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Filing of additional Documents in Commercial Dispute

Prior to enactment of Commercial Court Act 2015, normally Plaintiff or Defendant could file the additional documents prior to framing of issues without taking any leave from the court. Law was very much liberal in taking the additional documents. Even post framing of issues and even at the stages of evidence, the court given very liberal interpretation to the provisions of Civil Procedure Code 1908, while dealing with issue of taking on record the additional document.

Now what were the additional documents. For understanding this, few relevant provisions of Civil Procedure Code 1980 are required to be reproduced.

Order 7 Rule 14 CPC. Documents relied on in Plaint.- Production of document on which plaintiff sues or relies
  1. Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
  2. Where any such documents not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
  3. A document which ought to be produced in Court by the plaintiff when the plaint is presented, or 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.

    Prior to enactment of commercial court Act 2015, the Plaintiff , it was incumbent upon the Plaintiff to file all the documents , which were in his power and possession, or if not in his power and possession , then he was required to disclosed as to in whose power and possession, those documents were there.

    Now those documents, which were neither filed along with plaint, nor disclosed at the time of filing of Plaint, it the Plaintiff wished to put in on record, then those were regarded as additional documents.
Similar Provision was also there for Defendant also. It is Order 8 Rule 1A of Civil Procedure Code 1908. The same is reproduced as under:

Order 8 Rule 1A CPC. Duty of defendant to produce documents upon which relief is claimed or relied upon by him:
  1. Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set off or counter claim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.
  2. Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
  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.
For the purpose of Defendant, the term Plaint was substituted with Written Statement. Hence consequence was that Now those documents, which were neither filed along with written statement, nor disclosed at the time of filing of written statement, if Defendant wished to put in on record, then those were regarded as additional documents.

There was reason for liberal interpretation given by various court while dealing with issue of taking on record the additional document. The reason was Order 13 Rule 1 CPC. The same is reproduced as under:

Order 13 Rule 1 CPC:
Documentary evidence to be produced at or before settlement of issues.

The parties or their pleaders shall produce, at or before the settlement of issues, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.

Hence the parties could produce at the relevant documents prior to settlement of issues. Because of liberty given by this provision, various courts has been giving liberal interpretation to the provisions of Order 7 Rule 14 CPC, Order 8 Rule 1A CPC and Order 13 Rule 1 CPC. This was for the reason , additional documents were taken on record not only post settlement of issues but also at the Appellate stage, provided sufficient cause was there.

Now effect of liberal interpretation given by various courts has been giving liberal interpretation to the provisions of Order 7 Rule 14 CPC, Order 8 Rule 1A CPC and Order 13 Rule 1 CPC, was resulting in delayed disposal of the matters. Hence Commercial Court Act 2015 was enacted with sole purpose of quick disposal of those matters which involved commercial disputes. Relevant Provision of Commercial Court Act 2015 is reproduced as under:

Order Xi Disclosure, Discovery And Inspection Of Documents In Suits Before The Commercial Division Of A High Court Or A Commercial Court

Order 11 Rule 1 of commercial court Act 2015. 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:
    1. documents referred to and relied on by the plaintiff in the plaint;
    2. 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 plaintiffs case;
    3.  nothing in this Rule shall apply to documents produced by plaintiffs and relevant only:
      1. for the cross-examination of the defendant's witnesses, or
      2. in answer to any case set up by the defendant subsequent to the filing of the plaint, or
      3. 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 sub-rule 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 plaintiffs 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.
     
  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:
    1. the documents referred to and relied on by the defendant in the written statement;
    2. 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;
    3. nothing in this Rule shall apply to documents produced by the defendants and relevant only:
      1. for the cross-examination of the plaintiffs witnesses,
      2. in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or
      3. 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 sub-rule (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 sub-rule (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 non-disclosure 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 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.
    If we make comparison of earlier proc=visions of Order 7 Rule 14 CPC, Order 8 Rule 1A CPC and Order 13 Rule 1 CPC with current provision Order 11 of Commercial Court Act 2015, we observe the following noticeable difference:
    1. As per new provision, the Plaintiff and defendant could file additional documents, within 30 days from filing of Plaint or written statement, that too with leave of court. This limitation was missing in earlier provisions of CPC.
       
    2. In Commercial Court Act 2015, no right was granted to parties to produce documents prior to settlement of issues, as it was there in Civil Procedure Code 1908. Intention of Legislature was clear. It clearly inserted these new provisions only with a view to curb the lengthy time taken by the Court while disposing s suit.
    However again , various conflicting have been coming from different courts on these provisions also. Some Court were doing strict interpretation of these provisions of provisions of Commercial Court Act, 2015 , while some courts were giving liberal interpretation.

