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Punjab-Haryana High Court
M/S Lamba Exports Pvt. Ltd vs M/S Kristan Auto on 21 April, 2025
Neutral Citation No:=2025:PHHC:050147
Page 1 of 31
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR-6805-2023 (O&M)
Reserved on: 27.03.2025
Date of pronouncement: 21.04.2025
M/s Lamba Exports Pvt. Ltd. & Another
...Petitioner(s)
Vs.
M/s Kristan Auto
...Respondent(s)
CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr. Lokesh Sinhal,, Advocate
Mr. Sukhandeep Singh, Advocate
for the petitioners.
Mr. Amit Jhanji, Senior Advocate with
Ms. Triyyambika Rao, Advocate
Ms. Nandita Verma, Advocate
for the respondent.
***
NIDHI GUPTA, J.
Present revision petition under Article 227 of the
Constitution of India has been filed by the defendants/landlords
challenging the order dated 22.09.2023 (Annexure P1) passed by the
Commercial Court/ Additional District Judge
Judge-cum-Presiding Judge
Exclusive Commercial Court at Gurugram exercising jurisdiction under the
Commercial Courts Act, 2015 (hereinafter referred to as ‘the Act
Act’),
whereby the objection raised by the counsel for the
respondent/plaintiff
respondent/plaintiff/tenant has been accepted
accepted; and the petitioners have
been denied the permission to put a video clip during the cross-
examination of plaintiff/PW1.
2. Brief facts of the case are that the respondent/plaintiff
had filed a suit dated 30.05.2022 (Annexure P2) against the
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petitioners/defendants before the Commercial Court seeking recovery of
Rs.1,39,94,230/ which includes Rs.1,32,00,000/
Rs.1,39,94,230/- Rs.1,32,00,000/- as security deposit;
Rs.2,12,400/– for seweragee repair cost; and Rs.5,81,830/
Rs.5,81,830/- as accumulated
interest @ 18% per annum. The said suit was filed under the Commercial
Courts Act, 2015. Facts as pleaded in the plaint were that plaintiff was
inducted as a tenant in the suit premises and for that purpose a Lease Deed
eed
dated 24.12.2018 was executed for a period of 9 years. Ass per the terms of
the lease deed there was a lock-in
lock in period of 36 months from the
commencement of the lease deed. The respondent/tenant/plaintiff
espondent/tenant/plaintiff used
the premises for operating an Audi vehicle workshop. An advance rent of
Rs.22 lakh was paid by the respondent. As per the case of the plaintiff the
dispute arose during the COVID period.
period. As such, vide
ide email dated
31.08.2021, the respondent had informed the petitioner
petitioners that
hat he shall
vacate the premises by 15.01.2022. On 17.01.2022, another email was sent
by the respondent to the petitioners
petitioner stating that the premises w
were vacated
and ready for handover. Pursuant to which, on 01
01.02.2022,
.02.2022, possession was
officially handed over to the petitioner No.1. It was the pleaded case of the
respondent in the plaint that despite vacating the premises, the security
deposit of Rs.1,32,00,000/-
Rs.1,32,00,000/ and sewerage repair costs were not refunded.
Accordingly, the respondent had filed the present suit for recovery.
3. The petitioner/defendants contested the suit and filed
written statement (Annexure P-3) wherein it was pleaded that the plaintiff
has not only caused damage to the suit property but has also stolen the
movable properties therefrom. Counter claim (Annexure P-4) for recovery
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of Rs.2,79,25,536/-
Rs.2,79,25,536/ along with interest @ 18% interest per annum was also
filed for: a) damages to property; b) unpaid rent for April 2020, May 2020
and January 2022. It was the allegation of the petitioner
petitioners in the counter
claim that the property was damaged beyond repair at time of handover;
that there was theft of moveable property belonging to petitioner No.1;
that there was damage to fire safety system, electr
electrical
ical system, sewerage,
water harvesting and drainage systems.
system
4. During the course of trial, the evidence of the
respondent/plaintiff commenced in which PW1-Nitish
Nitish Bhardwaj,
Authorised Person of the plaintiff-Firm, tendered Affidavit dated 13.03.2023
(Annexure
nexure P5/Ex.PW1/A) in which he reiterated that the property was
handed over to the petitioners
petitioner in its original condition without damage.
