{"id":215932,"date":"2008-06-17T00:00:00","date_gmt":"2008-06-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sanghi-vs-rajesh-on-17-june-2008"},"modified":"2017-05-21T16:35:44","modified_gmt":"2017-05-21T11:05:44","slug":"sanghi-vs-rajesh-on-17-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sanghi-vs-rajesh-on-17-june-2008","title":{"rendered":"Sanghi vs Rajesh on 17 June, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Sanghi vs Rajesh on 17 June, 2008<\/div>\n
Author: K.M.Thaker,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/29091\/2007\t 20\/ 20\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 29091 of 2007\n \n\n \n\n\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE K.M.THAKER\n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=========================================================\n\n \n\nSANGHI\nSPINNERS (INDIA) PVT LTD - Petitioner(s)\n \n\nVersus\n \n\nRAJESH\nNAGINDAS SHAH - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMRS\nVD NANAVATI for\nPetitioner(s) : 1, \nMR CL SONI for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE K.M.THAKER\n\t\t\n\t\n\n \n\nDate\n: 17\/06\/2008  \n \n \n\n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
\tIn
\nthis petition under Article 227 of the Constitution of India, the
\npetitioner, a private limited company incorporated and registered
\nunder the provisions of the Companies Act, 1956, has challenged the
\ndecision and order dated 8.8.2007 passed below Exh.188 rejecting the
\napplication (Exh.188) preferred by the petitioner seeking permission
\nfor production of certain documents mentioned and described in the
\naccompanying list of documents.\n<\/p>\n
\tIt
\nis the case of the petitioner that the respondent filed special civil
\nsuit No.71\/99 praying for a decree for an amount of Rs.3,35,286\/-
\nwith interest thereon. The said claim was made by respondent
\n(Original plaintiff) against the petitioner company as unpaid amount
\nof the invoices raised against the petitioner company covering the
\nperiod from 25.11.97 to 11.2.98 for having supplied cotton bales to
\nthe petitioner company. From the facts stated by the petitioner, it
\ntranspires that after having received process from the Court in
\nconnection with the said suit filed by the respondent herein, the
\npetitioner company also preferred counterclaim against the respondent
\nand prayed for a decree for Rs.3,35,286\/-. The case of the petitioner
\ncompany in its counterclaim was to the effect that the order for
\nsupplying 500 cotton bales was issued by it in favour of the
\nrespondent, however, the respondent had failed to deliver the
\ncontracted quantity and as a result of the said non-delivery of goods
\nby the respondent, the petitioner was put to suffer loss as it could
\nnot fully, and in certain cases partly, fulfil its export
\nobligations. The petitioner has claimed that in all only 313 cotton
\nbales were delivered out of which, only 50 were delivered as per the
\nagreed schedule and 263 cotton bales were delivered after expiry of
\ntime schedule whereas, 180 cotton bales were never supplied.\n<\/p>\n
\tThe
\nproceedings in respect of the said special civil suit No.71\/99 and
\ncounterclaim of the petitioner company are pending before the learned
\nCourt at Surendranagar and during pendency of the said proceedings,
\nthe petitioner submitted an application being Exh.118 with a prayer
\nthat the petitioner may be permitted to produce on record the
\ndocuments mentioned and described in the list of documents annexed to
\nthe said application Exh.188. According to the petitioner, the
\ndocuments which it seeks to produce on record are invoices of the
\nrelevant period, which would justify and substantiate its
\ncounterclaim and\/or would support its defence in respondent’s suit.\n<\/p>\n
\tAfter
\nconsidering the said application Exh.188 and the submission of both
\nthe sides, the learned Court has rejected the application Exh.188 by
\nobserving :-\n<\/p>\n
?S3.\tThat
\nas per provision contained in Order-13 Rule-1 original documents to
\nbe produced at or before the settlement of issue. Here in this case
\nadmittedly the suit is in stage of recording evidence of defendant’s
\nside. It is also to be noted that in connection with the averments
\nthat the documents are received by the defendant from the bank
