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SCA/29091/2007 20/ 20 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 29091 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SANGHI
SPINNERS (INDIA) PVT LTD - Petitioner(s)
Versus
RAJESH
NAGINDAS SHAH - Respondent(s)
=========================================================
Appearance
:
MRS
VD NANAVATI for
Petitioner(s) : 1,
MR CL SONI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 17/06/2008
ORAL
JUDGMENT
In
this petition under Article 227 of the Constitution of India, the
petitioner, a private limited company incorporated and registered
under the provisions of the Companies Act, 1956, has challenged the
decision and order dated 8.8.2007 passed below Exh.188 rejecting the
application (Exh.188) preferred by the petitioner seeking permission
for production of certain documents mentioned and described in the
accompanying list of documents.
It
is the case of the petitioner that the respondent filed special civil
suit No.71/99 praying for a decree for an amount of Rs.3,35,286/-
with interest thereon. The said claim was made by respondent
(Original plaintiff) against the petitioner company as unpaid amount
of the invoices raised against the petitioner company covering the
period from 25.11.97 to 11.2.98 for having supplied cotton bales to
the petitioner company. From the facts stated by the petitioner, it
transpires that after having received process from the Court in
connection with the said suit filed by the respondent herein, the
petitioner company also preferred counterclaim against the respondent
and prayed for a decree for Rs.3,35,286/-. The case of the petitioner
company in its counterclaim was to the effect that the order for
supplying 500 cotton bales was issued by it in favour of the
respondent, however, the respondent had failed to deliver the
contracted quantity and as a result of the said non-delivery of goods
by the respondent, the petitioner was put to suffer loss as it could
not fully, and in certain cases partly, fulfil its export
obligations. The petitioner has claimed that in all only 313 cotton
bales were delivered out of which, only 50 were delivered as per the
agreed schedule and 263 cotton bales were delivered after expiry of
time schedule whereas, 180 cotton bales were never supplied.
The
proceedings in respect of the said special civil suit No.71/99 and
counterclaim of the petitioner company are pending before the learned
Court at Surendranagar and during pendency of the said proceedings,
the petitioner submitted an application being Exh.118 with a prayer
that the petitioner may be permitted to produce on record the
documents mentioned and described in the list of documents annexed to
the said application Exh.188. According to the petitioner, the
documents which it seeks to produce on record are invoices of the
relevant period, which would justify and substantiate its
counterclaim and/or would support its defence in respondent’s suit.
After
considering the said application Exh.188 and the submission of both
the sides, the learned Court has rejected the application Exh.188 by
observing :-
?S3. That
as per provision contained in Order-13 Rule-1 original documents to
be produced at or before the settlement of issue. Here in this case
admittedly the suit is in stage of recording evidence of defendant’s
side. It is also to be noted that in connection with the averments
that the documents are received by the defendant from the bank
recently, for that there is no evidence produced from which, it can
be said that the defendant has received the listed documents from the
bank recently. It is also to be noted that, out of the documents
listed with the list some documents were produced earlier for that
also, there is no clarification made in this application, and to the
extent this application is vague. That the reasons shown for the late
production are not satisfactory reasons. Again it is to be noted that
as per the provision cited earlier, is made mandatory for the party
to produce documents relied upon before settlement of issues and the
second provision of order-13 is deflected by amendment in Civil
Procedure in the year 1999, thereafter amended C.P.C. 2000 (Amended
Act 2002 came into force) That as per provision and the application
as being vague in regard to production of documents earlier, this
application for the production is liable to be rejected. I,
therefore, pass following order in the interest of justice.??
Being
aggrieved by the said order, the petitioner has preferred present
petition.
Mrs.
VD Nanavati appears for the petitioner and Mr. CL Soni appears for
the respondent. I have heard the learned counsel for the respective
parties.
Mrs.
