Full Judgment Text
2016:BHC-OS:1377
KPPNair 1 CHS 629 of 2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 629 OF 2015
IN
SUIT NO. 95 OF 2006
Reliance Industries Ltd. … Applicant
In the matter between:
NTPC Ltd. … Plaintiff
vs.
Reliance Industries Ltd. … Defendant
Mr. Ravi Kadam, Senior Advocate, along with Mr. Rohan Kelkar, Mr. Shrikant
V. Doijode, Ms. Mrinalini Rajpal and Mr. Rishir Daulat, instructed by M/s.
Doijode Associates, for the Plaintiff.
Dr. Milind Sathe, Senior Advocate, along with Mr. Firdosh Pooniwala, Mr.
Ankit Lohiya, Mr. Ketan Dave and Ms. Reshma Ranadive, instructed by M/s.
Junnarkar Associates, for the Applicant/Defendant.
CORAM : S.J. KATHAWALLA, J.
Judgment reserved on: 1st December, 2015
Judgment pronounced on: 29th January, 2016
JUDGMENT:
1. By the above Chamber Summons, the Defendant – Reliance Industries
Ltd. has prayed for the following relief:
“That in the event of this Hon'ble Court coming to the
conclusion that the Defendant has not been granted leave, by
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 2 CHS 629 of 2015
th
the order dated 25 November, 2014, passed by this Court in
the present Suit, to produce additional documents which are
annexed to the affidavit in lieu of examination in chief of Mr.
th
B.K. Ganguly dated 24 February, 2015, the Defendant be
granted leave to produce additional documents as per the list
appended in Schedule hereto.”
2. It is necessary to point out at the very outset that the above Suit filed by
the Plaintiff – NTPC Ltd. (‘NTPC’) (formerly National Thermal Power
Corporation Limited) against the Defendant – Reliance Industries Limited
(‘RIL’) is pending in this Court since the last 10 years. In fact 7 years have
passed since the hearing of the Suit being expedited in the year 2008 by the then
Hon'ble the Chief Justice of this Court. As more particularly set out hereinafter,
st rd
RIL has already filed three Affidavits of Documents dated 31 October, 2007, 3
rd
December, 2009 and 23 January, 2010. This is one more attempt on the part
of RIL to file certain fresh documents which interestingly include documents
internally exchanged by RIL Officials pertaining to the Meetings held during
July 2004 and November, 2005. RIL chooses to file these documents which
according to RIL are in their possession since 2004-2005 i.e. even prior to RIL
nd
filing its Written Statement on 2 November,2007, followed by two subsequent
amendments to their written statement, three Affidavits of Documents filed
from time to time, and after the cross-examination of the Plaintiff's witnesses is
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 3 CHS 629 of 2015
th
over. This Court has in three recent orders, i.e. Order dated 20 February,
2014 whilst dismissing Chamber Summons No. 2091 of 2010 filed by RIL,
th
Order dated 20 March, 2014 dismissing RIL's Appeal being Appeal (Lodging)
th
No. 151 of 2014, and the Order dated 11 July, 2014 allowing RIL's amendment
application which was moved on the day the NTPC's Witness was scheduled to
be cross-examined, observed against RIL as follows:
th
(i) in the Order dated 20 February, 2014:-
“24. ………………………………………
……………………….The aforesaid facts clearly indicate
that the defendant wants to some how delay the trial of the
suit. The chamber summons is though filed in the year
2010, has not been heard till 2014. As a result thereof, the
cross examination of the plaintiff's witness could not
commence.”
th
(ii) in the Order dated 20 March, 2014:-
“14. ……………
…………….. It is not open to a party to keep making
repetitive applications so as to frustrate the progress of the
trial…………………”
th
(iii) in the Order dated 11 July, 2014:-
“4. I believe Mr. Kadam is justified. There is absolutely no
reason why this suit of 2006 should be delayed indefinitely.
A list of dates submitted by Mr. Kadam prima facie
indicates that every attempt to begin the cross-examination
has been met with one obstacle or the other. This should
not be permitted in any view of the matter.”
3. As set out hereinabove, RIL has now once again filed the above
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 4 CHS 629 of 2015
Chamber Summons seeking liberty to file fresh documents which include
documents internally exchanged by RIL officials pertaining to the meetings held
during July, 2004 and November, 2005, admittedly in possession of RIL since
about a decade.
4. The facts which are relevant for the purpose of deciding the above
Chamber Summons are briefly set out hereunder:
th
4.1 On 30 December, 2005, NTPC has filed the above Suit inter alia for a
declaration that there exists a valid, concluded and binding contract between
NTPC and RIL for the supply of Natural Gas of 132 Trillion btu annually for a
period of 17 years (“Suit Contract”) and for specific performance of this
Contract. NTPC's case is that this Contract came into existence when the
duplicate of the Letter of Intent (“LOI”) duly stamped and signed by RIL was
forwarded to NTPC. According to NTPC, the Contract is contained in the
letters and documents at Exhibits “D”, “E”, “F” and “G” to the Plaint and in
the LOI duly issued by NTPC, the duplicate of which LOI was duly signed and
returned by RIL .
4.2 According to RIL, two relevant letters are not referred to by the Plaintiff
th
in the chain of documents. The first letter is dated 24 June, 2004 from NTPC
to RIL asking RIL to accept the LOI unconditionally and the second is the
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 5 CHS 629 of 2015
th
letter dated 15 July, 2004, from RIL to NTPC conditionally accepting the LOI,
expressly subject to the condition that the terms of the draft Gas Sale and
Purchase Agreement (‘GSPA’) were required to be negotiated and finalized.
RIL has therefore alleged that since the GSPA was to be executed, until the
same was executed there was no concluded contract between the parties.
th
4.3 On 30 December, 2005, the present Suit was filed.
nd
4.4 On 2 November 2007, RIL filed its written statement which was
verified and declared by Mr. B. Ganguly.
th
4.5 On 8 January, 2008, Mr. B. Ganguly filed an Affidavit of Documents
st
dated 31 October, 2007, on behalf of RIL (“the first Affidavit”). None of
the internal documents of RIL which are now sought to be relied upon were
referred to in the Schedule of the first Affidavit. In fact, in the said Affidavit,
Mr. Ganguly has on behalf of RIL expressly stated on oath as under:
“…3. According to the best of my knowledge, information and
belief, the Defendant have not now, and never had in their
possession, custody, or power or in the possession, custody or
power of my advocate or in the possession, custody or of any other
person or persons on their behalf any deed, account, book of
account, voucher, receipt, letter, memorandum, paper or writing or
any copy of or extract from any such document or any other
document whatsoever relating to the matters in question in this suit
or any of them or wherein any entry has been made relative to such
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 6 CHS 629 of 2015
matter or any of them other than and except the documents set
forth in the Schedule hereto…”
th
4.6 On 6 October, 2008, issues were framed in the above Suit. The
principal issue in the Suit is, “ Do the plaintiffs prove that there exists valid,
concluded and binding contract as reflected in Exhibits D, E, F & G and the
Letter of Intent issued by the plaintiffs and signed and returned by the
defendants for supply of natural gas of 132 Trillion btu annually for a period of
17 years by defendants to plaintiffs?”.
