Full Text
HIGH COURT OF DELHI
JUDGMENT
DAMAN PREET GUJRAL ..... Petitioner
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA Advocates who appeared in this case:
For the Petitioner : Mr. Aman Vashisht, Adv. For the Respondent : Mr. Nitin Jain and Mr. Akshay Mittal, Advs.
[ The proceeding has been conducted through Hybrid mode ]
1. Exemption allowed subject to all just exceptions. CM APPL. 9487/2023
2. Application stands disposed of.
3. The petitioner challenges the impugned order dated 10.11.2021 in CS (COMM) No. 1317/2019 tilted “SHARWEN KUMAR KHANNA Vs.
DAMAN PREET GUJRAL” whereby the learned Trial Court has dismissed the application under order VIII Rule 1A CPC, 1908 along with an application under Order VI Rule 17 CPC, 1908 whereby the CM(M) 1117/2021 & CM APPL. 9486/2023 CM(M) 1497/2019 2 petitioner/defendant sought filing of new documents and consequent amendment to the written statement.
4. Learned counsel appearing for the petitioner submits that the specific stand of the petitioner before the learned Trial Court has been crystallized in the order dated 13.02.2022 which is placed on record along with CM APP No. 9486/2023 whereby while framing issues, the learned Trial Court had on the basis of pleadings directed, the petitioner/defendant to lead evidence in the first instance.
5. The concerned paragraph is extracted here under:- “Since the defendant is admitting the receipt of the amount of Rs.12 lakhs from the plaintiff for the purpose of supply of goods to him but is taking a specific defence that he was just a facilitator and had transferred the said amount to the concerned agencies in China, so I am of the view that firstly defendant has to lead evidence to prove his version. If from the evidence of the defendant his defence could not be proved out then there may not be any requirement of leading evidence by the plaintiff because of the admission of the defendant regarding receipt of money. Accordingly, it is directed that defendant will lead evidence first. Counsel for the defendant stated that he may examine three I four witnesses including the defendant.”
6. Learned counsel submits that the application seeking placing on record additional documents was filed, on the basis that certain documents showing direct dealing between the respondent/plaintiff and M/s. Wellcost Ltd. based in China was sought to be proved.
7. Learned counsel submits that this issue is the main stay of the petitioner/defendant in his written statement filed before the learned Trial Court. Learned counsel submits that even in the original written CM(M) 1497/2019 3 statement this was his stand.
8. He further submits that, though certain emails were filed, however, subsequently, fresh emails which were directly in relation to the said defence taken by the petitioner/defendant, were furnished to the defendant by one Mr. Aditya Sabhrawal, who is stated to be his friend.
9. Learned counsel submits that Mr. Sabhrawal was also the son of the owner of M/s. Wellcost Ltd. Learned counsel submits that the reason for neither mentioning in the statement of truth nor annexing the aforesaid emails/ correspondences and other evidences along with the original written statement was the reason that the documents were never in his possession nor in his knowledge at any point of time till he met Mr. Aditya Sabhrawal.
10. Based thereon, learned counsel submits that learned Trial Court overlooked the essential ingredients of what would essentially be the defence of the petitioner/defendant and in order to do substantial justice it was relevant that these documents are placed on record.
11. Lastly, learned counsel submits that the order dated 13.02.2020 itself noticed the basic defence of the petitioner, hence full opportunity to defend his case ought to have been granted by the learned Trial Court.
12. Having not done so, learned counsel submits that, the impugned order suffers from procedural irregularity and is based on denial of justice and fair play.
13. Per contra, learned counsel appearing for the respondent/plaintiff brings attention of this Court to page 168 of the petition which is the application under Order VIII Rule 1A CPC, 1908 filed on behalf of the petitioner/defendant, particularly to para 4 whereby it becomes clear that CM(M) 1497/2019 4 the petitioner /defendant is using this as a ploy to delay the proceedings inasmuch as the petitioner/defendant has categorically admitted that the facts relating to these transactions came to the knowledge of the petitioner /defendant during the lock down.
14. Learned counsel submits that the averment is ambiguous and unclear and it is not specific and not at all clear as to on which date or which year did the petitioner/defendant gain the knowledge of these alleged transactions.
15. Learned counsel also brings attention of this Court to page 88 which is the written statement and particularly to page 90, the last four lines of the second paragraph whereby the petitioner/defendant has referred to the email exchanged between one Mr. Varun Khanna and M/s. Wellcost Ltd. which were already filed by the petitioner/defendant on record.
16. Learned counsel also further submits that having regard to the fact there was no stay granted by this Court, the cross examination of petitioner/defendant had commenced.