Nanavati for the petitioner reiterated the submission made in the
application Exh.188 and submitted that the learned Court has
seriously erred in disallowing the application and when the
petitioner i.e. the opponent in the suit has lodged counterclaim, in
the interest of justice, the request made for production of documents
deserved to be and ought to have been granted. Mrs. Nanavati further
submitted that it was due to present respondent’s action that the
petitioner herein was put to suffer loss and that has been the case
of the petitioner before the learned Court right from the beginning.
The documents, which would substantiate and support its case could
not be produced earlier, however, the petitioner herein has prayed
for permission to produce the documents before the stage of evidence
is closed and that therefore, the said permission ought to have been
granted. On behalf of the petitioner heavy reliance is placed on the
provision contained under Order-7 Rule 14(3) Order-8 Rule-(1A) (3),
which read thus:-
Order-7,
Rule -14(3).
?SA
document, which ought to be produced in Court by the plaintiff when
the plaint is presented, ought 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.??
Order-8,
Rule-1A(3)
?S(3)
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.??
By
placing reliance on the said provisions, the learned counsel for the
petitioner further submitted that it is permissible for the party to
the suit to produce documents at a later stage and if the Court
grants permission then, documents can be produced at a later stage
also. The petitioner’s counsel submitted that in the facts of the
case, the learned Court ought to have granted permission to produce
the documents, which could not be produced along with its written
statement. So as to support her submissions, the petitioner’s counsel
also relied upon the judgment of the Hon’ble Apex Court reported in
AIR 2005 SC 3353 and submitted that the
provision under Order-7 and/or Order-8 are enabling provisions and it
is within the discretion of the Court to grant permission for
production of documents which could not be produced along with the
written statement.
On
the other hand, Mr. Soni vehemently opposed the relief prayed for by
the petitioner mainly on the ground of inordinate delay and on the
ground that the application is vague and contrary to Order 13 Rule 1
and he submitted that the attempt of present petitioner i.e. original
defendant for production of documents at such highly belated stage is
not only unjustified but is actuated by intention of delaying the
proceedings. He, further, submitted that by any standards the
attempt of producing documents at this stage of the proceedings is,
by any yardstick, highly belated and in equitable inasmuch as the
evidence of the plaintiff i.e. the respondent herein is over and the
plaintiff has even concluded the cross examination of petitioner’s
witness and therefore, such opportunity at this stage is
impermissible more so after deletion of Rule 2 of Order 13. Mr. Soni
heavily relied upon the provisions under Order-13, Rule-1. Mr. Soni
submitted that not only the stage of settlement of issues is over but
plaintiff’s evidence is also closed and the opponent’s witness is
also cross examined and that therefore, the reliance placed on the
provision contained under Order-7, Rule-14(3) or Order-8, Rule
1(A)(3) is unjustified and untenable. In support of his submissions,
Mr. Soni relied upon the judgment of the Hon’ble Apex Court reported
in AIR 2002 SC 100.
Before
considering the order dated 8.8.2007 passed below Exh.188 it is
relevant to take into account some of the averments made by present
petitioner in its application Exh.188 because it is only on perusal
of the averments in the application that one can ascertain whether a
case for such belated production of documents is reasonably made out
or not. The said application reads, thus:-
?SApplication
for permission for the
Production
of Documents.
?S .
. . . . . It is case of the defendant in its defence that due to
non-supply of ordered cotton materials by the Plaintiff to the
defendants Co. in full quantity and not supplying by the Plaintiff,
the goods as per time schedule agreed between the parties, the
defendant could not fulfill his promises to the Foreign remittances
of the therefore the Defendant was compelled to pay or refund the
remittances of the Foreign Companies and thereby the Defendant
suffered heavy losses. Bank evidences of the remittances and relevant
documents to that effect have been given to the Defendant by the
Bank etc. recently. So, the defendant due to that reason could not
produce them on earlier stages of this suit. Documents mentioned
in the list are genuine and they are such which cannot be created
after words. . . . . ?? (emphasis given)
It
is also relevant and necessary in view of the facts of the present
case, to take note of certain dates and events, while examining the
propriety of the order, so as to determine whether the application is
hit by delay. This can become clear from the chronology, which is as
follows :-
(a) The
relevant period is from 25.11.97 to 11.2.98.