th
4.7 On 9 January, 2009, the Affidavit-in-Lieu of Examination-in-Chief of
NTPC's Witness was filed.
th
4.8 On 17 November, 2009, RIL amended its written statement.
st
4.9 On 21 /24th November, 2009, NTPC filed its Replication and its
additional Affidavit of Documents.
th
4.10 On 4 December, 2009, an additional issue was framed in the Suit. Also,
RIL through Mr. B.Ganguly filed a further Affidavit of Documents ( “the
second Affidavit”). Once more, none of the documents internally
exchanged in RIL were referred to in the Schedule of the Second Affidavit and
the same contained an identical paragraph as extracted and reproduced in
paragraph 4.5 above from the First Affidavit, namely that RIL or its Advocates
are not in possession, custody, or power of any other document whatsoever
relating to the matters in question in the Suit except the documents, set out in
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 7 CHS 629 of 2015
the Schedule to the Second Affidavit.
th
4.11 On 8 January, 2010, NTPC filed a further Affidavit-in-Lieu of
Examination-in-Chief.
th
4.12 On 29 January, 2010, RIL through Mr. B. Ganguly filed further Affidavit
of Documents (“the Third Affidavit”). Once more, none of the
documents internally exchanged in RIL were referred to in the Schedule of the
Second Affidavit and the same contained an identical paragraph as extracted
and reproduced in paragraph 4.5 above from the First Affidavit, namely that RIL
or its Advocates are not in possession, custody, or power of any other document
whatsoever relating to the matters in question in the Suit except the
documents, set out in the Schedule to the Third Affidavit.
rd
4.13 On 3 February, 2010, RIL filed Chamber Summons No. 201 of 2010 for
discovery and inspection of the NTPC's internal documents such as
notices/letters/e-mails/Inter-Office Memos sent by officials of NTPC among
themselves regarding issues to be discussed with RIL during various meetings
held between July, 2004 and November,2005 in respect of the subject bid as
well as pertaining to finalization of GSPA, etc. In the Affidavit-in-Support of
the said Chamber Summons or in the course of arguments before the learned
Single Judge or the Hon'ble Appeal Court, RIL has not mentioned that they are
relying on or seeking to produce their internal documents. In fact there was no
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 8 CHS 629 of 2015
mention of the existence or relevance of RIL's internal documents.
th
4.14 The above Chamber Summons was dismissed by an Order dated 20
February, 2014. Certain relevant findings/observations found in the said Order
are reproduced hereunder:
“23. A perusal of the record indicates that the plaintiff did not rely
upon the documents in respect of which disclosure is sought in the
plaint. In the written statement filed by the defendant, the defendant
has alleged about the discussions held between the plaintiff and the
defendant and not the officials of the plaintiff inter se. …. A perusal
of the schedule to the chamber summons and the record indicates
that the discovery and inspection prayed for by the defendant is in
respect of alleged conversation which are not for the recent period
but are for much prior period before filing of written statement and
affidavit of documents including additional affidavit of documents by
the defendant.”
24. …. ….. …... …...
nd
For the first time Defendant by their letter dated 2 February, 2010
referred to their own written statement and alleged that in the
written statement filed by the defendant, it was alleged that during
the period between July, 2004 and November, 2005, several
meetings were held from time to time between the representatives of
the plaintiff and defendant and various issues were discussed
including settling the terms and conditions of GSPA. For the first
time it was alleged that various documents, notices of meetings,
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 9 CHS 629 of 2015
agenda and minutes of the meeting and internal correspondence
relating to the meetings at which presentations in writing were made
as also notes and records of such discussions which were in custody,
power, possession and control of the plaintiff ought to have been
disclosed by the plaintiff but not disclosed and all such documents
were related to the said meetings are relevant for effecting and
complete adjudication of issues involved in the matter. The said
letter was served upon the plaintiff's advocate on 2nd February,
2010. On 3rd February, 2010, the defendant filed this chamber
summons. The aforesaid facts clearly indicate that the defendant
wants to some how delay the trial of the suit. The chamber summon
is though filed in the year 2010, has not been heard till 2014. As a
result thereof, the cross examination of the plaintiff's witness could
not commence.”
25. …. ….. ….. …..
A perusal of the schedule to the chamber summons, it clearly
indicates that the discovery sought in respect of the documents
described in the schedule is totally vague and is also by way of fishing
enquiry. In my view none of these documents, would be
relevant for the purpose of deciding the issue already
framed as to whether the Letter of Intent issued by the
plaintiff and accepted by the defendant is a concluded
contract or not. (emphasis supplied)
26. …. ….. ….. …
Court has to consider before passing an order for discovery of
documents about the relevancy of such documents with regard to
dispute or controversy between the parties. In my view discovery of
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 10 CHS 629 of 2015
any of the documents described in the schedule appended to the
chamber summons is not necessary and in any event could not be
permitted at this stage. Both parties have filed their respective
affidavits of documents. Plaintiff has already filed affidavit of its first
witness in lieu of examination in chief as far back as on 9th January,
2009. This chamber summons is pending for last four years for
hearing and final disposal. Defendant has not disclosed any reasons
as to why there was gross delay in filing his application for
disclosure.
27. ….. …. . …...
