Order 6

Order Details: COPY OF ORDER
Pdf Text: CS (COMM.)808/22 SUJATA SINGH AND ANOTHERS Vs. THE
INVESTMENT TRUST OF INDIA LTD.
27.07.2023
Present: Sh. Arvind Kumar, ld. Counsel for plaintiffs with Sh.
Vikas Kumar.
Sh. Ashwani Shahi, ld. Counsel for the defendant.
Arguments heard on application filed on behalf of
plaintiff for taking on record additional documents.
Ld. Counsel for plaintiffs states that plaintiffs are
landlord and joint owner of the suit property by virtue of sale
documents dated 17.05.2018 executed by the previous owners Mrs.
Saraswati Nayyar in favour of the plaintiffs. Recently, it has come to
the knowledge of the plaintiff that inadvertently, at the time of filing
of present suit, documents relating to ownership of plaintiff with
respect to suit property could not have been filed. The plaintiff wishes
to place on record photocopy of registered agreement to sell,
registered GPA, Registered Will, all dated 17.05.2018 along with
receipt and possession letter issued by erstwhile owner Sh. Mrs.
Saraswati Nayyar in favour of plaintiffs. The plaintiffs also wish to
place on record photocopy of letter dated 17.05.2018 issued by
Kailash Nath and Associates as a proof that suit property situated in
Kanchanjunga Commercial Building stands in the name of the
plaintiffs after purchase of the same from its erstwhile owner. He
states that these documents are necessary for adjudication of
controversy in dispute. It is alleged by the plaintiffs that despite due
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diligence, such documents could not be produced on record earlier
because of the reason aforesaid.
Per contra, it is stated by ld. Counsel for defendant that
no reasonable cause has been shown by the plaintiff for not placing on
record additional documents as sought to be introduced by way of the
application under consideration.
I have considered submissions made by ld. Counsel for
parties and gone through the record.
Order XI sub-Rule 3 of Rule 1 CPC as amended by
Commercial Courts Act, 2015 mandate that plaint shall contain a
declaration on oath from the plaintiff that all documents in the power,
possession, control or custody of the plaintiff pertaining to the facts &
circumstances of the proceedings initiated by him has been disclosed
and copies thereof annexed with the plaint, and that the plaintiff does
not have any other document in its power, possession, control or
custody. Sub-Rule 5 of Rule 1 of Order XI of the Act clearly
stipulates that 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 extended period set out
above, save and accept by leave of Court and such leave be granted
only upon the plaintiff establishing 'reasonable cause' for non-
disclosure along with the plaint.
The documents as sought to be placed on record by the
plaintiff are the documents pertaining to year 2018 which beyond a
doubt, existed prior to the institution of the suit and were in power,
possession, control of custody of the plaintiff. Therefore, the rigor of
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Order XI Rule 1 (5) of the Act shall apply and the documents cannot
be taken on record, unless, the plaintiff makes out a reasonable cause
for its non-disclosure at the time of filing of plaint. The ground put-
forth in application, as noted above by the plaintiff for non-disclosure
of the document is that the plaintiff recently came to know that at the
time of present suit, inadvertently, relevant documents relating to
ownership of property in question could not be filed, is not found to
satisfy the test. In this context, it is relevant to refer the judgment of
Hon'ble High Court of Delhi in Great Gatspi Club of India Vs.
Mahesh Prefab Pvt Ltd, 2022 SCC OnLine Del 2099 as under:
The court cannot dilute the rigour of the said provisions on
any sympathetic or other considerations. It is presumed that
these considerations were in the mind of the legislature
when they enacted the Commercial Courts Act. There can
be no charity beyond the law.
In case of Nitin Gupta Vs. Texmaco Infrastructure and
Holding Limited, 2019 SCC OnLine Del 8367, Hon'ble High Court
has observed as under:
38. Unless, the Commercial Divisions, while dealing with
the commercial suits, so start enforcing Rules legislated for
commercial suits, and refuse to entertain applications for
late filing of documents, especially with respect to
documents of suspicious character and continue to show
leniency in the name of 'interest of justice' and 'a litigant
ought not to suffer for default of advocate', the commercial
suits will start suffering from the same malady with which
the ordinary suits have come to suffer and owing whereto
the need for the Commercial Courts, 2015 was felt.
Commercial Division is thus not required to entertain or
allow applications for late filing of documents, without any
good cause being established for non-disclosure thereof
along with pleadings. The plaintiff herein has utterly failed
in this regard. The application nowhere explains as to why
the plaintiff, if had the said letter from the defendant, did
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not remember the same and make disclosure of the same at
the time of filing the police complaint and/or at the time of
filing of this suit, even if the letter had been misplaced or
was not immediately available. The form prescribed for
filing affidavit of documents requires a litigant in a
commercial suit to, even if not immediately possessed of a
relevant document, disclose the same. A litigant who fails to
do so and also does not satisfy the Court while seeking the
belatedly file the document, why no disclosure of such
document was made, cannot be permitted to so file
documents.
In the instant case, admittedly, the said documents were in
power & possession of the plaintiff, when the suit was filed. There is
no reason shown for non disclosure of the documents and non-filing
of document or at least copies thereof along with the plaint. That
being the position, I do not find any reason to allow the application,
the same is dismissed with no orders as to cost.
The application is accordingly disposed off.
Be listed for marking of exhibit of documents, Case
Management Hearing/ settlement of issues on 11.09.2023.
Parties are directed to be present on NDOH.
VINEETA GOYAL
District Judge (Commercial Court-03)
PHC / New Delhi / 27.07.2023
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