Full Text
HIGH COURT OF DELHI
TRANSPORT CORPORATION OF INDIA LTD ..... Plaintiff
Through: Ms. Diya Kapur and Mr. Aditya Ladha, Advocates
Through: Mr. Sandeep Sethi, Sr. Advocate with
Mr. Neeraj Yadav, Advocate for D-2
JUDGMENT
1. The present application has been filed under Order XI Rule 21 read with Section 151 of the Code of Civil Procedure, 1908 seeking the following reliefs: “a. Allow the present application in favour of the Plaintiff and strike off the defence of the Defendant No. 2; b. Pass any further order(s) as this Hon'ble Court may deem fit and proper in the present facts and circumstances of the present case.”
FACTUAL MATRIX
2. The applicant/plaintiff herein had filed a suit seeking a declaration, a mandatory injunction, and the recovery of Rs 6,92,55,342/- in relation to a Foreign Exchange Derivative transaction involving a USD-CHF transaction on 20th September, 2007 between the plaintiff and the Yes Bank Ltd, i.e., the non-applicant/defendant No. 2.
3. The applicant/plaintiff firm is engaged in the business of multi-modal transport and logistics, including supply chain solutions, periodically required term loans and working capital loan facilities from several banks. In 2006, the applicant/plaintiff firm had around Rs. 226 crores in outstanding loans on which it was paying interest between 6.50 % and 11% per annum. During the same year, the non-applicant/ defendant No. 2 convinced the applicant/plaintiff to participate into Foreign Exchange Derivative transactions that were supposed to save the applicant/plaintiff herein 2% in interest charges on its loan, but were in fact meant to generate profits for the non-applicant/defendant No. 2.
4. The non-applicant/defendant No. 2 herein convinced the applicant/ plaintiff to "notionally" convert its Rupee loan into a Swiss Franc (CHF) loan by claiming that interest rates were significantly lower in CHF and, as a result, the applicant/plaintiff would incur fewer interest expenses. Also, it is stated that there was no forex risk associated with this notional conversion, as the CHF was a very stable currency, and that any potential forex risk associated with this notional conversion was mitigated by an "option protection".
5. On 23rd October, 2006, the applicant/plaintiff approved a resolution permitting certain business officials to accept the terms and circumstances of bank offers for derivative transactions that are in the firm's best interests. On 20th September, 2007, the plaintiff entered into an interest-saving transaction with non-applicant/defendant No. 2 in which Rs. 15,00,00,000/was ostensibly swapped for CHF 44,43,467/-, with the maturity date was set for 24th September, 2009 and the plaintiff was to receive a sum equal to 2% of Rs. 15,00,00,000/-, which was ostensibly a savings in interest due to the swap into Swiss Francs (CHF).
6. It has been stated on behalf of the applicant/plaintiff herein that the said transactions were in fact very risky and the said fact was actively concealed by the non-applicant/defendant No. 2 despite being under a fiduciary relationship with the applicant/plaintiff herein.
7. It has been stated on behalf of the applicant/plaintiff that on 26th April, 2011, the Reserve Bank of India issued a circular imposing a penalty on several banks in relation to foreign exchange derivative transactions of the same nature, as was entered into by the plaintiff company, on the grounds of contravention of various instructions issued by the Reserve Bank of India in respect of derivatives, such as failure to conduct due diligence with respect to the suitability of products, selling derivative products to unregistered entities, etc. Being aggrieved by the malafide acts of the nonapplicant/defendant No. 2 herein the applicant/plaintiff filed the present suit for recovery.
8. Pursuant to the completion of pleadings, this Court vide order dated 24th August, 2015 framed the following issues. The same are reproduced hereunder:
9. It has been submitted on behalf of the applicant/plaintiff that in its defence against the instant suit, the defendant No.2 inter-alia contended that it had engaged in a back-to-back mirror transaction with another person/inter-bank counterparty and that the bank benefited to the extent of fees/margins earned between the two sets of transactions, i.e. close with the Customer and close with the inter-bank counterparty.