"Since none of the documents in respect of which
discovery is sought are relevant for the purpose of
deciding the issue as to whether Letter of Intent issued
by the plaintiff and accepted by the defendant would be a
concluded contract or not, in my view there is no merit
in the chamber summons filed by the defendant and the
same thus deserves to be dismissed.”(emphasis supplied)
4.15 RIL filed an Appeal being Appeal (L) No. 151 of 2014 against the above
th
Order passed by the Learned Single Judge dated 20 February,2014 dismissing
the Chamber Summons being Appeal (L) No. 151 of 2014. The said Appeal
th
was also dismissed by an Order dated 20 March 2014 by a
Division Bench of this Court inter alia holding as under:
“14. Even on merits we are not inclined to interfere with the
impugned order of the learned trial Judge. Before us it was
contended by the appellant-defendant that the chamber summons
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 11 CHS 629 of 2015
was taken out under Order 11 Rule 14 of the CPC. The power
under the aforesaid provision is bestowed upon the Court to call
for documents at any stage of a suit. It gives no right to a party
under the aforesaid provision to insist that a particular document
be ordered to be produced. So far as non disclosure of a document
as required under Order 11 Rule 12 of the CPC is concerned the
consequence is provided for in Order 11 Rule 21 of the CPC. It is
not open to a party to keep making repetitive applications so as to
frustrate the progress of the trial. The question whether there
was a concluded contract between the parties will be
determined on the basis of the documents which parties
have already produced in the suit. Learned Trial Judge
has held that principal issue in the suit will accordingly
be decided on the basis of the documents already
produced by the parties and the internal noting or
correspondence between officers of the plaintiff
company are not relevant". (emphasis supplied)
“15. One more fact to be noticed is that the suit is pending since
2006. Written statement was filed by the appellant-defendant in
October 2007. The plaintiff had filed the affidavit of documents on
7 December 2007. The amendment to the written statement had
prima facie nothing to do with the merits of the controversy of the
suit as filed initially. The defendant knew in December 2007 which
documents the plaintiff had not produced, of which discovery is
now sought, as they pertained to the period July 2004 to
November 2005. Therefore, the learned Trial Judge is correct in
taking a view that there was gross delay in filing an application for
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 12 CHS 629 of 2015
discovery. Reliance placed by the appellant-defendant upon the
decision of the Apex Court in M. L. Sethi vs. R. P. Kapur
1972(2) SCC 427 is not apposite as it did not deal with an
application under Order 11 Rule 14 of the CPC. Besides, the
consequence of not complying with the order 11 Rule 12 of the
CPC already passed in this case is provided for in Order 11 Rule 21
of the CPC. Thus the trial Judge was right in holding that the
above decision is completely distinguishable from the present
facts…”
th
4.16 On 11 April, 2014, documents were marked as Exhibits in the Suit in
terms of three Indexes tendered by the parties. Volume VI of the Compilation
of Admitted Documents was tendered. Even at this stage, RIL did not make a
mention of any further documents that RIL was desirous of producing. RIL did
not mention that they were wanting to produce their internal documents
pertaining to the bid or finalization of GSPA Contract.
th
4.17 On 10 July, 2014, RIL filed Chamber Summons (L) No. 1070 of 2014
seeking a Second Amendment to the written statement ( by addition of
paragraph 7-B). The Second Amendment sought a very limited addition to the
pleading namely inclusion of a plea that there had been an alleged gas reservoir
failure, and that assuming that a concluded contract existed, the same was
incapable of being performed on this account.
th
4.18 On 11 July, 2014, when the above Chamber Summons was allowed, RIL
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 13 CHS 629 of 2015
did not make any request for filing any further documents at that stage or seek
any order for discovery.
th th th th
4.19 On 11 July, 2014, 25 July, 2014, 14 August 2014 and 12 September,
2014, NTPC's Witness was Cross-Examined at length. He could not be and was
not confronted with any of the internal documents of RIL listed in the Schedule
to the Chamber Summons.
th
4.20 On 25 November, 2014, when the Suit came up for directions, the
following Order was passed:
“…….. Defendants are directed to file affidavit in lieu of
examination in chief of the first witness alongwith documents on or
before 12th January, 2015 and copy thereof shall be served upon the
plaintiffs' advocate simultaneously. Place the matter on board on
19th December, 2014 at 03.00 p.m. for recording re-
examination of the plaintiff's witness Mr.Anil Agarwal.”
th
There was no application made by RIL on 25 November,2014 for leave to
produce fresh and additional documents not disclosed by it in its earlier three
Affidavits of Documents.
th
4.21 On 19 December, 2014 the NTPC's witness was Re-Examined and
further Cross-Examined and NTPC's evidence was closed.
th
4.22 On 25 February, 2014, RIL filed an Affidavit of Mr. B. K. Ganguly in
Lieu of Examination-in-Chief, and sought to introduce certain new documents
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 14 CHS 629 of 2015
not disclosed at any of the earlier stages, by way of Annexures to the said
Affidavit-in-Lieu of Examination-in-Chief. Of the 24 Annexures to the said
Affidavit, only Annexure Nos. 19 to 21 had been disclosed by RIL in its
Affidavits of Documents and Annexure No. 2 is an enclosure to a document
which has been marked as an Exhibit in the Suit. Apart from that, Annexure
Nos. 22 to 24 are mentioned in the said Amendment to the Written Statement
th
that had been permitted on 11 July, 2014. Aside from these documents, the
documents at Annexure Nos. 1 and 3 to 18 are all internal documents of RIL,
which pre-date even the Written Statement filed in 2007. RIL has not
mentioned in the said Affidavit-in-lieu of Examination-in-Chief as to why these
documents were not disclosed earlier and were being produced in this manner as
Annexures to the said Affidavit. Pertinently, no leave had been sought to
produce these undisclosed documents.
th
4.23 On 24 March, 2015, when the Suit came up for ‘directions’, the
Counsel appearing for NTPC opposed the Affidavit of RIL's first Witness in
lieu of Examination-in-Chief being taken on record as RIL had sought to
produce fresh documents without obtaining leave of the Court.
4.24 RIL has thereafter filed the above Chamber Summons seeking relief as
set out in paragraph 1 above.
4.25 At the first hearing of the Chamber Summons, RIL submitted that by an
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 15 CHS 629 of 2015
th
Order dated 25 November 2014, passed by R.D. Dhanuka J., RIL has been
granted leave in the present Suit to produce additional documents whereas it
was submitted on behalf of NTPC that no such leave has been granted. The
parties were therefore directed to seek a clarification from R.D. Dhanuka J.
th
4.26 . On 8 October 2015, the learned Judge before whom the matter was
placed for clarification, was pleased to pass the following Order:-
“A perusal of the order passed by this Court on 25th November
2014 in Suit No.95 of 2006 clearly indicates that by the said order,
the defendants are directed to file affidavit in lieu of the
examination-in-chief of the first witness along with documents on
or before 12th January 2015. This Court has not indicated as to
what documents could be filed along with the examination-in-chief
of the first witness by the defendants. It is for the parties to make
submissions in the on-going proceedings before Shri S.J.
Kathawalla, J.”
Accordingly, the Chamber Summons is now taken up for final hearing.
5. The Learned Senior Advocate appearing for RIL has first referred to the
legal provisions relating to production, discovery and inspection of documents
and has submitted as follows:
5.1 That Order VII Rule 14(3) of the Civil Procedure Code, 1908 (CPC)
provides for production of documents by the Plaintiff. Rule 14(3) deals with a
situation where documents, which ought to have been produced, have not been
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 16 CHS 629 of 2015
produced, are allowed to be produced with the leave of the Court. Order VII
Rule 14 Sub-Rule (3) reads as follows:
“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.”
5.2 That a similar provision in respect of production of documents by
a Defendant is made in Order VIII Rule 1A Sub-Rule (3) of the CPC,
which reads as follows:
“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.”
5.3 That Order XI of the CPC deals with discovery and inspection. This
Order primarily deals with directions for discovery and inspection either by the
Court on its own or on an application by the party seeking discovery from the
other side. Rule 21 provides for consequences of non-disclosure of a document
i.e. dismissal of a suit.