\nrecently, for that there is no evidence produced from which, it can
\nbe said that the defendant has received the listed documents from the
\nbank recently. It is also to be noted that, out of the documents
\nlisted with the list some documents were produced earlier for that
\nalso, there is no clarification made in this application, and to the
\nextent this application is vague. That the reasons shown for the late
\nproduction are not satisfactory reasons. Again it is to be noted that
\nas per the provision cited earlier, is made mandatory for the party
\nto produce documents relied upon before settlement of issues and the
\nsecond provision of order-13 is deflected by amendment in Civil
\nProcedure in the year 1999, thereafter amended C.P.C. 2000 (Amended
\nAct 2002 came into force) That as per provision and the application
\nas being vague in regard to production of documents earlier, this
\napplication for the production is liable to be rejected. I,
\ntherefore, pass following order in the interest of justice.??\n<\/p>\n
\tBeing
\naggrieved by the said order, the petitioner has preferred present
\npetition.\n<\/p>\n
\tMrs.\n<\/p>\n
VD Nanavati appears for the petitioner and Mr. CL Soni appears for
\nthe respondent.  I have heard the learned counsel for the respective
\nparties.\n<\/p>\n
\tMrs.\n<\/p>\n
Nanavati for the petitioner reiterated the submission made in the
\napplication Exh.188 and submitted that the learned Court has
\nseriously erred in disallowing the application and when the
\npetitioner i.e. the opponent in the suit has lodged counterclaim, in
\nthe interest of justice, the request made for production of documents
\ndeserved to be and ought to have been granted. Mrs. Nanavati further
\nsubmitted that it was due to present respondent’s action that the
\npetitioner herein was put to suffer loss and that has been the case
\nof the petitioner before the learned Court right from the beginning.
\nThe documents, which would substantiate and support its case could
\nnot be produced earlier, however, the petitioner herein has prayed
\nfor permission to produce the documents before the stage of evidence
\nis closed and that therefore, the said permission ought to have been
\ngranted. On behalf of the petitioner heavy reliance is placed on the
\nprovision contained under Order-7 Rule 14(3) Order-8 Rule-(1A) (3),
\nwhich read thus:-\n<\/p>\n
 Order-7,
\nRule -14(3).\n<\/p>\n
?SA
\ndocument, which ought to be produced in Court by the plaintiff when
\nthe plaint is presented, ought to be entered in the list to be added
\nor annexed to the plaint, but is not produced or entered accordingly,
\nshall not without the leave of the Court be received in evidence on
\nhis behalf at the hearing of the suit.??\n<\/p>\n
 Order-8,
\nRule-1A(3)<\/p>\n
?S(3)
\nA document which ought to be produced in Court by the defendant under
\nthis rule, but, is not so produced shall not, without the leave of
\nthe Court, be received in evidence on his behalf at the hearing of
\nthe suit.??\n<\/p>\n
\tBy
\nplacing reliance on the said provisions, the learned counsel for the
\npetitioner further submitted that it is permissible for the party to
\nthe suit to produce documents at a later stage and if the Court
\ngrants permission then, documents can be produced at a later stage
\nalso. The petitioner’s counsel submitted that in the facts of the
\ncase, the learned Court ought to have granted permission to produce
\nthe documents, which could not be produced along with its written
\nstatement. So as to support her submissions, the petitioner’s counsel
\nalso relied upon the judgment of the Hon’ble Apex Court reported in
\n AIR 2005 SC 3353 and submitted that the
\nprovision under Order-7 and\/or Order-8 are enabling provisions and it
\nis within the discretion of the Court to grant permission for
\nproduction of documents which could not be produced along with the
\nwritten statement.\n<\/p>\n
\tOn
\nthe other hand, Mr. Soni vehemently opposed the relief prayed for by
\nthe petitioner mainly on the ground of inordinate delay and on the
\nground that the application is vague and contrary to Order 13 Rule 1
\nand he submitted that the attempt of present petitioner i.e. original
\ndefendant for production of documents at such highly belated stage is
\nnot only unjustified but is actuated by intention of delaying the
\nproceedings. He, further, submitted that  by any standards the
