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HIGH COURT OF DELHI
Date of Decision: 13.09.2023
VANDANA KAPURIA ..... Petitioner
Through: Mr. Kapil Gupta, Advocate
Through: None
JUDGMENT
Allowed, subject to all just exceptions.
Accordingly, thepresentapplication stands disposed of.
1. This petitionimpugnstheorderdated 01.09.2023passed by theDistrict Judge, Commercial-03, South East District, Saket Courts, New Delhi in CS (Comm.)No. 306 of2020titled as Vandana Kapuria v. D.D. Pradhan And Company Pvt. Ltd (‘Trial Court’) whereby the Trial Court dismissed the application filed by the Petitioner herein under Order XVIII Rule 2 and 17 read with Section 151 of Civil Procedure Code, 1908 (‘CPC’) seeking permissionto lead evidence in rebuttalby re-examiningPW-1 to provetheemails, which wereconfronted todefendantwitnessDW-1 and tocalluponthe financial records of the defendant from the Registrar of company as well as from the GST Department.
1.1. The Petitioner herein is the plaintiff and the Respondent is the defendant in the civil suit. Thecivil suit filed for recovery of Rs. 12,55,817/against the Respondent and its directors.
1.2. In thefacts of this case, the applicationunderOrder XVIII Rule 2 and 17 read with Section 151 of CPC was filed after the final arguments stood concluded and, on the date, when the matter was listed for final judgment before the Trial Court.
2. Learned counselfor thePetitionerstates thatthenecessity for filingthe said applicationarosein view of the cross-examination ofDW-1, which was recorded on 31.03.2023 and 24.07.2023.
3. This Court has considered the submissions of the counsel for the Petitioner and perused the record.
4. This Court has perused the impugned order of the Trial Court, which reads as under:-
4.1. It is evident from the record of the Trial Court that the matter was posted for final arguments on 01.08.2023. The final arguments were concluded on 05.08.2023 and thematter wasfurther postedfor judgement on 19.08.2023. It was at that this stage that the Petitioner herein filed this application under Order XVIII Rule 2 and 17 of CPC for leading evidence and placing on record documentary evidence.
4.2. After passingof the impugnedorder,thematter was next listed before the Trial Court on 06.09.2023. Upon enquiry, learned counsel for the Petitioner states that at this stage (on 06.09.2023), the Petitioner herein filed a fresh application on 01.09.2023 before the Trial Court seeking striking off of the written statement of the defendant as it was not accompanied at the appropriate time with the affidavit of admission/denial of documents. He states that the matter is now listed before the Trial Court on 15.09.2023 for hearing the said application for striking off of the defence.
4.3. The aforenoted actions ofthe Petitionergive a distinct impressionthat the successive applications are being filed by the Petitioner i.e., the plaintiff before theTrialCourt to obviateto passingof thefinal judgement and this is against themandateoftheCommercialCourts Act, 2015 (‘Act of2015’).This Court therefore, finds merit in thefindings oftheTrialCourtthat theplaintiff herself is trying to impede the final judgment.
5. This Courtis of the opinionthat thefiling of thepresentpetition under Article 227 of the Constitution of India appears to be misconceived at the stage when the matter, being a commercial suit, has been reserved for final judgement and is listed for final pronouncement.
5.1. At this stage, it would be relevant to refer to Section 8 of the Commercial Courts Act, which reads as under:- “8. Bar against revision application or petition against an interlocutory order. – Notwithstanding anything contained in any other law for the time being in force, no civil revision application or petition shall be entertained against any interlocutory order of a Commercial Court, including an order on the issue of jurisdiction, and any such challenge, subject to the provisions of section 13, shall be raised only in an appeal against the decree of the Commercial Court.”
5.2. With respect to thelegislativeintent of thesaid provisionin the Act of 2015, it would beinstructiveto refer to thejudgement ofa Division Bench of this Courtin Black Diamond TrackpartsPvt Ltd. & Ors. v. Black Diamond Motors 2021 SCC OnLine Del 3946 wherein it was observed that the scope of interferencein theexerciseof powers underArticle227 oftheConstitution of India should be used very sparingly. The operative portion to this aspect reads as under: “……..Thus, though we are of the view that gates of Article 227 ought not to be opened with respect to orders in commercial suits at the level of the District Judge against which a revision application under CPC was maintainable but which remedy has been taken away by the Commercial Courts Act, but abiding by the judgments aforesaid, hold that it cannot be said to be the law that jurisdiction under Article 227 is completely barred. However the said jurisdiction is to be exercised very sparingly and more sparingly with respect to orders in such suits which under the CPC were revisable and which remedy has been taken away by a subsequent legislation i.e. the Commercial Courts Act, and ensuring that such exercise of jurisdiction by the High Court does not negate the legislative intent and purpose behind the Commercial Courts Act and does not come in the way of expeditious disposal of commercial suits.” (Emphasis Supplied) A similar view has been reiterated by the Coordinate Bench of this Court in Ashok Kumar Puri & Anr. vs S. Suncon Realtors Pvt. Ltd. & Anr (2021) SCC Online Del 5220 “9. The aboveobservationsof theDivisionBenchare fullyapplicablein the facts and circumstances of thepresent case. In the present casealso, if it were not a commercial matter, the remedyof the petitioneragainst theimpugnedorderwouldbetofile arevisionpetitionunderSection115 of the Code of Civil Procedure, 1908 (CPC). However, the said remedy has been barred under Section 8 of the Commercial CourtsAct, 2015in respect of commercial matters. Therefore, the scope of interferenceby this Court in exercise of jurisdiction under Article 227 of the Constitutionof India is extremely narrow and limited only in respect of ordersthat are patently lacking inherent jurisdiction. This is not a case where the impugned order was passedby the CommercialCourt without inherent jurisdiction.
