
all dues and amounts to be paid by the defendant to the plaintiff. That the
plaintiff has merely relied on self executed ledger which is completely false.
That the plaintiff has frivolously filed the present suit without any purchase
order invoices to justify his claims.
9. The plaintiff along with the plaint has filed, inter alia, the partnership
deed, registration certificate, ledger account, certain emails and reminders
besides legal notice along with receipts. The plaintiff now seeks the leave to
file the commission invoices, updated ledger and TDS Returns alongwith one
Commission Report. The contention of the Ld. Counsel for the plaintiff that
the documents in respect whereof leave is being sought by way of the present
application, in particular the commission invoices, find reference in the
pleadings and were sought to be filed at the first instance with the plaint itself
is borne of the record. In paragraph 3 of the plaint, invoices/bills are
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propounded to be annexed with the plaint along with ledger account as part of
Annexure C (colly), whereas Annexure C filed with the plaint at page 25 is a
single page ledger account. There are no further documents as averred in the
plaint, annexed with Annexure C collectively. From such reference appearing
in the plaint, it is readily discernible that such nature of documents for which
leave is being sought were made available by the plaintiff for filling with the
Counsel at the time of institution of the suit itself.
10. The plaintiff’s cause of action is premised on such commission invoices
Moreover, the defendant has also referred to the terms and conditions of the
invoices in the written statement according to which the parties have agreed to
restrict territorial jurisdiction for institution of suit in respect thereof. Though
the defendant has relied upon the terms and conditions of the invoices, however,
has not filed such invoices bearing such conditions along with the written
statement. In the wake of the objections raised on territorial jurisdiction also
these invoices as are sought to be placed on record by the plaintiff acquire
significance. The defendant however has underscored the non-filing of the
commission invoices and purchase order and claims to have made all payments
in accordance therewith.
11. Under order XI Rule 1 of the Commercial Courts Act, 2025, plaintiff
must file a list of all documents in its power, possession, control , custody
pertaining to the suit alongwith the plaint including the documents referred to
in the plaint and relied upon by the plaintiff as well as documents relating to
any matter in question in the proceedings, even if it be adverse to the plaintiff
case. This rule however is not applicable to documents produced by plaintiff in
answer to any case set up by the defendant subsequent to the filing of the plaint.
Under Rule 5 plaintiff is barred from relying on documents which were in the
plaintiff’s power, possession, control/ custody and not disclosed with the plaint,
save and except with the leave of the Court to be granted only where the
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plaintiff succeeds in establishing reasonable cause for non-disclosure alongwith
plaint.
12. The commission invoices are disclosed as part of Annexure C to the
plaint, the cause set up for non-production thereof is not untenable in the light
of such pleadings that the previous Counsel inadvertently omitted to file the
same, through the plaintiff had made available the same to his Counsel at the
time of institution of the suit itself. This is acceptable “reasonable cause” then
for the commission invoices, commission report is supplemental to the
invoices. The plaintiff already has filed the ledger account for the period
01.04.2018 till 01.04.2022 and now seeks to file updated account ledger
statement though from 01.04.2017 till 31.03.2025 but effectively for the same
period. This is not a new document but an updated version of the document
already on record.
13. So far as the TDS forms are concerned, the plaintiff along with the
plaint at page 26 had filed Form 26AS for the assessment year 2019-20, which
however, is not entered in the list of documents. In addition, the plaintiff seeks
to file the Form 26AS for the assessment year 2018-19. The plaintiff had filed
the Form 26AS for they F.Y 2019-20 with the plaint, which though was not
tabulated in the list of documents, the nature of documents otherwise is such
that the plaintiff could summon the record from Income Tax Authorities. In
such totality of the facts and circumstances, considering that the commission
bills/invoices referred in the plaint as part of the Annexure C (Colly) the
Commission Report being a consolidated summary thereof, Ledger Statement
having already been filed and TDS certificate for AY 2019-20 being filed on
the record taking into account the nature of such document, the commission
invoices commission report and TDS certificate of financial year of 2017-18
and 2018-19 are taken on record subject to cost of Rs. 5000/- to be paid to the
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defendant for the delay occasioned. Application stands allowed in such terms.
For completion of Admission / Denial put up on 05.05.2026.
Nothing stated herein above shall have any bearing on the final
outcome of the case and is not to be construed as an observation on merits.
Announced in the open court on (Neelofer Abida Perveen)
22nd April 2026. DJ (Commercial Court)-01
Central District/THC/Delhi/22.04.2026
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