CEC-CICI JV & Ors. v. Oriental Insurance Co. Ltd.

15. He stated that the application was adjourned by this Court to August 18, 2022. He also stated that, pursuant to the direction of the Local Commissioner, an application was filed on October 18, 2022, being IA No. 17718 of 2022, seeking a prayer that the evidence may go on, subject to the outcome of this application.

16. He stated that the provision for seeking leave to file Additional Documents is contained in Order VII Rule 14, and with respect to the Commercial Suit, the provision is Order XI Rule 1(1) of CPC, which is reproduced as under: ―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: a) documents referred to and relied on in the plaint; b) 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 plaintiff's case c) nothing in this Rule shall apply to documents produced by plaintiffs and relevant only i. for the cross-examination of the defendant's witnesses, or ii. in answer to any case set up by the defendant subsequent to the filing of the plaint, or iii. handed over to a witness merely to refresh his memory.‖

17. He stated that there is a requirement that the documents must be filed along with the plaint, but in case of urgent listing, a further time period of 30 days is available, if the documents are not filed with the plaint and the same can be taken on record only by way of a leave granted by the court under Order XI (1)(4) and (5), which will be on showing a reasonable cause for the non-disclosure of the documents along with the plaint. Furthermore, he stated that, in case of documents which are filed in answer to the case set up by the defendant, there is no such limitation prescribed under the provision of Order XI Rule 1 (1) of CPC.

18. He stated that the provisions under Order XVIII Rule 4 of CPC, are applicable to all commercial suits, and from the language under Order XVIII Rule 4 of CPC, it is clear the documents can also be filed along with the affidavit by way of evidence and are admissible, subject to the proof and admissibility of such documents by the Court.

19. He submitted that the claim was rejected by the defendant, primarily on the ground that the repairs to the buildings were carried out without their written consent and therefore, the suit was filed only to deal with the said ground of rejection, however, when the Written Statement was filed by the defendant on February 24, 2020, certain other defenses were raised, inter alia, as under: ―i. That the suit was bad for misjoinder of parties since the Plaintiffs No. 2 and 3 are not parties to the all risk insurance policy, and that the Plaintiffs are an unregistered partnership firm and that there is no cause of action to file the suit against the Defendants; ii. That the claim suffers from an incorrect quantification of the claim amount and that the claim amounts are exaggerated and the validity/ reasonability of the claim amounts paid to third parties is questionable; iii. That the Plaintiffs did not allow the Defendant to examine the third persons who are liable to be paid, to ascertain whether they were negligent in maintaining their building or if they had obtained the requisite sanction from the local authority to raise construction or had raised the construction as per the said sanction plan; iv. That the Defendant/insurer was not given any opportunity to examine the extent of the alleged damage caused and if the work of the Plaintiff No. 1 was the sole cause behind such alleged damage; v. That the Defendant was not given ample opportunity to examine the Plaintiff No. 1 to ensure that it had not made more repairs than what was necessary in the circumstances of the case.‖

20. He stated that the above stated grounds of defense were raised and in order to deal and answer the defenses; the plaintiffs‟ required the Additional Documents as evidence, which were scattered in different records across different offices of the plaintiffs, i.e., Delhi, Mumbai and Gurgaon. He also stated that the COVID-19 lockdown measures continued for two years, during this period, the staff of the plaintiffs was not attending the office, and in fact, many of the staff had already left their employment, and there were only skeletal staff available for the plaintiffs to execute the work.

21. He added that the Solicitors of the plaintiffs‟ were also incapacitated, as they had no access to their office and were operating only from home, therefore, the documents could not be traced, discovered or collated in order to find answers to each of those questions which were raised by the defendant.

22. He stated that the data /files in the computers were traced and the answers to the defenses were collated with the documentary evidence after some difficulty and some time. After tracing these documents, they were filed with the affidavits which were filed in the last week of June 2022 and July, 2022.

23. He stated that, all the documents which were filed with the affidavits are in answer to the pleas raised by the defendant in its Written Statement. In respect of such documents, there is no time period mentioned under Order XI Rule 1 (1) (c) (ii) of the CPC, which is applicable to commercial suits. The Additional Documents are in response/answer to the Written Statement, filed along with the affidavits by way of evidence, which is consistent with the provisions of Order XVIII Rule 4 of CPC. He also stated that, no new case has been set up by filing the Additional Documents with the affidavits, and it is not the case of the defendant that the documents filed along with the affidavits are not genuine or necessary to determine the real question in controversy between the parties in the suit.

24. In support of his contentions, he relied on the judgment of this Court, in the case of Valo Automotive Pvt. Ltd. v. Sprint Cars Pvt Ltd & Ors in CM (M) 324/2021, wherein, this Court in paragraph 12 of the judgment, inter alia, observed as under: ―The learned Trial Court has referred to the provisions of Order XI Rule 5 CPC, as applicable to the commercial disputes. But, it has overlooked the provisions of Order XI Rule 1(1)(c)(ii) CPC, which permits the plaintiff to file documents in answer to the case set up by the defendant subsequent to the filing of the plaint. The precise case of the petitioner/plaintiff is that when the respondents/respondents denied that invoices were ever raised, the application was moved to bring the invoices on record. Under Order XI Rule 5 CPC, the court can grant leave to the plaintiff to file documents, not filed with the plaint. The learned Commercial Court erred in overlooking these provisions of the CPC.‖ He stated that, in the above judgment, the said additional documents were allowed subject to a reasonable cost of ₹10,000/-.

25. He contended that, it is not the case of the defendant that under the Commercial Courts Act, the documents cannot be taken on record on a subsequent date. The Commercial Courts Act, as applicable to Order XI Rule 1 (5) of CPC, provides that the additional documents, if any, will be taken on record subject to the leave of the Court, which will be granted on establishing „reasonable cause‟ for not filing the documents along with the Plaint.

26. He submitted that the reasonable cause in terms of Order XI (1)(1) of CPC, as has been upheld by various decisions of this Court, shows that the proof required to show reasonable cause would be of a lesser standard than a sufficient cause to be shown for filing the documents at a later date. He stated that the grounds for seeking such leave have been disclosed by the plaintiffs in their application being IA No. 11113 of 2022, as also in the Additional Affidavit which has been filed along with the I.A. No. 17718 of 2022.

27. He submitted that the Supreme Court in the order dated January 10, 2022, has observed, the time period for filing applications, suits, proceedings or other filing before the court, the period during which the COVID-19, continued w.e.f. March 15, 2020 till the end of February 2022, should be excluded. He stated that the two affidavits were filed on June 29, 2022 along with the Additional Documents and the third affidavit on July 14, 2022.

