ORDER
A.K. Sikri, J.
1. This application is preferred by the plaintiff under Order XI Rules 12, 13 and 14 readwith Section 151 of Code of Civil Procedure. The plaintiff has made the prayer in this application to the effect that defendants be directed to discover on oath and produce the documents on record, as mentioned in para 7 of the application, which are in their power and possession.
2. The plaintiff has filed the suit for recovery of Rs.58,59,071.80 paisa. Allegations in the plaint are that at relevant time defendants 2 and 3 were at the helm of affairs of the plaintiff company in the capacity of Director and Managing Director respectively. They divested a huge sum of Rs. 38,55,000/- as advance to the defendant No.1 which is a family concern/company of defendants 2 and 3. Defendant No.3 even acknowledged the liability of the aforesaid amount on his behalf as well as on behalf of defendants 1 and 2 vide memorandum dated 23rd January, 1990 addressed to Shri S.C.Mathur, who is the auditor of the plaintiff company. As per the said memorandum the amounts divested from the plaintiff company were on account of funds used for capital financing of Punj Lloyd Pvt.Ltd. which is another family concern of the defendants. Since defendants failed and neglected to pay the amounts due they are liable to pay the said amounts with interest. After adding up the interest suit is filed for recovery of Rs. 58,59,071.80 paisa.
3. It is stated in the present application that although the defendants in their written statement have denied the diversion of the afore-mentioned amount from the plaintiff company to defendant No.1 but have not filed any documents in support of their defense. It is obligatory and mandatory on the part of defendants to file all documents in their power and possession relating to the present suit to narrow down the scope of controversy. Accordingly production of the following documents by the defendants is sought:
(i) Ledgers & Balance Sheet for the years 1989-90, 1990-91, 1991-92 and 1992-93 along with the list of creditors of the defendant No.1.
(ii) List of Shareholders of M/s Punj Lloyd Pvt.Ltd.
(iii) List of investments and shares held by the defendant No.1 since 1989 till date.
(iv) List of shares held by defendant No.1.
(v) All correspondence and documents pertaining to the transaction in suit particularly original memorandum dated 23.1.1990 sent by the defendant no.3 to Sh.S.C.Mathur.
4. The defendants have contested the aforesaid application submitting that application is an abuse of the process of law and has been filed merely to prolong the proceedings. It is submitted that the plaintiff has to prove its case in affirmative and it is not for the defendants to prove the defense in the negative. The present application amounts to fishing and roving enquiry which is not permissible.
5. I agree with the contention of the defendants. As mentioned above, main case set up by the plaintiff company is that amounts and advances were taken from the plaintiff company by defendant no.1 details of which are given in para 5 and it is claimed that such a diversion of money from plaintiff company to defendant No.1 by defendants 2 and 3 amounted to breach of trust as the money was to be applied to certain refined objects but they applied the same to objects other than for which entrustment was made. The averments made to this effect in paras 5 and 6 of the plaint are reproduced below:
“Para 5: That the amounts and advances taken from the plaintiff company by defendant No.1 and/or withdrawn by defendants from the plaintiff company with respect to which they derived benefit are detailed hereinunder:
Date Amount (Rs.)
24.05.1989 38,55,000/-
Para 6: That the above amount were paid to defendant No.1 at the instance of defendants 2 and/or 3. Defendant No.3 also confirmed the requisite voucher in this regard.”
6. In para 5 and 6 of the written statement the defendants have specifically denied that any such amount was taken from the plaintiff company by the defendant No.1 and/or withdrawn by plaintiff company. Thus the basic dispute is as to whether the defendant No.1 company had withdrawn the amount in question from the plaintiff company. In this respect it would be appropriate to state that issues No.1 and 5 have been framed touching this aspect which are as under:
1. Whether the plaintiff proves that plaintiff is to take an amount of Rs.58,59,071.80 paisa from the defendants?
5. Whether the defendants 2 and 3 had withdrawn the money from the plaintiff for defendant No.1?.
7. Other issues relates to verification of plaint, limitation, interest and status of defendants 2 and 3 etc. as Directors of the plaintiff company and do not touch the core issues. Thus as per the pleadings and the aforesaid issues, the plaintiff company is to prove as to whether money was withdrawn by defendants 2 and 3 for defendant No.1. However, by means of present application, the plaintiff company is trying to go beyond the scope of these issues. The liability of defendant No.1 would depend on plaintiff’s proving that money was withdrawn from the plaintiff company and diverted to defendant No.1 and that defendants 2 and 3 were Directors at the relevant time who had withdrawn the said money illegally from plaintiff company in favor of defendant No.1. The documents sought to be produced by means of present application have no bearing on these issues. It was contended by learned counsel for the plaintiff company that these documents would show as to where, after withdrawing the money, defendant No.1 company invested the amount in question. This is not the controversy in the suit nor is there any issues on this aspect. Therefore, I do not find that these documents are relevant for deciding the controversy. The plaintiff company is trying to make a fishing and roving enquiry. The application is accordingly dismissed.