SILICON BUILDERS P LIMITED v. M/S BINDU PROMOTE

Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA BEING A PARTNERSHIP FIRM, HAVING ITS OFFICE AT NO. 30/4, 46TH CROSS, 4TH BLOCK, RAJAJINAGAR, BANGALORE -560 010. REPRESENTED BY ITS PARNTERS

#2. MR. JAYESH Z SHAH MAJOR, S/O. ZAVERCHAND N SHAH,

#3. MR. MAHESH KUMAR KHADLOYA MAJOR, S/O. MR. GHANSHAMDAS KHADLOYA, - 2 - NC: 2025:KHC:9880 WP No. 13280 of 2020

#4. MR. DHIREN A SUMARYA MAJOR, S/O. MR AMRITLAL R SUMARAYA

#5. MRS. CHETAN J SHAH MAJOR, W/O. MR JAYESH Z SHAH

#6. MR. DIXIT K SHAH MAJOR, S/O. KISHORE H SHAH RESPONDENTS 2 TO 6 ARE THE PARTNERS OF THE DEFENDANT FIRM NO.1 AND HAVING THEIR PLACE OF BUSINESS AT NO. 30/4, 46TH CROSS, 4TH BLOCK, RAJAJINAGAR, BANGALORE - 560010 …RESPONDENTS (BY SRI. P.D.SURANA, ADVOCATE FOR R1 TO R6) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 12.11.2020 AT ANNEXURE-H PASSED BY THE LEARNED LXXXIII CITY CIVIL AND SESSIONS JUDGE (CCH-83) BANGALORE IN COMM O.S.NO.9207/2013 AND TO CONSEQUENTLY ALLOW THE APPLICATIONS AT ANNEXURE-D, E, F AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL - 3 - NC: 2025:KHC:9880 WP No. 13280 of 2020 ORAL ORDER Petitioner is the plaintiff in suit in O.S.No.9207/2013, pending on the file of LXXXIII City Civil and Sessions Judge, Bengaluru is before this Court being aggrieved by the order dated 12.11.2020 rejecting the applications in; (a). I.A.No.15 filed under Order XVIII Rule 17 read with Section 151 of CPC to recall PW.1 and permit him to adduce further evidence; (b). I.A.No.16 filed under Section 151 of CPC to reopen the matter for recording further evidence of Plaintiff. (c). I.A.No.17 is filed under Order XI Rule 1(5) read with Section 151 of CPC to condone the delay in producing certain documents.

#2. The case of the petitioner/plaintiff is that the original suit documents were lying with the Debt Recovery Tribunal at the time of filing of the suit and that in view of the urgency and with an assurance of producing the original documents later point in time, suit was filed with the certified copies of the document. That in the meanwhile the proceedings that were - 4 - NC: 2025:KHC:9880 WP No. 13280 of 2020 pending before the Debt Recovery Tribunal were transferred to Chennai. In the process, the original documents could not be procured. In the meanwhile, suit of the plaintiff was classified as a Commercial Suit, in view of coming into effect of the Commercial Courts Act, 2015 and the said suit was renumbered as Com.O.S.No.9207/2013. That it is because of these three intervening factors, the petitioner could not lead the evidence by producing the original documents. Hence these applications seeking to reopen, recall and permission to lead evidence.

#3. The Trial Court, however relying upon the provisions of Order 11 Rule 1(5) of CPC as amended under Section 16 of the Commercial Courts Act, 2015 came to the conclusion that plaintiff shall not be allowed to rely upon the documents which were in his power, possession, control and custody and not disclosed along with the plaint within extended period that was set-out in the said Section.

#4. Sri. G.L. Vishwanath, learned Senior counsel appearing for Sri. Manasa. B, learned counsel for the petitioner referring to these aspects of the matter submits that the impugned order per se is one without application of mind and without taking - 5 - NC: 2025:KHC:9880 WP No. 13280 of 2020 into consideration of the history of the case before it was transferred to the Commercial Court. He further submits that the said provision became effective only on and after the year 2015 and not when the suit was filed in year 2013. He further submits that there is a categoric pleading made at paragraph No.20 of the plaint with regard to the original documents lying before DRT and plaintiff seeking leave to file the suit with the certified copies of the documents. These aspects of the matter have not been taken into consideration requiring interference by this Court is his submission.

#5. Heard and perused the records.

#6. The Commercial Court though at paragraph No.7 of the impugned order has taken note of the date of filing of the suit, averments made in paragraph No.18 of the plaint and also the proceedings before the DRT, has however held that the trial in the present suit commenced only on and after 14.11.2018 and the documents were in existence long prior to commencement of evidence by the plaintiff. As such, the plaintiff at the fag end of the case was not entitled for filing an application for reopening and leading further evidence. Having said that, the - 6 - NC: 2025:KHC:9880 WP No. 13280 of 2020 Trial Court has proceeded to apply provisions of Order 11 Rule 1(5) CPC as amended Section 16 of the Commercial Courts Act,

#7. Learned Senior counsel at this juncture submits that the issues were framed in the suit only on 16.01.2018 and the suit was transferred to the Commercial Court on 10.01.2019. As such, the reason assigned in the impugned order attributing the delay on the part of the plaintiff and his inability to procure the documents are not tenable.

#8. There is considerable force in the said submissions being made. Considering the history of the case in that originally suit was filed before the Regular Court, thereafter the matter having been made over to the Commercial Court after framing of issues in the year 2018, the strict application of provisions of Order 11 Rule 1(5) of CPC, cannot be made. Even as submitted by learned Senior counsel for the petitioner, the purpose of filing the application is to lead evidence and confront the said documents to the defendant witness.

#9. Order 11 Rule 1(5) of CPC reads as under; - 7 - NC: 2025:KHC:9880 WP No. 13280 of 2020 ''1.Discovery by interrogatories: .. (5) The Plaintiff shall not be allowed to rely on documents, which were in the plaintiff's power, possession, control or custody and not disclosed alongwith plaint or within 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 alongwith the plaint.''

#10. Clearly even the aforesaid provision enables production and relying upon such documents, with the leave of the Court upon the plaintiff establishing reasonable cause for discharging along with the plaint.

#11. Considering the peculiar facts situation of the matter and the circumstances under which the application is filed, this Court is of the considered view, petitioner/plaintiff deserves an opportunity of leading further evidence as sought in the interim applications. Accordingly, following: ORDER (i). Petition is allowed. (ii). Impugned Order dated 12.11.2020 produced at Annexure-H is set-aside. - 8 - NC: 2025:KHC:9880 WP No. 13280 of 2020 (iii). I.A.Nos.15, 16 and 17 are allowed. (iv). The Commercial Court shall permit the petitioner/plaintiff to adduce further evidence has sought for in the aforesaid applications. (v). It is made clear, since the matter is pending since 2013, same shall be disposed of expeditiously. Parties shall not unnecessary adjournment in the matter. Sd/- (M.G.S. KAMAL) JUDGE RL List No.: 1 Sl No.: 24