28. In support of the above submissions, he relied upon the following judgments and propositions;a. The Supreme Court in Kapil Kumar Sharma v. Lalit Kumar Sharma (2013) 14 SCC 612, held that additional documents should be permitted to be filed if in the case, cross-examination has not commenced. b. The Supreme Court in Sugandhi v. P. Raj Kumar (2020 10 SCC 706; held that the court should take a lenient view when an application is made for production of the documents under sub rule (3). c. Vikram Roller Flour Mills v. KRBL (2018) SSC Online Del 13407; d. Jindal Stainless Hisar Limited v. Saurabh Jindal and Ors. (2022) SCC Online Del 1; e. This Court in Hassad Food Company Q.S.C. & Another v. Bank of India (2019) SCC Online Delhi 10647; permitted Additional Documents to be filed under Order XI Rule 1 (5) in case of “reasonable cause”. Pertinently, a “reasonable cause” was characterised as requiring a lower degree of proof than “sufficient cause” and “good cause”. f. Atlanta Global Advisors Private Limited v. R Systems International Limited in CS (COMM) No. 685 of 2018; g. The decision of this Court was upheld by the Supreme Court in Special Leave to Appeal (C) No. 1163/2020, titled R Systems International Limited v. Atlanta Global Advisors Pvt Limited, with the following observation of the Supreme Court at Page 2 of the Order: ―The High Court allowed the application after a careful consideration of Order XI Rule 1 (5) of the Code of Civil Procedure, 1908 (‗CPC‘) as applicable to commercial suits and recorded a finding that the Respondent had shown sufficient grounds for not filing the additional documents at the time of filing of the suit. The High Court accepted the ground taken by the respondent that there were thousands of emails from which the additional documents had to be culled out. However, the High Court was of the opinion that the respondent has to be burdened with certain cost for the delay in disclosure of the additional documents.‖

29. He has also relied upon the judgment of this Court in the case of Sadhu Forging Limited v. Continental Indians Limited in CS(OS) No. 1782/2009., wherein, plaintiff had already examined a witness (PW-1) and an application was filed for leading evidence of another witness (PW-2), along with fresh additional documents. He stated that, this court in the above judgment observed that, even at the stage of trial a party can file documents but with the leave of the court. In the said judgment, in paragraph 10, the decision of High Court of Kerala in Bhanumathi Vs. K.R. Sarvothman & Anr. (2010) 4 KHC 920., was referred. In the said case, the Kerala High Court observed, as follows: ―The documents on which Plaintiff or Defendant may rely on can be classified as follows: (a) Documents in the possession or power of the Plaintiff on which he sues or relies--such documents are to be produced along with the plaint as provided under Rule 14(1) of Order VII of the Code. (b) Documents which are not in the possession or power of Plaintiff but on which he sues or relies--Plaintiff shall, wherever possible state in whose possession or power such documents are, as required by Sub-rule (2) of Rule 14 of Order VII. II (a) Documents in the possession or power of the Defendant on which he bases his defence or relies--such documents shall be produced along with the written statement as provided under Rule 1A(1) of Order VIII. (b) Documents on which Defendant bases his defence or relies and which are not in his possession or power-- Defendant shall, wherever possible state in whose possession or power such documents are as required under Sub-rule (2) of Rule 1A of Order VIII. III Originals of documents (copy of which have been produced along with the plaint or written statement) shall be produced on or before the settlement of issues as required under Rule 1 of Order XIII. IV.Documents on which Plaintiff or Defendant rely on incidentally but not to support his claim or defence. V Documents to disprove the claim or defence of opposite party. VI Documents which come into existence after the pleadings are filed. Documents falling in categories I(a) and II(a) are to be produced along with the plaint/written statement Documents falling in category No. III are to be produced on or before the settlement of issues. If documents falling under category I(a) and II(a) are not produced along with the plaint or written statement as the case may be, the party has no right as such to produce those documents in evidence at the time of hearing, but in view of Sub-rule (3) of Rule 14 of Order VII and Sub-rule (3) of Rule 1A of Order VIII, the court has the power to receive such documents in evidence even at the time of hearing. Documents falling under category I(b), II(b), III, IV, V and VI could be produced along with the affidavit in lieu of chief examination under Rule 4 of Order XVIII but its proof and admissibility will be subject to the orders of the Court.‖

30. Mr. Ganju has also relied upon the judgment of this Court in Md. Islamuddin v. S.S. Kapoor, Neutral Citation NO. 2022/DHC/004587, wherein this Court has held that under Order XI (1)(5), the petitioner is only required to show, whether sufficient cause existed for the petitioner having failed to file the additional documents with the plaint. He has also relied upon the judgment of this Court in the case of Societe DES Produits Nestle S.A. & Anr. v. Essar Industries & Ors., 2016 SCC OnLine Del 4279.

31. He stated that the documents filed by the plaintiffs falls under the category V i.e., documents to disprove the claim or defense of the opposite party and under the Commercial Courts Act, Order XI Rule 1 (1)(c)(ii) of CPC, it is permissible to file documents which are in order to disprove the defense raised by the defendant.

32. Therefore, he submitted that the application of the plaintiffs for filing additional documents along with the Affidavits may be taken on record and suit be proceeded with.

33. He seeks prayers as made in the application.

34. Mr. Apoorv Sarvaria, the learned counsel for the defendant stated that the plaintiffs‟/applicants are guilty of suppressing and concealing material facts from this court especially, the fact that large number of documents which the plaintiffs‟/applicants are now seeking to bring on record in the present suit were available with the plaintiffs/ applicants at the time of filing of the suit and no reason or explanation has been given, why they were prevented from filling the said documents at the time of institution of the present suit.

35. He stated that, this is an abuse of process of this Court, by causing delay in filing the list of witnesses before this court and then by filing the affidavits in evidence of its witnesses and attach large number of documents along with those affidavits and even exhibiting such documents in the affidavits, after knowing that a large number of documents annexed with those affidavits are not part of the record in the present suit. He also stated that the plaintiffs/applicants were only required to file the affidavits in evidence of the proposed witnesses. He contended that the plaintiffs have, by first causing delay in filing the list of witnesses and then adopting a completely illegal procedure of filing large number of documents along with affidavits of witnesses even after being aware that such documents were not part of the record, have taken the trial procedure of the present suit for granted and misused the same for their own convenience by willfully violating the rules of procedure and the statutory provisions under CPC to cause grave prejudice to the defendant.