5.4 That Order XIII provides for production, impounding and return of
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 17 CHS 629 of 2015
documents. Sub-Rule (2) of Order XIII, as it existed prior to its amendment by
Civil Procedure (Amendment) Act, 1999, provided for the effect of non-
production of documents, which reads as follows:
“2. Effect of non-production of documents— [(1)] No
documentary evidence in the possession or power of any
party which should have been but has not been, produced
in accordance with the requirements of rule 1 shall be
received at any subsequent stage of the proceedings unless
good cause is shown to the satisfaction of the Court for the
non-production thereof; and the Court receiving any such
evidence shall record the reasons for so doing.
(This Rule has since been deleted)
5.5 That Chapter XI of the Bombay High Court (Original Side) Rules under
the caption “Discovery and Inspection” provided for production of documents.
Rule 172 thereof confers power upon the Court to allow a party to produce
documents at any stage on good cause being shown. Rule 172 reads thus:
“No documentary evidence in the possession or power of
any party, which should have been but has not been
disclosed in the affidavit of documents, or which is
required to be disclosed in a supplementary affidavit of
documents and has not been disclosed shall be received at
any subsequent stage of the proceedings, unless good
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 18 CHS 629 of 2015
cause is shown to the satisfaction of the Court for the non-
disclosure thereof; and the Court receiving any such
evidence shall record the reasons for so doing”
(This Rule is pari-materia with Rule 174 of the Bombay High Court (Original
Side) Rules as they existed prior to 1980).
6. The Learned Senior Advocate appearing for RIL has after pointing out
and making submissions qua the above provisions made the following further
submissions:
6.1 That the documents listed at Item (2) of the Schedule to the Chamber
nd
Summons should actually be part of the letter dated 2 September 2003, being
letter addressed by RIL to NTPC, which is already marked as Exhibit C – 7, at
page 966 of Volume III of the Compilation of Documents. This Document,
therefore, should be treated as a part of the already marked documents. The
Documents at Sr. Nos. 19, 20 and 21 are the documents which are referred to in
Paragraph 7B of the amended Written Statement, and therefore there can be no
objection to the production of those documents. The remaining documents are
the subject matter of the present controversy. As a matter of fact, by virtue of
th
the Order dated 25 November 2014, RIL has been permitted to produce
additional documents along with Affidavit in lieu of Examination-in-Chief. This
Order is in the nature of directions given after the amendment of the Written
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 19 CHS 629 of 2015
th
Statement by an Order dated 14 July 2014 and hence NTPC is not entitled to
object to the production of documents.
6.2 That in view of the clarification given by R.D. Dhanuka J. by his Order
th
dated 8 October, 2015 (reproduced in paragraph 4.26 above), there is no
th
manner of doubt that the Order dated 25 November, 2014 was an order in the
nature of direction for discovery and inspection which was necessary to be
passed after the amendment of the written statement and therefore the
objections on behalf of NTPC are untenable.
6.3 That in the alternative it is submitted that production of documents
can be allowed at any stage, subject to the discretion of the Court on good cause
being shown and the documents being relevant. The principles for production
of documents are laid down by this Court and other Courts in its decisions in
1
(I) Chitrakala Fal Dessai vs.Balu Marathe , (ii) Ramnath Nandlal Dhoot & Co.
2 3
vs. B.R. Shroti , (iii) Sir Hari Ram Goenka vs. Lachmi Singh and (iv) Gopika
4
Raman Roy vs. Atal Singh
6.4 That the only ground on which the other party can object to the
production of documents is that the documents are not relevant or are not
1
(2006) 6 Mah. LJ 427
2
AIR 1980 Bom 387
3
AIR 1928 Patna 537
4
AIR 1929 PC 99 : 1929 JC Vol. LVI 119
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 20 CHS 629 of 2015
genuine. Both these contingencies are required to be adjudicated and tested
during the trial by way of cross-examination and arguments and not at the stage
of granting leave for production of documents. The documents, for which leave
is sought, relate to the negotiations and events which transpired for finalization
of draft Gas Sale and Purchase Agreement (‘GSPA’), which negotiations took
place between the representatives of the NTPC and RIL between July 2004 and
November 2005. This fact is undisputed. During such negotiations, the draft
GSPA underwent various changes and about 4-5 versions of GSPA are already
on record, which the NTPC Witness has accepted and admitted. Whether the
draft GSPA was required to be finalized or not is an issue in question and the
documents are directly linked to this issue The documents sought to be
produced demonstrate the thread of negotiations and prove RIL's case – (I) that
RIL has never accepted the LOI unconditionally; (ii) that conditionality of
acceptance of LOI was to finalize the GSPA, (iii) that until GSPA was
negotiated, concluded, finalized and signed, there can't be, and there is no valid,
concluded, or binding contract between the parties, and (iv) that the GSPA
remained at negotiation stage and the parties therefore were only exchanging
the offers and counter- offers and there is no concluded contract. In order to
establish this case, the documents are relevant and that relevancy is the only test
for production of documents.
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 21 CHS 629 of 2015
6.5 That Section 5 of the Evidence Act postulates that evidence may be
given only of facts which are declared to be relevant under the Act. Sections 7
and 11 of the Act clearly deal with the contingencies of relevancy, applicable in
the present case.
6.6 That the objections raised by NTPC are unsustainable and not relevant.
NTPC cannot rely on the decision of the learned Single Judge in Chamber
th
Summons No. 201 of 2010 dated 20 February,2014 and the Order passed in
th
Appeal dismissing the Appeal filed by RIL on 20 March, 2014. It is submitted
that, on a proper reading of the above orders, the same have no relevance with
the application filed by RIL. Those orders were on the application made by RIL,
seeking a mandatory order of discovery against NTPC, whereas the present
application is for production of RIL's own documents. The said orders cannot
be construed as adjudication on relevancy of the documents, which RIL is
seeking to produce. The only conclusion from those two orders, which can be
reached, is that, since the application of RIL for seeking discovery of documents
from the Plaintiff was made at a belated stage, it was rejected, and in that
context the Courts have said that the trial will proceed on the basis of the
documents already produced, which obviously related to NTPC, and not RIL.
Besides, the Appeal Court has clearly observed that, in case NTPC does not
produce the documents, it will face the consequences as provided in Order XI
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 22 CHS 629 of 2015
Rule 21 of the CPC. Viewed from this perspective, it is clear that the objections
of NTPC to the production of documents are clearly erroneous and
unsustainable.
6.7 That good cause as set out in Rule 172 of the Bombay High Court
(Original Side) Rules is made out. RIL has clearly stated that it had made an
application seeking direction against NTPC for production of their internal
documents and RIL would produce its internal documents on reciprocal basis.
Since that application was rejected with the Appeal Court observing that the
party not producing a document will face the consequences of adverse inference
being drawn under Order XI Rule 21 of the CPC, RIL has produced the
concerned documents. NTPC would not be prejudiced in any way as it would
have ample opportunity by way of cross examination, to demonstrate its
objection that the documents are not relevant or that they are not genuine.