\nattempt of producing documents at this stage of the proceedings is,
\nby any yardstick, highly belated and in equitable inasmuch as the
\nevidence of the plaintiff i.e. the respondent herein is over and the
\nplaintiff has even concluded the cross examination of petitioner’s
\nwitness and therefore, such opportunity at this stage is
\nimpermissible more so after deletion of Rule 2 of Order 13. Mr. Soni
\nheavily relied upon the provisions under Order-13, Rule-1. Mr. Soni
\nsubmitted that not only the stage of settlement of issues is over but
\nplaintiff’s evidence is also closed and the opponent’s witness is
\nalso cross examined and that therefore, the reliance placed on the
\nprovision contained under Order-7, Rule-14(3) or Order-8, Rule
\n1(A)(3) is unjustified and untenable. In support of his submissions,
\nMr. Soni relied upon the judgment of the Hon’ble Apex Court reported
\nin AIR 2002 SC 100.\n<\/p>\n
\tBefore
\nconsidering the order dated 8.8.2007 passed below Exh.188 it is
\nrelevant to take into account some of the averments made by present
\npetitioner in its application Exh.188 because it is only on perusal
\nof the averments in the application that one can ascertain whether a
\ncase for such belated production of documents is reasonably made out
\nor not. The said application reads, thus:-\n<\/p>\n
?SApplication
\nfor permission for the <\/p>\n
Production
\nof Documents.\n<\/p>\n
?S .\n<\/p>\n
. . . . . It is case of the defendant in its defence that due to
\nnon-supply of ordered cotton materials by the Plaintiff to the
\ndefendants Co. in full quantity and not supplying by the Plaintiff,
\nthe goods as per time schedule agreed between the parties, the
\ndefendant could not fulfill his promises to the Foreign remittances
\nof the therefore the Defendant was compelled to pay or refund the
\nremittances of the Foreign Companies and thereby the Defendant
\nsuffered heavy losses. Bank evidences of the remittances and relevant
\ndocuments to that effect  have been given to the Defendant by the
\nBank etc. recently. So, the defendant due to that reason could not
\nproduce them on earlier stages of this suit. Documents mentioned
\nin the list are genuine and they are such which cannot be created
\nafter words. . . . . ?? (emphasis given)<\/p>\n
\tIt
\nis also relevant and necessary in view of the facts of the present
\ncase, to take note of certain dates and events, while examining the
\npropriety of the order, so as to determine whether the application is
\nhit by delay. This can become clear from the  chronology, which is as
\nfollows :-\n<\/p>\n
(a)\tThe
\nrelevant period is from 25.11.97 to 11.2.98.\n<\/p>\n
\tThus,
\nthe suit and counterclaim proceedings, are, by now, almost 10 years
\nold from the date of cause of action.\n<\/p>\n
(b)\tThe
\ndate of presentation of the plaint is 30.8.99.\n<\/p>\n
\tThus,
\neven the institution of the suit has, by now, completed almost 9
\nyears.\n<\/p>\n
(c)\tFor
\nquite sometime, the written statement on behalf of the present
\npetitioner was not filed and therefore, the right to file the written
\nstatement was closed.\n<\/p>\n
(d)\tThereafter
\nthe issues were framed at Exh.17 on 11.9.2000.\n<\/p>\n
(e)\tSubsequently,
\nupon request of present petitioner  the learned Court granted
\npermission to file written statement, on payment of cost and then the
\nwritten statement was filed on 8.1.2001.\n<\/p>\n
(f)\tIn
\nview of the written statement, the issues had to be amended and issue
\nNo.2 (a) came to be added on 22.1.2001.\n<\/p>\n
(g)\tSubsequently,
\non 29.6.2001 present petitioner filed amended written statement on
\n4.7.2002.\n<\/p>\n
(h)\tIn
\nview of the counterclaim, issues No.2(b) to 2(d) came to be added on
\n18.11.2005.\n<\/p>\n
(i)\tThe
\nplaintiff’s affidavit was filed on 5.4.2006.\n<\/p>\n
(j)\tThereafter
\non 7.3.2007, the respondent herein i.e. the plaintiff closed its
\nstage of evidence.\n<\/p>\n
(k)\tSubsequently,
\non 22.3.2007, 20.4.2007, 19.6.2007 and 12.7.2007 request for
\nadjournment for giving deposition were made on behalf of present
\npetitioner.\n<\/p>\n
(l)\tOn
\n3.8.2007 the deposition of the witnesses of present petitioner was
\ntaken on record and the plaintiff i.e. the present respondent
\ncommenced cross examination of the witness of present petitioner.\n<\/p>\n
\tOn