36. He stated that the documents sought to be placed on record are pertaining to the years 2015 to 2018. The present suit was filed before the outbreak of COVID-19, and no explanation or any justification has been given by the plaintiffs / applicants, why these documents were not filed along with the plaint. He stated that the only reason given is the logistical difficulties in collating, handling and sharing the documents which got further aggravated by the COVID-19.

37. He contended that the reason shown by the plaintiffs / applicants of the difficulties faced by the plaintiffs‟/ applicants which prevented them in filing the documents at the time of filing of the plaint and replication, is misconceived.

38. Mr. Sarvaria, in support of his submissions has relied upon the judgments of this Court in Zee Entertainment Enterprises Ltd. v. Saregama India Ltd., 2019 SCC OnLine Del 10215, Nitin Gupta v. Texmaco Infrastructure & Holding Ltd, 2019 SCC OnLine Del 8367, Rishi Raj v. Saregama India Ltd., 2021 SCC Online Del 4897, Sudhir Kumar @ S. Baliyan v. Vinay Kumar G.B., 2021 SCC OnLine SC 734 and Bela Creation Pvt. Ltd. v. Anuj Textiles, 2022 SCC OnLine Del 1366.

39. He seeks dismissal of the application with costs. I.A.17718/2022

40. It is the case of the plaintiffs that, certain grounds taken in the I.A. for Additional Documents, may require some further elaboration and for better clarity, the plaintiffs have preferred the instant application, inter alia to seek from this Court direction for: a. taking on record, the supplemental affidavit being filed on behalf of the plaintiffs along with the application, to supplement/clarify the facts/grounds in plaintiffs' IA for Additional Documents; b. continuation of the process of examination of witnesses before the Local Commissioner, during pendency of the Plaintiffs' IA for Additional Documents c. preponement of the hearing on the plaintiffs' IA for Additional Documents, which was scheduled on November 15, 2022; Events pursuant to the filing of plaintiffs' IA for Additional Documents d. Examination of plaintiffs‟ witness scheduled on August 03, 2022 before the Local Commissioner

41. The matter was listed for hearing before the Local Commissioner on August 03, 2022, on which date the examination of PW-I was supposed to commence. The defendant's counsel sought an adjournment on personal ground.

42. The adjournment was sought solely on the ground of personal difficulty of the defendant's counsel. He did not raise any objection for the cross-examination of PW-1. The Additional Documents and the Witness Statements were available with the defendant's counsel from as early as the month June 2022.

43. Accordingly, the Local Commissioner, thereafter, fixed the matter on September 03, 2022, for examination of the plaintiffs' witness. The Local Commissioner made necessary arrangements, such as conference room for conducting the evidence / hearing and the defendant‟s counsel did not communicate any objection or his unwillingness to conduct the cross-examination before the Local Commissioner.

44. Mr. T.K Ganju, the learned Senior Counsel for the plaintiffs‟/applicants stated that, when the matter was taken up for hearing on August 18, 2022, this Court enquired from the counsel for the plaintiffs about the reasons/ explanation for the delay in filing the additional documents and in response to the enquiry, the plaintiffs stated that the additional documents were required to be filed on account of enlargement of the issues pursuant to the filing of defendant's written statement and framing of issues by this Court, which required the plaintiffs to file additional submissions and additional documents along with the Witness Statements. He also stated that the plaintiffs appraised this court that the Additional Documents could not be filed earlier, inter alia on account of the difficulties posed by the outbreak of COVID-19 and resulting in government restrictions as well as due to the records being voluminous and scattered, which could not be traced at that time.

45. He submitted that, when the parties and the Local Commissioner, met for conducting the cross-examination of the plaintiffs' witness, the counsel for defendant refused to carry out the cross-examination of the plaintiffs' witness, till the time the plaintiffs' IA for Additional Documents, which was pending adjudication, is decided.

46. He stated that on defendant‟s objection, the Local Commissioner advised that the cross-examination could be continued, keeping the fate of the additional documents subject to this Court's final determination, but the defendant refused to cross-examine the plaintiffs' witness. Thereafter, the Local Commissioner expressed his inability to do anything, where one party was refusing to co-operate and was compelled to adjourn the proceedings on September 03, 2022, with directions to the parties to approach this Court for a determination on the controversy that had arisen due to defendant's refusal to proceed with the recording of evidence.

47. According to him, the defendant never objected to the recording of evidence or conducting the cross-examination on the date of hearing, being August 03, 2022 or when the Local Commissioner sent the notice for the hearing on September 03, 2022. He also stated, the observation of the Local Commissioner were the following:a. the defendant raised such objections only on the last minute after the hearing had commenced; b. Although the defendant was directed by this Court on August 18, 2022 to file its reply to the plaintiffs' IA for Additional Documents, no reply has been filed by the defendant. On the contrary, the defendant has misused the pendency of the plaintiffs' IA for Additional Documents as a ground to discontinue the process of recording of evidence. Such conduct and arguments of the Defendant cannot be sustained and ought to be rejected by this Court.

48. He stated that the cross-examination without a final determination on the plaintiffs' IA for Additional Documents can be sufficiently addressed by subjecting the admissibility of the Additional Documents to the outcome of the plaintiffs' IA and such an arrangement would be in the interest of justice and timely disposal of the matter which shall cause no prejudice to the defendant.

49. He stated that the recording of evidence could not commence due to defendant's refusal; there is no concealment by the plaintiffs, the defendant has provided a self-serving and incomplete description of the hearing dated September 03, 2022, before the Local Commissioner. He also stated that, it is untrue that the examination-in-chief of the plaintiffs' witness could not be proceeded with, due to the pendency of plaintiff's I.A, as the plaintiffs were always ready and willing to begin with the process of recording of evidence.

50. He contended that the objection raised by the defendant that the IA‟s were an afterthought to unnecessarily derail the process as misconceived.

51. He submitted that there was no stay granted by this Court on the recording of evidence before the Local Commissioner, which was already fixed for September 03, 2022. He also stated that the defendant had deliberately raised its objection at a belated stage and as an afterthought, with the sole intent of disrupting and delaying the proceedings.

52. Furthermore, he stated that the plaintiffs had filed affidavits of two out of the three witnesses on June 29, 2022, along with an application seeking condonation of delay of 54 days in filing the said Affidavits and the last Witness Affidavit was filed on July 14, 2022, after obtaining leave from this Court. He also stated that the defendant did not raise any objection before this court while hearing the plaintiffs‟ application, seeking condonation of delay in filing the list of witnesses and the witness affidavits dated July 14, 2022. He has reproduced certain paragraphs of the order dated July 13, 2022, as under:- ― "3. I have been informed by the learned counsel for the plaintiff / applicant that the parties had appeared before the learned Local Commissioner on May 11, 2022, who has now fixed /he matter for recording evidence on August 03, 2022.

