Calcutta High Court
D) Costs Of And Incidental To This … vs P.Rajkumar.Represented By His on 2 August, 2025
1 OD-13 IN THE HIGH COURT AT CALCUTTA ORIGINAL SIDE Ordinary Original Civil Jurisdiction C.S.No./49/2010 In G.A.No./2/2023 NEW DELHI TELEVISION LTD. AND ORS. Before: The Hon'ble Justice BISWAROOP CHOWDHURY Date: 02th AUGUST 2025 Appearance: Mr. Dhruba Ghosh, Sr. Adv. Mr. Aniket Agarwal, Adv. Ms. Madhurima Halder, Adv. Mr. B. Chakraborty, Adv. ...for ITC ltd. Mr. Sakya Sen, Sr. Adv. Mr. Amit Kr. Nag, Adv. Mr. P. Banerjee, Adv. Mr. Y. Bhattacharyya, Adv. ...for defendants. The Court: This application is filed by Defendant no-1 praying for the following reliefs: a) An order be passed directing the Registrar of Companies Kolkata, West Bengal to depute a competent officer for production of the original report of Mr. T.Pandian Deputy Director (Inspection), Registrar of Companies Kolkata, West Bengal dated 26th October 2009 to produce before this Hon'ble Court. b) Alternatively an order directing issuance of Summons/Sub-poena through the concerned Department of this Hon'ble Court for production of the original report of Mr. T. Pandian, Deputy Director (Inspection), Registrar of Companies, West Bengal dated 26th October 2009 before this Hon'ble Court on such date as this Hon'ble Court may deem fit and proper. c) Ad interim order in terms of prayers above. d) Costs of and incidental to this application be paid by the plaintiff. 2 e) Such further or other order or orders and/or direction or directions as this Hon'ble Court may deem fit and proper. The contention of the defendant/petitioner may be summed up thus; 1. After service of the summons in the suit the Defendants through their Advocate entered appearance and have filed a written statement. The primary defence as urged in the Written Statement is that the news published alleged to be defamatory reports the violation of various provisions of the Companies Act, 1956 by the plaintiff based on Inspection Report of the Deputy Director (Inspection), Registrar of Companies Kolkata, West Bengal conducted in terms of the order/direction passed by the Ministry vide its letter No. 3/111/2007/CL.II dated 19/09/2007. According to the applicant as a News Channel the applicant is entitled to news item based on the said Inspection Report which is an available record pertaining to the case and therefore, question of defamation in any manner does not and cannot arise. 2. After considering the issue suggested by the parties by an Order dated 1st February 2023 the following issues were framed:- A. Did the defendants cause publication of the said news programme on 9th and 10th February 2010 as pleaded in the plaint? B. Were the statements made in the said news programme defamatory in nature as alleged in the plaint? C. Is the defendant entitled to take the defence of fair comment and justification as alleged in written statement? D. Did the defendants exercise due care and diligence in making the statements in the news programme? E. Is the plaintiff entitled to any damages from the defendants or any of them? 3 F. To what relief (if any) is the plaintiff entitled? G. Whether the suit is maintainable? H. Whether the plaintiff is entitled to decree against the defendant for publishing article? 3. As is evident from the issues framed one of the issues for adjudication is whether the statements made in the news programmes were defamatory in nature as has been alleged in the plaint. Similarly another issue for adjudication as to whether the defendant is entitled to take the defence of fair comment and justification as alleged in the written statement. 4. Pursuant to framing of ISSUES by Order dated 1st February 2023 plaintiff was permitted three weeks time to file Judges Brief of Documents, and the petitioner was granted opportunity to take inspection of the said document within one week and the suit was fixed for witness action on 2nd March 2023. 5. By Order dated 20th July 2023 the suit was fixed on 1st September 2023. In the meantime the petitioner proposing to disclose another document gave liberty to the plaintiff to take inspection of such additional document disclosed. But the plaintiff has not completed inspection till today. 6. Again by letter dated 7th September 2023 issued by the Learned Advocate for the defendant, the defendant sought to rely on another document being Report of Mr. T. Pandian Deputy Director (Inspection) Registrar of Companies West Bengal dated 26th October 2009. 7. The plaintiff by letter dated 12th September 2023 intimated that they shall take inspection of the original report upon receipt of the complete set of documents. 8. The applicant does not have in its control power or possession of the original of the Inspection Report of the Deputy Director (Inspection) 4 Registrar of Companies Kolkata West Bengal. The said document is in the power, control and possession of the Deputy Director (Inspection) Registrar of Companies Kolkata, West Bengal. The plaintiff/Respondent has contested this application by filing Affidavit in
opposition. The contention of the plaintiff in the affidavit in opposition may be
summed up thus:
1. The application is mala-fide misconceived, harassing and not maintainable
and is liable be dismissed with costs.
