Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5620 OF 2021
(Arising out of SLP (C) No. 13082 OF 2021)
SUDHIR KUMAR @ S. BALIYAN .. APPELLANT (S)
VERSUS
VINAY KUMAR G.B. .. RESPONDENT (S)
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 06.04.2021 passed by the High Court of Delhi
at New Delhi in C. M. (M) No.181 of 2021, by which the High
Court has dismissed the said petition preferred by the appellant
herein – original plaintiff and has confirmed the order dated
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2021.09.15
16:50:45 IST
Reason:
13.11.2019 passed by the learned Commercial Court,
dismissing the application filed by the appellant under Order
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VII Rule 14 (3) of the Code of Civil Procedure (hereinafter
referred to as the Code) seeking leave of the court to place
additional documents on record, the original plaintiff has
preferred the present appeal.
2. The appellant herein – original plaintiff filed the commercial
suit before the Commercial Court pending in the court of
learned Additional District Judge (Central) 10, being T.M.
No.123 of 2019 interalia for claiming a decree of permanent
injunction against the defendant from using the Trade Mark
“INSIGHT”, “INSIGHT ACADEMY”, “INSIGHT IAS ACADEMY”
and “INSIGHT PUBLICATIONS”. At this stage, it is to be noted
that the appellant filed the earlier suit being Trade Mark Suit
No.236 of 2018, claiming such adoption and use of the
trademark. However, subsequently the same came to be
withdrawn on 27.07.2019, as the same was not filed in
conformity with the provisions of the Commercial Courts Act,
2015 (hereinafter referred to as the Commercial Courts Act) and
subsequently filed the present suit on 31.08.2019. In the suit it
is alleged that the adoption and use of the trademark by it is
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since 2006. As per the provisions of Order XI Rule 1 applicable
to the suits before the commercial division of a High Court or a
commercial court, the plaintiff was required to 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 or certain documents including the invoices,
were not produced along with the plaint and therefore the
appellant herein filed the application under Order VII Rule 14
(3) read with Section 151 of CPC, seeking leave of the court to
file additional documents.
2.1 By order dated 13.11.2019, the learned Commercial Court
dismissed the said application seeking leave of the court to file
additional documents, filed by the appellant. That thereafter
the defendant filed the written statement on 06.01.2020. As per
Order XI Rule 7 even the defendant was required to file the list
of all documents, photocopies of all documents, in its power,
possession, control or custody, pertaining to the suit, along
with the written statement or with its counter claim, if any.
However, some documents were not produced by the defendant
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along with the written statement and therefore the defendant
filed an application under Order XI Rule 1 (10) of the CPC
seeking leave of the court to produce additional documents as
set out in the said application, however, the commercial court
partly rejected the said application vide order dated
08.10.2020.
The respondent herein – original defendant preferred an appeal
against the order dated 08.10.2020 before the Delhi High
Court. The Delhi High Court vide order dated 07.12.2020
allowed the said appeal taking on record all the documents filed
by the defendant. That thereafter the learned Commercial Court
dismissed the interim injunction application filed under Order
XXXIX Rule 1 and 2 of the CPC of the plaintiff vide order dated
16.01.2021.
2.2 That thereafter the appellant herein – original plaintiff filed CM
(M) No.181 of 2021 before the High Court of Delhi challenging
the order dated 13.11.2019, dismissing the application seeking
leave of the court to file additional documents filed by the
plaintiff. By the impugned judgment and order, the High Court
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has dismissed the said CM (M) No. 181 of 2021 and has
confirmed the order passed by the learned Commercial Court
dismissing the application seeking leave to file additional
documents filed by the plaintiff.
3. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court, the original plaintiff has
preferred the present appeal.
4. Shri Sachin Datta, learned Senior Advocate appearing on behalf
of the appellant has vehemently submitted that in the facts and
circumstances of the case, the application submitted by the
plaintiff to file/produce on record the additional documents, as
mentioned in the application submitted under Order XIV Rule 3
ought to have been allowed.
4.1 It is vehemently submitted that as such the documents which
are sought to be relied upon and sought to be produced on
record are very much necessary for the purpose of just decision
of the suit.