4. He also states that the list of witnesses and affidavit of two witnesses out of three in total have been filed. He states that the affidavit of third witness shall also be filed within two days from today.

5. Issue notice. Ms. Yashika sarvaria, Advocate accepts notice for the defendant and has left it to the court to pass appropriate orders.

6. Noting the said submission and the fact that the learned local Commissioner has fixed the matter for recording evidence on August 3. 2022. this application is allowed. The list of witnesses and the affidavits already filed are taken on record.‖ [emphasis supplied]‖

53. He stated that the plaintiffs have themselves approached this Court vide an application to seek permission for bringing the Additional Documents on record. As relied upon by the plaintiffs witnesses in their Affidavits and in the application for Additional Documents, the plaintiffs have specifically identified the Additional Documents which are to be brought on record. Furthermore, he stated that the plaintiffs have provided proper explanation and reasons for filing the Additional Documents, including by way of Oral Submissions/Application as well as a Supplementary Affidavit dated October 18, 2022.

54. He also stated in its reply, that the defendant has deliberately and conveniently ignored the following suggestion of Local Commissioner, which reflects the complete and true position: "The documents exhibited along with the affidavit are subject matter of the application pending before the Hon'ble Court. The evidence qua the said documents is subject matter of the IA pending before the Hon'ble Court. The evidence qua the said exhibits would be taken on record only after the outcome of the application. It was suggested that any cross qua the said documents as objected by the Learned Counsel for Defendant would be subject to the outcome to the application and acceptance by the Hon'ble Court. The Learned Counsel for the Defendant states that the evidence cannot be recorded in view of his objection as set out earlier in the proceedings. It is also contended by the Learned Counsel for defendant that since the Plaintiffs are not dropping the said documents, the chief cannot be conducted. The Learned Counsel for the Plaintiffs states that appropriate application is pending before the Hon'ble Court and the evidence can continue with objections qua the said documents. Since, the Learned Counsel have filed application before the Hon'ble Court and the objections by the Learned Counsel for the Defendant it would be appropriate to seek directions from the Hon'ble Court in this regard The Learned Counsel for the parties shall be liberty to move seeking directions in this regard" [emphasis supplied]

55. He stated that the Local Commissioner had no option but to direct the parties to seek appropriate orders from this Court.

56. In brief, the submission of Mr. Ganju is that the additional documents were required to be filed only in response to the case set up by the defendant for the first time in its Written Statement. Thus, at the time of filing the Plaint, the Plaintiffs had no requirement to file the said additional documents. He seeks the prayers as made in the application.

57. Mr. Sarvaria while opposing this application has reiterated his submissions which I have reproduced above.

FINDINGS

58. Having heard the learned counsel for the parties and perused the record, at the outset, I may state that vide this order, I shall decide two applications, the first application being I.A. 11113/2022 which has been filed to bring on record the Additional Documents. The second application being I.A. 17718/2022 is for filing Supplementary Affidavit urging additional grounds in support of the first application.

59. To consider the applications filed by the plaintiffs, it is necessary to highlight some dates: The suit is a commercial suit and was filed on December 24, 2019. The written statement was filed by the defendant on February 24, 2020. The replication was field by the plaintiffs on September 24, 2020. The additional documents which are sought to be brought on record have been filed initially on September 7, 2021 and later on June 29, 2022 and July 14, 2022 along with the evidence by way of affidavits filed by the PW[1], PW[2] and PW[3].

60. The reasons highlighted by Mr. Ganju for not filing the additional documents along with the plaint or within thirty days thereafter are primarily the following:

(i) Due to logistical difficulties in collating, handling and sharing the documents, which got further aggravated by the COVID-19 and for a substantial duration of time, the offices of the counsel of the plaintiffs / applicants were functioning on remote basis due to the effect of the pandemic and the resultant restrictive measures.

(ii) The examination of witnesses has not commenced in the proceedings.

(iii) The plaintiffs have restricted their pleading and documents at the time of filing of the plaint with regard to the objections/disputes raised by the defendant in the rejection letter.

(iv) The Supreme Court in the case of Re: Cognizance for

Extension of Limitation, Suo Motu Writ (Civil) No. 3 of 2020, had passed an order extending the limitation till February 28, 2022.

(v) Under Order XI Rule 1(1)(c) (ii) read with Order XI

Rule (1) (5) of CPC, no period of limitation is prescribed for filing documents to meet the case set up by the defendant in written statement.

61. Having noted the broad submissions made by Mr. Ganju, I must at the outset, state that, it is settled law that the suit being a commercial suit the filing of the documents has to be as per Order XI CPC as amended by the Commercial Courts Act, 2015. On a reading of Order XI 1(1), 1(4) read with 1(5), it is clear that it requires the plaintiffs to file the list of all documents in its power, possession, control or custody and photocopies along with plaint thereof.

62. In other words, the documents are required to accompany the plaint. In case of urgent filing Order XI (1)(4) permits additional documents to be filed by the plaintiffs within 30 days of the filing of the suit subject to grant of leave by the Court. The documents which have not been brought on record either under Rule 1 or Rule 4, till the expiry of 30 days of period from the filing of the suit may be brought on record under Order XI 1(5) subject to the leave of the Court, such leave shall be granted by the Court only on the plaintiffs establishing reasonable cause for non-disclosure of the documents along with plaint.

63. The submission of Mr. Ganju is that the non-filing of the documents along with the plaint is because of COVID-19 restrictions, the documents had to be collated which were in various offices of the plaintiffs across the country and the office of the counsel for the plaintiffs was functioning on a remote basis.

64. It is also his case that the plaintiffs have restricted their pleading in the suit only to the objections / dispute raised by the defendant in its rejection letter and that the Supreme Court has extended the period of limitation from March 15, 2020 to February 28, 2022, hence could have filed the documents beyond that date.

65. All these pleas of Mr. Ganju are not appealing; firstly, the written statement was filed by the defendant on February 24, 2020 before the COVID-19 / lockdown restrictions were imposed, i.e., March 15, 2020. In any case, the replication was filed immediately thereafter, on September 24, 2020.

