* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No. 14518/2007 in CS (OS) No. 226/2000
Bigdot Advertising & Communications Pvt. Ltd. ...Plaintiff
Through : Mr. K.R. Chawla, Adv.
Versus
Union of India & Anr. ...Defendants
Through : Mr. A.S. Chandiok, ASG
with Mr. B.V. Niren, Mr. Harsh Kaushik
and Ms. Gitika Panwar, Advs. for D-1.
Mr. P.K. Bansal, Adv. for D-2
Decided on : January 21, 2010
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported
in the Digest? No
MANMOHAN SINGH, J.
1. This order shall dispose of the application under Section 151 of
the Code of Civil Procedure, 1908 (hereinafter to as „the CPC‟) filed by
the plaintiff being I.A. No. 14518/2007 to file additional documents on
record.
2. The plaintiff filed the present suit for recovery of
Rs. 3,16,39,009.64 with costs and pendente lite / future interest.
3. As per the plaintiff, it carried out advertisement work on the
directions and under the supervision of the officials of the Defendants
CS (OS) No. 226/2000 Page 1 of 7
No. 1 and 2.
4. The defendants made a part payment of Rs. 59,82,166.80p in
January 1997 out of the total amount of Rs. 1,95,83,910.00.
5. The plaintiff claimed the balance amount of Rs. 1,36,01,743.20 p
(principal amount) plus interest and damages legally due to it which are
being withheld by the Defendants without any reasonable cause or basis.
6. The plaintiff asserts that it has been claiming charges for
publication of the advertisement of the Defendants based on fixed tariff
as prescribed in the Indian Newspaper Society (INS) Press Hard Book,
being a fully accredited advertising agency of the INS.
7. The plaintiff denied that it is liable to pay contractual DAVP rates
as alleged by the defendants for a few publications. The plaintiff
submits that it is neither a party to any DAVP rate contract nor the
advertisement in question was released through DAVP.
8. The plaintiff further submits that in the list supplied by the
Defendants for publications of the advertisement in question, the
publications / their editions as well as the magazine are not on DAVP
contractual rate list although these formed an integral part of the list.
9. The plaintiff contends that it applied for disclosure of certain
information under Right to Information Act, 2005 on 19th December,
2006, relating to files/documents of the Defendant no. 1 which contains
various orders/directions/correspondence inter se the defendants, having
direct bearing on the case which was allowed by DOT‟s Appellate
Authority on 5th February, 2007 but no response was received from the
CS (OS) No. 226/2000 Page 2 of 7
Chief Public Information Officer, Department of Telecom (DoT). The
plaintiff filed an appeal before DoT‟s appellate authority which was
allowed on 5th February, 2007.
10. The plaintiff also states that some documents under RTI were
supplied to it on 29th August, 2007 much after than the cross-
examination of the Defendant No. 1 which was completed on 1st
February, 2007. It is stated that since the documents were supplied
subsequent to the production of Defendant No. 1‟s evidence, they could
not be exhibited before the evidence of defendant No.1. The plaintiff
pleads that there exists sufficient cause for not filing the said documents
as there has been delayed disclosure by the Defendant No. 1.
11. The plaintiff urged that the above said documents have been
signed and stamped as “attested true copies” by Sh. L.T. Tluanga,
Deputy Secretary (Administration II), DOT in his capacity as deemed
CPIO under RTI Act, 2005 of Defendant No. 1 who also deposed as its
own witness. It is stated that the said documents have been supplied by
Sh. S.L. Negi, CPIO of Department of Telecom under his own covering
letter to the Plaintiff as detailed in the enclosed list. The plaintiff
therefore, urged that the genuineness and correctness of said documents
which have been supplied as attested true copies from DOT‟s own
records cannot be doubted. They do not require any evidence and can be
straight away marked as exhibits.
12. The Plaintiff alleges that the said documents now disclosed by the
Defendant No. 1 under RTI Act, 2005 would provide documentary
CS (OS) No. 226/2000 Page 3 of 7
evidence to the effect that the Defendant No. 1 has been making
payments through its PSUs based on INS tariff as given in the Indian
Newspaper Society Press Hand Book to the Plaintiff as well as to other
INS accredited advertising agencies for publication of their
advertisements. The defendants have denied this fact and stated that
the payment to the plaintiff has to be made through DAVP rates for its
advertisement. The plaintiff contended that the filing of the said
documents is necessary for determination of the controversy between the
parties and for final and effective adjudication of the matter.