2. The spirit of the said application is to bring on record of this Hon’ble Court
a document which the applicant has received through some undisclosed
source. The Applicant has claimed that the purported inspection report is
an available document. However the Applicant has not averred as to how
the Defendants had come into Possession of the copy of the said report who
in Defendant No. 1’s organization received the said report, or who from the
ROC gave a copy of the said report.
3. Any internal document of a government department which may or may not
be a part of the documents collected or generated by such department for
the purpose of conducting an inquiry are privileged, until such inquiry
culminates in an accusations and becomes part of a judicial or quasi-
judicial proceedings. The applicant has no right of whatsoever manner to
seek its production. The applicant and the other Defendants know that the
balance sheets and profit and loss account of the plaintiff for the Financial
years 2006-07, and 2007.08 were published two years and one year
respectively prior to the telecast of the defamatory news programme. The
said accounts were audited by the statutory auditor appointed by approval
of the Shareholders of the plaintiff Company and also filed with statutory
and regulatory authorities. Prior to making any accusation of falsification of
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account for those years the Applicant and its officers who were responsible
for publication of such statements had a duty to verify whether such
statements were true and whether they had evidence to support that the
accounts for the relevant years were in fact falsified as stated in the
impugned news programme.
4. The plaintiff has denied that the suit is not maintainable and have further
denied that the applicant has been fair in reporting or that it has also
telecast the plaintiff’s response as soon as the same was available as alleged
or at all.
5. That the said purported inspection report which is an internal document of
the ROC contained interim observations of the Deputy Director (Inspection).
In fact any such inspection mentioned in the said report did not result into
any adverse final findings or any penal proceedings precipitating against the
plaintiff, therefore, no reliance can be placed on by the applicant on such an
interim document which bears no trials of finality.
6. In the said application and in the written statement the defendants have
failed to mention that how they have got hold of a copy of the Report of ROC
which is an internal document of the ROC. Therefore no reliance whatsoever
can be placed on the same by this Hon’ble Court. The defendants have also
failed to explain the basis on which such document would be admissible as
evidence in the instant suit before this Hon’ble Court. Permitting the
Applicant now to bring the original version of such report on record would
only aggravate and perpetuate the same by inviting it to become a part of
judicial proceedings.
7. After perusal of the copy of the said inspection report it still manifests
therefrom that the defendants have telecast the defamatory news
programme in a risky fashion and with the sole intention to damage the
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reputation of the plaintiff. Throughout the telecast with an intention to
attract large viewership, the defendants have deliberately sensationalized it
and used words such as “account malpractices” “fudging of accounts,”
falsification of accounts” all Smoke at Itc” etc. even though such critical
words have nowhere been used in the report.
8. That such report is merely an observation and not conclusive and therefore
no purpose will be served by bringing the same on record.
The defendant/petitioner in his Affidavit in reply has denied that the
document which is an inspection report dated October 26 2009 is an
internal document of the Registrar of Companies West Bengal. The
applicant has further denied that applicants have misused the contents of
the report for their own benefit and sensationalized the same in a news
programme.
The applicant in its affidavit in reply has contended that the applicant is
entitled to rely upon the inspection report filed against the respondent/plaintiff,
which formed the basis of the news reported by applicant and hence prays for leave
to bring on record the said document. The applicant further contends that the
applicant being a news channel of repute has published/telecast the news
programme based on the findings contained in the said report and is thus entitled to
rely upon the same. It is also contended that it is not necessary for the applicants to
disclose how the applicants have come into possession of the copy of the said report.