Again, the standard of “good cause” is much lower than the standard of
“sufficient cause”.
7. The Learned Senior Advocate appearing for NTPC has taken me through
the chronology of events set out in paragraph 4 above, and submitted as follows:
7.1 That annexing new documents to its Affidavit in Lieu of Evidence is
clearly a brazen attempt on the part of RIL to delay the trial of the Suit and
prejudice NTPC. The above Chamber Summons is bereft of bona fides and a
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 23 CHS 629 of 2015
patent abuse of the process of this Court as well as a deliberate attempt to
frustrate the progress of the trial of the Suit. In fact RIL has consistently
resorted to such dilatory tactics to frustrate the trial of this Suit as observed by
th
this Court in its various Orders, including the Orders dated 20 February, 2015,
th th
20 March, 2014 and 11 July, 2014.
7.2 That the new documents sought to be relied upon by RIL are irrelevant
documents as held by the Learned Single Judge of this Court by his Order dated
th
20 February, 2014 in the earlier Chamber Summons No. 201 of 2010 taken
out by RIL calling upon NTPC to produce its internal documents. The said
Chamber Summons has been rejected with the finding reproduced hereunder
that internal documents (i.e. documents of the same class) now sought to be
produced by RIL in the above Chamber Summons are not relevant for
deciding the principal issue in the Suit :
“27. …………..none of the documents in respect of which
discovery is sought are relevant for the purpose of deciding the
issue as to whether Letter of Intent issued by the plaintiff and
accepted by the defendant would be a concluded contract or not, in
my view there is no merit in the chamber summons filed by the
defendant and the same thus deserves to be dismissed”
7.3 That the above Order of the Learned Single Judge was confirmed by the
th
Hon’ble Division Bench vide Order dated 20 March, 2014. The Hon’ble
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 24 CHS 629 of 2015
Division Bench, in fact further elucidated the finding of the Learned Single
Judge and held that,
“14. The question whether there was a concluded contract
between the parties will be determined on the basis of the
documents which parties have already produced in the suit.
Learned Trial Judge has held that principal issue in the suit
will accordingly be decided on the basis of the documents
already produced by the parties and the internal noting or
correspondence between officers of the plaintiff company
are not relevant.”
th
7.4 That the aforesaid Order dated 20 March, 2015 has not been challenged
by RIL and has attained finality. This observation in respect of the same class of
documents is therefore binding on the parties as well as this Court. Hence there
is no question of the new documents being relevant for adjudication of the above
Suit.
7.5 That the contention of RIL that it was permitted to produce the new
th
documents by the Order dated 25 November, 2014 was proved false when the
th
Learned Single Judge by Order dated 8 October, 2015 clarified that he had not
indicated as to what documents may be filed by RIL with its first witness
affidavit. In any event for RIL to bring on record documents which are not
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 25 CHS 629 of 2015
disclosed in its Affidavit of Documents, it would have to make an application to
this Court in accordance with the provisions of Rule 172 of the Bombay High
th
Court (Original Side) Rules, 1980. A bare perusal of the Order dated 25
November, 2014, makes it clear that there are no reasons recorded therein for
permitting new documents not disclosed in RIL's earlier three Affidavits of
Documents. The fact is that RIL did not even raise a plea for production of new
documents and consequently the same could never have been considered by the
Court, much less permitted. Even in the present Chamber Summons, RIL does
not disclose any reasons as to why it did not produce the new documents earlier.
7.6 That the case law cited by RIL is clearly inapplicable to the facts of the
present matter. In each of those cases, the circumstances in which the
documents were not produced at the appropriate time have been set out. In
clear contra-distinction, in the present matter there are no such circumstances
to elaborate.
7.7 That reliance on provisions of Sections 5 and 7 of the Indian Evidence
Act, 1972 by RIL is also inapplicable to the present case.
7.8 That therefore no case whatsoever is made out by RIL. RIL has failed to
show any cause, much less, good cause for non-production of the new
documents. Apart from the application being bereft of any cause or merit, the
new documents themselves are clearly irrelevant belonging to the class of
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 26 CHS 629 of 2015
internal documents, in respect thereof as submitted above, there is a binding
finding of the Learned Single Judge which is confirmed by the Hon’ble Division
Bench of this Court.
8. I have heard the Learned Senior Advocates appearing for the parties. I
have also considered the submissions as well as the case law relied upon by
them. As stated earlier, the Suit is pending disposal in this Court for the last 10
years. However, the Suit is not disposed of till date despite the then Hon'ble the
Chief Justice having expedited the same by an Order passed in 2008.
9. It is submitted on behalf of NTPC that their objection is only against the
documents which are listed at items 1 and 3 to 18 in the Schedule of the Chamber
Summons and sought to be brought on record by RIL. Documents listed at items 19 to
21 have been disclosed in the Affidavit of Documents of RIL. Document listed at item
2 forms part of the document which has been marked as an Exhibit in the Suit.
Documents listed at item Nos. 22 to 24 have been mentioned only in the latest
amendment to the written statement permitted in July, 2014.
10. The first submission advanced on behalf of RIL is that the Learned Single
th
Judge (Coram: R.D. Dhanuka, J.) has by his Order dated 25 November, 2014,
granted leave to RIL to produce additional documents which are annexed to the
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 27 CHS 629 of 2015
th
Affidavit in Lieu of Examination in Chief of Mr. Ganguly dated 24 February, 2015. It
th
is submitted on behalf of NTPC that no such leave was granted by the Order dated 25
November, 2014. However, the controversy is now put to rest by R.D. Dhanuka, J.
th
who has in his Order dated 8 October, 2015, observed that he has not indicated as to
what documents could be filed by RIL along with the Examination-in-Chief of its first
witness, and it is for the parties to make its submissions before this Court, in regard
thereto, in the above Chamber Summons.
10.1 Again, RIL itself has relied on the legal provisions relating to production,
discovery and inspection of documents which are set out hereinabove. Order VII Rule
14 (3)
of the CPC clearly provides that documents which ought to have been
produced by the Plaintiff but have not been produced, are allowed to be
produced only with the leave of the Court. Rule 172 of the Bombay High Court
(Original Side) Rules confers power upon the Court to allow a party to disclose
documents in its possession or power, at any subsequent stage of the
proceedings, which documents a party ought to have disclosed in its Affidavit of
Documents or in the Supplementary Affidavit of Documents, only upon good
cause being shown to the satisfaction of the Court for the non-disclosure
thereof. The Court whilst granting such permission or receiving such
documents in evidence, is also required to record reasons for doing so.