10. It has been further submitted that the plaintiff's application bearing I.A. No. 25111/2015 for discovery of certain documents was allowed by the Joint Registrar vide decision dated 21st February, 2017. Thereafter, the defendant No. 2 filed chamber appeal bearing O.A. No. 81/2017 against the decision dated 21st February, 2017 instructing the defendant No. 2 to file the affidavit of discovery within eight weeks of the order's issuance.
11. During the course of arguments, it has been submitted on behalf of the applicant/plaintiff that the plaintiff limited the discovery it sought from defendant No. 2 to the documents specified in paragraph 9(f) of application bearing I.A. No. 25111/2015. The relevant paragraph is reproduced hereunder: "9(f) Records of 'exactly off-setting transactions'/ 'back-to-back mirror transactions' entered into with other banks by Defendant No. 2, including details of the counter-parties involved and the profits/margins/ commissions or any other amounts received by Defendant No. 2 from these counterparties."
12. It has been submitted on behalf of the applicant/plaintiff that this Court dismissed the Chamber Appeal O.A. No. 81/2017 with the observation that what was requested from defendant No. 2 in para. 9(f) of the application was exactly what the defendant had argued in defence to the complaint. The relevant extract of the order dated 2nd May, 2018 is reproduced hereunder:
13. It is submitted on behalf of the applicant/plaintiff that the issue was then scheduled to be heard by the learned Joint Registrar on 14th May, 2018. The defendant No. 2 requested further time before the learned Joint May, 2018. Resultantly, with the parties' consent, the defendant No. 2 was given two weeks to disclose documents.
14. It is submitted on behalf of the applicant/plaintiff that the plaintiff sent a reminder notice regarding the disclosure of documents to the counsel appearing for the defendant No. 2 on 31st May, 2018, after the defendant No. 2, despite providing an oral undertaking on 14th May, 2018, failed to disclose the requested documents within the allotted time frame of two weeks.
15. It is submitted on behalf of the applicant/plaintiff that the defendant No. 2 is alleged to have continued to withhold the necessary information on affidavit in flagrant violation of this Court's decision dated 2nd May, 2018 and the learned Joint Registrar's order dated 14th May, 2018. It is further submitted that the records kept by defendant No. 2 in the normal course of business may be found among the documents that were made available for discovery. Hence, any delay in following the provided instructions is puzzling and seems to be a deliberate effort to put off the disposal of the instant case.
16. It has been submitted on behalf of the plaintiff/applicant that it is a well-established legal principle that when a defendant disobeys a discovery order, their defence should be thrown out and they should be put in the same situation as if they had not defended. It is further submitted that this is especially true when the default is intentional in order to delay the trial of the case.
17. It has been submitted that in the present case there is apparent failure on part of the defendant No. 2 to comply with the order dated 2nd May, 2018 passed this Court. The defendant No. 2 is purposefully concealing the documents from discovery that he was required to provide no later than 28th May, 2018. It has been further submitted that despite having access to the records and papers that must be discovered, the defendant No. 2 opted to disobey the court's directive, causing unjustifiable delay and harm to the applicant/plaintiff.
18. In view of the foregoing submissions it has been submitted that the defence of defendant No. 2 must be struck out.
19. Per Contra, learned senior counsel appearing on behalf of the defendant No. 2 submitted that the present application filed by the plaintiff is misconceived, merit-less and an abuse of the process of law. It is further submitted that the instant application is infructuous as defendant No. 2 has already complied with order dated 2nd May, 2018 and consequently, has filed its Affidavit under Order XI Rule 13 of Civil Procedure Code, 1908 vide diary no. 193554 of 2018 on 1st August, 2018 after duly serving a copy of the same to the plaintiff.
20. It is submitted on behalf of the defendant No. 2/non-applicant that this Court vide order dated 24th August, 2015 directed the plaintiff to present affidavit-based evidence within eight weeks. It is further submitted that the plaintiff's current application is nothing more than an abuse of the legal system, particularly in light of the fact that, despite instructions from this Court, the plaintiff has not yet filed any affidavit-based evidence and is making every effort to delay the trial of the case.
