Full Judgment Text
O R D E R IA No. III filed by the Plaintiff Under Order XI Rule 1 (5) of CPC is allowed with cost of Rs. 2,500/-. (Emphasis added) The concerned Court records, by a reasoned order, the tenor of Order XI Rule 1 Clause (c)(ii) and holds that the statute itself permits documents to be produced. The concerned Court further holds that it is not the stage to consider what kind of document that is produced, but it is only the production of document that is to be looked into. In the light of the statute permitting such production, 10 whether the order of the concerned Court would require interference is what is necessary to be noticed. 8. The learned counsel for the petitioner has placed heavy reliance upon two judgments, one of which is that of the Apex Court and the other is of Bombay High Court. The Apex Court interpreting Order XI Rule 1 CPC, in a judgment rendered in SUDHIR KUMAR v. VINAY KUMAR G.B . , has held as follows: .... .... .... 9.3. It is true that Order 11 Rule 1CPC as applicable to the commercial suits brought about a radical change and it mandates the plaintiff to file a list of all documents, photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the plaint and a procedure provided under Order 11 Rule 1 is required to be followed by the plaintiff and the defendant, when the suit is the commercial suit. Order 11 Rule 1, as applicable to commercial suits reads as under: ORDER 11 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 . - (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; (2021) 13 SCC 71 11 ( 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 12 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) The 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 counterclaim 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 the defendants and relevant only ( i ) for the cross-examination of the plaintiff's 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 counterclaim shall specify whether the 13 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 counterclaim 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 counterclaim, have been disclosed and copies thereof annexed with the written statement or counterclaim and that the defendant does not have in its power, possession, control or custody, any other documents. (10) Save and except for sub-rule (7)( c )( iii ), defendant shall not be allowed to rely on documents, which were in the defendant's power, possession, control or custody and not disclosed along with the written statement or counterclaim, 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 counterclaim. (11) The written statement or counterclaim 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. Order 11 Rule 1(3) provides that 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 proceeding initiated by him have been disclosed and copies thereof annexed with the plaint, and that the plaintiff does not have other documents in its power, 14 possession, control or custody. As per the Explanation under Order 11 Rule 1(3) a declaration on oath under this sub-rule shall be contained in the Statement of Truth as set out in the Appendix. Appendix I with respect to the Statement of Truth reads as under: APPENDIX I STATEMENT OF TRUTH (Under First Schedule, Order 6 Rule 15-A and Order 11 Rule 3) I ... the deponent do hereby solemnly affirm and declare as under: 1. I am the party in the above suit and competent to swear this affidavit. 2. I am sufficiently conversant with the facts of the case and have also examined all relevant documents and records in relation thereto. 3. I say that the statements made in ... paragraphs are true to my knowledge and statements made in ... paragraphs are based on information received which I believe to be correct and statements made in ... paragraphs are based on legal advice. 4. I say that there is no false statement or concealment of any material fact, document or record and I have included information that is according to me, relevant for the present suit. 5. I say that all documents in my power, possession, control or custody, pertaining to the facts and circumstances of the proceedings initiated by me have been disclosed and copies thereof annexed with the plaint, and that I do not have any other documents in my power, possession, control or custody. 6. I say that the abovementioned pleading comprises of a total of ... pages, each of which has been duly signed by me. 7. I state that the Annexures hereto are true copies of the documents referred to and relied upon by me. 8. I say that I am aware that for any false statement or concealment, I shall be liable for action taken against me under the law for the time being in force. Place: Date: DEPONENT VERIFICATION I, ...... do hereby declare that the statements made above are true to my knowledge. Verified at [place] on this [date]. DEPONENT . Therefore, the declaration on oath shall be part of the plaint. The plaintiff has to declare on oath that all documents in its/his power, possession, control or custody, pertaining to the facts and circumstances of the proceedings, initiated by him/it have been disclosed and the copies thereof annexed with the plaint, and that he does not have any other documents in his power, possession, control or custody. Therefore, as such it is mandated by Order 11 Rule 1 for the plaintiff to disclose and produce all the documents in his power, possession, control or custody, pertaining to the facts and circumstances of the proceedings. 9.4. However, the additional documents can be permitted to be bought on record with the leave of the court as provided in Order 11 Rule 1(4). Order 11 Rule 1(4) provides that in case of urgent filings, the plaintiff may seek leave to rely on additional documents as part of the above declaration on oath [as provided under Order 11 Rule 1(3)] 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. 16 9.5. Order 11 Rule 1(5) further provides that 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. Therefore, on combined reading of Order 11 Rule 1(4) read with Order 11 Rule 1(5), it emerges that ( i ) in case of urgent filings the plaintiff may seek leave to rely on additional documents; ( ii ) within thirty days of filing of the suit; ( iii ) making out a reasonable cause for non-disclosure along with plaint. 