4.2 It is submitted that when the defendant was permitted to
produce on record the additional documents along with the
written statement in exercise of powers under Order XI Rule 1
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(10) of the CPC, similarly the plaintiff also ought to have been
permitted to place on record the additional documents which as
such are very much necessary for just decision of the suit.
4.3 It is further submitted that by Shri Datta, learned Senior
Advocate appearing on behalf of the appellant that the High
Court ought to have appreciated the application to file
additional documents was filed by the plaintiff within 10 days
of filing of the suit. It is submitted that as such therefore the
High Court has erred in holding that the additional documents
were produced by the plaintiff at a belated stage. It is further
submitted that the High Court has also materially erred in
observing that the explanation for nonfiling of additional
documents is an afterthought and when the application for
interim injunction under Order XXXIX Rule 1 was kept for
orders.
4.4 It is submitted that the High Court has at all not appreciated
the fact that the application seeking leave of the court to
produce the additional documents was filed within 30 days of
filing of the suit and therefore the requirement under Order XI
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Rule 1 (4) of the CPC was satisfied.
4.5 It is further submitted that even the High Court has erred in
not appreciating that the additional documents are in support
of the pleadings already made in the plaint.
4.6 It is further submitted that even the High Court has erred in
not appreciating that the learned Trial Court/Commercial Court
erred in holding that the documents are suspicious because the
plaintiff did not mention about the existence of the said
documents in the plaint. It is submitted that at the stage of
production of the additional documents, the learned Trial
Court/Commercial Court was not at all required to consider the
genuineness of the documents sought to be produced, which
otherwise are required to be decided or considered during the
trial of the suit.
4.7 It is further submitted that even otherwise so far as the
invoices, which are sought to be produced, are concerned, it
was specifically stated that the said documents were not
available or in possession of the plaintiff at the time when the
suit was filed and the same were discovered subsequently.
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4.8 It is further submitted by the counsel appearing on behalf of
the appellant that cogent reasons were given by the plaintiff for
not producing the additional documents other than the
invoices, along with the suit. It is submitted that as such there
was no other malafide intention and/or negligence on the part
of the plaintiff for not producing along with the plaint the
additional documents other than the invoices. It is submitted
that the suit was filed on an urgent basis seeking an exparte
ad interim injunction and therefore the additional documents
other than the invoices, which were bulky were not produced
along with the plaint. It is submitted that therefore when the
application for leave to produce the additional documents was
filed within a period of 10 days from the date of filing of the suit
i.e. without any undue delay, the said application ought to have
been allowed and the plaintiff ought to have been permitted to
produce the additional documents as mentioned in the
application.
5. The present appeal is vehemently opposed by Ms. Kruttika
Vijay, learned Advocate appearing on behalf of the respondent
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herein – original defendant.
5.1 It is submitted that in the facts and circumstances of the case
and considering the object and purpose of Order XI Rule 1 as
applicable to the suits before the commercial court and
considering the said provisions, both the learned Trial
Court/Commercial Court as well as the High Court have rightly
dismissed the application filed by the plaintiff under Order VII
Rule 14 (3) of the CPC.
5.2 It is submitted that as such no cogent reasons were given by
the plaintiff for not producing additional documents along with
the plaint. It is submitted that in the absence of any cogent
reasons, the application submitted by the plaintiff for seeking
leave of the court to produce the additional documents is
rightly dismissed. It is submitted that the order rejecting the
application of the plaintiff seeking leave of the court to produce
on record the additional documents is absolutely in consonance
with the provisions of the Order XI Rule 1 (4) and Order XI Rule
1 (5) of the CPC.
5.3 It is further submitted by the learned counsel appearing on
behalf of the respondent herein–original defendant that in view
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of the specific provision by way of amendment in the CPC,
amending Order XI Rule 1 of the CPC w.r.t. the suits before the
commercial court, considering Section 16 of the Commercial
Courts Act, Order VII Rule 14(3) shall not be applicable at all
and what shall be applicable would be Order XI Rule 1 of the
CPC as applicable to the suits before the commercial court.
