RAMACIVIL INDIA CONSTRUCTION PRIVATE LIMITED v. NATIONAL BUILDING CONSTRUCTION CORPORATION LIMITED

(i) Document No.1: True copy of email dated 15.07.2024;

(ii) Document No. 2: True copy of the Structural Audit and Retrofitting

Report dated 26.02.2024; (iii)Document No. 3: True copy of Email dated 23.10.2024 sent by the Defendant to the District Town Planner, Enforcement & Vigilance, Gurugram, Haryana; (iv)Document No. 4: True copy of Email dated 07.11.2024 sent by the Technical Projects Consultants Pvt. Ltd. to the Defendant;

(v) Document No. 5: True copy of Email dated 21.02.2025 sent by the

Defendant to the National Institute of Technology (NIT), Patna, Bihar; (vi)Document No. 6: True copy of Email dated 06.03.2025 sent by NIT Patna to the Defendant;

(vii) Document No. 7: True copy of Letter of Intent dated 27.03.2025 sent by the Defendant to NIT Patna; (viii)Document No. 8: True copy of Email dated 28.03.2025 sent by the NIT Patna to the Defendant; Submissions on behalf of the parties

8. Mr. Gaurav Sarin, learned senior counsel for the defendant, made the following broad submissions, in support of the prayer herein:- 8.[1] That Document No. 2, which is a structural audit report in respect of the project, prepared by a third-party entity, came in the defendant’s possession on 15.07.2024, and the other documents came into its possession subsequently, after closure of the defendant’s evidence. 8.[2] That on the basis of the contents of Document No. 2, the defendant took further steps towards rectification of defects in the project, including correspondence with the third-party auditor which prepared the report, and the necessary correspondence with another third-party entity for rectification of the aforesaid defects pointed out therein. These documents include email communications and various contracts entered into by the defendant in respect of the project. Hence, no substantial delay can be attributed to the defendant in seeking to place them on record. 8.[3] That the factum of the defendant’s having had to incur additional expenditure to get the defects in the project rectified, can be established using the aforesaid documents. The defendant is entitled in law to adjust or recover this amount from the plaintiff. Hence, the documents are relevant to the present suit. 8.[4] That it has been the consistent position of the defendant from the outset, as reflected in the written statement, that the plaintiff failed to complete its work to the satisfaction of the defendant, thereby necessitating the issuance of a fresh contract to a third-party to undertake the same. 8.[5] That the plaintiff’s witness was even confronted with material in respect of structural defects in the project, and the same had been exhibited as Exhibit PW-1/D-1. 8.[6] That the Supreme Court in its judgment in Sudhir Kumar v. Vinay Kumar G.B[1] has held that the requirement of ‘reasonable cause’ for nondisclosure of documents at the relevant time, may not be applicable in respect of documents which came into the party’s power and possession subsequent to the filing of pleadings. The same reasoning ought to be applied in the present case, since all the documents came into the defendant’s possession only subsequent to the filing of its written statement.

9. Mr. Dinkar Singh, learned counsel for the plaintiff made the following broad submissions:- 9.[1] That the instant application is misconceived and has been filed at a highly belated stage. In commercial suits, filing additional evidence after the conclusion of trial is generally not permitted, unless the Court is of the opinion that there is sufficient cause for the delay and that the additional evidence is relevant and necessary for the adjudication of the dispute. 9.[2] That proceedings in the present suit took place on several dates post the date on which the defendant claims to have come into possession of the documents. A perusal of orders dated 24.07.2024, 28.11.2024 (when the case was heard in part and deferred only on account of paucity of time), 06.12.2024, 13.12.2024, 20.12.2024 and 26.03.2025 indicates that once Document No. 2 came into the defendant’s possession, it did not take any step to bring the same on record. Such omission on the part of the defendant operates against the granting of the relief sought in the present application.