\nthe same date i.e. on 3.8.2007 the application Exh.188 seeking
\nproduction of document came to be filed by present petitioner.\n<\/p>\n
\tIt
\nappears that in view of the said application Exh.188, the cross
\nexamination of the present petitioner’s witness was deferred and the
\nrespondent i.e. original plaintiff filed its reply \/ objections
\nExh.189 and on 8.8.2007, the learned Court disallowed the application
\nExh.188 and on 8.8.2007 during the cross examination, the petitioner
\nrequested for time and then after almost 3 months the petitioner
\nfiled present petition on 21.11.2007.\n<\/p>\n
\tThe
\naforesaid chronology of events demonstrates that the subject
\napplication Exh.188 has been submitted after almost 8 years since the
\ninstitution of the suit and also much after the stage of settlement
\nof issues.\n<\/p>\n
\tThe
\naforesaid chronology of events also demonstrates the delay and
\nnegligence on the part of the present petitioner right from the
\ninitial stage inasmuch as until the stage of filing written statement
\nwas closed by the Court, the petitioner had not cared to file the
\nwritten statement and then, the petitioner filed written statement in
\nJanuary, 2001 i.e. after almost 2 years since the institution of the
\nsuit and consumed another 5 months in presenting the counterclaim
\ninasmuch as the counter claim came to be filed in June 2001.\n<\/p>\n
\tAs
\na result of such delay, on two occasions, after settlement of issues,
\nthe learned Court was required to amend the issues i.e. 22.1.2001 and
\n18.11.2005.\n<\/p>\n
\tIt
\nis also pertinent to note that even at this stage the petitioner did
\nnot care to produce the documents which it now seeks to produce.\n<\/p>\n
\tThe
\naforesaid chronology also demonstrates that the evidence of original
\nplaintiff is closed since March 2007 and hence, the propriety of the
\nimpugned order below Exh.188 is required to be examined in light of
\nthe aforesaid dates and events.\n<\/p>\n
\tIn
\nthis regard, it is also pertinent to note that the scope of
\ninterference by this Court, in exercise of jurisdiction under Article
\n227 of the Constitution of India with a discretionary and
\ninterlocutory order is extremely limited. All that this Court could
\nexamine is as to whether any manifest and palpable error in
\nexercising jurisdiction has been committed by the Court.\n<\/p>\n
\tIf
\nthe application Exh.188 is taken into account, it transpires that the
\nrespondent herein i.e. the original plaintiff appears to be justified
\n in contending that though, it is mentioned in the application that
\nthe documents were given by the bank to the petitioner recently, it
\ndoes not  satisfactorily explain as to how could it be that even the
\ncopies of the purchase order and\/or sales invoices or the
\ncorrespondences etc. were not in the possession and custody of the
\npetitioner and\/or why the same were not obtained from bank before or
\nwhile filing the written statement and exactly when the same were
\ngiven to the opponent by the bank. It is pertinent that in the
\napplication the petitioner has vaguely stated that the documents were
\nreceived from the bank ?Srecently?? but conveniently neither the
\ndate of receipt is mentioned nor material supporting such statement
\nis produced.\n<\/p>\n
\tIn
\nshort, any of the relevant and necessary circumstances are not
\nmentioned or explained in the application from which the learned
\nCourt could have satisfied itself and could have come to the
\nconclusion that the opponent i.e. the petitioner was unable to
\nproduce the documents at the relevant point of time despite due
\ndiligence and best efforts and for good and sufficient reasons.\n<\/p>\n
\tUnless,
\nthe Court is satisfied that (1) the party to the proceedings was,
\ndespite due diligence and best efforts, unable to produce the
\ndocuments at the material point of time, (2) it had good and strong
\nreasons and justification for not producing the documents at the
\nmaterial point of time, (3) it has approached the court with a
\nrequest to produce the documents at the first available opportunity
\nand immediately after obtaining the same and without any further
\ndelay (4) and has satisfactorily explained the delay, the learned
\nCourt would be justified in not granting the request for production
\nof the documents at a subsequent or later stage.\n<\/p>\n
\tSo