5.4 It is further submitted that as such the application submitted
by the plaintiff lacked bonafides as having realized during the
course of the hearing of the interim injunction application
under Order XXXIX Rule 1 that non production of the
documents which subsequently are sought to be produced may
come in their way and the interim injunction application was
kept for orders and as an afterthought the application was
given. It is further submitted by the learned counsel appearing
on behalf of the respondent herein original defendant that so
far as the cause/reason shown in not producing the additional
documents other than the invoices, namely, as the documents
were bulky and therefore they were not produced, cannot be a
ground, subsequently to permit the plaintiff to place on record
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the additional documents which as such were in possession of
the plaintiff at the time of filing of the plaint/suit.
6. Making the above submissions, it is prayed to dismiss the
present appeal.
7. We have heard the learned counsel appearing on behalf of the
respective parties at length.
7.1 By the impugned judgment and order, the High Court has
dismissed the petition confirming the order passed by the
learned Commercial Court dated 13.11.2019, dismissing the
application filed by the appellant herein – original plaintiff
seeking leave of the court to place additional documents on
record. That by the said application the plaintiff prayed to
permit him to place on record the invoices as mentioned in
paragraph 3 of the application and also certain other additional
documents. That the plaintiff stated in the application for leave
to place on record additional documents in paragraph 3 and 4
as under:
“3. That the accompanying documents along with the present
application in particular invoice dated 03.05.2005, invoice
dated 08.07.2005, invoice dated 10.08.2005, invoice dated
22.02.2006, invoice dated 10.04.2006, 1nvo1ce dated
05.06.2006, invoice dated 15.07.2006, invoice dated
10.01.2007, invoice dated 14.03.2007, invoice dated
19.05.2007, invoice dated 08.07.2007, invoice dated
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06.09.2007, invoice dated 14.03.2007, invoice dated
01.10.2007 could not be filed along with plaint being very old
and not in possession of the plaintiff at the time of filing the
plaint. Now the plaintiff has found the same from the Shivalik
Graphics.
4. That the documents other than above said documents
could not be filed due to voluminous records pertaining to
plaintiff case could not be filed at the time of filing of case but
the same are very important for the adjudication of dispute
between the parties.”
The aforesaid application has been dismissed by the learned
Commercial Court, which has been confirmed by the High
Court by the impugned judgment and order.
7.2 At the outset, it is required to be noted that as such the said
application for leave to produce on record additional documents
was preferred by the appellant herein – original plaintiff under
Order VII Rule 14 (3) of the CPC. However, considering the
Order XI Rule 1 as applicable to the commercial suits by which
Civil Procedure Code has been amended with respect to the
suits before the commercial court and in view of the Section 16
of the Commercial Courts Act, Order VII Rule 14 (3) of the CPC
shall have no application at all. After the Order XI Rule 1 has
been amended with respect to the suits before the commercial
courts and a specific provision/procedure has been prescribed
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with respect to the suits before the commercial division and
before the commercial court, the provision of the Code of Civil
Procedure as has been amended by the Commercial Courts Act,
2015 shall have to be followed and any provision of any rule of
the jurisdiction of the High Court or any amendment to the
Code of Civil Procedure by the State Government which is in
conflict of the Code of the Civil Procedure as amended by
Commercial Courts Act, the provision of the Code of the Civil
Procedure as amended by the Commercial Courts Act shall
prevail. Therefore, Order XI Rule 1 as amended by the
amendment in the Commercial Courts Act, with respect to the
suits before the commercial division and the commercial court,
the provisions of Order VII Rule 14 (3) shall not be applicable at
all. Therefore as such the plaintiff applied the wrong provision
seeking leave of the court to place on record the additional
documents. However, considering the fact that thereafter, both
the learned Commercial Court as well as the High Court treated
and considered and even applied Order XI Rule 1 of the CPC as
amended by the Commercial Courts Act and as applicable to
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the suits filed before the commercial division, commercial court,
we proceed to consider the application submitted by the
appellant herein – original plaintiff, as if the same was
submitted under Order XI Rule 1 (4) of the CPC.