10. In the present case, the Commercial Court has exercised its jurisdictionand allowed theapplication for condonation of delay filed on behalf of the respondents. Even thoughthere may be some merit in thecontentionsraisedonbehalfofthepetitioners withregardtothenonest filing, that cannotbe a ground forthis Court to exercisejurisdiction under Article 227 of the Constitution of India and interfere with the decision of the Commercial Court. This would completelyfrustrate the objective behind the Commercial Courts Act, that commercial matters should be decided expeditiously and parties may not challenge interlocutoryorders passedin the proceedings, except thosewhich are specifically appealable.” Recently again a Coordinate Bench of this Court in Black Diamond TrackpartsPvtLtd. & Ors. v. Black Diamond Motors2022SCC OnLineDel 545 highlighting peripheries of the jurisdiction vested under Article 227 of the Constitution of India held as under: “Before proceeding further, it may be noted that the power under Article 227 of the Constitution of India being one of judicial superintendence cannot be exercised to upset conclusions, howsoever erroneous they may be, unless there was something grossly wrong or unjust in the impugned order shocking the court’s conscience or the conclusions were so perverse that it becomes absolutely necessary in the interest of justice for the court to interfere. The powers under Article 227 will be used sparingly. The Supreme Court has observed in M/s India Pipe Fitting Co. Vs. Fakhruddin M.A. Baker And Anr (1997) 4 SCC 587 and in Mohd. Yunus Vs. Mohd. Mustaqim & Others (1983) 4 SCC 566 that the supervisory jurisdiction conferred to the High Courts under Article 227 of the Constitution of India is limited to overseeing that an inferior court or tribunal functions within the limits of its authority and is not meant to correct an error, even if apparent on the face of the record. A mere wrong decision without anything more is not enough to attract this jurisdiction.”
6. This petition therefore, deserves to be dismissed on this ground alone as thePetitioner has failed to pointout any justificationfor invocationofthe jurisdiction of this Court.
7. Duringthecourseofarguments, learned counselfor thePetitionerfairly admits that the e-mails, which the DW-1 was confronted with was not produced with the plaint and were only confronted during the course of his cross-examination on 24.07.2023. The filing of documents in a commercial suit is governed by the rigorous provisions of Order XI CPC as amended by the Act of 2015. The Petitioner cannot overcome the rigour of the said rules by filing an application at this belatedstageunder Order XVIIIRule[2] and 17 CPC. In this regard, the law is well settled in the judgment of the Supreme Court in SudhirKumar@ S. Balyan v. VinayKumarG.B, 2021SCCOnline SC 734, and judgment of this Court in Bela Creation Pvt. Ltd. v. Anuj Textiles 2022:DHC:1772
7.1. It has been held by Supreme Court in Sudhir Kumar @ S. Balyan (supra) thatwhileseekingleaveof thecourt to rely on documentswhich were in the power, possession, control or custody of the plaintiff therein and have not been disclosed alongwith theplaint or withintheextended periodset out in Order XI Rule 1 (4), the plaintiff has to establish the reasonable cause for non-disclosurewiththeplaint. In thefacts ofthis case, thePetitioner hasalso failed to point out reasonable cause for the non-disclosure of the emails, therefore, thisCourtis oftheopinionthat thediscretion exercisedby theTrial Court in not permitting to take any further evidence especially at the stage when the matter is fixed for final pronouncement of the judgment is correct in law and fact.
7.2. Similarly, under Order XI Rule 1 (6) CPC as amended by the Act of 2015, the plaintiff has sufficient opportunity to seek production of the documentswhich arein thecustody ofthedefendant.In thefacts ofthis case, the plaintiffat no stagepriorsoughttheproductionof theGST returnsor the financialrecords ofthe defendant. So also, thewitnesses nowproposed to be led by summoning the said record from the official departments was not enlisted by the Petitioner in its proposed list of witnesses. If this application of the Petitioner is allowed, it would undo the entire exercise undertaken by the Trial Court under Order XV A CPC.
7.3. The power of the Court under Order XVIII Rule 17 CPC cannot be invoked in a routine manner as sought to be proposed by the Petitioner especially when the matter stood reserved for final judgment (re: Bagai Construction v. Gupta Building Material Store (2013) 14 SCC 1).
7.4. In the opinion ofthis Court, thediscretion exercised by theTrialCourt in not permitting to take any further evidence when the matter is fixed for final pronouncement is well within the discretion of the said Court and this Court does not find any error of jurisdiction in the order passed by the Trial Court or other errorwarrantingsupervisorycorrection, in exercise of Article 227 jurisdiction of this Court.
8. Accordingly, thepresentpetition is dismissed. Pendingapplications,if any, stands disposed of.