Thus,
the suit and counterclaim proceedings, are, by now, almost 10 years
old from the date of cause of action.
(b) The
date of presentation of the plaint is 30.8.99.
Thus,
even the institution of the suit has, by now, completed almost 9
years.
(c) For
quite sometime, the written statement on behalf of the present
petitioner was not filed and therefore, the right to file the written
statement was closed.
(d) Thereafter
the issues were framed at Exh.17 on 11.9.2000.
(e) Subsequently,
upon request of present petitioner the learned Court granted
permission to file written statement, on payment of cost and then the
written statement was filed on 8.1.2001.
(f) In
view of the written statement, the issues had to be amended and issue
No.2 (a) came to be added on 22.1.2001.
(g) Subsequently,
on 29.6.2001 present petitioner filed amended written statement on
4.7.2002.
(h) In
view of the counterclaim, issues No.2(b) to 2(d) came to be added on
18.11.2005.
(i) The
plaintiff’s affidavit was filed on 5.4.2006.
(j) Thereafter
on 7.3.2007, the respondent herein i.e. the plaintiff closed its
stage of evidence.
(k) Subsequently,
on 22.3.2007, 20.4.2007, 19.6.2007 and 12.7.2007 request for
adjournment for giving deposition were made on behalf of present
petitioner.
(l) On
3.8.2007 the deposition of the witnesses of present petitioner was
taken on record and the plaintiff i.e. the present respondent
commenced cross examination of the witness of present petitioner.
On
the same date i.e. on 3.8.2007 the application Exh.188 seeking
production of document came to be filed by present petitioner.
It
appears that in view of the said application Exh.188, the cross
examination of the present petitioner’s witness was deferred and the
respondent i.e. original plaintiff filed its reply / objections
Exh.189 and on 8.8.2007, the learned Court disallowed the application
Exh.188 and on 8.8.2007 during the cross examination, the petitioner
requested for time and then after almost 3 months the petitioner
filed present petition on 21.11.2007.
The
aforesaid chronology of events demonstrates that the subject
application Exh.188 has been submitted after almost 8 years since the
institution of the suit and also much after the stage of settlement
of issues.
The
aforesaid chronology of events also demonstrates the delay and
negligence on the part of the present petitioner right from the
initial stage inasmuch as until the stage of filing written statement
was closed by the Court, the petitioner had not cared to file the
written statement and then, the petitioner filed written statement in
January, 2001 i.e. after almost 2 years since the institution of the
suit and consumed another 5 months in presenting the counterclaim
inasmuch as the counter claim came to be filed in June 2001.
As
a result of such delay, on two occasions, after settlement of issues,
the learned Court was required to amend the issues i.e. 22.1.2001 and
18.11.2005.
It
is also pertinent to note that even at this stage the petitioner did
not care to produce the documents which it now seeks to produce.
The
aforesaid chronology also demonstrates that the evidence of original
plaintiff is closed since March 2007 and hence, the propriety of the
impugned order below Exh.188 is required to be examined in light of
the aforesaid dates and events.
In
this regard, it is also pertinent to note that the scope of
interference by this Court, in exercise of jurisdiction under Article
227 of the Constitution of India with a discretionary and
interlocutory order is extremely limited. All that this Court could
examine is as to whether any manifest and palpable error in
exercising jurisdiction has been committed by the Court.