7.3 It is true that Order XI Rule 1 of the CPC 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 XI Rule 1 is required to be
followed by the plaintiff and the defendant, when the suit is the
commercial suit. Order XI Rule 1, as applicable to commercial
suits reads as under:
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.—(1) Plaintiff shall
file a list of all documents and photocopies of all documents,
in its power, possession, control or custody, pertaining to the
suit, along with the plaint, including:—
(a) documents referred to and relied on by the plaintiff in the
plaint;
(b) documents relating to any matter in question in the
proceedings, in the power, possession, control or custody of
the plaintiff, as on the date of filing the plaint, irrespective of
whether the same is in support of or adverse to the plaintiff’s
case;
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(c) nothing in this Rule shall apply to documents produced by
plaintiffs and relevant only––
(i) for the crossexamination 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 subrule shall
be contained in the Statement of Truth as set out in the
Appendix.
(4) In case of urgent filings, the plaintiff may seek leave to rely
on additional documents, as part of the above declaration on
oath and subject to grant of such leave by Court, the plaintiff
shall file such additional documents in Court, within thirty
days of filing the suit, along with a declaration on oath that
the plaintiff has produced all documents in its power,
possession, control or custody, pertaining to the facts and
circumstances of the proceedings initiated by the plaintiff and
that the plaintiff does not have any other documents, in its
power, possession, control or custody.
(5) The plaintiff shall not be allowed to rely on documents,
which were in the plaintiff’s power, possession, control or
custody and not disclosed along with plaint or within the
extended period set out above, save and except by leave of
Court and such leave shall be granted only upon the plaintiff
establishing reasonable cause for non–disclosure along with
the plaint.
(6) The plaint shall set out details of documents, which the
plaintiff believes to be in the power, possession, control or
custody of the defendant and which the plaintiff wishes to rely
upon and seek leave for production thereof by the said
defendant.
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(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 crossexamination 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 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 subrule (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 subrule (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 nondisclosure 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
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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 XI 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, possession, control or custody. As per the
explanation under Order 11 Rule 1 (3) a declaration on oath
under this subrule 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:
‘‘APPENDIXI
STATEMENT OF TRUTH
(Under First Schedule, Order VIRule 15A and Order XI 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
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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
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mandated by Order XI 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.
7.4 However, the additional documents can be permitted to be
bought on record with the leave of the court as provided in
Order XI Rule 1 (4). Order XI 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.
7.5 Order XI Rule 1 (5) further provides that the plaintiff shall not
be allowed to rely on documents, which were in the plaintiff’s
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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 XI Rule 1 (4) read with Order XI 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.
7.6 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 XI 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 plaintiff
has to satisfy and establish a reasonable cause for non
disclosure along with plaint. However, at the same time, the
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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 XI Rule 1
(4) and Order XI 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.
8. Having considered the statutory provisions in detail, the order
passed by the learned Commercial Court, confirmed by the
High Court, rejecting the application of the plaintiff for leave to
rely on the additional documents is required to be tested and
considered.
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8.1 It emerges from the record that the first suit was filed by the
plaintiff in the month of October, 2018, bearing TM No.236 of
2018, restraining the defendant from infringing and passingoff
plaintiff’s Trade Marks. That an exparte interim injunction was
passed in favour of the plaintiff by order dated 29.10.2018. It
appears having realized and found that the earlier suit was not
in consonance with the provisions of the Commercial Courts
Act, the plaintiff withdrew the said suit being TM No.236 of
2018 on 27.07.2019 with liberty to file a fresh suit as per the
Commercial Courts Act, 2015. Therefore, the second suit was
filed on 31.08.2019 and within a period of thirty days from
filing of the second suit the appellant herein – original plaintiff
preferred the present application seeking leave of the court to
file additional documents. In the application, it was specifically
mentioned that so far as the invoices are concerned, the same
were not in its possession at the time of the filing of the plaint
and so far as the other documents are concerned they were not
filed due to they being voluminous. Therefore, so far as the
invoices sought to be relied on/produced as additional
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documents ought to have been permitted to be relied
on/produced as it was specifically asserted that they were not
in his possession at the time of filing of the plaint/suit.
8.2 The submissions on behalf of the defendant that the cause
shown for non production was an afterthought cannot be
accepted for the simple reason that the application was filed
within a period of thirty days from the date of filing of the
second suit and at the time when the application for interim
injunction under Order XXXIX Rule 1 was not fully heard and
kept for orders.