    One of such liberal interpretation was given by Hon'ble Justice Shri Yogesh Khanna, Delhi High Court while taking on record additional document in commercial dispute. While passing Order dated 04.04.2018 in Commercial Suit bearing CS(COMM) 1611/2016, titled as Columbia Sportswear Company vs Galaxy Footwear Pvt Ltd the Hon'ble Court was pleased to take on record more than 2000 pages of Plaintiff's documents which were filed subsequent to framing of issues while observing as under:

    Considering the circumstances, viz. a) the evidence has not started as yet; b) the documents being in public domain; c) such documents being relevant for the plaintiff's case, the order of the learned Joint Registrar need no interference. Though the learned Joint Registrar has not noted due diligence on the part of the plaintiff in his order  but  paras  7,  8  and  9  of  the  application  do  speak   about reasonable cause on which application the impugned order is passed. The O.A. 36/2018 thus has no merit and is accordingly dismissed,along with pending applications.

    Similarly Hon'ble Justice Shri J.R.Midha, Hon'ble High Court of Delhi also taken on record the Additional documents of the Plaintiff in a commercial suit , which were filed after the cross examination of the Plaintiff's first witness was over. Reasons for taking on record the additional document was that the Plaintiff has given sufficient reasons for taking While passed the Order dated 30.10.2018 in Commercial Suit bearing CS (Comm) No.587 of 2018, titled as Vikram Roller Flour Mills Limited Vs KRBL Ltd. The relevant portion of order is given as under:
     
  13. Learned counsel for the defendant urged at the time of hearing that there is a huge delay on the part of the plaintiff to place the documents on record and, therefore, the documents should not be taken on record. It is submitted that the documents were in possession of the plaintiff and he could have traced out with due diligence. Reliance in placed on Asia Pacific Breweries v. Superior Industries, 158 (2009) DLT 670, Capital Meters Limited v. S. Johnflex Industries, 221 (2015) DLT 606 and Polyflor Limited v. A.N. Goenka, 2016 (159) DRJ 664.
     
  14. This Court is of the view that the documents sought to be placed on record by the plaintiff are relevant to determine the real issue between the parties with respect to the period when they adopted and used the trade-mark “INDIA GATE”.

    While Hon'ble Justice Shri Rajiv Sahai Endlaw, Hon'ble High Court of Delhi while dealing with the issue of taking on record additional document in commercial dispute, given strict interpretation of law and refused to take on record the additional document. In order dated 28.07.2016 passed in CS(Comm) 587 of 2016, titled as Societe Des Produits Nestle S.A. and Another Vs Essar Industries & Or the High Court of Delhi has taken cognizance of shift in the law as introduced in Commercial Court Act 2015. The relevant portion of the Judgement is as under:
     
10. Though Courts have undoubtedly been liberal in past in allowing documents to be filed, even at a late stage, beyond the stage prescribed in law for filing thereof, but I am of the view that the said view needs to be changed specially in the light of the coming into force of the Commercial Courts Act, the whole purport whereof is to expedite the disposal of such suits and when certain edge has been given to the said suits in the manner of disposal thereof and which differentiation and advantage, if the said suits were not to be treated differently or did not form a distinct class, would be held to be arbitrary and discriminatory. A litigant with a claim which would not classify as a commercial dispute would certainly then be entitled to contend that no priority should be given to commercial suits as is purported to be done under the Commercial Courts Act.

11. The principle which prevailed with the Courts earlier, for allowing documents even at the late stage viz. of the litigant should not suffer for the fault of his advocate or for being not advised to file documents at the correct stage and which principle had evolved in the context of mofussil jurisdiction, where the litigants were uneducated and not aware of their rights, cannot certainly be applied to suits of commercial men and commercial concerns who do not suffer from any such handicap.

12. Applying the said reasoning and finding the suit to be of 1993 vintage and not finding any justification for the defendants No.4&5 to file documents at this stage and yet further finding that allowing such additional documents to be taken on record would endlessly delay the trial, inasmuch as an opportunity will then also have to be given for proof of the said documents and which proof would entail examination of a number of witnesses, I am not inclined to allow the additional documents to be taken on record.


13. The application is dismissed.

These are few of the examples of contrary view taken by Hon'ble High Court of Delhi alone. This confusion is now appears to have been settled down by Hon'ble Supreme Court of India in a recent Judgement dated 15.09.2021 passed in Civil Appeal No.5620 of 2021 titled as Sudhir Kumar A.S.Baliyan Vs Vinay Kumar.

It was a commercial dispute , where Plaintiff filed invoices and few other documents within 10 days of filing of the documents. The Hon'ble High Court allowed the invoices to be taken on record, as these were not in power and possession of the Plaintiff. But other documents were rejected to be taken on record. This was assailed in Supreme Court. The Hon'ble Supreme Court while partially allowing the Appeal observed as under:

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 passing-off plaintiffs Trade Marks. That an ex-parte 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 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. 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 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 here in above and in view of the filing of the first suit in the month of October, 2018; the ex-parte 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 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 Hon'ble Supreme Court has clearly laid down that in a commercial suit , liberal interpretation would be given to those documents were are not in power and possession of a party. While additional document can not be allowed to be taken on record if they are in power and possession of the plaintiff. Hence it is apparent that the Hon'ble Courts has to give differential treatment to those documents which are in power and possession of the Plaintiff and those documents which are not in power and possession of plaintiff. It is advisable that while filing a commercial suit, plaintiff should put on record all documents which are in its power and possession.

Written By: Ajay Amitabh Suman, Advocate, Hon'ble High Court of Delhi.

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