Heard Learned Advocate for the Applicant/Defendant no-1 and Learned
Advocate for the plaintiff/opposite party, perused the petition filed and the Affidavits
submitted in the case.
Mr. Sen Learned Counsel for the applicant/defendant no-1 submits that trial
in the suit has not commenced yet. The plaintiff’s Advocate by letter dated 12th
September 2023 requested the defendant’s Advocate to provide inspection of the
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Original Inspection Report. The Defendant’s Advocate has offered inspection of copy
of the Inspection Report to the Plaintiff’s Advocate on 8 September 2023 at 4.30 P.m.
as the original of such report is not available with the defendant. One of the pages of
the Inspection Report was also not available with the copy that was available with the
defendant. Learned Advocate further submits that the Inspection Report being part of
the defence pleaded in the written statement and the same being in the custody of
the office of Registrar of Companies West Bengal having originated from the said
office the prayer has been made in the instant application for production of the said
document by an appropriate officer of the Registrar of Companies and alternatively
for issuance of a sub-poena to produce the same. The defendant does not and/or
could not have had in it’s control, power and possession the original of the Inspection
Report which is lying at the office of the Deputy Director (Inspection) Registrar of
Companies. Learned Advocate also submits that the purpose of the present
application is not to have the Inspection Report proved and have it received as
defendant’s evidence by marking it as an Exhibit. The only object sought to be
achieved by the present application is production of the Inspection Report in original,
failing which it is impossible for the defendant to either offer inspection of the said
original Inspection Report to the plaintiff or disclose the missing page of the
Inspection Report.
With regard to the plea of plaintiff that the document is inadmissible learned
Advocate submits that such plea can be taken when the document is tendered. With
regard to the plea of the plaintiff that the document is not relied upon in the written
statement Learned Advocate submits that on a plain reading of the written statement
it shall be evident that the defendant’s entire case hinges upon the Inspection Report
and the contents thereof which has been specifically pleaded in paragraphs 8(VII),
8(XII), 12 and 13 of the written statement.
Learned Advocate further submits that procedure is the handmaid of justice.
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Procedural and technical hurdles should not be allowed to come in the way of the
court while doing substantial justice. It is also submitted that 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.
Learned Advocate submits that the provisions of Order VIII Rule 1A(3) of the
Code relied upon by the plaintiff has no manner of application to the facts of the
present case. This provision is applicable at a stage of the suit when a document is
being received in evidence.
Learned Advocate also submit that the provisions of Order XIII Rule 1 of the
Code relied upon by the plaintiff is inapplicable. The said provision applies in cases
where a party has filed copies of documentary evidence along with plaint or written
statement. The question of the party or it’s pleader producing all documentary
evidence in original before the settlement of issues will only arise if a party has filed
copies of documentary evidence along with plaint or written statement. In the present
case the defendant has not filed copy of documentary evidence, being the Inspection
Report with the written statement. Thus the provisions of Order XIII Rule 1 of the
Code do not apply in this case.
Learned Advocate for the Defendant no-1/petitioner relies upon the following
Judicial Division.
Sugandhi (Dead) By Legal Representative VS P.Rajkumar.Represented by his
power Agent Imam Oli.
Reported in (2020) 10 SCC. P-706.
Mr. Ghosh Learned Counsel for the plaintiff/opposite party submits that when
the examination-in-chief of the first witness of the plaintiff was about to commence,
the defendants, with mala-fide intentions and to unnecessarily stall the proceedings
sought to disclose a new document a photocopy whereof was sent to the advocate of
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the plaintiff under cover of a letter dated 7th September 2023. The plaintiff
immediately sought inspection of the original document and leave to inspect was
given by this Hon’ble Court by its order dated 8th September 2023. Upon inspection it
was discovered by the plaintiff’s advocate that the document sought to be relied on
was incomplete and as such by a letter dated 12th September 2023, the plaintiff’s
Advocate requested the defendant to provide a complete copy.