th
10.2 RIL was allowed to amend its written statement by an Order dated 11
July 2014 for the second time. By the second amendment RIL had sought a very
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 28 CHS 629 of 2015
limited addition to the pleading namely inclusion of a plea that there had been an
alleged gas reservoir failure and that assuming that a concluded contract
existed, the same was incapable of being performed on this account. RIL did not
make any request for filing any further documents at that stage or seek any
th th th th
order for discovery. On 11 July, 2014, 25 July, 2014, 14 August 2014 and 12
September, 2014, NTPC's witness was cross-examined at length and the cross-
th
examination was concluded. On 25 November, 2014, when the Suit came up
‘for directions’ before the Learned Single Judge (Coram: R.D. Dhanuka, J.) ,
routine directions were passed viz. that RIL should file its Affidavit of Evidence
th
and Affidavit of Documents on or before 12 January, 2015. From a perusal of
th
the Order dated 25 November, 2014, it is clear that the Learned Single Judge
th rd
was not even informed that RIL had on 8 January, 2008, 3 December, 2009
th
and 29 January, 2010 already filed three Affidavits of Documents. It is also
clear from the said Order that no application was made by RIL before the
Learned Single Judge seeking leave to produce additional documents which
were not disclosed by RIL in its earlier three Affidavits of Documents. The
question therefore of RIL showing good cause for non-disclosure of documents
in its three earlier Affidavits of Documents and the Court (R.D. Dhanuka, J.)
granting leave or permitting such disclosure upon being satisfied by such cause
shown, or recording reasons for granting such permission does not arise.
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 29 CHS 629 of 2015
th
Therefore, in my view, pursuant to the said directions dated 25 November,
2014 (i.e. in the absence of obtaining leave from the Court to disclose/produce
documents which were in possession and power of RIL since the years
2004/2005 but not disclosed by RIL in its earlier three Affidavits of
Documents) RIL would be entitled to file only such documents which were
mentioned in its earlier three Affidavits of Documents and/or documents
concerning the amendment which was introduced by RIL by addition of
th
paragraph 7-B to its written statement on 11 July, 2014. RIL is therefore
allowed to file documents set out in paragraph 9 above. However, RIL has by
th
misconstruing the Order dated 25 November, 2014 annexed the documents to
its Affidavit of Evidence which according to RIL were internally exchanged by
RIL officials pertaining to the meetings held during July 2004 and November
2005 and which were in possession of RIL since then, without showing good
cause for non-disclosure of the same in its earlier three Affidavits of documents
and without obtaining leave from this Court as required under the above
th
provisions. The aforestated Order dated 25 November, 2014, passed by the
Learned Single Judge therefore by no stretch of imagination can be construed as
an order granting leave to RIL to produce documents which were admittedly in
the possession of RIL since the last more than one decade and which RIL failed
st
to disclose in its earlier three Affidavits of Documents dated 31 October, 2007,
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 30 CHS 629 of 2015
rd rd
3 December, 2009 and 23 January, 2010.
11. This leads me to the next question as to whether RIL has in accordance
with the mandate of Rule 172 of the Bombay High Court (OS) Rules shown
good cause to the satisfaction of this Court for non-disclosure of documents in
its possession and power, and which documents ought to have been disclosed
by RIL in its earlier Affidavits of Documents. As set out hereinabove, RIL filed
nd
its written statement in the Suit on 2 November, 2007. RIL filed its first
th
Affidavit of Documents on 8 January, 2008. In the said first Affidavit of
Documents Mr. B. Ganguly on behalf of RIL, stated that to the best of his
knowledge, information and belief RIL or its Advocates are not in possession,
custody or power of any other document whatsoever relating to the matters in
question in the Suit, except the documents set out in the Schedule to the said
first Affidavit of Documents. Though at the time of filing of the written
statement and the first Affidavit of Documents, RIL purportedly was in
possession of the documents internally exchanged by its own Officers
pertaining to the meetings held during July 2004 and November 2005, RIL did
not deem it fit to rely upon the same and therefore gave the above declaration
in its first Affidavit.
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 31 CHS 629 of 2015
th th
11.1 On 6 October, 2008, issues were framed in the matter. On 9
January, 2009, the Affidavit-in-Lieu –of- Examination- in- Chief of NTPC’s
th
witness was filed. On 17 November, 2009, RIL amended its written statement
st
to which NTPC filed its replication on 21 /24th November, 2009, along with its
th
Additional Affidavit of Documents. Since on 4 December, 2009 an additional
issue was framed in the Suit, RIL filed a further Affidavit of Documents of Mr.
rd
B. Ganguly dated 3 December, 2009 (the Second Affidavit) and again the
factum of any internal exchange of documents by RIL was not alluded or
th
adverted to therein or at that stage. On 8 January, 2010, NTPC filed a further
th
Affidavit-in-Lieu –of- Examination- in- Chief and immediately thereafter on 29
January, 2010 RIL filed yet another further Affidavit of Documents (the
Third Affidavit) wherein once again the factum of any internal
correspondence exchanged by the Officers of RIL was not alluded or adverted
to.
rd
11.2. On 3 February, 2010, RIL filed Chamber Summons No. 201 of 2010 for
discovery and inspection of the Plaintiff’s internal documents, alleging that the
same are documents which are very relevant for the purpose of deciding the
present Suit. The above Chamber Summons was dismissed inter alia holding
that none of the documents in respect of which discovery was sought are
relevant for the purpose of deciding the issue as to whether the Letter of Intent
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 32 CHS 629 of 2015
issued by NTPC and accepted by RIL would be a concluded contract or not.
The Appeal filed from the said Order was also dismissed. RIL did not make even
a whisper about the internal documents/correspondence exchanged between its
Officers during the period 2004-2005 either in its Chamber Summons No. 201
of 2010 or in the Appeal filed by it. No submission pertaining to the same was
made by RIL before the Learned Single Judge or before the Learned Division
Bench.
th
11.3 On 11 April, 2014, the parties went ahead with the marking of exhibits
in the Suit. Even at this stage, RIL did not make any mention of any of its
internal documents that RIL was desirous of producing.
th
11.4 On 10 July, 2014, RIL filed Chamber Summons (L) No. 1070 of 2014
seeking a second amendment to the written statement by addition of paragraph
7-B only to the extent of submitting that there had been an alleged gas reservoir
failure and that assuming that a concluded contract existed, the same was
incapable of being performed on this account, which Chamber Summons was
th
allowed on 11 July, 2014. However, RIL did not make any request for filing
any further documents at that stage or seek any order for discovery.
th
11.5 Thereafter the NTPC’s witness was cross-examined at length on 11
th th th
July, 2014, 25 July, 2014, 14 August, 2014, and 12 September, 2014.
th
11.6 As stated earlier, even on 25 November, 2014, no application was
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 33 CHS 629 of 2015
made by RIL for leave to produce its internal documents/correspondence
exchanged inter se between Officers of RIL during July, 2004 and November,
2005 which were not disclosed by RIL in its earlier three Affidavits of
Documents.
th
11.7 On 25 February, 2015, Mr. Ganguly of RIL filed his Affidavit-in-Lieu
–of- Examination- in- Chief wherein he has annexed Annexures 1 and 3 to 18
which are all internal documents of RIL which predate even the written
statement filed in 2007. No reason whatsoever is mentioned in the said
Affidavit-in-Lieu –of- Examination- in- Chief as to why these documents were
not disclosed earlier and were being produced for the first time as Annexures to
the Affidavit-in-Lieu –of- Evidence by RIL.
