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Max Hypermarket India Private Limited v/s Curo India Private Limited

    Civil Suit (Comm) No. 95 of 2016

    Decided On, 22 November 2018

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE RAJIV SAHAI ENDLAW

    For the Appearing Parties: Saransh Jain, Madhavan Sharma, U.K. Shandilya, Pawan Verma, Advocates.



Judgment Text

OA No.70/2018 (of defendant)

The defendant has preferred this Chamber Appeal against the order dated 8th May, 2018 of the Joint Registrar allowing IA No.3307/2018 of the plaintiff under Order XI Rule 1(1) and (5) read with Section 151 of the Code of Civil Procedure, 1908 (CPC) for filing additional documents and permitting the additional documents of the plaintiff to be taken on record.

2. This Chamber Appeal first came up before this Court on 13th July, 2018, when it was the contention of the counsel for the defendant/appellant that the Joint Registrar did not have the power to permit additional documents to be taken on record. However, the hearing on that date was adjourned to today.

3. Today, the counsel for the plaintiff on enquiry as to the provision in exercise of power whereunder the Joint Registrar has permitted the plaintiff to file additional documents, after the stage prescribed for filing thereof, has drawn attention to Rule 3 of Chapter II of the Delhi High Court (Original Side) Rules, 2018 which inter alia provides as under:-

"3. Power of the Registrar The powers of the Court, including the power to impose costs in relation to the following matters, may be exercised by the Registrar:

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(24) Application for orders for discovery and for orders concerning the admission, production and inspection of documents;"

4. The counsel for the plaintiff has argued, (a) that the Joint Registrar, under the aforesaid clause is empowered to permit late production of documents; (b) that though the Rules aforesaid are of the year 2018 but even in the Rules as existing prior to coming into force of Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 and the 2018 Rules i.e. the Delhi High Court (Original Side) Rules, 1967, the same power was to be found in clause (16) of the corresponding Rule 3 of Chapter II, which was identically worded as the present clause (24) afore quoted; (c) that earlier, the defendant/appellant had made a similar application and which was also dealt with by the Joint Registrar; and, (d) that all the Joint Registrar are entertaining and dealing with similar applications.

5. Merely because the Joint Registrar concerned, on an earlier occasion, wrongly invoking his jurisdiction had allowed a similar application of the defendant/appellant or the other Joint Registrars are also exercising the said jurisdiction, would not vest the jurisdiction in the Joint Registrar, if none exists under the Rule aforesaid. The argument to the said effect is thus of no avail.

6. A reading of the clause (24) afore quoted of Rule 3 of 2018 Rules and which is identical to Clause (16) of Rule 3 of the 1967 Rules shows, that the power which has been vested in the Joint Registrar is in relation to the "Application for orders for discovery and for orders concerning admission, production and inspection of documents". Such an application is different from an application of a party to the suit for delayed filing of own documents, beyond the time prescribed therefor.

7. Prior to the amendment of certain provisions of the CPC as applicable to commercial suits, by the Commercial Courts Act, CPC, in Order VII, Rule 14 thereof, provided as under:

"14. Production of document on which plaintiff sues or relies.-

(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory."

Similarly, Order VIII Rule 1A of the CPC provided as under:

"1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.-

(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.

(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to documents-

(a) produced for the cross-examination of the plaintiff's witnesses, or

(b) handed over to a witness merely to refresh his memory."

and Order XI titled "Discovery and Inspection" of the CPC, in Rules 12 to 18 and 21 thereof provided as under:

"12. Application for discovery of documents.-Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit: Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly or the suit or for saving costs.

13. Affidavit of documents.-The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in Form No.5 in Appendix C, with such variations as circumstances may require.

14. Production of documents.-It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.

15. Inspection of documents referred to in pleadings or affidavits.-Every party to a suit shall be entitled [at or before the settlement of issues] to give notice to any other party, in whose pleadings or affidavits reference is made to any document [or who has entered any document in any list annexed to his pleading,] or produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; an any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit.

16. Notice to produce.-Notice to any party to produce any documents referred to in his pleading or affidavits shall be in Form No.7 in Appendix C, with such variations as circumstances may require.

17. Time for inspection when notice given.-The party to whom such notice is given shall, within ten days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his pleader, or in the case of bankers' books or other books of account or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in Form No.8 in Appendix C, with such variations as circumstances may require.

18. Order for inspection.-

(1) Where the party served with notice under rule 15 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his pleader, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit:

Provided that the order shall not be made when and so far as the Court shall be of opinion that, it is not necessary either for disposing fairly or the suit or for saving costs.

(2) Any application to inspect documents, except such as are referred to in the pleadings, particulars or affidavits of the party against whom the application is made or disclosed in his affidavit of documents, shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The Court shall not make such order for inspection of such documents when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

......

21. Non-compliance with order for discovery.-

(1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and [an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard].

(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action."