Learned Advocate further submits that instead of providing a complete set of
the original copy in their possession the defendant has filed the instant application.
It is submitted that this application is made more than 13 years after the institution
of the suit and post the settlement of issues and is liable to be dismissed with costs
because inter alia. 1) it seeks to rectify a fatal lacuna in their defence-the defendants
clearly did not possess the complete set of the document in question at the time of
making the broadcast/and does not possess the same even till date) ii) The defendant
has not been able to show that it is entitled to the said document (which is not a
public document) in any way whatsoever and by this application is trying to use this
Hon’ble Court to fish out evidence on their behalf and till date no leave has been
sought nor granted to the defendants to rely on any such document. Learned
Advocate also submits that the document is an internal ROC document and is
inadmissible as evidence in this suit. Learned Advocate submits that prior to making
any accusation of falsification of accounts for those years it was incumbent on the
defendants to verify whether the accusations made out in the programme were
indeed borne out by the financial statements however no such attempt was made by
the Defendants. Even if the Defendant had relied/replicated/published the contents
of the said interim internal report of the ROC, without any embellishment (which is
not the case) the same would not be relevant in deciding whether the statements
made by the Defendants was defamatory unless the defendant has independently
verified the contents of the report to be factually correct. accordingly the production
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of this document is neither relevant not necessary to decide the issues in the present
matter.
Learned Counsel relies upon the following Judicial decision.
The Institution of Engineers (India) and anr. VS Bishnu Pada Bag and anr.
Reported in 1977 SCC Online cal-266.
Padam Sen and Anr. VS State of Uttar Pradesh.
Reported in 1960 SCC Online S.C. 77.
Before proceeding to decide the material in issue at first it is necessary to hold
that as the issue is with regard to permission to produce a document and to summon
the Registrar of Companies to produce the same the argument with regard to
verification of the authenticity of the said documents before making statement of
falsification of account cannot be considered at this stage and the same has to be
considered at the time of trial of suit.
Similarly the question of source of receiving copy of the said document cannot
also be gone into at this stage as the same can be clarified at the time of adducing
evidence. Thirdly whether the document is inadmissible can also be considered at the
time of evidence.
Thus at this stage this Court is to consider whether petitioner should be
permitted to rely upon the document and whether prayer for summons to be issued
upon the concerned authority in whose custody the document is lying should be
granted.
In order to decide the issue it is necessary to consider the provisions contained
in Order VIII Rule 1A of the Code of Civil Procedure, Order XIII of the Code of Civil
Procedure and Order XVI of the Code of Civil Procedure.
Order VIII Rule 1A of the Code of Civil Procedure provides as follows:
1[1A. Duty of defendant to produce documents upon which relief is
claimed or relied upon by him.-Where the defendant bases his defence upon a
11document or relies upon any document in his possession or power, in support of his
defence or claim for set-off or counter-claim, he shall enter such document in a list,
and shall produce it in court when the written statement is presented by him and
shall, at the same time, deliver the document and a copy thereof, to be filed with the
written statement.
(2) Where any such document is not in the possession or power of the
defendant, he shall, wherever possible, state in whose possession or power it is.
2[(3) A document which ought to be produced in Court by the defendant under
this rule, but, is not so produced shall not without the leave of the Court be received
in evidence on his behalf at the hearing of the suit].
(4) Nothing in this rule shall apply to documents-
(a) produced for the cross-examination of the plaintiff’s witnesses, or
(b) handed over to a witness merely to refresh his memory].
Order XIII of the Code of Civil Procedure provides as follows:
1[Original documents to be produced at or before the settlement of
issues.-(1) The parties or their pleader shall produce on or before the settlement of
issues, all the documentary evidence in original where the copies thereof have been
filed along with plaint or written statement.
(2) The Court shall receive the documents so produced:
Provided that they are accompanied by an accurate list thereof prepared in
such form as the High Court directs.
(3) Nothing in sub-rule (1) shall apply to documents-
(a) produced for the cross-examination of the witnesses of the other party; or
(b) handed over to a witness merely to refresh his memory.]