11.8 Since NTPC opposed RIL's attempt to introduce its internal
documents without obtaining leave of this Court, RIL filed the present Chamber
Summons and has in its Affidavit –in- Support contended that, the documents
relating to the internal notings of the parties during the time when the
negotiations were being held, are relevant documents; however since RIL
wanted that such internal documents ought to be produced on reciprocal basis
i.e. both parties must produce them, RIL accordingly took out an Application by
way of Chamber Summons No. 201 of 2010 calling upon NTPC to produce the
internal correspondence exchanged between their Officers inter- se during July,
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 34 CHS 629 of 2015
2004 and November 2005; since the Hon'ble Appeal Court by its Order dated
th
20 March, 2014 observed that in case of non-production of relevant
documents, the legal consequences arising therefrom, can always be argued.
RIL now wishes to produce the internal documents exchanged which are
relevant for the purposes of determining the real controversy in the Suit.
11.9 In my view, the cause now sought to be shown/explained by RIL for
not producing their internal documents which were admittedly in RIL's
possession since 2004-2005 despite RIL having filed three earlier Affidavits of
st rd rd
Documents dated 31 October, 2007, 3 December, 2009 and 23 January, 2010
is untenable and baseless. As pointed out hereinabove, at no point of time RIL
in its Chamber Summons No. 201 of 2010 or in its Appeal filed from the Order
dismissing the Chamber Summons has made even a whisper that RIL wanted
NTPC to produce its internal documents on a reciprocal basis. No submission
to this effect was advanced by RIL before the Learned Single Judge in Chamber
Summons No. 201 of 2010 or before the Learned Division Bench which
dismissed the Appeal filed therefrom by RIL. It is obvious that since RIL has no
cause to show as to why RIL failed to produce the internal
correspondence/documents exchanged inter se by the Officers of RIL, despite
RIL being in possession of the same since 2004-2005, RIL has come up with the
aforestated preposterous and unbelievable explanation which cannot be
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 35 CHS 629 of 2015
accepted. Again, since RIL has contended that the Appeal filed by RIL
impugning the Order passed by the Learned Single Judge in Chamber Summons
No. 201 of 2010 was disposed off/dismissed observing that the party not
producing a document will face the consequences of adverse inference being
drawn under Order XI Rule 21 of the CPC, RIL has produced the concerned
documents. It is pertinent to note that the said Appeal was disposed
th th
off/dismissed by an Order dated 20 March, 2014. Thereafter on 11 April,
2014, documents were marked as exhibits in the Suit in terms of three Indexes
tendered by the parties. RIL did not mention before this Court at that time that
they were wanting to produce their internal documents pertaining to the bid or
th
finalization of GSPA Contract. On 10 July, 2014, RIL filed Chamber
Summons (L) No. 1070 of 2014 seeking a second amendment to the written
th
statement by addition of paragraph 7-B. On 11 July, 2014, when the said
Chamber Summons was allowed, RIL did not make any request for filing any
th
further documents at that stage or seek any order for discovery. On 11 July,
th th th
2014, 25 July, 2014, 14 August 2014 and 12 September, 2014, NTPC's
th
witness was cross-examined at length. On 25 November, 2014, when the
Learned Single Judge directed RIL to file its Affidavit of Evidence along with
the documents, there was no application made by RIL for leave to produce
fresh and additional documents not disclosed by it in its earlier three Affidavits
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 36 CHS 629 of 2015
th
of Documents. On 19 December, 2014 the NTPC's witness was re-examined
th
and further cross-examined and NTPC's evidence was closed. On 25
February, 2015, RIL filed an Affidavit of Mr. B. K. Ganguly in Lieu of
Examination in Chief, and sought to introduce certain new documents not
disclosed at any earlier stage, by way of Annexures to the said Affidavit-in-Lieu
–of- Examination- in- Chief. Since NTPC opposed filing of the said documents
by RIL, without seeking leave of the Court, the present Chamber Summons is
th
taken out by RIL only on 18 April, 2015 i.e. more than one year after the Order
th
of the Division Bench dismissing RIL's Appeal was passed on 20 March, 2014.
In R. N. Dhoot & Co. vs. B.R. Shroti, reported in AIR 1980 Bombay 387
Agarwal, J. has held in Para 9 what amounts to ‘good cause’ and has stated that
‘good cause’ is that which is adequate, sound, and based on genuine ground or
reasons. What is good cause will depend upon the facts and circumstances of
each case. Therefore, in my view, RIL has not made out any cause much less
good cause as required under Rule 172 of the Bombay High Court (Original
Side) Rules, for this Court to allow RIL to bring its internal documents, which
according to RIL itself are in its possession since 2004-2005, but which were not
st
disclosed by RIL in its earlier three Affidavits of Documents dated 31 October,
rd rd
2007, 3 December, 2009 and 23 January, 2010. In fact as pointed out in
th
paragraph 2 hereinabove, this Court has repeatedly by its Orders dated 20
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 37 CHS 629 of 2015
th th
February, 2014, 20 March, 2014 and 11 July, 2014 recorded the
attempt/intention of RIL to delay the matter which is pending in this Court
since the last 10 years and the hearing of which is expedited by the Learned
Chief Justice of this Court in the year 2008. The Chamber Summons deserves
to be dismissed on this ground alone.
12. Though, as stated hereinabove, the Chamber Summons needs to be
dismissed on the ground that RIL has not made out any good cause for allowing
it to bring its internal documents on record at this stage, since RIL has
contended that the internal documents sought to be relied upon by it are
relevant, I shall also deal with the said submission hereunder:
13. RIL had taken out Chamber Summons No. 201 of 2010 seeking discovery
of the documents internally exchanged by NTPC officials pertaining to the
discussions with RIL during the various meetings held between July, 2004 and
2005 in respect of the subject bid. The Learned Single Judge while dismissing
the Chamber Summons No. 201 of 2010 taken out by RIL, inter alia, held that:
“25. …..none of these documents, would be relevant for the purpose
of deciding the issue already framed as to why the Letter of Intent
issued by the plaintiff and accepted by the defendant is a concluded
contract or not.
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 38 CHS 629 of 2015
27. ….. …. . …...
Since none of the documents in respect of which discovery is sought
are relevant for the purpose of deciding the issue as to whether
Letter of Intent issued by the plaintiff and accepted by the defendant
would be a concluded contract or not, in my view there is no merit in
the chamber summons filed by the defendant and the same thus
deserves to be dismissed.”