During his cross-examination,
cross , a specific question was put to Mr. Nitish
Bhardwaj PW-1
PW that during the occupation of the plaintiff various electrical
equipment were stolen from the premises for which a police complaint was
also lodged. When the plaintiff witness denied the factum of stealing of
electrical equipment, the defendant,
defendant in order tto confront the said witness,,
had put to him the disputed video clip in his cross examination (Annexure P–
6).. An objection was then raised by the counsel for the respondent that
since the video clip was not part of the written statement the same cannot
now be put to the plaintiff witness.
5. Thus, the bone of contention in the present Revision
Petition is that during the cross-examination
cross examination of Nitish Bhardwaj
Bhardwaj, counsel for
the petitioner had tried to confront him with a video recording stored in a
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pen drive; to which the counsel for the respondent had objected. Vide
impugned order dated 22.09.2023, the objection raised by counsel for the
respondent/plaintiff was accepted and the petitioner/defendants were
denied permission to put the video clipping to the PW1 during his cross–
examination. The said objection of the respondent/plaintiff was accepted
by the learned trial Court primarily on two grounds
grounds: a) that no certificate in
the form of Section 65B of the Indian Evidence Act had been tendered
proving the authenticity
authenticity of the video clipping
clipping. Besides non-compliance of
Section 65B,, no declaration under Order XI Rule 6(3) CPC had been filed;
and b) since the video clip is not part of the written statement, Order XI CPC
as amended by the Commercial Courts Act bars production of such
document.
6. It is submitted by learned counsel for the petitioner
petitionerss
that so far as Section 65-B
65 B of the Indian Evidence Act is concerned, the said
provision does not contemplate as to at
at which stage the certificate is
required to be produced. As such, said certificate could have been produced
by the petitioners at a later stage; as also contemplated/permitted by the
State of Karnataka
Hon’ble Supreme Court in latest judgment reported as “”State
vs. T. Naseer @ Nasir @ Thandiantavida @ Naseer @ Umarhazi @ Hazi &
Ors. (2023 INSC 988) SLP(Crl) No.6548 of 2022
2022″; wherein it is held that
certificate under Section 65-B
65 B can be produced at any stage if the trial is not
over. It has been held that a certificate under Section 65
65-B
B is not an
evidence which has been created now. It is just a need for the requirement
of law to prove the electronic document already on record. It is contended
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that as such objection of counsel for the respondent could not ha
have
ve been
accepted for non-production
non of Certificate
ertificate under section 65
65-B.
7. As far as Order XI CPC as amended by the Commercial
Court Act is concerned, it is contended that the Trial Court has overlooked
sub-Rule 7(c)
(c) of Order XI Rule 1 which specifically provides
provides// creates an
exception stipulating that:
that (c) “nothing in this Rule shall apply to documents
produced by the defendants and relevant only
only-
(i) for the cross-examination
examination of the plaintiff’s witnesses,
(ii) in answer to any case set up by the plaintiff
subsequent to the filing of the plaint, or
(iii) handed over to a witness merely to refresh his
memory.”
8. Ld. Counsel submits that the case of the petitioner
petitioners
falls in the exception carved out under Order
rder XI Rule 1 (7) (c) CPC as
applicable to the Commercial Courts disputes
disputes. It is submitted that the
exception
xception under Order XI Rule 1(7)(c)(i) clearly states that the
requirement to disclose documents in advance does not apply to
documents used solely for cross-examining
examining a plaintiff’s witness. Th
Thus, the
video clipping being used for cross-examination
cross examination of plaintiff’s witness, need
not have been disclosed earlier. It is further argued that in compelling the
petitioners to previously disclose the said evidence
evidence, is violation of
principles of cross-examination
cross examination as the right to cross
cross-examine includes
confronting a witness with new evidence to test credibility. Trial Court’s
restructure approach undermines this fundamental right and truth
truth-
seeking function of cross-examination.