Order XVI. Rule 6 of Code of Civil Procedure provides as follows:
6. Summons to produce document.-Any person may be summoned to
produce a document, without being summoned to give evidence; and any person
12summoned merely to produce a document shall be deemed to have complied with the
summons if he causes such document to be produced instead of attending personally
to produce the same.
Right to defend is a basic right A person has a right to defend any case whether
civil or criminal brought against him in any Court or tribunal or any authority in
accordance with law. Thus all reasonable opportunities should be granted to a
person or institution to defend a case brought against him unless the same is barred
under Law.
As it is observed in different judicial pronouncements that procedure is the
hand maid of justice, and procedural and technical hurdles shall not be allowed to
come in the way of the Court while doing substantial justice, rigid view with regard to
procedure should not be taken by Court and wherever permissible Court may use
discretion to do substantial justice, without being rigid on the procedure.
In the case of Sugandha (Dead) by Legal Representatives and Another (supra)
the Hon’ble Supreme Court observed as follows:
7. Sub-rule (1) mandates the defendant to produce the documents in his
possession before the court and file the same along with his written statement. He
must list out the documents which are in his possession or power as well as those
which are not. In case the defendant does not file any document or copy thereof
along with his written statement, such a document shall not be allowed to be
received in evidence on behalf of the defendant at the hearing of the suit. However,
this will not apply to a document produced for cross-examination of the plaintiff’s
witnesses or handed over to a witness merely to refresh his memory. Sub-rule (3)
states that a document which is not produced at the time of filing of the written
statement, shall not be received in evidence except with the leave of the court. Rule
1(1) of Order 13 CPC again makes it mandatory for the parties to produce their
original documents before settlement of issues.
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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).’
In the case of Padam Sen and Anr (supra) the Hon’ble Supreme Court observed
as follows:
‘9. The question for determination is whether the impugned order of the
Additional Munsif appointing Sri Raghubir Pershad Commissioner for
seizing the plaintiff’s books of account can be said to be an order which is
passed by the Court in the exercise of its inherent powers. The inherent
powers saved by s. 151 of the Code are with respect to the procedure to be
followed by the Court in deciding the cause before it. These powers are not
powers over the substantive rights which any litigant possesses. Specific
powers have to be conferred on the Courts for passing such orders which
would affect such rights of a party. Such powers cannot come within the
scope of inherent powers of the Court in the matters of procedure, which
14powers have their source in the Court possessing all the essential powers to
regulate its practice and procedure. A party has full rights over its books of
account. The Court has no inherent power forcibly to seize its property. If it
does so, it invades the private rights of the party. Specific procedure is laid
down in the Code for getting the relevant documents or books in Court for
the purpose of using them as evidence. A party is free to produce such
documents or books in support of its case as be relevant. A party can ask
the help of the Court to have produced in Court by the other party such
documents as it would like to be used in evidence and are admitted by that
party to be in its possession. If a party does not produce the documents it is
lawfully called upon to produce, the Court has the power to penalize it, in
accordance with the provisions of the Code. The Court has the further
power to draw any presumption against such a party who does not produce
the relevant document in its possession, especially after it has been
summoned from it. Even in such cases where the Court summons a
document from a party, the Court has not been given any power to get hold
of the document forcibly from the possession of the defaulting party.
9. The defendants had no rights to these account books. They could not lay
any claim to them. They applied for the seizure of these books because they
apprehended that the plaintiff might make such entries in those account
books which could go against the case they were setting up in Court. The
defendants’ request really amounted to the Court’s collecting documentary
evidence which the defendants considered to be in their favour at that point
of time. It is no business of the Court to collect evidence for a party or even
to protect the rival party from the evil consequences of making forged
entries in those ac. count books. If the plaintiff does forge entries and uses
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forged entries as evidence in the case, the defendants would have ample
opportunity to dispute those entries and to prove them forgeries.’
In the case of The Institution of Engineers (India) and anr (supra) the Hon’ble
Supreme Court observed as follows:
‘5. Mr. Maitra next contended that irregularities about the counting of ballot
papers and proxy votes were referred to in Annexure E/1 to the plaint and as such it
cannot be contended that the dispute was related only to the proxy votes of Orissa.