8.3 Even the reason given by the learned Commercial Court that
the invoices being suspicious and therefore not granting leave
to produce the said invoices cannot be accepted. At the stage of
granting leave to place on record additional documents the
court is not required to consider the genuineness of the
documents/additional documents, the stage at which
genuineness of the documents to be considered during the trial
and/or even at the stage of deciding the application under
Order XXXIX Rule 1 that too while considering prima facie case.
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Therefore, the learned Commercial Court ought to have granted
leave to the plaintiff to rely on/produce the invoices as
mentioned in the application as additional documents.
8.4 Now, so far as the other documents sought to be relied
on/produced as additional documents other than the invoices
are concerned the same stands on different footing. It is not
disputed and in fact it was specifically admitted and so stated
in the application that those additional documents other than
the invoices were in their possession but not produced being
voluminous and that the suit was filed urgently. However, it is
to be noted that when the second suit was filed, it cannot be
said to be urgent filing of the suit for injunction, as the first suit
was filed in the month of October, 2018 and there was an ex
parte ad interim injunction vide order dated 29.10.2018 and
thereafter plaintiff withdrew the said first suit on 27.07.2019
with liberty to file a fresh suit as per the Commercial Courts Act
and the second suit came to be filed on 31.08.2019 after period
of one month of the withdrawal of first suit. Therefore the case
on behalf of the plaintiff that when the second suit was filed, it
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was urgently filed therefore, the additional documents sought to
be relied upon other than the invoices were not filed as the
same were voluminous cannot be accepted. And therefore as
such Order XI Rule 1 (4) shall not be applicable, though the
application was filed within thirty days of filing of the second
suit. While seeking leave of the court to rely on documents,
which were in his power, possession, control or custody and not
disclosed along with plaint or within the extended period set
out in Order XI Rule 1 (4), the plaintiff has to establish the
reasonable cause for non disclosure along with plaint.
8.5 In view of the facts and circumstances narrated hereinabove
and in view of the filing of the first suit in the month of October,
2018; the exparte ad interim injunction order in favour of the
plaintiff dated 29.10.2018; withdrawal of the first suit on
27.07.2019 and subsequently the filing of the second suit on
31.08.2019, non filing of the additional documents other than
the invoices on the ground of they being voluminous cannot be
said to be a reasonable cause for non disclosure/filing along
with plaint. There was sufficient time gap between the filing of
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the first suit and filing of the second suit i.e. approximately 10
months and therefore when the second suit was filed the
plaintiff was having sufficient time after filing of the first suit, to
file the additional documents other than the invoices at the
time when the second suit was filed. Therefore as such, both
the courts below have rightly not permitted the plaintiff to rely
upon the documents, other than the invoices as additional
documents in exercise of the powers under Order XI Rule 1 (4)
read with Order XI Rule 1 (5).
9. In view of the above and for the reasons stated above, the
plaintiff can be permitted to rely on the documents in the form
of invoices as mentioned in the application as additional
documents. However, such production shall not affect the
outcome of interim injunction application submitted under
Order XXXIX Rule 1 of the CPC, which as such is reported to be
kept for orders.
10. In view of the above and for the reasons stated above, the
present appeal is partly allowed. The impugned judgment and
order passed by the High Court confirming the order passed by
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the learned Commercial Court dismissing the application
submitted by the plaintiff to rely on/produce the documents
mentioned in application dated 13.09.2019, as additional
documents is quashed and set aside to the extent not granting
leave to the appellant herein – original plaintiff to rely
on/produce the invoices mentioned in the application dated
13.09.2019 and consequently the leave is granted to the
appellant herein – original plaintiff to produce/rely on the
invoices mentioned in the application as additional documents.
Rest of the order not granting leave to appellant herein –
original plaintiff to rely on/produce the documents other than
the invoices as observed hereinabove, as additional evidence is
hereby confirmed. The present appeal is accordingly partly
allowed to the aforesaid extent. No costs.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(ANIRUDDHA BOSE)
New Delhi,
September 15, 2021
27