13. The defendant no. 2 in reply submits that the application of the
plaintiff to bring on record additional documents should not be
entertained at this stage as it has been filed in December 2007 although
the suit has been filed in the year 2000. It is further submitted that the
said application has been filed by the plaintiff after the evidence of
defendant no.1 was completed and the evidence of defendant no. 2 was
also substantially complete. The documents sought to be brought on
record are either letters/notings of defendant no.1 or letter of
plaintiff/third parties.
14. Mr. A.S. Chandhiok, Additional Solicitor General and Senior
Counsel for Defendant No.1 argued that the application filed by the
plaintiff is not maintainable mainly on the ground that these documents
ought to have been filed along with the plaint as per the provision of
Order 7 Rule 14 CPC. It was the duty of the plaintiff to produce the
documents before the admission/ denial of documents took place. I find
CS (OS) No. 226/2000 Page 4 of 7
myself unable to accept this contention as I am of the view that it is the
substance of the application that matters and not the nomenclature given
in the cause title of the application. Under Section 151 CPC the court has
inherent power to consider an application wherein a wrong provision is
mentioned. No party can be permitted to sidetrack the main issue and to
delay the court proceedings by going into elementary procedural law and
by pressing hyper-technical issues.
15. In case any application has to be made under RTI Act to receive
the information it should have been done by the plaintiff at the earlier
stage and not at this stage when the evidence of the parties is almost
concluded. It is vehemently argued that since the plaintiff has failed to
prove its case on merit, the present application has been filed in order to
delay the matter.
16. He further argued that admission and denial of documents in this
matter was completed on 12th February, 2002. Issues were framed on 2nd
April, 2003 and PW1 was cross examined on 19 th October, 2005. By this
time, the documents and pleadings of the parties were in the knowledge
of the plaintiff who could have applied for these documents at that stage
if necessary but the plaintiff filed an application under RTI on 19 th
December, 2006 after the cross examination of witness of Defendant
No.1. It is contended that the plaintiff is trying to prove his case on the
basis of the documents which were supposed to have been filed earlier.
17. I agree with the contention of the plaintiff that the RTI documents
could not be filed earlier as Right to Information Act, 2005 (22 of 2005)
CS (OS) No. 226/2000 Page 5 of 7
itself came into force on 15th October, 2005 where after TCIL and DOT
documents/file notings were sought from TCIL by the plaintiff by
application dated 19th December, 2006.
18. I agree with the contention of the learned counsel for the plaintiff
that these documents could not be confronted in cross-examination of
defendant No.1 which was already completed on 1.2.2007 as the same
were received by the plaintiff subsequently in the month of August,
2007.
19. In view of the above mentioned documents it is clear that the
defendant No.1 has all along been making payments through PSUs based
on INS tariff as given in he Indian Newspaper Society Press Hand Book
to the plaintiff and to other INS accredited advertising agencies for
publication of the advertisements. Since the attested copies of the said
documents were supplied to the plaintiff on 29th August, 2007, the
attested true copies were earlier denied by the defendant No.1 at the time
of admission/denial of the document. Prima facie it appears that the said
documents are relevant documents which will go into the root of the
cause and the plaintiff has been able to make sufficient cause for not
filing the documents earlier because of their delayed disclosure under the
Right to Information Act, 2005 by the defendant No.1.
20. Without going into the merit of the documents, although I agree
with the learned counsel for the defendant that the matter is almost ready
for final disposal, however, in the interest of justice, equity and fair play,
I allow the application and direct that the documents enclosed with the
CS (OS) No. 226/2000 Page 6 of 7
application be taken on record, however, it is made clear that the
question of admissibility of these documents in evidence has to be
considered as per their own merit and in accordance with the law.
21. The present application is accordingly disposed of with the said
directions.
CS (OS) No.226/2000
List before court on 15th February, 2010.
MANMOHAN SINGH, J.
JANUARY 21, 2010
jk
CS (OS) No. 226/2000 Page 7 of 7