The Hon'ble Division Bench has in paragraph 14 of its Judgment held as under:
“14. Even on merits we are not inclined to interfere with the impugned
order of the learned trial Judge. Before us it was contended by the
appellant-defendant that the Chamber Summons was taken out under
Order 11 Rule 14 of the CPC. The power under the aforesaid provision is
bestowed upon the Court to call for documents at any stage of a suit. It
gives no right to a party under the aforesaid provision to insist that a
particular document be ordered to be produced. So far as non disclosure
of a document as required under Order 11 Rule 12 of the CPC is
concerned the consequence is provided for in Order 11 Rule 21 of the
CPC. It is not open to a party to keep making repetitive applications so
as to frustrate the progress of the trial. The question whether there was
a concluded contract between the parties will be determined on the basis
of the documents which parties have already produced in the suit.
Learned Trial Judge has held that principal issue in the suit will
accordingly be decided on the basis of the documents already produced
by the parties and the internal noting or correspondence between
officers of the Plaintiff company are not relevant.”
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 39 CHS 629 of 2015
14. More than one year after the Hon'ble Appeal Court dismissed the
Appeal, RIL has taken out the present Application seeking leave of this Court to
take the internal notings/correspondence between its Officers on record.
Though the Learned Single Judge, as reproduced hereinabove, has held that
since the internal documents of the Plaintiff are not relevant for the purpose of
deciding the issue as to whether the Letter of Intent issued by the Plaintiff and
accepted by the Defendant would be a concluded contract or not, the
Defendants are now seeking to introduce the same class of documents, of
course, this time their own internal documents.
15. Again, independently of what the Learned Single Judge or the Appeal
Court has held/observed, I am of the view that the internal
documents/correspondence exchanged by and between the official of RIL
cannot be of any assistance to RIL in establishing what is alleged by it and
recorded in paragraph 6.4 above. The question before the Court is whether
there was a concluded contract between NTPC and RIL. This question is
essentially a matter of interpretation of the terms of bargain which are reflected
in writings executed by the parties. Terms of bargain are a bilateral matter and
have to be ascertained from the language employed in the writings themselves.
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 40 CHS 629 of 2015
When the language employed is certain and clear, the meaning must be gathered
from it alone. Only if there is any ambiguity in the language employed, the
Court is free to invoke other external aids including the conduct of the parties to
ascertain the meaning. But the endeavour is to find out what both parties
together meant or understood by the terms of the bargain. An internal document
of a party unilaterally prepared and not shared with the other, cannot possibly
throw any light on what the parties together meant. It has, thus, no relevance
for establishing or proving the existence or otherwise of a concluded contract.
Therefore, apart from the fact that RIL has failed to show any case for non-
disclosure of documents, I am of the view that the documents with regard to
which leave is sought from this Court for being produced at this stage are not
relevant for deciding the present suit.
16. RIL has cited various judgments in support of its contention that RIL
ought to be permitted to produce additional documents. The same are clearly
inapplicable to the facts of the present matter. In each of those cases, the
circumstances in which documents were not produced at the appropriate time
have been set out. In clear contra-distinction, in the present matter, there are no
such circumstances. To elaborate:
(i) The facts in R. N. Dhoot & Co. vs B. R. Shroti (reported in
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 41 CHS 629 of 2015
AIR 1980 Bom 387), are inter alia that documents which were
official/public records such as a seizure memo, a First Information
Report and Railway Receipt Book had been produced in the Sessions
Court where the matter was being heard. Thereafter, when the matter
was over, the documents were withdrawn and kept by the Defendant in
the aforementioned matter. Subsequently, during the matter before the
Civil Court, the Advocate for the said Defendant probably did not take
care to include the documents in the Affidavit of Documents resulting in
the same remaining to be produced before the Civil Court.
(ii)
The facts in Gopika Raman Roy vs. Atal Singh (reported in
AIR 1929 PC 99), are inter alia that, certain official, government
records and documents to be produced, had not been so produced, as
they were not within the possession or power of the plaintiff in the matter
and the plaintiff did not know of their existence so as to enable the
plaintiff to inspect them and form an opinion as to whether the plaintiff
would rely on the documents or not.
(iii) The facts in Sir Hari Ram vs. Lachmi Singh (reported in
AIR 1928 Pat 537), are inter alia that the plaintiff in the
aforementioned matter produced a document (bearing the seals/stamps
of various courts proving its veracity), before the lower court and the
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 42 CHS 629 of 2015
same was taken and kept in the lower court’s custody for some time,
without passing any order either accepting or rejecting the said
document. Subsequently, the said document was rejected by the lower
court, on the basis that it was filed too late.
(iv) The facts in Chitrakala Fal Dessai vs. Balu Maratha [reported
in 2006 (6) MhLJ 427], are distinguishable in as much as the plaintiff
in the aforementioned suit filed an application to subsequently bring her
title deeds (most of which were public documents) which had been lost
and misplaced by her and could not be produced at the time of filing the
suit.
Thus it is clear that the aforesaid cases are of no aid to the Defendant.
17. RIL also sought to rely on the provisions of Sections 5 and 7 of the Indian
Evidence Act, 1872. The said provisions are inapplicable to the present case.
These provisions mainly relate to pleas of “alibi” in criminal matters and have
no bearing on the circumstances of the present case.
18. RIL has submitted that the question of any delay does not arise since
NTPC can immediately start with the cross-examination of RIL's witness. RIL
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 43 CHS 629 of 2015
is well aware that by taking out such an Application once again, a lot of time will
be consumed. RIL is well aware that a Chamber Summons with reliefs as sought
would be strongly opposed by NTPC and a final decision on the same would
once again involve substantial time thereby delaying the hearing of the Suit.
The contention therefore on the part of RIL that no motive of causing delay can
be attributed to RIL in taking out the above Chamber Summons cannot be
accepted.
19. RIL has also contended that if RIL is allowed to rely on its internal
documents which were in its possession since the year 2004-2005 but were not
produced by RIL along with its First, Second and Third Affidavits of
Documents, the same will not cause any prejudice to NTPC also cannot be
accepted. As correctly submitted by NTPC, examination in chief, cross-
examination and re-examination of its witness has concluded. It is only
thereafter that RIL has tried to rely on the documents which were in its
possession since 2004-2005. This will certainly cause prejudice to NTPC, if the
said documents are now allowed to be relied upon by RIL.
20. In the circumstances, the Chamber Summons is allowed to the extent of
granting leave to RIL to produce the documents listed at items 2, 19 to 21 and 22
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::
KPPNair 44 CHS 629 of 2015
to 24 in the Schedule of the Chamber Summons. For the reasons stated
hereinabove, RIL is not granted leave to produce the documents listed at items
1 and 3 to 18 in the Schedule of the Chamber Summons. The Chamber
Summons is accordingly disposed of.
(S.J. KATHAWALLA, J.)
::: Uploaded on - 29/01/2016 ::: Downloaded on - 26/06/2024 07:30:22 :::