cross
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9. It is further submitted that the provisions of Order XI
CPC as amended by the Commercial Courts Act are pari
pari-materia to the
already existing provisions of Order VII Rule 14(4)
14(4);Order VIII Rule 1(A)(4);
as well as Order XIII Rule 1(3) of the CPC. It is submitted that the Delhi
“Subhash Chander v. Bhagwan Yadav” 2010 (114) DRJ 306
High Court in “Subhash
has held that these provisions requiring the parties to file documents
along with pleadings and /or before the settlement of issues do not apply
to the documents produced for cross-examination
cross examination of the witnesses of the
other party. It has been held that the legislative intent behind these
provisions is to permit an element of surprise which is very important for
the cross-examination
examination of witnesses.
wi It is submitted that in case the
petitioners had not confronted the respondent with the video recording
during his cross-examination,
cross examination, the element of surprise which was the
intent behind the pen drive would have been lost. If the respondent had
admitted
itted the video during his cross-examination
cross examination then the said video
clipping would have been admitted into evidence and if the respondent
had denied the said video clipping, then the petitioner
petitioners would have
evidence.Relevant Paras 8 to 11 of Subhash
proved the same during his evidence.Relevant
Chander supra read as follows:
“8.
8. Order 7 Rule 14(4), Order 8 Rule 1 (A) (4), as well as Order
13 Rule 1(3) provide that the provisions requiring parties to file
documents along with their pleadings and/or before the
settlement of issues do not apply to documents produced for
the cross-examination
examination of the witnesses of the other party. To
the same effect, Section 145 of the Evidence Act also permits6 of 31
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documents to be put to the witnesses, though it does not
provide whether such documents shoul
shouldd be already on the
court record or can be produced / shown for the first time.
However, in view of the unambiguous provisions of the CPC, it
cannot be held that the document cannot be produced/shown
for the first time during cross examination. If the witn
witness
ess to
whom the said document is put, identifies his handwriting/
signature or any writing/ signatures of any other person on the
said document or otherwise admits the said documents, the
same poses no problem, because then the document stands
admitted into
o evidence. However, the question arises as to
what is the course to be followed if the witness denies the said
document. Is the document to be kept on the court file or to be
returned to the party producing the same?
9. This question also in my view is a
also
lso not difficult to answer. It
cannot possibly be said that the document should be returned
to the party. If the document is so returned it will not be
possible for the court to at a subsequent stage consider as to
what was the document put and what was d
denied
enied by the
witness. In a given case, it is possible that the answer of the
witness on being confronted with the document may not be
unambiguous. It may still be open to the court to consider
whether on the basis of the said answer of the witness, the
document
ument stands admitted or proved or not and/or what is the
effect to be given to the said answer. Thus, the document
cannot be returned and has to be necessarily placed on the
court file.
10. The next question which arises is that if the document is so
placed
ced on the court file, whether it becomes / is to be treated
as the document of the party producing the same and is that
party entitled to prove the said document notwithstanding7 of 31
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having not filed the same earlier, as required by law, or the use
of the said document is to be confined only to confront the
witness to whom it was put and it cannot be permitted to be
proved by that party in its own evidence.
11. The legislative intent behind order 7 Rule 14(4) and Order 8
Rule 1A (4) and Order 13 Rule 1(3) appears to be to permit an
element of surprise, which is very important in the cross
examination
tion of witnesses. A litigant may well be of the opinion
that if the document on the basis whereof he seeks to demolish
the case of the adversary is filed on the co
court
urt record along with
pleadings or before framing of issues, with resultant knowledge
to the adversary, the adversary may come prepared with his
replies thereto. On the contrary, if permitted to show/produce
the document owing to element of surprise, the a
adversary
dversary or
witness, may blurt out the truth. Once it is held that a litigant is
entitled to such right, in my view it would be too harsh to make
the same subject to the condition that the litigant would
thereafter be deprived of the right to prove the sai
saidd documents
himself. Thus, if the witness to whom the document is put in
cross examination fails to admit the document, the party so
putting the document, in its own evidence would be entitled to
prove the same. However, the same should not be understood
ass laying down that such party for the said reason and to prove
the said document would be entitled to lead evidence which
otherwise it is not entitled to as per scheme of CPC and
evidence law. For instance, if the document is shown by the
defendant to the plaintiff’s witness and the plaintiff’s witness
denies the same, the defendant can prove the document in his
own evidence. Conversely, if the plaintiff puts the document to
the defendant’s witness and the defendant’s witness denies the
same, the plaintiff if entitled to lead rebuttal evidence would in8 of 31
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his rebuttal evidence be entitled to prove the same. However, if
the plaintiff has no right of rebuttal evidence in a particular
case, the plaintiff would not be entitled to another chance to
prove the document.