66. It is only after almost one year, on September 07, 2021, the plaintiffs have filed additional documents in 6 volumes without any application seeking leave of the Court. Further, additional documents were filed with the evidence of all the three witnesses only on June 29, 2022 and July 14, 2022 respectively, i.e., after more than two years of the filing of the written statement that too after the issues having been framed. Having said that, the plea that the additional documents filed are primarily to meet the case set up by the defendant in written statement would not justify the filing of documents after one year, i.e., September 7, 2021 and two years, i.e., July 14, 2022, when the replication has been filed on September 24, 2020 and the documents could have been filed along with the same.

67. Mr. Ganju has relied on the orders/judgment passed by the Supreme Court in Re: Cognizance for Extension of Limitation, Suo Motu Writ (Civil) No. 3 of 2020, to contend that the Supreme Court has extended the limitation for filing the additional documents between the period of March 15, 2020 to February 28, 2022 as such, the plaintiffs could have filed, the additional documents, is also unmerited when the plaintiffs have filed the replication seven months after the filing of the written statement, which is a sufficiently long period to collate the documents. In fact, the plaintiffs in response to paragraph 35 of the written statement, in respect of claim for ₹5,50,17,761.18/-, has stated ―All supporting documents have been placed on record by the plaintiffs‖. It is in view of this averment, no liberty/right was reserved by the plaintiffs‟ / applicants‟ to file documents in future.

68. It follows the case of the plaintiffs that these additional documents which have been filed are only to meet the case set up by the defendant in the written statement is an afterthought. Even otherwise when the claim of the plaintiffs is for ₹5,50,17,761.18/-, they in order to establish the claim amount were required to file all the documents along with the plaint itself, even if the defendant has not contested the quantification of claim.

69. Further, the very fact, the documents have been filed along with the evidence by way of affidavits without even filing an application seeking the leave of the Court does not show bonafide, rather an attempt has been made to file documents, as if they have been filed earlier.

70. It is quite late in the day for the plaintiffs to file these documents on record. This being a commercial suit, timelines are to be strictly followed. The Supreme Court in Sudhir Kumar @ S. Baliyan v. Vinay Kumar G.B (supra), has in paragraphs 30 and 31 held as under:- ―30. 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.

31. 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 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. 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.‖ (emphasis supplied)

71. It is not the case of the plaintiffs that they were not in possession of the documents which have been filed as additional documents. The plaintiffs were in the possession and could have collated the documents before the filing of the suit itself. The plea that they were scattered at different offices in Mumbai, Delhi and Gurgaon which could not be collated because of COVID-19 is only an afterthought to justify the filing of the additional documents. Moreover, the documents filed by the plaintiffs are emails between the parties and the DMRC, which could have been accessed and could have filed along with the replication.

72. Mr. Sarvaria is justified in relying upon the judgment in Zee Entertainment Enterprises Ltd. (supra), wherein this Court has held as under:- ―16. A plaintiff in an ordinary suit, if desirous of producing a document required to be produced along with the plaint at a subsequent stage, is only required to obtain the leave of the Court. The Legislature has not laid down the grounds on which such leave is to be granted. I have however in Nitin Gupta supra held that grant of such leave by the Court is not a ministerial function and the Court has to be satisfied qua the reasons for non-production of the documents along with the plaint. The same however places no restriction on the power of the Court to grant such leave. As distinct therefrom, under Order XI Rule 1(5) as applicable to commercial suits, there is an embargo on the Court, not to allow the plaintiff to rely on any document which was in plaintiff's power, possession, control or custody and not disclosed along with the plaint. The disclosure under Rules 1(1) & (2) has to be accompanied with listing and filing of the documents. The said embargo placed on the Court can be lifted only upon the plaintiff establishing reasonable cause for non-disclosure along with the plaint. The use of the word ‗establishing‘ conveys that there should be something more than a mere explanation for non-production along with plaint, amounting to proof of the explanation.‖

73. In Bela Creation Pvt. Ltd. (supra), on which reliance placed by Mr. Sarvaria, this Court has held as under:- ―24. In the absence of any averment to the effect that the aforesaid declaration, contained in the Statement of Truth accompanying the written statement and counterplaint filed by the petitioner, was incorrect, the learned Commercial Court was justified in holding that additional documents, which were in the custody of the petitioner at the time of filing the written statement, could not be permitted to be introduced at a later stage. ―Reasonable cause‖, within the meaning of Order XI Rule 1(10) of the CPC, as amended by the Commercial Courts Act, cannot extend to negligence in filing of documents before the Court. ―Reasonable cause‖, necessarily, must refer to a cause which was outside the control of the petitioner, and which prevented the petitioner from filing the concerned documents along with the written statement.‖ (emphasis supplied)

74. In Nitin Gupta (supra), this Court has held as under:- ―38. Unless, the Commercial Divisions, while dealing with the commercial suits, so start enforcing Rules legislated for commercial suits, and refuse to entertain applications for late filing of documents, especially with respect to documents of suspicious character and continue to show leniency in the name of ‗interest of justice‘ and ‗a litigant ought not to suffer for default of advocate‘, the commercial suits will start suffering from the same malady with which the ordinary suits have come to suffer and owing whereto the need for the Commercial Courts Act, 2015 was felt. Commercial Division is thus not required to entertain or allow applications for late filing of documents, without any good cause being established for non-disclosure thereof along with pleadings. The plaintiff herein has utterly failed in this regard. The application nowhere explains as to why the plaintiff, if had obtained the said letter from the defendant, did not remember the same and make disclosure of the same at the time of filing the police complaint and/or at the time of filing of this suit, even if the letter had been misplaced or was not immediately available. The form prescribed for filing affidavit of documents requires a litigant in a commercial suit to, even if not immediately possessed of a relevant document, disclose the same. A litigant who fails to do so and also does not satisfy the Court while seeking to belatedly file the document, why no disclosure of such document was made, cannot be permitted to so file documents.

