Interim Order 16

Order Details: COPY OF ORDER
Pdf Text: CS (COMM.)1585/23
NARINDER SINGH Vs. R.R. AGENCIES & ANR.
16.01.2025
Present: Sh. Vipin Wason, Ld. Counsel for plaintiff.
Sh. K.K. Sharma, Ld. Counsel for defendants.
Reply stands already filed on behalf of defendants to
the pending application under Order 11 Rule 1(a) CPC of
plaintiff through e-mode and a hard copy thereof has been placed
on record today. Copy of reply also stands supplied to Ld.
Counsel for plaintiff.
Arguments advanced on above application from both
the sides have been heard and case record perused.
It is found on perusal on record that in fact two
separate applications of plaintiff filed under the above provisions
of Section 151 CPC read with order 11 Rule 1 (a) CPC are
pending on record. The above reply filed on behalf of defendants
pertains to the first application, but submissions have been
advanced by Ld. counsels for parties on both the applications.
Fact of the case, briefly stated and as far as the same
are necessary for disposal of the present applications, are that this
is a suit for recovery of Rs. 44,47,075/- filed by the plaintiff and
it is based on 48 sale invoices of different dates and different
amounts, as found stated in para 6 of the plaint. Though, some
part payments are also stated to have been made against these
sale invoices of plaintiff drawn for supply of goods i.e.
apparels/garments to the defendants, but as per submissions made
in plaint a sum of Rs. 34,74,278/- is still due and outstanding
CS (COMM.)1585/23 1/9
-- 1 of 9 --
aginst the defendants and present suit is for recovery of the said
amount, alongwith another amount of Rs. 9,72,797/- towards
interest on the above principal amount calculated @ 24% Per
Annum and for the period w.e.f. 05.05.2022 to 05.08.2023.
Though summons of the suit were duly served upon
defendants for date 06.01.2024 and even appearance on their
behalf was filed before this court through a Counsel on that date
and also on the next date i.e. 13.02.2024, but on the next
adjourned date i.e. 14.03.2024 given by the Court, neither
anybody was present on behalf of defendants despite waiting till
02:00 PM nor any WS came to be filed on their behalf and hence,
the right of defendants to file WS was closed and they were also
proceeded as ex-parte in the case.
However, on 22.03.2024, when the matter came to
be fixed for recording ex-parte evidence of plaintiff, the Ld.
Counsel for defendant had again joined the proceedings through
V.C and he was given time to file appropriate application for
setting aside the above exparte order. He was also apprised that
even the right of defendants to file WS stood already closed.
On the next adjourned date i.e. 16.04.2024, though
some Proxy Counsel for defendant was present before the court,
but no application for setting aside the above exparte order or for
taking the WS of defendant on record was filed on behalf of
defendants and an application under Order 9 Rule 7 r/w 151 CPC
for setting aside the said exparte order dated 14.03.2024 is found
to have been filed by defendants through e-mode only on
09.05.2024 and hard copy thereof was also placed on record of
the court on 10.05.2024. The said application also contained a
CS (COMM.)1585/23 2/9
-- 2 of 9 --
prayer for permitting the defendants to put their defence on
merits. However, it is found observed by this court in same order
that the maximum period of 120 days prescribed for filing of the
WS by defendants stood already expired.
The above application of defendants was decided by
this court vide order dated 28.05.2024 and in view of the fact that
the maximum time for filing of WS stood already expired, it was
observed by this court in said order that though they could not be
permitted to defend the case on merits or to file their WS on
record, as the things could not be reverted back, in view of the
judgment dated 12.02.2019 passed by Hon’ble Supreme Court of
India in
Civil Appeal No. 1638/2019 in case titled as M/s SCG
Contracts India Pvt. Ltd. Vs. K.S. Chamankar Infrastructure Pvt.
Ltd. & Ors, but still they were permitted to join and participate
in further proceedings of the case as per settled law. Hence, as
per record, the defendants cannot contest this case on merits as
their right to file WS stands already forfeited by law due to their
failure to file it within the maximum period of 120 days, as
permitted by law.