9.[3] That the final arguments were even heard in part, and were not completed only on account of a change of roster. This indicates that the present application has been filed only to detract and delay the present proceedings. 9.[4] That the documents are irrelevant to the present proceedings as they relate to the portion of the construction work in the project that was undertaken by a previous contractor and was not related to the plaintiff’s work therein. 9.[5] That the defect liability period under the contract, within which the defendant had to raise any objection in respect of the plaintiff’s work, had expired on 31.07.2017. Document No. 2, based on which the defendant seeks to establish purported defects in the plaintiff’s work came into existence subsequent to the expiry of the defect liability period. Thus, in any case, the defendant must not be allowed to use these documents to establish any purported defect in the plaintiff’s work. 9.[6] That there is no specific averment in the written statement with respect to the work which has been carried out by the plaintiff and that the same was found to be defective. 9.[7] That a perusal of the issues framed for consideration indicates that no specific issue was framed on the claim of the defendant against the plaintiff in respect of any structural defect in the project, plausibly due to certain admissions by the defendant of certain documents such as Exhibit P/10, Exhibit P/3, Exhibit P/8, and the chief-examination affidavit of the defendant’s witness, all of which indicate that the plaintiff had completed its work under the contract. Thus, in the absence of any such specific issue, the documents are irrelevant to the present proceedings. 9.[8] That this Court, in its judgments in Cottage Industries Exposition Ltd v. Gopal Das Estates and Housing Pvt Ltd[2] and Nitin Gupta v. Texmaco Infrastructure and Holding Limited,[3] held that substantial delay in producing additional documents, disentitles the defendant from being permitted to do so at a belated stage. Analysis

10. Order XI, Rule 1(10) of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC), as applicable to commercial suits, bars the defendant from placing on record, documents which were in his possession at the time of filing his written statement, unless he satisfies the Court that he had reasonable cause for their non-disclosure earlier. The aforesaid provision is reproduced below, for reference: “(10) Save and except for sub-rule (7) (c) (iii), defendant shall not be allowed to rely on documents, which were in the defendant's power, possession, control or custody and not disclosed along with the written statement or counterclaim, save and except by leave of Court and such leave shall be granted only upon the defendant establishing reasonable cause for non-disclosure along with the written statement or counterclaim.”

11. The Supreme Court, in its judgment in Sudhir Kumar v. Vinay Kumar G.B, held that the rigours, under Order XI Rule 1(5), of having to establish reasonable cause for non-disclosure earlier, do not apply in case of documents which came into the plaintiff’s possession after the filing of the 2025 SCC OnLine Del 2219 plaint. The relevant portion of the judgment is extracted below, for reference: “9.6. 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 nondisclosure 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)

12. The said provision is identical to the one in Order XI Rule 1(10) of the CPC, the only difference being that the former applies to additional documents filed by the plaintiff, and the latter applies to those filed by the defendant. Order XI Rule 1(5) is reproduced below, for reference: “(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.”

13. Thus, there exists no reason not to apply the reasoning of the Apex Court in the aforementioned judgment, in the present case. Hence, had only Order XI Rule 1(10) to be considered herein, the defendant may have been entitled to place the documents on record.

14. However, it is important to note that under Order XI Rule 1(10) of the CPC, the defendant cannot claim as a matter of right, leave to place on record additional documents, regardless of the date they came into its possession. The basic principles of civil law governing civil proceedings require the Court to take into account, factors such as relevance of documents and any delay in producing documents, along with the bona-fides of the party. Considering the legislative intent behind the enactment of the Commercial Courts Act, 2015, which is to expedite disposal of suits of commercial nature, the aforementioned principles are to be applied strictly in the present case.

15. This Court, in Societe Des Produits Nestle S.A. & Anr V. Essar Industries & Ors[4] emphasised on the nature of suits under the Commercial Courts Act, 2015 and the need for Courts to strictly consider any delay on the part of the parties in placing documents on record. The relevant extract is reproduced below, for reference:

2016:DHC:5338 suits were not to be treated differently or did not form a distinct class, would be held to be arbitrary and discriminatory. A litigant with a claim which would not classify as a commercial dispute would certainly then be entitled to contend that no priority should be given to commercial suits as is purported to be done under the Commercial Courts Act.

11. The principle which prevailed with the Courts earlier, for allowing documents even at the late stage viz. of the litigant should not suffer for the fault of his advocate or for being not advised to file documents at the correct stage and which principle had evolved in the context of mofussil jurisdiction, where the litigants were uneducated and not aware of their rights, cannot certainly be applied to suits of commercial men and commercial concerns who do not suffer from any such handicap.”