8. As would immediately become evident on perusal of the aforesaid provisions, while the documents in own possession of plaintiff or defendant, which the plaintiff or the defendant in a suit was required to produce in support of its claim or defence, Order VII Rule 14(1)&(3) and Order VIII Rule 1A(1)&(3), required to be filed along with the plaint or written statement and not permitted to be filed thereafter "without the leave of the Court"; the documents, which the plaintiff or the defendant in a suit was required to produce in support of its claim or defence but which were not in power or possession of plaintiff or defendant but in power or possession of opposite party, Order XI Rules 12, 14 and 18 required such plaintiff or defendant to seek discovery, production and / or inspection from the opposite party. Application under Order XI Rules 12 to 18 and 21, could not be filed for seeking discovery on oath, production and inspection of own documents but of documents which were or had been in possession or power of "any other party" to the suit. Direction thereunder could not be sought against own self but against the other party.

9. The powers of the Registrar, as defined in Rule 3 supra, whether of the year 1967 (as amended from time to time) or of the year 2018 have to be understood and interpreted in the context of the provisions of the CPC. None of the clauses of Rule 3, whether of 1967 Rules or of the 2018 Rules empowered the Registrar to grant leave for filing of the documents in possession of the plaintiff or the defendant, by the plaintiff or the defendant, beyond the stage prescribed in Order VII Rule 14(1) or in Order VIII Rule 1A(1) of the CPC. Clause (16) of the 1967 Rules which permitted the Registrar to exercise the powers of the Court in relation to applications for orders for discovery and for orders concerning the admission, production and inspection of documents thus applied not to granting leave to the plaintiff or the defendant to produce documents in own possession, beyond the time prescribed therefor but to Order XI Rules 12 to 18 & 21 aforesaid. Clause (16) of 1967 Rules and Clause (24) of 2018 Rules use the word "production" in conjunction with "orders for discovery" and it is clear as daylight that "production" therein of documents is pursuant to order of discovery of documents and which, as aforesaid, cannot be sought against own self but only against the other party.

10. The Commercial Courts Act though amended certain provisions of CPC vis--vis commercial suits, has not altered the provisions of Order VII and Order VIII reproduced above. Order XI of the CPC introduced vide the Commercial Courts Act and as applicable to commercial suits, is titled "Disclosure, Discovery and Inspection of Documents in Suits before the Commercial Division of a High Court or a Commercial Court" and Rule 1 thereof provides as under:

"1. Disclosure and discovery of documents.-

(1) Plaintiff shall file a list of all documents and photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the plaint, including:-

(a)documents referred to and relied on by the plaintiff in the plaint;

(b)documents relating to any matter in question in the proceedings, in the power, possession, control or custody of the plaintiff, as on the date of filing the plaint, irrespective of whether the same is in support of or adverse to the plaintiff's case;

(c) nothing in this rule shall apply to documents produced by plaintiffs and relevant only-

(i) for the cross-examination of the defendant's witnesses, or

(ii) in answer to any case set-up by the defendant subsequent to the filing of the plaint, or

(iii) handed over to a witness merely to refresh his memory.

(2) The list of documents filed with the plaint shall specify whether the documents in the power, possession, control or custody of the plaintiff are originals, office copies or photocopies and the list shall also set out in brief, details of parties to each document, mode of execution, issuance or receipt and line of custody of each document.

(3) The 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 and circumstances of the proceedings initiated by him have been disclosed and copies thereof annexed with the plaint, and that the plaintiff does not have any other documents in its power, possession, control or custody.

Explanation.-A declaration on oath under this sub-rule shall be contained in the Statement of Truth as set out in the Appendix.

(4) In case of urgent filings, the plaintiff may seek leave to rely on additional documents, as part of the above declaration on oath 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.

(5) 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.

(6) The plaint shall set out details of documents, which the plaintiff believes to be in the power, possession, control or custody of the defendant and which the plaintiff wishes to rely upon and seek leave for production thereof by the said defendant.

(7) Defendant shall file a list of all documents and photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the written statement or with its courter-claim if any, including-

(a) the documents referred to and relied on by the defendant in the written statement;

(b) the documents relating to any matter in question in the proceeding in the power, possession, control or custody of the defendant, irrespective of whether the same is in support of or adverse to the defendant's defence;

(c) nothing in this Rule shall apply to documents produced by defendants and relevant only-

(i) for the cross-examination of the plaintiffs witnesses,

(ii) in answer to any case set-up by the plaintiff subsequent to the filing of the plaint, or

(iii) handed over to a witness merely to refresh his memory.

(8) The list of documents filed with the written statement or counter-claim shall specify whether the documents, in the power, possession, control or custody of the defendant, are originals, office copies or photocopies and the list shall also set out in brief, details of parties to each document being produced by the defendant, mode of execution, issuance or receipt and line of custody of each document;

(9) The written statement or counter-claim shall contain a declaration on oath made by the deponent that all documents in the power, possession, control or custody of the defendant, save and except for those set out in sub-rule (7)(c)(iii) pertaining to the facts and circumstances of the proceedings initiated by the plaintiff or in the counter-claim, have been disclosed and copies thereof annexed with the written statement or counter-claim and that the defendant does not have in its power, possession, control or custody, and other documents;

(10) Save and except for sub-rule 7(c)(iii), defendant shall not be allowed to reply on documents, which were in the defendant's power, possession, control or custody and not disclosed along with the written statement or counter-claim, save and except by leave of Court and such leave shall be granted only upon the defendant establishing reasonable cause for non-disclosure along with the written statement or counter-claim;

(11) The written statement or counter-claim shall set out details of documents in the power, possession, control or custody of the plaintiff, which the defendant wishes to rely upon and which have not been disclosed with the plaint, and call upon the plaintiff to produce the same;

(12) Duty to disclose documents, which have come to the notice of a party, shall continue till disposal of the suit."