17. Learned counsel refers to page 341 of the petition which is the cross examination of the petitioner/defendant to submit that the petitioner/defendant has admitted the alleged transaction and the documents pertain to the year 2018 and despite the fact that they already filed emails pertaining to that particular year on record, there was no proper explanation or sufficient reasons or even reasonable cause as to why he could not file these in time. On that, learned counsel submits that the impugned order is sustainable in law and ought not to be interfered by this Court under the supervisory jurisdiction. CM(M) 1497/2019 5
18. In rebuttal, learned counsel submits that in para 3 of the replication, the respondent/plaintiff had categorically denied the relation or the allegation that the respondent /plaintiff had been directly dealing with the seller company namely M/s. Wellcost Ltd.
19. Learned counsel further submits that the respondent/plaintiff also denied that the son of the plaintiff namely Varun Khanna, had placed any orders directly with the company, M/s. Wellcost Ltd.
20. Though the present petition was posted today only for the purposes of consideration of urgent application, filed by the petitioner/defendant, however, with the consent of the parties, the present petition is being taken up.
21. This Court has heard the arguments of learned counsel appearing for the parties as well as perused the impugned order and the other documents placed on record.
22. At the outset, this Court observes that the application which was filed under the nomenclature of Order VIII Rule 1A CPC, 1908 would not lie since the suit is a commercial suit. However, since it is trite that the provisions of a particular application is not relevant and only the contents ought to be considered, the said application is being considered as one under Order XI Rule 1(10) CPC, 1908 of the Commercial Courts Act, 2015 and being dealt as such.
23. From a perusal of the pleadings, it is clear that the petitioner/defendant has taken categorical stand that it is only a facilitator and not one of the principals to the contract and therefore the liability to make any payment to the respondent/plaintiff does not arise.
24. Without going into the merits of the matter, this Court observes CM(M) 1497/2019 6 that the stand taken by the petitioner/defendant as also the burden placed upon the petitioner/defendant, vide the order dated 13.02.2020, the learned Trial Court had placed the burden of recording evidence firstly on the petitioner/defendant which ordinarily lies upon the respondent/plaintiff. Since the burden to discharge and make good his defence lies upon the petitioner/defendant, the petitioner/defendant ought to be provided all sufficient opportunity to defend itself in all manners whatsoever.
25. It is not the case of the respondent/plaintiff that this stand was not taken by the petitioner/defendant in its original written statement and only now trying to introduce by way of the amendment sought in the written statement. It is also not disputed that whatever documents in respect of that proof was available with the petitioner/defendant, were already on the record of the learned Trial Court.
26. Learned Trial Court, though has noted the aforesaid arguments of the petitioner/defendant, however, has not given any reasoning as to why it is not relevant for the petitioner/defendant to place such documents on record. Specially, keeping in view the categorical defence already taken by petitioner/defendant in its original written statement.
27. Learned Trial Court also did not consider the nexus between the documents which are sought to be placed on record and the defence, which is intrinsically intertwined with the original defence of the petitioner/defendant. Though the learned Trial Court has examined, in detail, the arguments, however, this Court is unable to agree with the reasoning refusing to take the documents on record.
28. This Court is of the opinion that parties ought to be provided the CM(M) 1497/2019 7 maximum opportunity so as to enable them to produce relevant documents on record and plead their cases. This Court also observes that though the petitioner/defendant had filed the present application belatedly, however, this was before the evidence had commenced. No doubt that the suit is a commercial suit and there cannot be any question of leverage being given to any party to delay the case, however, in the facts to the present case, it does not appear to be a ploy to delay the proceedings.
29. In that view of the matter, this Court is of the view that documents as sought to be placed on record ought to have been permitted by the learned Trial Court and by refusal thereof, it committed material irregularity and not provided a fair opportunity to the petitioner/defendant to defend itself.
30. In view of above observations, the impugned order is quashed and set aside. The learned Trial Court is directed to take on record the documents as filed subject to proof, relevancy and mode of proof thereof.
31. It is made clear that only those documents which have accompanied the application under Order VIII Rule 1A CPC, 1908 alone will be taken on record. Any document, other than the said documents shall not be taken on record by the learned Trial Court and in case so filed, shall be deemed to have been taken off the record.
32. The aforesaid order is subject to costs of Rs.25,000/- payable by the petitioner/defendant to the respondent/plaintiff for the delay in production of the said documents.
33. Once the learned Trial court takes the said documents on record, CM(M) 1497/2019 8 the Trial Court shall consider application under order VI Rule 17 CPC, 1908 afresh on its own merits.
34. Learned Trial Court shall proceed with the hearing of the application under Order VI Rule 17 CPC, 1908 as well as suit without being influenced by any observation made herein above which was only for the purpose of evaluating the impugned order.
35. The petition is disposed of.
TUSHAR RAO GEDELA, J. FEBRUARY 27, 2023