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M/s. Kapoor Imaging Private Limited, Rep. by its Managing Director v/s M/s. Kodak (India) Private Limited, [Formerly known as M/s.Kodak Graphic Communication (India) Private Limited] Rep. by its Director, Kalpataru Synergy

    O.S.A. Nos. 13 to 15 of 2020 & C.M.P. Nos. 450 to 452 of 2020

    Decided On, 05 February 2020

    At, High Court of Judicature at Madras


    For the Appellant: R. Parthasarathy, Advocate. For the Respondent: S. Arjun Suresh, Advocate.

Judgment Text

(Appeals preferred under Order XXXVI Rule 1 of O.S. Rules r/w Clause 15 of Letters Patent against the order dated 13.12.2019 made in A.Nos.9251 to 9253 of 2019 in C.S.No.1163 of 2008.)

Common Judgment: (M.M. Sundresh, J.)

1. These appeals are preferred by the appellant, aggrieved over the order passed by the learned single Judge, declining to allow the applications filed seeking to file additional documents in the nature of ledgers, balance sheet and auditor's certificates and to examine the auditor or a person authorised by the auditor as P.W2 and fixed the time schedule.

2. The appellant filed a suit in C.S.No.1163 of 2009 seeking damages against the respondent along with interest. The respondent filed a written statement and raised a counter claim.

3. The suit was transferred to the file of this Court in exercise of power under Section 15 of the Commercial Courts Act, 2015 (hereinafter referred to as 'the Act'). After the jurisdiction was determined on 16.08.2018, the issues were framed on 17.09.2019. The appellant filed the application on 20.11.2019 seeking to mark the additional documents as aforesaid along with two other applications. The said application was dismissed by the learned single Judge on the ground that Order 7 Rule 14 (3) C.P.C. does not have an application and in any case, sufficient cause has not been shown. Challenging the common order passed in all the three applications, the present appeals have been filed.

4. Learned counsel appearing for the appellant submits that the appeals before this Court are maintainable in view of the order of the Division Bench of this Court in Rubinetterie Bresciane Bonomi S.P.A. Vs. Lehry Instrumentation & Valves Pvt. Ltd., (2019(4) CTC 188). The appellant has shown the sufficient cause and the suit itself has been transferred only in the year 2018 and thereafter, the applications have been filed. The provisions of Order 7 Rule 14 (3) C.P.C. does have an application as such a right is a substantive right at the time of filing the suit. Therefore, neither Section 15 of the Act nor Order 11 Rule 1(5) and Rule 7 C.P.C. would create any embargo. Therefore, the order passed requires interference.

5. Learned counsel appearing for the respondent submitted that a counter claim has already been filed. Learned single Judge held that sufficient cause has not been shown for non-filing of the documents earlier. In any case, very invocation of Order 7 Rule 14 (3) C.P.C. does not have an application to a suit pertaining to commercial dispute in terms of the provisions of the Act, particularly Order 11 Rule 7 C.P.C. Thus, the appeals will have to be dismissed.

6. Admittedly, the suit was filed claiming damages. A counter claim has also been filed by the respondent. The suit has been transferred only at the fag end of the year 2018. Thus, at the time of filing the suit, Order 7 Rule 14(3) C.P.C. was certainly available. Section 15 of the Act merely speaks about the transfer of pending cases and sub clause (3) of Section 15 of the Act deals with application of procedure that were not complete at the time of transfer. Therefore, we are concerned with two factors viz., application of procedure and that too when not completed, at the time of the transfer. Thus, Section 15 of the Act does not have any application to the case on hand.

7. Order 11 Rule 1(5) and Order 11 Rule 7 C.P.C. also do not prevent the appellant from seeking appropriate relief. If we see Order 11 Rule 1(5) C.P.C., it speaks about the appeal filed at the first instance. Secondly, Order 11 Rule 7 C.P.C. makes the position clear that certain provisions shall not be applicable to the suits or applications before the Commercial Court. Even assuming that this sub rule is applicable, the power under Section 15 of the Act cannot be taken away. This we hold notwithstanding our view that the right available under the Code of Civil Procedure to a plaintiff in a suit which has been transferred subsequently cannot be taken away when a right is substantive in nature. The right for claiming relief is substantive and therefore not procedural.

8. Having held that the applications are maintainable, we find that even on merit, the order requires to be interfered with. Learned single Judge applied the rigours of the Act. The suit itself is one for recovery of money on the claim of damages. Now, there is a counter claim. The transfer itself has been effected during the fag end of the year 2018. The issues have been framed only on 17.09.2019.

9. In such view of the matter, we are of the view that the learned single Judge ought not to have adopted a hyper technical view in rejecting the applications. After all, the role of the Court is to give a fair hearing to both sides before embarking the process of adjudication. The documents sought to be marked are nothing but the ledgers, balance sheets apart from auditor's certificate pertaining to the appellant. Thus, we are inclined to allow these appeals and accordingly, the applications in A.Nos.9251 to 9253 of 2019 stand ordered. However, inasmuch as we are allowing the applications, the respondent is also permitted to mark the documents, if any, within a period of two weeks so as to repudiate the documents marked on the side of the appellant. The respondent is permitted to file appropriate application to raise any

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defence on the documents filed by the appellant. Needful will have to be done by the respondent within a period of two weeks. We make it clear that the order passed would also include the documents sought to be marked by way of memo dated 09.12.2019. We further make it clear allowing these applications would obviously subject to admissibility, relevancy and proof. Consequently, the learned single Judge is requested to reschedule the case management hearing. 10. In such view of the matter, these appeals stand allowed. No costs. Consequently, connected miscellaneous petitions are closed.