39. Order XIII Rules (1) & (2) of the CPC as it existed prior to amendment with effect from 1st July, 2002, required the documents to be filed at or before the settlement of issues and no documents could be received at any subsequent stage unless ―good cause was shown to the satisfaction of the Court for non-production thereof‖. Post amendment with effect from 1st July, 2002 of CPC, vide Order VII Rule 14(1)&(3) and Order VIII Rule 1A(1)&(3) a plaintiff was required to file documents along with plaint and a defendant required to file documents along with written statement and documents were not permitted to be received thereafter without leave of the Court. Prior to 2002, the parties, if had not filed the document prior to settlement of issues, were required to satisfy the Court as to why the document was not filed till the stage of settlement of issues and were not required by language of Order XIII Rule (2) to satisfy whether the document was within their knowledge or not. I emphasise, only reason for ‗non-production‘ was to be stated and not the reason for ‗non-disclosure‘. Though with effect from 1st July, 2002, for late filing of documents only leave of the Court was required to be taken but the test continued to be applied by the Courts for granting such leave continued to be as prior to 2002 i.e. of reasons for ‗non-production‘ of documents at the stage provided therefor. Order XI Rule (1) of the CPC as applicable to commercial suits brought about a radical change. The late filing of documents thereunder is permitted applying the test of reasonable cause of ‗non-disclosure‘ of the document at the stage provided for filing thereof. An applicant now is required to satisfy the Court as to why the document was not in his knowledge and if in his knowledge why was the document not disclosed at the appropriate time. Thereunder, documents, even if not immediately available, are required to be disclosed.‖

75. In Rishi Raj (supra), this Court has held as under:- ―17. Order 11 Rule 1 CPC, as applicable to Commercial Suits reads as follows: ―ORDER XI DISCLOSURE, DISCOVERY AND INSPECTION OF DOCUMENTS IN SUITS BEFORE THE COMMERCIAL DIVISION OF A HIGH COURT OR A COMMERCIAL COURT

1. 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:— (a) documents referred to and relied on by the plaintiff in the plaint; (b) 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 plaintiff's case;

(c) nothing in this Rule shall apply to documents produced by plaintiffs and relevant only—

(i) for the cross-examination of the defendant's witnesses, or

(ii) in answer to any case set up by the defendant subsequent to the filing of the plaint, or

(iii) handed over to a witness merely to refresh his memory.

xxx xxx xxx (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 subrule 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 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.‖

18. Hence, as per the scheme of the afore-noted provisions, the plaintiff has to file the list of all documents and photocopies of all documents in his power, possession, control or custody pertaining to the suit alongwith the plaint. He has to also file a declaration on oath that all documents in his power, possession, control or custody pertaining to the facts and circumstances of the proceedings have been disclosed and copies thereof have been annexed with the plaint and that the plaintiff does not have any other documents in his power, possession, control or custody. When the suit was filed the plaintiff did file the aforenoted declaration by way of affidavit. xxxx xxxx xxxx

23. The suit was filed in 2017 and the application for filing additional documents had been filed three years later in 2020 merely stating inadvertent error. In my opinion, there is no reasonable cause given by the plaintiff for not filing the additional documents along with the plaint. The application is belated. The plaintiff cannot be permitted to rely on the documents as sought.‖

76. Insofar as the judgments relied upon by Mr. Ganju, the same are for the following prepositions:i. In Kapil Kumar Sharma (supra), the impugned order before the Supreme Court was passed on November 6, 2007, i.e., much before the enactment of the Commercial Court Act. The application filed was under Order VII Rule 14 CPC which relates to filing of additional documents in a normal suit. It was in that context, the Supreme Court has in paragraph 3 held as under:-

3. Having heard the learned counsel for the respective parties, we are unable to agree with the decision of the Division Bench as also the Single Bench as we have been informed that the cross-examination has not yet commenced. In such a situation, we see no reason for debarring the appellant from filing the additional documents in support of his claim.

4. We accordingly, allow the appeals and set aside the orders passed, both by the Division Bench as also the Single Bench and allow the appellant's application under Order 7 Rule 14 CPC and direct that the additional documents filed by the appellant be taken up for consideration subject to proof thereof.‖ Since this Court is concerned with a commercial suit, the provisions of Order VII Rule 14 CPC are not applicable. Hence the judgment has no applicability. Additionally, the Judgment is distinguishable on facts. ii. In so far as the judgment in the case of Sugandhi (supra) is concerned, the Supreme Court was concerned with an application under Order VIII Rule 1-A(3) CPC, which was filed by defendants seeking leave of the Court to produce additional documents. The subject matter of the application was in OS. 257/2014, which was a normal suit and not a commercial suit. The Trial Court vide order October 11, 2018 dismissed the application. A revision before this Court also met the same fate as the application before the Trial Court. In appeal the Supreme Court has in paragraph 9 and 10 held as under: ―9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3).

10. Coming to the present case, the defendants have filed an application assigning cogent reasons for not producing the documents along with the written statement. They have stated that these documents were missing and were only traced at a later stage. It cannot be disputed that these documents are necessary for arriving at a just decision in the suit. We are of the view that the courts below ought to have granted leave to produce these documents.‖ The judgment has no applicability in a commercial suit which is governed by the provisions of Order XI CPC, whereby the plaintiffs have to show reasonable cause for nondisclosure of the documents at the time of filing of the suit, which the plaintiffs have failed to show. iii. Similarly, in Vikram Roller Flour Mills (supra) though this Court was concerned with a commercial suit, the application refers to four documents filed by the plaintiff along with affidavit of PW[2], which were four directories of the year 1990, 1996, 1999 and 2000 which contain the advertisement of the plaintiff. The reasoning given by the plaintiff for late filing of the said documents was that the said documents were traced on November 10, 2017 by the plaintiff's Accounts Manager from the godown of the plaintiff company. It was the case of the plaintiff therein that the old records were stacked beneath the old packing material stored in the godown. The plaintiff filed the copies of the said documents within one week of tracing of the said documents. This Court in paragraphs 8, 14, 15 and 16 has held as under: ―8. On 20th November, 2017, the plaintiff filed an affidavit by way of evidence of PW[2]. Along with an affidavit, the plaintiff filed copies of the four documents which were not on record. The plaintiff, therefore, filed LA. 860/2018 under Order VII Rule 14 of the Code of Civil Procedure for permission to place the said documents on record.

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 trademark ―INDIA GATE‖.

15. There is certainly delay on the part of the plaintiff to produce the documents but the plaintiff has explained the same. The plaintiff plea that the said documents were stacked beneath the old packing material stored in the godown and could be traced only on 10th November, 2017 is plausible considering that the plaintiff does not gain anything by not filing these documents earlier or by withholding the said documents. The aforesaid documents also do not appear to be forged and fabricated; Of course, the plaintiff will have to prove the said documents in accordance with law. The judgments relied upon by counsel for the defendant is in the facts of those cases.