9.6. Therefore, a further thirty days' time is provided to the plaintiff to place on record or file such additional documents in court and a declaration on oath is required to be filed by the plaintiff as was required as per Order 11 Rule 1(3) if for any reasonable cause for non-disclosure along with the plaint, the documents, which were in the plaintiff's power, possession, control or custody and not disclosed along with plaint. Therefore, the plaintiff has to satisfy and establish a reasonable cause for non-disclosure along with plaint. However, at the same time, the requirement of establishing the reasonable cause for non-disclosure of the documents along with the plaint shall not be applicable if it is averred and it is the case of the plaintiff that those documents have been found subsequently and in fact were not in the plaintiff's power, possession, control or custody at the time when the plaint was filed. Therefore Order 11 Rule 1(4) and Order 11 Rule 1(5) applicable to the commercial suit shall be applicable only with respect to the documents which were in plaintiff's power, possession, control or custody and not disclosed along with plaint. Therefore, the rigour of establishing the reasonable cause in non-disclosure along with plaint may not arise in the case where the additional documents sought to be produced/relied upon are discovered subsequent to the filing of the plaint. (Emphasis supplied) 17 The learned counsel for the petitioner would seek to contend that the Apex Court has clearly barred production of documents at a later stage. The learned counsel perhaps has ignored to read between the lines in paragraphs between 9.5 and 9.6. The Apex Court itself holds in paragraph 9.6 that the requirement of establishing reasonable cause for non-disclosure of the documents along with the plaint may not arise in a case where additional documents sought to be produced and relied upon have been discovered subsequent to filing of the plaint . Therefore, it is not an unambiguous embargo to produce any document which was not produced along with the plaint . The exceptional circumstance is carved out in clause (c) of Order XI Rule 1 and one of the clauses is in answer to the case set up by the defendant. Therefore, the said judgment would not become applicable to the facts of the case nor help the petitioner in any way. Same goes with the judgment of the High Court of Bombay relied on by the learned counsel for the petitioner in the case of KHANNA RAYON INDUSTRIES PRIVATE LIMITED v. SWASTIK ASSOCIATES reported in 2023 SCC OnLine Bom.1372 . 18 9. It becomes apposite to refer to a judgment rendered by another Bench of the High Court of Bombay, answering an identical claim in its judgment rendered in the case of EDELWEISS SPECIAL OPPORTUNITIES FUND v. FUTURE CORPORATE RESOURCES PRIVATE LIMITED . In the said judgment the High Court of Bombay holds as follows: .... .... .... 16. Order XI Rule 1 of the CPC, quoted hereinabove, mandates that the plaintiff shall file list of all documents and photocopies of all documents in its power, possession, control or custody along with the plaint, irrespective of whether the same are in support of or adverse to the case of the plaintiffs. The statement of truth, being a declaration on oath, under Order XI Rule 1(3) of the CPC, also assumes significance. The statement of truth being a declaration on oath is specified in the appendix to the Commercial Courts Act, 2015. It is an admitted position that the plaintiffs in the present case indeed filed such statement of truth along with the plaint, thereby declaring that they had disclosed all documents that were in their power, possession, control and custody, pertaining to the facts and circumstances of the proceedings initiated. Order XI Rule 1(4) of the CPC, makes an exception in urgent cases where the plaintiff is permitted to file additional documents in Court within 30 days of filing of the suit, while, Order XI Rule 1(5) of the CPC refers to power of the Court to grant leave to file such documents that were in the power, possession, control and custody of the plaintiffs at the time of the filing of the suit, which could not be filed at the time of filing the suit, only upon establishing reasonable cause for non-disclosure of such documents along with the plaint. Apart from this, Order XI Rule 1(1)(c) of CPC carves out an exception in three situations where the Rule itself would not apply. In the facts and circumstances of the present Interim Application No.2742 of 2023 in Commercial Suit No.164 of 2022 decided on 11-08-2023 19 case, the plaintiffs are invoking one such situation, under Order XI Rule 1(1)(c)(ii) of the CPC, which stipulates that nothing in the said Rule will apply to the documents produced by the plaintiffs and relevant only to answer any case set up by the defendant subsequent to filing of the plaint. 17. The defendant has taken a stand in this case that the aforesaid exception carved out under Order XI Rule 1(1)(c) of the CPC, as applicable to commercial suits, can be invoked only at the stage of trial and not at any interlocutory stage. But, this Court is not in agreement with the defendant on that count, for the reason that there is substance in the contention raised on behalf of the plaintiffs that Order XI Rule 1(1)(c)(ii) of the CPC, applicable to commercial suits, does not use the expression defence and uses the words any case set up by the defendant subsequent to filing of the plaint. The defendant can certainly set up its case at the interlocutory stage while resisting the interim / ad- interim reliefs. In a rare case, the Court may proceed to even record evidence for deciding the interlocutory matter, in which case, Order XI Rule 1(1)(c)(i) and (iii) of the CPC could also be invoked to claim that the Rule would not apply to documents produced by the plaintiffs after filing of the plaint. To that extent, plaintiffs are justified in claiming that they could invoke Order XI Rule 1(1)(c)(ii) of the CPC, to justify production of documents along with the present application for amendment. ... ... ... 20. The plaintiffs have taken a very clear stand in respect of Order XI Rule 1(5) of the CPC and they have not made any serious attempt to establish reasonable cause for non-disclosure of the said documents with the plaint. Specific reliance is placed on Order XI Rule 1(1)(c)(ii) of the CPC, as applicable to commercial suits, by claiming that nothing in the entire Rule itself would apply to the said documents now sought to be placed on record on behalf of the plaintiffs, as the said documents are required to be placed on record to answer the case set up by the defendant subsequent to filing of the plaint. (Emphasis supplied) 20 Though the Court was answering an application under Order VI Rule 17 of the CPC, the observations as afore-quoted would become squarely applicable to the facts obtaining in the case at hand. I am in respectful agreement with what is held by the learned single Judge of the High Court of Bombay. In that light, I deem it appropriate to hold that Order XI Rule 1(c)(ii) CPC clearly permits production of documents by the plaintiffs in answer to the case set up by the defendant, which ostensibly will be after filing of the plaint . 10. Thus, the impugned order far from being perverse or arbitrary, is found on sound legal reasoning of the concerned Court in allowing the application filed by the plaintiffs under Order XI Rule 1 of the CPC. Finding no merit in the petition, the petition stands rejected. SD /- ( M.NAGAPRASANNA) JUDGE Bkp/ CT:SS