t. In such a case, the plaintiff has to make a
choice of either relying upon the surprise element in showing
the document or to file the document along with its pleadings
and/or before the settlement of issues and to prove the same.
Similarly, if the defendant
dant chooses to confront the document to
the plaintiffs witness in rebuttal, merely because the witness
denies the document would not entitle the defendant to a
chance to prove the document subsequently.
subsequently.”
(Emphasis added)
10. It is pointed out that similarly the Bombay High Court in
“Havovi Kesri Sethna v. Kesri Gustad Sethna” Law Finder Doc ID # 261408,
has held that the very purpose of cross-examination
cross examination will be frustrated if the
document of the other side which is to be confronted
confronted, is shown to or
inspected
nspected by that party earlier.
11. Ld. Counsel for the petitioners then refers to “Mohd.
Abdul Wahid v. Nilofer and Anr. (2023 SCC Online SC 1672)” to submit that
in the said judgment, while considering the scope of Order VII Rule 14 (4);
);
Order VIII Rule 1-A(4)(a);
1 Order XIII Rule 1(3) of the CPC, 1908 the Hon’ble
Apex Court has held that so long as the document has been produced for
the limited purpose of cross-examination
cross examination or to jog the memory of the
witness at the stand,
stand and is not completely divor
divorced
ced from or foreign to the
pleadings made, the same cannot be said to fly in the face of this
established position. Save and except the cross
cross-examination
examination part of a civil
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suit, at no other point shall such confrontation be allowed without such
document having
having accompanied the plaint/written statement filed before
the Court. Reliance in particular is placed upon following para 49 of said
judgment:-
“49.
49. A reading of the judgments above would imply that
substance is what the courts need to look into, and theref
therefore,
ore, in
reference to the production of documents, in the considered
view of this court, so long as the document is produced for the
limited purpose of effective cross
cross-examination
examination or to jog the
memory of the witness at the stand is not completely divorced
from or foreign to the pleadings made, the same cannot be
from
said to fly in the face of this established proposition.
proposition.”
12. It is lastly contended that as regards the declaration
required to be filed as per Order XI Rule 6(3) CPC as amended by the
Commercial Courts Act, the said requirement applies to the documents
disclosed and not to other documents. Since the video clip sought to be
put to the plaintiff’s witness in cross-examination
cross examination is not a ‘disclosed’
document and falls within the exception under Order XI Rule 1 (7) (c) CPC
as amended, the provisions of Order XI Rule 6(3) would not apply. It is
argued that thus,
t there is misapplication
isapplication of Order XI Rule 6(3); which
applies only to electronic records forming part of disclosed evidence
requiring on oath declaration for proof. Since defendants were not yet
leading evidence but merely confronting the witness, this provision was
inapplicable.
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13. Per contra, learned
rned Senior Counsel representing the
respondent/plaintiff firstly submits that the argument of learned counsel
for the petitioner regarding element of surprise, is ill
ill-founded
founded as the
respondent was already aware of the video clipping. This was so because
the petitioner had previously filed a complaint dated 24.03.2022 (Annexure
P7) in which he had referred to the alleged video recording. The petitioner
had also sent an email dated 08.04.2022 (Annexure P8) to the ACP with
copy to the Deputy Commissioner
Commissioner of Police in respect of the alleged
damage caused by the respondent to the demised premises in which again
the video contained in a Compact Disk and pen drive was mentioned. It is
contended that therefore, there was no “element
“element of surprise
surprise” left contrary
ary
to what has been sought to be portrayed by the petitioners.