21. It has been submitted on behalf of the defendant No. 2/non-applicant that the plaintiff asked the defendant for access to documents that were private in nature, dealt with transactions involving third parties, and had nothing to do with the claims made in the present suit. It is further submitted that this Court vide Chamber Appeal bearing O.A. No. 81/2017 filed by the defendant No. 2 has overturned the Ld. Joint Registrar's order dated 21st February, 2017, in I.A. No. 25111/2017.
22. It has been submitted on behalf of the defendant No. 2/non-applicant that the documents requested by the plaintiff were both confidential in nature and irrelevant to the issues framed in the current suit.
23. Therefore, the documents as sought to be produced are confidential in nature and thus, cannot be produced before this Court. Furthermore, the defendant No. 2 has already complied with the orders passed by this Court and application filed by the applicant/plaintiff is gross misuse and process of law and deserves to be dismissed.
FINDINGS AND ANALYSIS
24. Heard the learned counsel for the parties and perused the record.
25. In order to adjudicate the instant application, this Court finds it appropriate to peruse the relevant provisions as specified under the Code of Civil Procedure, 1908. Order XI Rule 21 of the Code of Civil Procedure, 1908 is reproduced hereunder:
26. This Court finds it evident to clarify the intent of Order XI Rule 21 of the Code of Civil Procedure, 1908, when deciding the current case. The aforementioned clause is divided into two parts: first, if the party refusing to respond to the interrogatories is the plaintiff, then the suit will be dismissed for lack of prosecution; second, if the party refusing to comply is the defendant then, the defence will be struck out and the party will be in the same position as if it had not defended its case.
27. The entire aim of interrogatories is to obtain a party's admission on the item at issue so that the issues can be appropriately framed, limiting the disputed matters or disputes left for the Court's adjudication, and ultimately promoting an early and quick resolution of the lawsuit. Furthermore, the Court has been given the authority to order discovery or approve interrogatories at any time, according to a review of the relevant substantive requirements found in Section 30 of the Code of Civil Procedure, 1908. With the Court's permission, interrogatories may be served on the opposing party in accordance with Order XI Rule 1 of the Code of Civil Procedure,
1908.
28. The Court has been given broad power to authorise service of interrogatories at any point of the lawsuit, as is obvious from a thorough and combined reading of these two sections, but the discretion must be used carefully. The requested information must be relevant to or have some connection to the contested issue. While considering whether to accept or allow interrogatories, the stage of the lawsuit must be taken into consideration. The same is reiterated that the entire goal of the regulations included in Order XI Rule 1 of the Code of Civil Procedure, 1908 is to save time by focusing the disagreement or reducing the areas of contention. As a result, the Court can be a little more lenient while allowing interrogatories at the beginning of a lawsuit as compared to in a trial at a mature stage when parties' evidence is being heard. Once the concerned opposing party's testimony has concluded, interrogations are not authorised.
29. Furthermore, the Hon’ble Supreme Court in its judgment titled as M.L. Sethi v. R.P. Kapur reported as (1972) 2 SCC 427 held that the parties are required to provide an affidavit of documents when the court issues an order for discovery under the rule, and in case of failure thereto, he will be subject to the sanctions outlined in Order XI Rule 21 of the Code of Civil Procedure, 1908. The relevant paragraph of the said judgment is reproduced hereunder:
30. This Court has perused the affidavit filed by the defendant No. 2 in compliance of order dated 2nd May, 2018 and 14th May, 2018. The defendant No. 2 has denied producing the said documents in clear violation of the said order on the ground that the documents sought are part of composite transactions entered into by the Defendant No.2 with third party and other customers, as well as due to the confidentiality of the documents. The relevant extracts of the said affidavit are reproduced hereunder:
31. Taking into consideration the same, and in view of the direction passed in the CCP(O) 62/2018 to produce the said documents in sealed covers, this Court is of the view that the instant application does not require any further adjudication by this Court.
32. Accordingly, the present application stands disposed of.
33. The judgment be uploaded on the website forthwith.
JUDGE MARCH 29, 2023 gs/ug