16. This Court is satisfied that the plaintiff has shown sufficient cause of delay in filing the documents. The appeal is allowed and the impugned order dated 03rd July, 2018 is set aside. LA. 860/2018 is allowed and the plaintiff is permitted to tender the original documents filed before Joint Registrar at the time of examination of PW[2].‖ Suffice to state that the said judgment is clearly distinguishable inasmuch as there is clear averment in the application, that the documents could only traced on November 10, 2017 and an affidavit was filed within 10 days thereafter. No such averments have been made in this application like, the exact dates when the documents were collated / accessed. That apart, this Court holding the plea taken by the plaintiff as plausible has allowed the application, whereas, in the case in hand, it is not four additional documents, but the plaintiffs have filed volumes of documents inasmuch as 29 Annexures were field along with the plaint, which increased to 491 exhibits in the affidavit of the PW[3]. These exhibits are other than the exhibits filed by PW[1] and PW[2] along with their affidavits. Surely, the grounds cannot justify the filing of voluminous documents. iv. Similarly in the case of Jindal Stainless Hisar Limited (supra) though the suit was also a commercial suit, but the reasons for filing the application for bringing on record the additional documents were stated in paragraph 4 of the application which is reflected in paragraph 2 of the judgment. The application was allowed by holding in paragraph 12, 13, 14 and 15 as under;- ―2. The present application has been preferred by applicant/defendant No. 1-Sourabh Jindal to bring on record certain additional documents. The reasons for filing this application have been enumerated in Para-4 of this application, which read as under:— ―4. During Pendency of the suit and after filing of the written statement and the documents, following developments have taken place:—

(i) Defendant No. 1 has got registration of the trademark ―Sourabh Jindal‖ with logo in class 16 and 35.

(ii) Mr. Dheeraj Aggarwal and Mr. Praful B.

Bhatt joined the business with defendant No. 1 and have created a Limited Liability Partnership company in the name of Sourabh Jindal LLP from 14th August, 2020. Now the business of Defendant No. 1 is being run by three of the Partners In the name of limited liability Partnership company called SOURABH JINDAL LLP with all its assets and liabilities from 14th August, 2020. The plaintiff is free to take appropriate steps to substitute Sourabh Jindal LLP as a Defendant in the said suit as per law.

(iii) Defendant No 1 has also executed an assignment deed (of trademark Sourabh Jindal with logo) in favour of Sourabh Jindal LLP and filed an appropriate application TM-P before the concerned authority in this regard.

4. On the other hand, the present application was vehemently opposed by learned counsel for plaintiff who submitted that the plea of defendant No. 1 that the additional documents sought to be placed on record were in possession of defendant No. 1 cannot be accepted, as defendants might have initiated the process for registration of the trademark much before filing of the written statement, however, did not disclose this fact in the written statement so filed. Learned counsel further submitted that the said defendant has not been able to show any reasonable cause for non-disclosure of the documents which are sought to be placed on record.

14. The Hon‘ble Supreme Court in Sugandhi (Supra) has held as under:—

8. Sub-rule (3), as quoted above, provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement, with the leave of the court. The discretion conferred upon the court to grant such leave is to be exercised judiciously. While there is no straitjacket formula, this leave can be granted by the court on a good cause being shown by the defendant.

9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3).

15. Applying the pertinent observations of the Hon‘ble Supreme Court in Sugandhi (Supra) to the case in hand, I find that without prejudice to the rights and contention of the parties, these documents can be taken on record. The present application is allowed and accordingly disposed of.‖ Suffice to state, there is some justification for the defendant to file application for bringing additional documents on record which have been stated in paragraph 4 of the application, which I have reproduced above. The said judgment is clearly distinguishable on facts and as such has no applicability to the case in hand. v. Similarly in Sadhu Forging Limited (supra) the Court was concerned with normal suit. The application therein was filed under Order VII Rule 14 CPC. In the fact situation, the Court has held as under: ―11. The present application is not under Order VII Rule 14(3) CPC but under Order XVIII Rule 4 CPC. However, mere invocation of a different provision of law will not entail dismissal of the application, if the facts have been properly elaborated. [See: (2004) 1 SCC 453 Challamane Huchha Gowda v. M.R. Tirumala] In I.A. No. 7107/2016 which can be treated to have been wrongly filed under Order XVIII Rule 4 CPC, the case of the plaintiff is that there is no bar to placing such documents along with the affidavit and no prejudice has been caused to the defendant, thus the document can be taken on record. It is further stated that the witness who is producing the said documents has dealt with the defendant and is in a position to prove the said documents. The plaintiff/applicant has sought leave of the Court to place the documents along with evidence of PW-2.

12. It is well-settled that procedure is the handmade of justice. It is undisputed that even at this stage, a party can file documents but with the leave of the Court. The plaintiff cannot be non-suited from filing the documents it seeks to rely upon even at this stage. Though in the decision Nishant Hannan (supra) this Court was dealing with unimpeachable documents, however the fact remains that under Order VII Rule 14 CPC read with Section 151 CPC the plaintiff can file additional documents with the leave of the Court when the plaintiff‘s evidence is going on. Provision under Order VII Rule 14 CPC is essentially to assist parties and the Court in adjudication of the dispute.‖ Suffice to state, the Suit not being a commercial suit, the rigors of Order XI CPC, shall not be attracted and the judgment is clearly distinguishable, more so, in the facts of this case and in view of my finding above. vi. Similarly in so far as the judgment in the case of Hassad Food Company Q.S.C. & Anr. (supra) is concerned, though the suit was a commercial suit, seven additional documents were sought to be filed on record by the plaintiffs along with the application. Though reliance has been placed by Mr. Ganju on paragraph 13 and 14 of the said judgment, I find that the reasoning given by this Court in paragraphs 18 and 19, which I reproduce as under, clearly distinguish the judgment with the facts of this case, hence not applicable:- ―13. Perusal of Order XI as noted above reveals that the plaintiff is bound to file all documents in its power, possession, control or custody with the plaint and in case of urgent filing of a suit if some additional documents are to be filed under sub-rule (1) of Rule 1 of Order XI, the plaintiff may seek leave of the Court to rely on additional documents which additional documents are required to be filed within 30 days of filing of the suit. Under sub-rule (5) of Rule 1 of Order XI, 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 the plaint or within the extended period save and except by leave of the Court which leave can be granted only if the plaintiff establishes reasonable cause for nondisclosure along with the plaint. The language used in the sub-rule (5) is that the plaintiff is required to show ―a reasonable cause‖ and not a ―sufficient cause‖ as is ordinarily provided in other provisions.