16. Further, in Nitin Gupta v. Texmaco Infrastructure and Holding Limited, this Court held as under:

17. In M/s Levitate Mobile Technologies Pvt Ltd v. M/s Standard Chartered Bank and others[5] considering various decisions on this aspect and the legislative intent behind the enactment of the Commercial Courts Act, 2015, this Court held that Courts must exercise their discretion in granting leave to parties for filing additional documents, cautiously, and ensure speedy disposal of cases. The relevant portion of the aforesaid judgment is extracted below, for reference:

18. Taking into consideration the aforementioned principles, the facts of the present case may be appreciated. Documents No. 1, 2, 3, and 4 came into the defendant’s possession on various dates in 2024 after which, proceedings in the present suit took place on five occasions; on 28.11.2024, 06.12.2024, 13.12.2024, 20.12.2024 and on 26.03.2025. As correctly pointed out by Mr. Dinkar Singh, the defendant made no attempt to bring the aforesaid documents to the notice of the Court. The defendant, after bringing Document No. 2 to the notice of the Court, could have sought leave to place on record further documents as and when they came into existence and its possession. Had the defendant done so, considering that the matter was slated for final arguments, the Court could have deferred the proceedings to a suitable date, instead of scheduling the present case on five occasions. The 2025 DHC 908 defendant’s omission to do so, indicates a callous attitude on its part, which is not to be encouraged. Therefore, the aforesaid documents cannot be permitted to be placed on record.

19. However, Documents No. 5, 6, 7, and 8 came into existence only between the 21.02.2025 and 28.03.2025. In this period, as indicated in the order sheet, proceedings took place in the present suit only on one date, i.e., on 26.03.2025. Hence, no substantial delay can be attributed to the defendant in placing on record, the aforesaid documents.

20. The next aspect on which the Court is required to be satisfied for allowing the present application is the relevance of the documents to the present suit. The defendant claims to rely on the documents to establish that the plaintiff had not fulfilled its obligations under the contract and that therefore, the latter was not entitled to recovery of any money from the former.

21. A perusal of the documents indicates that they are related to the status of the project and the steps taken by the defendant to get the defects in it rectified by a third-party. In its written statement, the defendant has specifically averred that the plaintiff had not performed its obligations under the contract, and hence, there was no question of recovery of money from the defendant. The relevant portion of the plaint is extracted below, for reference:

Corporation has no other alternative except to encash bank guarantee of Rs. 1.[5] Crores towards security deposit and further forfeited the amount of Rs. 53,27,068 from the final bill and other balance amount of the Plaintiff Company. Due to inaction of the Plaintiff, the Defendant Corporation has been forced in to a position to rectify the defects which were supposed to be taken care of by the Plaintiffs. The Defendants Corporation reserves its right to recover expenses with respect to the same from the Plaintiff Company at appropriate time as per law.”

22. Further, Issue No. 5 framed by the Court vide its order dated 08.11.2023, being whether the defendant is liable to pay the plaintiff any amount as claimed in para 4 (xxviii) of the plaint, seems to be wide enough to include within its folds, the question whether the plaintiff had fulfilled its obligations under the contract on whose basis it claimed the aforesaid dues from the defendant.

23. The argument on behalf of the plaintiff that since the documents came into existence after the expiry of the defect liability period under the contract, within which the defendant had to seek rectification of defects in the project, cannot sustain. The defendant claims that the defect liability period did not expire on the date alleged by the plaintiff, and the same is a matter of trial, being covered in Issue No. 3, reproduced above.

24. Thus, the Court finds it difficult to accept the contention of the plaintiff that the said documents are irrelevant to the present suit. The Court is, thus, satisfied that Documents No. 5, 6, 7, and 8 are relevant to the present suit and there is no substantial delay in seeking to place them on record.

25. It is, however, apposite to clarify that the question of admissibility as evidence, and genuineness of the documents have not been adjudicated herein, and that the same is left open for consideration at the stage of final adjudication of the suit in consonance with the decision of the Supreme Court in Bipin Shantilal Panchal v. State of Gujarat and another.[6] Conclusion

26. In light of the foregoing discussion, the present application is allowed in part, and the defendant is permitted to place on record Document No. 5, Document No. 6, Document No. 7, and Document No. 8. However, it is not permitted to place on record Document No.1, Document No. 2, Document No. 3, and Document No. 4. The present application stands disposed of, accordingly.

27. Once the instant additional documents are placed on record, the plaintiff shall be at liberty to place on record within a period of thirty days thereon, documents to counter the same. CS(COMM) 471/2021 and I.A. 16704/2025

28. List the matter on 18.08.2025 before the concerned Joint Registrar for further proceedings in accordance with the extant law. Let the same be conducted expeditiously, within two months from the date of listing before the Joint Registrar.

JUDGE JULY 31, 2025 nc/amg