Jayant Nath, J. (Oral):—
IA No. 5294/2019 in CS(COMM) 900/2018
1. This application is filed by the plaintiff under Order 11 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 seeking permission to take on record additional documents. It is pleaded that the present suit has been filed by the plaintiff for recovery of Rs. 2,53,52,832/- under various heads including towards claims/dues of commission etc. Documents were filed by the plaintiff alongwith the plaint on 16.05.2018. Defendants have now filed their written statement. It is stated that on perusal of the written statement it was observed by the plaintiff that the claim/averment made by the defendant in the written statement were clearly beyond the issues raised in the plaint. It is stated that the plaint has raised various preliminary objections and has raised various claims which are in the nature of counter-claims. Hence, it is stated that it is necessary for the plaintiff to file replication and also to respond to the allegations made in the written statement. It is stated that alongwith the replication the plaintiff has filed the additional documents.
2. Learned counsel appearing for the defendant has strongly opposed the present application. He has stated that alongwith the plaint the plaintiff has filed appropriate declaration that all documents in the power, possession, control and custody of the plaintiff pertaining to the facts and circumstances of the proceedings have been disclosed and copies thereof annexed to the plaint and that the plaintiff does not have any other documents in his power, possession, control or custody. Reliance is also placed on Order 11 Rule 1(3) CPC. He, however, clarifies that he does not deny that the documents filed by the plaintiff may be relevant. He, however, further states that he is not in a position to comment on the relevancy of the documents, at this stage. He further relies upon a judgment of a co-ordinate bench of this court in the case of Shri Ramanand v. DDA, 2016 SCC OnLine Del 4925 and CS(Comm.) 1215/2016 & CC(Comm.) 36/2017 titled Nitin Gupta v. Texmaco Infrastructure & Holding Limited dated 29.04.2019 to support his case.
3. Learned counsel for the plaintiff/applicant has reiterated that the need and occasion to file the documents arose only after the written statement was filed by the defendants. He states that there is no delay as the replication has been filed and the documents were also filed alongwith an application. Issues have not been framed. He also relies upon the suit filed by the defendant being CS(OS) 264/2018 which is also listed in the Court today. He states that in the said case also the defendant herein who is the plaintiff in that suit had filed additional documents alongwith the replication which this court had taken on record vide order dated 30.4.2019.
4. The present suit CS(Comm.) 900/2018 is filed by the plaintiff for recovery of the said sum of Rs. 2,53,52,832/-. It is the case of the plaintiff that in 1996 the plaintiff was appointed as a Distributor for sale of all the products of the defendant to be sold to various departments. It is also pleaded that in the Commission Statement issued for the month of August, 2013 the defendant company has reduced the commission without any prior discussion or reasoning. Hence, the present suit has been filed for the said amount payable for commission.
5. CS(OS) 264/2018 is filed by the defendant herein for recovery of Rs. 2,37,12,354/-. This recovery suit has been filed by the defendant herein based on invoices raised and goods supplied which are said to have not been paid for by the plaintiff.
6. Order 11 Rule 1(5) CPC applicable to the Commercial Suit reads as follows:—
“Order XI Disclosure, discovery and inspection of documents in suits before the Commercial Division of a High Court or a Commercial Court
1. Disclosure and discovery of documents…
(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 alongwith the plaint
7. Leave to file additional documents can be granted to the plaintiff on establishing reasonable cause for non-disclosure alongwith the plaint. The plea is that in the 130 page written statement filed by the defendant large number of claims are raised against the plaintiff. It is further pleaded by the applicant/plaintiff that the defendant has in the written statement raised various claims which are actually in the nature of counter-claims. Hence, it is pleaded, the need arose to file additional documents along with the replication. In my opinion, the explanation given is a plausible explanation.
8. I also cannot help noticing that this court has on 15.5.2019 in CS(Comm.)900/2018 directed that in the two suits in question, namely, the present suit and CS(OS) 264/2018 parties will lead common evidence and the same will be tried together. This was so as the adjudication of the two suits would raise common questions of fact and law. The order was passed with the consent of the parties. It may be noted that in that suit the defendant herein (who is the plaintiff in that suit) had along with its replication filed additional documents. This court had allowed the said application filed under Order 7 Rule 14 CPC being IA No. 17512/2018 on 30.04.2019 as no objection had been raised to the said application by the plaintiff herein (the defendant in that suit). The defendant himself having in the connected suit availed an opportunity of filing documents along with the replication cannot turn around and oppose this application which contains the same request.
9. I may also note that the present application has been filed when the suit is at an initial stage. Issues are yet to be framed.
10. Another important factor is that it is not the case of the defendant that the documents which are sought to be filed are irrelevant or not bona fide.
11. Regarding the plea of the defendant that along with the plaint the plaintiff had filed appropriate declaration that all the documents in the power, possession, control or custody of the plaintiff have been disclosed etc. is concerned, the said plea is misplaced.
12. In this context, reference may be had to Order XI Rule 1(3) as applicable to Commercial Division of a High Court. The provision reads as under:—
“1. Disclosure and discovery of documents:
(1) & (2) ….
(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 initated 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.”
13. A perusal of the aforesaid declaration would show that the plaintiff is obliged to make a declaration that he has filed all the documents in his power, possession, control or custody pertaining to the facts and circumstances of the proceedings initiated by him. It does not mean that the plaintiff was obliged to file all the documents even remotely connected with the proceeding. Such an interpretation would only burden the court file with documents which have no relevance to the adjudication of the disputes. The aforesaid provisions of the CPC do not assist the case of the defendant.
14. Clearly, sufficient and plausible explanation has been given for filing of the present application and the delay in filing the documents.
15. I may deal with the contention of the defendant who has relied upon a judgment of a Coordinate Bench of this court in Nitin Gupta v. Texmaco Infrastructure & Holding Limited (supra). That was a case in which the application of the plaintiff for filing additional documents was filed post framing of issues. The court also recorded a finding that there is suspicion about the authenticity of the documents to be filed which are also inconsistent with the pleadings of the plaintiff. It was in those facts and circumstances that this court held as follows:—
“37. 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 Act, 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 obtained the said letter from the defendant, did 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 to belatedly file the document, why no disclosure of such document was made, cannot be permitted to so file documents.”
16. It was in those facts that the court had dismissed the application. Clearly, the above judgment is of no help to the case of the defendant. The facts of the present judgment are entirely different inasmuch as there is no suspicion raised regarding the authenticity of the documents in question.
17. As I have already noted that there is a reasonable explanation given by the plaintiff for delay in filing of the application. The same is allowed subject to costs of Rs. 10,000/-.
18. Application stands disposed of.
CS(OS) 264/2018
CS(COMM.)900/2018
19. As already directed on 15.5.2019 Registry may renumber CS(OS) 264/2018 as a commercial suit.
20. List on the date already fixed.