If
the application Exh.188 is taken into account, it transpires that the
respondent herein i.e. the original plaintiff appears to be justified
in contending that though, it is mentioned in the application that
the documents were given by the bank to the petitioner recently, it
does not satisfactorily explain as to how could it be that even the
copies of the purchase order and/or sales invoices or the
correspondences etc. were not in the possession and custody of the
petitioner and/or why the same were not obtained from bank before or
while filing the written statement and exactly when the same were
given to the opponent by the bank. It is pertinent that in the
application the petitioner has vaguely stated that the documents were
received from the bank ?Srecently?? but conveniently neither the
date of receipt is mentioned nor material supporting such statement
is produced.
In
short, any of the relevant and necessary circumstances are not
mentioned or explained in the application from which the learned
Court could have satisfied itself and could have come to the
conclusion that the opponent i.e. the petitioner was unable to
produce the documents at the relevant point of time despite due
diligence and best efforts and for good and sufficient reasons.
Unless,
the Court is satisfied that (1) the party to the proceedings was,
despite due diligence and best efforts, unable to produce the
documents at the material point of time, (2) it had good and strong
reasons and justification for not producing the documents at the
material point of time, (3) it has approached the court with a
request to produce the documents at the first available opportunity
and immediately after obtaining the same and without any further
delay (4) and has satisfactorily explained the delay, the learned
Court would be justified in not granting the request for production
of the documents at a subsequent or later stage.
So
far as the reference to the provision under Order-7 and Order-8 are
concerned, the Hon’ble Apex Court has held that the said provisions
are enabling provisions and confers discretion on the Court to permit
production of documents at a later stage, however, the Hon’ble Apex
Court has not construed the said provisions to mean that even if the
party seeking belated production of documents does not make out a
strong case substantiated by good and legally sustainable reasons
while seeking production of documents at a later stage, then also the
learned court should grant permission without considering the
objections or interests of the other side. In the opinion of this
court neither the provisions in sub-rule (2) of Rule (14) of order 7
(in case of plaintiff) or sub-rule (2) of rule (1A) of order 8 (in
case of defendant) permit such reading or meaning. Order 7 Rule 14(2)
and Order 8 Rule 1A(2), in case of plaintiff and respondent
respectively require that if the documents sought to be relied upon
are not in possession then it should be, wherever possible, stated in
whose possession such documents are. In present case, if the
documents were in possession of the Bank, as is now claimed, then
either in the written statement or in the list of documents the
reference, with such clarification and statement / explanation, could
have been and ought to have been made. However, in present case, the
defendant ? opponent does not appear to have stated in the written
statement / counterclaim that for its defence it relies on and its
counterclaim is based on particular documents, but the same being in
possession of Bank, are not produced. It is not the case of the
petitioner here that it had so stated in the written statement or
list of documents, and such statement seems to have been made for the
first time in Exh.188 application. Thus, the submission of the
respondent ? original plaintiff that it would cause injustice to it
if at this stage the request of petitioner is granted cannot be over
looked and the learned trial court appears to be justified in
disallowing the application Exh.188.
In
present case, it is clear from the order that the explanation given
by the petitioner did not satisfy the learned trial court and
therefore, it has not allowed such inordinately delayed production of
documents and in view of this court, even at this stage the
petitioner has not been able to provide the missing links and has not
satisfactorily explained how, without the documents or even without
the copies of documents, the petitioner could frame its counterclaim
in June, 2001 and even at that stage the petitioner did not produce
the documents on which the counterclaim was based. This court, in a
petition under Article 227 of the Constitution of India, cannot
substitute its satisfaction or views for that of the learned trial
court.
Thus,
on overall consideration of all relevant facts and circumstances the
reason given by the court and the order passed by the court cannot be
said to be perverse or wrong and in arbitrary exercise of
jurisdiction and discretion. In view of this court, the petitioner
has failed to make out any good reason or strong case of error of
jurisdiction so as to exercise power under Article 227 of the
Constitution of India and to interfere with the impugned order. The
petition, therefore, does not deserve to be entertained and hence,
the petition is not entertained. Notice discharged. No order as to
costs.
[K.M.Thaker,
J.]
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