Mr. Maitra, further contended that for passing an order under Or. 39 R. 7 of the C.P.
Code it is not necessary that the said provision must confine to the subject matter of
the suit itself and appropriate order can be passed under Order 39 R. 7 C.P. Code
even in respect of matters in respect of which any question may arise in the suit and
for this proposition Mr. Maitra relied on a decision reported in AIR 1975 All page 399.
It may be stated in this connection that even assuming that the provision of Or. 39 R.
7 may be stated in this connection relate not only to the subject matter of the suit
but also in other matters in which any question may arise relating to the suit, no
commission can be issued for the purpose of collecting evidence in a suit. In any
event, such commission should not be issued for making inventories relating to ballot
papers by ex parte orders without proper verification as to the essential requirement
of such a step even in a case where Or. 39 R. 7 C.P. Code is otherwise applicable. Mr.
Maitra, further contended that in appropriate cases, the Election Tribunal has looked
into the ballot papers for ascertaining the position and in this context he refers to a
decision reported in AIR 1964 SC page 1249. It may be stated that as a proposition of
law it cannot be said that even in appropriate cases the ballot papers cannot be
looked into by the Court for proper adjudication of a dispute between the parties but
what is emphasized is that such action should not be taken without extreme care
and caution and only in such cases where inspection of ballot papers is essentially
necessary for proper adjudication and the Court is satisfied on evidence that such
16extreme step is necessary. Mr. Maitra further contended that issue of an inventory
commission is a matter of discretion of the Court and if the Court has exercised such
discretion there should be no interference under S. 115 C.P. Code particularly when
such exercise of discretion is not perverse. The question of exercising discretion,
however, does not arise in this case because we are of the view that an inventory
commission cannot be issued for the purpose of fishing out some evidence which
may be adduced by either of the parties in the suit. It is, therefore, an improper
exercise of jurisdiction by the Court below and such improper exercise has
occasioned material failure of justice. The Rule is, therefore, made absolute. There
will however, be no order as to costs. The prayer for stay of the operation of the order
is refused.’
As sub-rule 3 of Rule 1A of Order VIII of the Code of Civil Procedure empowers
a Court to permit a defendant to produce a document which ought to have been
produced with written statement a liberal view should be taken so that a defendant
has a reasonable opportunity to defend his case. A defendant does not come to Court
voluntarily but he has to appear to answer the case brought against him by the
plaintiff thus all reasonable opportunity should be given in accordance with law for
the defendant to defend his case. Although the defendant/petitioner has not taken
out a separate application for grant of leave but in the said application in which he
seeks summons for production of the document he has shown the necessity of
producing the said document which has to be considered in the interest of justice.
Although a plain reading of Order XVI Rule 6 of the Code of Civil Procedure
does not suggest that the application is required to be ordered automatically without
considering the bona fides of the application but in this case considering the nature
of allegations made against the defendant the relief sought, and the defence taken by
the defendant and the authority with whom the document is lying this Court is of the
view that to do justice and to expedite the matter the prayer of the defendant should
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be allowed.
The argument of the plaintiff that the petition is filed to fish out evidence
cannot be sustained considering the facts of the case and the provision of Order XVI
Rule 6 CPC, and the fact no application for issuance of Commission is made nor the
plaintiff is directed to produce any of the document in their, custody. Thus the
decisions of the Institution of Engineers (supra) and Padam Sen (supra) are not
applicable in this case.
Thus the petition filed by the petitioner Defendant no-1 should be allowed.
Let there be an order in terms of prayer (b) of the Notice of Motion dated 17th
day of November 2023.
The Registrar of Companies West Bengal is directed to produce the original
report of Mr. T. Pandian Deputy Director (Inspection) Registrar of Companies West
Bengal dated 26th October 2009 in a sealed cover on or before 26th August 2025.
GA No-2 of 2023 stands disposed.
Fix the matter on 26/08/2025.
(BISWAROOP CHOWDHURY, J.)
A.Bhar(P.A)