Through the above application under Section 151
r/w order 11 Rule 1(a) CPC dated 12.11.2024, the plaintiff wants
to place on record some missing leafs/pages of some of the above
invoices and the other application dated 15.11.2024 filed by him
is for taking on record his additional declaration on oath/affidavit
as per provisions of Order 11 Rule 6 (3) CPC and also a
certificate u/S 63 of the BSA in respect to the authenticity of
computerized print outs of the documents filed by him in support
of his claim.
CS (COMM.)1585/23 3/9
-- 3 of 9 --
It is necessary to mention here that the AR of
plaintiff/PW1 was earlier examined in chief before this court in
part on 26.09.2024 and his further examination in chief was got
deferred by Ld. Counsel for plaintiff on the ground that no
certificate u/s 63 of the Bhartiya Sakshay Adhiniyam (BSA) or
Section 65B of the Indian Evidence Act in respect to authenticity
of the computerized print outs/documents marked as Mark-A &
B during examination of the witness was found to have been filed
on record by the plaintiff. It is also necessary to mention here that
later on, the above first application dated 12.11.2024 was filed by
plaintiff to place on record the missing leafs/pages of some
invoices and along with this application, the above declaration/
affidavit and certificate regarding authenticity of electronic
record was also filed. It is observed that this court has then
directed the plaintiff to file a formal application for taking on
record the above declaration/affidavit and certificate as additional
documents and the 2nd application of plaintiff under the above
provisions dated 15.11.2024 came to be filed thereafter in terms
of the said directions of the court.
Ld. Counsel for defendants has vehemently opposed
the above applications of plaintiff mainly on ground that the
above provision of law has been wrongly invoked by plaintiff for
filing of these applications because as per the said provision, the
plaintiff was duty bound to file with the plaint itself all the
relevant documents pertaining to case, which were in his power,
possession, control or custody etc. It is also his submission that
these applications do not make outs the grounds for taking the
said document on record, and while referring to some previous
CS (COMM.)1585/23 4/9
-- 4 of 9 --
order sheets of this court, he has also argued that the above
applications of plaintiff are only an attempt on his part to delay
the proceedings and the very purpose of establishment of the
Commercial Courts and legislating a special Act in the form of
Commercial Courts Act, 2015 to ensure speedy trial and disposal
of commercial disputes stands defeated.
As already discussed, the first application of plaintiff
filed on 12.11.2024 is in fact not for filing of any additional
document by plaintiff, but it only contains a request for taking on
record some missing leafs/pages of some of the invoices in
dispute and it is the submission of Ld. Counsel for plaintiff that it
was only due to some oversight, mistake or inadvertence that the
complete copies of these invoices could not be earlier placed on
record or filed with the plaint. Though, it is true that the
provisions of Order 11 Rule 1 (a) require a plaintiff to file on
record all the documents in his possession, control etc., but the
provisions contained in Order 11 Rule 1 (5) also permit the court
to take on record any other or further document produced by the
plaintiff, if the plaintiff is able to establish a reasonable cause for
non filing thereof along with the plaint. Further, it is well settled
that if any additional document sought to be filed by a party is
necessary to be taken on record in interests of justice and also for
adjudication of disputes between parties on merits, the same can
be permitted to be filed or taken on record while ignoring the
procedural technicalities or irregularities and it can be done even
in respect to proceedings be conduced in Commercial Courts
established under the Commercial Courts Act, 2015. Reference in
this regard can be made to judgment of the Hon’ble High Court
CS (COMM.)1585/23 5/9
-- 5 of 9 --
in case titled as
Bhag Singh Gambhir & Ors. vs V.S. Rama Arora,
CS (OS) 132/2027 decided on 08.07.2022 and
Md. Islamuddin vs
S.S. Kapoor CM (M) No. 1137/2022 decided on 01.11.2022.
Now coming to the request of plaintiff contained in
the first application, this court is of considered opinion that the
filing of missing pages of a document by plaintiff does not even
amount to filing of any additional document by him as through
the contents of plaint, he has made it clear that his claim raised in
the present suit is based on the above 48 invoices and simply
because the 2nd page or some portions of few invoices were
inadvertently not got photocopied and filed on record by plaintiff
or his Counsel, the plaintiff cannot be debarred or prohibited
from these missing portions of invoices on record for a just
adjudication of his disputes raised in present suit. Hence, for all
practical purposes, the complete copies of these invoices,
including and containing the missing portions thereof have to be
treated as the documents originally filed by the plaintiff with
plaint and the same should be taken on record as interests of
justice require that a fair opportunity is to be granted to plaintiff
to prove its case on merits. Moreover, even if these missing
leafs/pages are taken as additional documents, then also the court
is well empowered to take the same on record for a fair
adjudication of the case and in view of the submissions made in
support of said request.
