Order XI Rule 1 And Not Order VII Rule 14 of CPC Will Apply To Production of Additional Documents In Commercial Suits: Supreme Court

The Supreme Court has held that Order XI Rule 1 of the CPC will apply to production of additional documents in Commercial Suits and that Order VII Rule 14(3) will have no application. The Court has also held that if any provision of any rule of the jurisdiction of the High Court or any amendment to the CPC by a State Government is in conflict with the CPC as amended by Commercial Courts Act, the provision of the Code of the CPC as amended by the Commercial Courts Act shall prevail.

A Bench of Justice MR Shah and Justice Aniruddha Bose has allowed an appeal, permitting the plaintiff to produce invoices which were not produced while the commercial suit was filed, as they were not in possession of the plaintiff at the time of filing of the suit, while declining to permit the production of additional documents that were not produced at the time of filing of the suit for the reason of them being voluminous and the suit being filed urgently.

The Bench observed that, on a combined reading of Order XI Rule 1 (4) read with Order XI Rule 1 (5), it emerges that

(i) in case of urgent filings the plaintiff may seek leave to rely on additional documents;

(ii) within thirty days of filing of the suit

(iii) making out a reasonable cause for non disclosure along with plaint

Facts of the case

The appellant before the Supreme Court, the plaintiff, filed the first suit seeking to restrain the defendant from infringing and passing off plaintiff's Trade Marks and obtained an ex­parte interim injunction. After realizing that the first suit was not in consonance with the provisions of the Commercial Courts Act, the plaintiff withdrew the said suit with liberty to file a fresh suit as per the Commercial Courts Act, 2015. Therefore, the second suit was filed a month later. Within thirty days from filing of the second suit, the plaintiff preferred an 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. The Commercial Court had rejected the application and it was confirmed by the Delhi High Court.

Highlighting provision of the Order XI Rule 1(4), the Bench held, The additional documents can be permitted to be bought on record with the leave of the court as provided in Order XI Rule 1 (4). Order XI Rule 1 (4) provides that in case of urgent filings, the plaintiff may seek leave to rely on additional documents as part of the above declaration on oath [as provided under Order 11 Rule 1 (3)] 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 an other documents, in its power, possession, control or custody."

On Order XI Rule 1 (5), the Bench noted, Order XI Rule 1 (5) further provides that the plaintiff shall not be allowed to rely on documents, which were in the plaintiff's 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. Therefore on combined reading of Order XI Rule 1 (4) read with Order XI Rule 1 (5), it emerges that (i) in case of urgent filings the plaintiff may seek leave to rely on additional documents; (ii) within thirty days of filing of the suit; (iii) making out a reasonable cause for non disclosure along with plaint.

The Bench also explained that, "Therefore a further thirty days time is provided to the plaintiff to place on record or file such additional documents in court and a declaration on oath is required to be filed by the plaintiff as was required as per Order XI Rule 1 (3) if for any reasonable cause for non disclosure along with the plaint, the documents, which were in the plaintiff's power, possession, control or custody and not disclosed along with plaint. Therefore the plaintiff has to satisfy and establish a reasonable cause for non disclosure along with plaint. However, at the same time, the requirement of establishing the reasonable cause for non disclosure of the documents along with the plaint shall not be applicable if it is averred and it is the case of the plaintiff that those documents have been found subsequently and in fact were not in the plaintiff's power, possession, control or custody at the time when the plaint was filed."

The Bench further clarified that, "Therefore Order XI Rule 1 (4) and Order XI Rule 1 (5) applicable to the commercial suit shall be applicable only with respect to the documents which were in plaintiff's power, possession, control or custody and not disclosed along with plaint. Therefore, the rigour of establishing the reasonable cause in non-disclosure along with plaint may not arise in the case where the additional documents sought to be produced/relied upon are discovered subsequent to the filing of the plaint."

About the reason given by the Commercial Court that the invoices being suspicious and therefore not granting leave to produce the said invoices cannot be accepted, the Bench observed, "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."

Parties : Sudhir Kumar @ S. Baliyan Versus Vinay Kumar G. B.