Vinesh Sharma v. M/S Vijay Cotswin Pvt Ltd

1. The Petitioner is defending two recovery suits filed by the respondent herein.

2. Since the nature of the suits and the parties in both the above suits are common and since the identical issues have been raised in both the present petitions, these are being disposed of by this common judgment.

3. The respondents filed recovery suits which were registered as C.S.(Comm) No.114/2023 and CS (Comm) No.115/2023. The CM(M) 3315/2024 & 2 defendant (petitioner herein) filed written statement within the statutory period and after completion of proceedings, the issues were framed on 08.05.2024. Same day, the learned Trial Court also appointed a Local Commissioner for the purposes of recording of evidence.

4. Fact remains that despite such appointment, no evidence has yet been recorded by the learned Local Commissioner.

5. In the interregnum, the plaintiff filed an application under Order XI of Civil Procedure Code, as applicable to Commercial Courts, praying therein that he may be permitted to place on record GST-R[1], affidavits/certificates as per Section 63 of Bhartiya Shakshya Adhiniyam, 2023 and also copy of notice under Order XII Rule 8 CPC. It was contended that these documents were having vital bearing over the case of the plaintiff.

6. Such applications were opposed by the defendant (petitioner herein).

7. However, vide order dated 17.08.2024, such applications moved in both the cases have been allowed and these orders are under challenge.

8. According to learned counsel for the petitioner, since the “Statement of Truth” had already been filed by the plaintiff along with his plaint wherein he categorically claimed that all the documents in his power, possession, control and custody, pertaining to the case in CM(M) 3315/2024 & 3 hand had been disclosed and the copies thereof had also been annexed with the plaint, in the face of such Statement of Truth filed before the learned Trial Court, there was no reason for the learned Trial Court to have taken on record the documents as the plaintiff had failed to establish any reasonable cause for non-disclosure of the same at the time of the filing of the plaint.

9. Strong reliance has been placed upon CASA 2 Stays Pvt. Ltd. vs. VLCC Personal Care Ltd.: 2024 SCC Online Del 4587 and TTK Prestige Limited vs. Baghla Sanitaryware Private Limited & Ors.:

10. The position is no longer res integra and though any plaintiff can always maintain an application under Order XI Rule 1(5) CPC but the Court is required to grant permission only upon the plaintiff establishing a reasonable cause for non-disclosure of these documents along with the plaint.

11. This Court is also conscious of the fact that no witness has, so far, graced the witness box and the learned Local Commissioner has yet to record any evidence.

12. Coming to the nature of the documents, as already noticed above, the plaintiff merely had sought leave of the learned Trial Court to place on record GST-R[1], affidavits/certificates as per Section 63 of Bhartiya Shakshya Adhiniyam and also notice under Order XII Rule 8 CPC. CM(M) 3315/2024 & 4

13. It is very clear that after filing of the suit, the plaintiff had issued one notice under Order XII Rule 8 CPC and by virtue of the aforesaid notice, the plaintiff had asked its adversary to produce the above said GST Forms only.

14. Learned counsel for the petitioner/defendant has, in all fairness, admitted that though such notice was received but it was not responded. He, however, states that in case of no response being given by any such party, the Court can, at best, draw an adverse inference but cannot permit any such plaintiff to take recourse to Order XI Rule 1(5) CPC and to permit such plaintiff to place on record the documents, without establishing any justifiable cause.

15. However, after serving notice under Order XII Rule 8 CPC, any such party is not only permitted to draw adverse inference but can also seek permission to lead secondary evidence.