Hence the above application dated 12.11.2024 of
plaintiff is allowed and the missing leafs/pages of invoices
enclosed therewith are taken on record.
Now coming to the other application of the plaintiff
CS (COMM.)1585/23 6/9
-- 6 of 9 --
dated 15.11.2024, as also discussed above, this application came
to be filed in view of the observations made and directions given
by this court in its order dated 13.11.2024 and it is the
submission of Ld. Counsel for plaintiff that it was only due to
some mistake or inadvertence in his part that the above
declaration/affidavit and certificate regarding authenticity of
electronic records/documents of plaintiff could not be filed.
As stated above, in considered opinion of this court,
this amounts to a reasonable cause in terms of provisions
contained in Order 11 Rule 1 (5) CPC for permitting the plaintiff
to place on record the said documents as additional documents
and as also discussed above, it is in the interests of justice that his
claim be adjudicated on merits and he be given a fair opportunity
to present his case.
Moreover, as held by the Hon’ble Supreme Court in
case
State of Karnatka Vs. T. Naseer @ Nasir @ Thandiantavida
Naseer, Crl. Appeal of 2023 in SLP (Crl.) No. 6548 of 2022,
decided on 06.11.2023, a certificate u/s 65 regarding authenticity
of electronic record can be given later on by a party and a
certificate u/s 63 of the BSA and a declaration/affidavit under
provisions of Order 11 Rule 6 (3) are on the same footing. In fact,
after filing of the above declaration/affidavit, no certificate under
IEA/BSA is actually required.
As far as non invocation of a correct provision of
law, it is not a ground to deny the relief claimed by a party, in
view of the decision of the Hon’ble Supreme Court in case
J.
Kumaradasan Nair and Anr. Vs IRIC Sohan and Ors, (2009) 12
SCC 175.
CS (COMM.)1585/23 7/9
-- 7 of 9 --
Hence even this application dated 15.11.2024 of
plaintiff is allowed and the above declaration/affidavit/certificate
are taken on record.
Though Ld. Counsel for defendants has also referred
to a judgment dated 12.09.2024 of the Hon’ble Supreme Court in
case bearing
Civil Appeal No. 2394/2023 titled as Ranjit Singh &
Anr. Vs. State of Uttrakhand & Ors. in support of his submission
that in view of the above changed scenario, where the plaintiff is
seeking inclusion of some documents or filing of additional
documents, the defendants also deserve to be given an
opportunity to contest the case of merits, but in considered
opinion of this court the above judgment is of no help to the case
of defendants in the given facts and circumstances, though the
propositions of law laid down by the Hon’ble Supreme Court in
said case are not in dispute. It is observed that in consonance
with the said propositions, this court had already given an
opportunity to the defendants to participate in further
proceedings of this case while deciding their application for
setting aside the ex-parte order, though their right to file written
statement stood forfeited by operation of law. Hence, as per the
said propositions and order, though the defendants cannot defend
the present suit filed by plaintiff on merits, but they can certainly
cross examine the witnesses produced by plaintiff to prove the
falsity of his case and can also raise and argue on the legal issues
effecting the said claim. However, since no fresh case is being set
up by plaintiff through filing of the above documents and even
the nature of case is not being changed, the defendants cannot
claim that any right has accrued in their favour to enable them to
CS (COMM.)1585/23 8/9
-- 8 of 9 --
file written statement or to contest the case on merits merely by
taking on record the documents referred to in above applications.
In view of above discussion and observations, both
the applications of plaintiff stand allowed and disposed off
accordingly.
List the matter now on 13.02.2024 for remaining
evidence of plaintiff/further proceedings.
(M. K. Nagpal)
District Judge, Commercial Court-13
Central District, Tis Hazari Courts,
Delhi/16.01.2025(s)
CS (COMM.)1585/23 9/9
-- 9 of 9 --