11. Thereafter, Rule 2 thereof is titled "Discovery by Interrogatories" and Rule 3 thereof is as under:

"3. Inspection.-

(1) All parties shall complete inspection of all documents disclosed within thirty days of the date of filing of the written statement or written statement to the counter-claim, whichever is later. The Court may extend this time limit upon application at its discretion, but not beyond thirty days in any event.

(2) Any party to the proceedings may seek directions from the Court, at any stage of the proceedings, for inspection or production of documents by the other party, of which inspection has been refused by such party or documents have not been produced despite issuance of a notice to produce.

(3) Order in such application shall be disposed of within thirty days of filing such application, including filing replies and rejoinders (if permitted by Court) and hearing.

(4) If the above application is allowed, inspection and copies thereof shall be furnished to the party seeking it, within five days of such order.

(5) No party shall be permitted to rely on a document, which it had failed to disclose or of which inspection has not been given, save and except with leave of Court.

(6) The Court may impose exemplary costs against a defaulting party, who willfully or negligently failed to disclose all documents pertaining to a suit or essential for a decision therein and which are in their power, possession, control or custody or where a Court holds that inspection or copies of any documents had been wrongfully or unreasonably withheld or refused."

12. It would thus be seen, that as far as the commercial suits are concerned, to the stage for filing by a party to such suit of documents in its power and possession, Order VII Rule 14(1) and Order VIII Rule 1A(1), as well as Order XI Rule (1) and Order XI Rule (7) apply and similarly, to the filing beyond that stage of such documents, Order VII Rule 14(3) and Order VIII Rule 1A(3) as well as Order XI Rule (5) and Order X Rule (10) apply. In the event of any inconsistency, the Rules of Order XI obviously have to prevail, the same having been introduced specially for commercial suits. However, there is no inconsistency. Both provide for such documents to be filed with plaint/written statement and to be not permitted to be filed thereafter without "leave of the Court". The relevant Rules of Order XI impose additional conditions, viz of leave being not granted without establishing reasonable cause for non-filing/non-disclosure along with plaint/written statement.

13. However, Order XI of the CPC as existed, has been substituted by new Order XI, as far as commercial suits are concerned. Rule 3(2) thereof also provides for seeking direction "against other party" for inspection or production of documents and Rule 3(3) to (6) thereof provide

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for orders for inspection/production and consequences of non-compliance therewith. The same also nowhere provides for seeking direction against own self. Thus, what has been held hereinabove qua Order XI Rules 12 to 18 & 21 as applicable to non-commercial suits, equally applies to clause (24) of Rule 3 of 2018 Rules. Just like clause (16) of the 1967 Rules applied to applications under Order XI Rules 14 to 18 and 21 of the CPC, similarly clause (24) of the 2018 Rules is applicable to applications under Order XI Rule 3 of the CPC as applicable to commercial suits. 14. The Registrars/Joint Registrars under Rule 3, whether of the 1967 Rules or of the 2018 Rules are empowered, not to grant leave to a party for production by the said party of its own documents beyond the stage prescribed for production thereof but to exercise power to consider application for order for discovery and production of documents from the other party. Had the intent been to empower the Registrars/Joint Registrars to grant leave to the parties to the suit for production of their own documents beyond the stage prescribed therefor, the same expression would have been used i.e. "application for grant of leave for production of documents". On the contrary, the expression as in Order XI Rules 14 to 18 and 21 of the CPC as applicable to ordinary suits (non-commercial suits) and in Order XI Rule 3 as applicable to commercial suits, for directing discovery by the opposite party of documents and production of such documents has been used. Merely because the word "other party" as found in Order XI Rule 14 as applicable to non-commercial suits and in Order XI Rule 3 as applicable to commercial suits is missing, will not empower the Registrars/Joint Registrars to exercise power of granting leave which has been vested in the Court under a different provision of law. 15. I have therefore no iota of doubt that the Registrar/Joint Registrar is not empowered to grant leave to a party to produce its own document beyond the stage prescribed therefor and the Joint Registrar has in the impugned order exercised jurisdiction not vested in him in law. 16. The Joint Registrar having exercised the power not vested in him, the impugned order allowing IA No. 3307/2018 is non est and the Chamber Appeal is allowed and is disposed of. 17. The counsel for the defendant having argued that other Joint Registrars also are exercising similar power, the Registry is directed to circulate this judgment amongst all the Joint Registrars.
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