14. While dealing with Order XIII Rule 2 CPC wherein the words used are: ―unless good cause is shown‖, the Supreme Court in the decision reported as (2002) 1 SCC 535 Madanlal v. Shyamlal, noted the distinction between ―good cause‖ and ―sufficient cause‖ and held that ―good cause‖ requires a lower degree of proof as compared to ―sufficient cause‖ and thus the power under Order XIII Rule 2 CPC should be exercised liberally. Sub-Rule (5) of Rule 1 of Order XI of the Commercial Courts Act, 2015 uses the phrase ―reasonable cause‖ which would require even a lower degree of proof as compared to ―good cause‖.‖ ―18. In the pleas taken in the present application the defendants neither dispute the relevancy of the documents nor that the documents sought to be filed do not relate to them and the only objection taken is that the plaintiffs cannot be allowed to file the documents at the belated stage. As noted above in the present suit the pleadings are not complete as yet as the replications are yet to be taken on record and hence it cannot be said that the plaintiffs have filed the present application so belatedly that it cannot be allowed. Further the plaintiffs have very fairly taken the plea of administrative oversight which can occur when the number of documents is voluminous. Thus the plaintiffs have made out a reasonable cause for not filing the documents with the plaint.

19. There is yet another fact which needs consideration. Most of the documents now sought to be filed by the plaintiffs relate to the defendant banks which even the defendant banks were required to disclose on affidavit along with their written statements. However, without giving the complete disclosure of the facts and the documents, the defendants have put the plaintiffs to strict proof of the same. By the present application, the plaintiffs are neither setting up a new case nor withdrawing any admission. In similar situation, a Single Bench of this Court in Fankaar‘s case (supra) has permitted additional documents to be placed on record. Consequently, the application is allowed. The plaintiffs are permitted to place additional documents on record subject to payment of costs in sum of Rs. 10,000/- to be deposited with the Delhi High Court Legal Services Committee within two weeks.‖ vii. In Atlanta Global Advisors Private Limited (supra), this Court has in paragraphs 5, 10 and 13 has held as under:- ―5. In the application, the plaintiff has inter alia stated as follows: ―3. That in this regard, it is submitted that at the time of filing the present commercial suit, the Plaintiff could not retrieve the emails and other records of the communication referred to above, on account of the same dating back to the year 2015 and 2016. The Plaintiff was not able to retrieve the relevant records from its electronic servers, on account of which the said specific documents/emails and other such records of communication could not be filed by the Plaintiff prior to this stage.

4. That in addition to the above, it is also hereby submitted that the said documents that the Plaintiff seeks to file and place on the records of this Hon'ble Court, are material and critical for the purposes of a fair adjudication of the present matter. It is also hereby submitted that in the event the filing of the said documents is not allowed by this Hon'ble Court, the same shall cause grave prejudice and irreparable damage to the Plaintiff.

7. That the aforesaid documents/email correspondence and the relevant attachment date back to the years 2015 and 2016, and therefore, were not readily available with the Plaintiff, and had to be retrieved from the electronic servers of the Plaintiff, after filtering through thousands of such other emails.‖

10. With regard to the filing of these documents at this stage, I am of the view that the application contains sufficient grounds to demonstrate reasonable cause in this regard. Although, the documents were on the servers of the plaintiff itself, it has been specifically stated that the e-mails had to be retrieved by filtering through ―thousands of such emails‖. The belated filing of the documents, however, is a matter for which the plaintiff must be burdened with costs.

13. In these circumstances, the plaintiff is permitted to bring the additional documents on record, but – in view of the delay and its consequences upon the defendant, subject to payment of costs of ₹1,00,000/- to the defendant. I am conscious of the fact that the defendant will have to file a fresh affidavit of admission/denial of the documents in question, and marking of exhibits will have to be rescheduled.‖ In view of the above reasoning given by this Court, the judgment is clearly distinguishable. viii. In R Systems International Limited (supra), the observation of the Supreme Court at Page 2 of the Order is as under: ―The High Court allowed the application after a careful consideration of Order XI Rule 1 (5) of the Code of Civil Procedure, 1908 (‗CPC‘) as applicable to commercial suits and recorded a finding that the respondent had shown sufficient grounds for not filing the additional documents at the time of filing of the suit. The High Court accepted the ground taken by the respondent that there were thousands of e-mails from which the additional documents had to be culled out. However, the High Court was of the opinion that the respondent has to be burdened with certain cost for the delay in disclosure of the additional documents. Mr. Amit Singh Chauhan, learned counsel appearing for the petitioner submitted that Order XI Rule 1 (5) of CPC casts a duty on the court to examine whether the plaintiff has established a reasonable cause for not producing the documents at the time of filing of the suit. He relied upon a judgment of Delhi High Court in Zee Entertainment Enterprises Ltd. vs. Saregama India Ltd. reported in 2019 SCC Online Delhi 10215 to argue that utmost care has to be taken by the Court while permitting additional documents to be filed by the plaintiff at a later stage. In the said case there was absolutely no justification for the delay in filing the relevant documents. In this case, the High Court has given reasons for allowing the application by holding that the Respondent had shown sufficient cause for the delay in filing the documents.‖ ix. In Valo Automotive Pvt. Ltd. (supra), this Court has held in paragraph 12 as under:- ―12. The learned Trial Court has referred to the provisions of Order XI Rule 5 CPC, as applicable to the commercial disputes. But, it has overlooked the provisions of Order XI Rule 1(1)(c)(ii) CPC, which permits the plaintiff to file documents in answer to the case set up by the defendant subsequent to the filing of the plaint. The precise case of the petitioner/plaintiff is that when the respondents/respondents denied that invoices were ever raised, the application was moved to bring the invoices on record. Under Order XI Rule 5 CPC, the court can grant leave to the plaintiff to file documents, not filed with the plaint. The learned Commercial Court erred in over-looking these provisions of the CPC.‖

77. Suffice to state that the judgments referred to by Mr. Ganju has no applicability to the facts of this case, more so, in view of my findings above and the fact that a party cannot place the additional documents on record as a matter of right, under Order XI Rule 1(5), as the said provision contemplate the same shall be subject to the leave granted by the Court.

78. In the facts of this case, this Court is of the view that the plaintiffs have not shown reasonable cause for filing the additional documents. Further the leave of the Court sought is also not bonafide. Even the reliance placed by Mr. Ganju on the judgment of Md. Islamuddin (supra) is misplaced and the same is distinguishable on facts and in view of my above finding.

79. In view of my discussion above, the applications filed by the plaintiffs are liable to be dismissed. It is ordered accordingly. No costs.

80. List before the Roster Bench for further proceedings on July 10, 2023.

V. KAMESWAR RAO, J