\nfar as the reference to the provision under Order-7 and Order-8 are
\nconcerned, the Hon’ble Apex Court has held that the said provisions
\nare enabling provisions and confers discretion on the Court to permit
\nproduction of documents at a later stage, however, the Hon’ble Apex
\nCourt has not construed  the said provisions to mean that even if the
\nparty seeking belated production of documents does not make out a
\nstrong case substantiated by good and legally sustainable reasons
\nwhile seeking production of documents at a later stage, then also the
\nlearned court should grant permission without considering the
\nobjections or interests of the other side. In the opinion of this
\ncourt neither the provisions in sub-rule (2) of Rule (14) of order 7
\n(in case of plaintiff) or sub-rule (2) of rule (1A) of order 8 (in
\ncase of defendant) permit such reading or meaning. Order 7 Rule 14(2)
\nand Order 8 Rule 1A(2), in case of plaintiff and respondent
\nrespectively require that if the documents sought to be relied upon
\nare not in possession then it should be, wherever possible, stated in
\nwhose possession such documents are. In present case, if the
\ndocuments were in possession of the Bank, as is now claimed, then
\neither in the written statement or in the list of documents the
\nreference, with such clarification and statement \/ explanation, could
\nhave been and ought to have been made. However, in present case, the
\ndefendant ?  opponent does not appear to have stated in the written
\nstatement \/ counterclaim that for its defence it relies on and its
\ncounterclaim is based on particular documents, but the same being in
\npossession of Bank, are not produced. It is not the case of the
\npetitioner here that it had so stated in the written statement or
\nlist of documents, and such statement seems to have been made for the
\nfirst time in Exh.188 application. Thus, the submission of the
\nrespondent ?  original plaintiff that it would cause injustice to it
\nif at this stage the request of petitioner is granted cannot be over
\nlooked and the learned trial court appears to be justified in
\ndisallowing the application Exh.188.\n<\/p>\n
\tIn
\npresent case, it is clear from the order that  the explanation given
\nby the petitioner did not satisfy the learned trial court and
\ntherefore, it has not allowed such inordinately delayed production of
\ndocuments and in view of this court, even at this stage the
\npetitioner has not been able to provide the missing links and has not
\nsatisfactorily explained how, without the documents or even without
\nthe copies of documents, the petitioner could frame its counterclaim
\nin June, 2001 and even at that stage the petitioner did not produce
\nthe documents  on which the counterclaim was based. This court, in a
\npetition under Article 227 of the Constitution of India, cannot
\nsubstitute its satisfaction or views for that of the learned trial
\ncourt.\n<\/p>\n
\tThus,
\non overall consideration of all relevant facts and circumstances the
\nreason given by the court and the order passed by the court cannot be
\nsaid to be perverse or wrong and in arbitrary exercise of
\njurisdiction and discretion. In view of this court, the petitioner
\nhas failed to make out any good reason or strong case of error of
\njurisdiction so as to exercise power under Article 227 of the
\nConstitution of India and to interfere with the impugned order. The
\npetition, therefore, does not deserve to be entertained and hence,
\nthe petition is not entertained. Notice discharged. No order as to
\ncosts.\n<\/p>\n
[K.M.Thaker,
\nJ.] <\/p>\n
kdc<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
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Gujarat High Court Sanghi vs Rajesh on 17 June, 2008 Author: K.M.Thaker,&Nbsp; Gujarat High Court Case Information System Print 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 ========================================================= 1 Whether Reporters of Local Papers may be allowed […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-215932","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nSanghi vs Rajesh on 17 June, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sanghi-vs-rajesh-on-17-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sanghi vs Rajesh on 17 June, 2008 - 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