14. It is next submitted by learned Senior Counsel that the
Civil Suit (Annexure P2) was filed on 30.05.2022 in which written statement
(Annexure P3) was filed on 02.09.2022;
02.09.2022; counter claim ((Annexure
Annexure P4) was
also filed on 02.09.2022; which was accompanied by Statement of Truth as
required under Order XI CPC on 02.09.2022 itself in which a positive
declaration/Statement of Truth was made by the petitioner to the effect
that:
“5. I say that all the documents in my power, possession,
control or custody, pertaining to the facts and circumstances of
the counter claim initiated by the defendant have been
disclosed and copies thereof are annexed with the list of
documents filed with the counter claim, and that the defendant11 of 31
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does not have any other documents in its power, possession,
control or custody.”.
15. Learned Senior Counsel submits that unlike civil
proceedings, a Statement of Truth is required to be filed in commercial
proceedings
oceedings to obviate the very element of surprise. It is contended that as
such, there could have been no element of surprise.
16. Learned Senior Counsel further submits that the
provision of Order XI Rule 1(7) CPC has to be read along with the provisions
of Order XI Rule 1 (10) CPC in which a definite exception is created as per
which the defendant cannot be allowed to rely on documents which are in
his possession, control or custody and are not disclosed with the written
statement or counterclaim, “save
save and except by leave of Court and such
leave shall be granted only upon the defendant establishing reasonable
cause for non-disclosure
non disclosure along with the written statement or counterclaim”.
It is contended that therefore,, the said pen drive/video clipping could not
have been relied upon by the petitioner except with leave of Court
Court,, which
leave could have been granted only upon the petitioner establishing
reasonable cause for non-disclosure
non disclosure of the said video clipping aalong
long with his
written statement and counterclaim.
counterclaim Moreover, from the facts as shown
above, it is clear that prior to filing of the written statement and
counterclaim on 02.09.2022, the petitioner was already in knowledge and
possession of the said video clipping/pen drive as evident from his
complaint dated 24.03.2022
24.03.2022 (Annexure P7) and email dated 08.04.2022
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(Annexure P8). It is reiterated that provision of Order XI Rule 1(7)(c)
(c) CPC
cannot be read in exclusion of Order XI Rule 1(10) CPC.
17. Learned Senior Counsel further submits that even Rule 6
of the Commercial
Commercial Courts Act stipulates disclosure. Rules 6 and 7 of the Act
are as follows:-
follows:
“6. Electronic records.–(1)) In case of disclosures and
inspection of Electronic Records (as define
definedd in the Information
Technology Act, 2000 (21 of 2000)), furnishing of printouts
shall be sufficient compliance of the above provisions.
(2) At the discretion of the parties or where required (when
parties wish to rely on audio or video content), copies of
electronic records may be furnished
nished in electronic form either in
addition to or in lieu of printouts.
(3) Where Electronic Records form part of documents disclosed,
the declaration on oath to be filed by a party shall specify –
(a) the parties to such Electronic Record;
(b) the manner
nner in which such electronic record was produced
and by whom;
(c) the dates and time of preparation or storage or issuance or
receipt of each such electronic record;
(d) the source of such electronic record and date and time
when the electronic record was
as printed;
(e) in case of email ids, details of ownership, custody and
access to such email ids;
(f)) in case of documents stored on a computer or computer
resource (including on external servers or cloud), details of
ownership, custody and access to suc
suchh data on the computer or
computer resource;
(g) deponent’s knowledge of contents and correctness of
contents;
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(h) whether the computer or computer resource used for
preparing or receiving or storing such document or data was
functioning properly or in case of malfunction that such
malfunction did not affect the contents of the document
stored;
(i) that the printout
ut or copy furnished was taken from the
original computer or computer resource.
(4) The parties relying on printouts or copy in electronic form,
of any electronic records, shall not be required to give
inspection of electronic records, provided a declarat
declaration
ion is made
by such party that each such copy, which has been produced,
has been made from the original electronic record.
(5) The Court may give directions for admissibility of Electronic
Records at any stage of the proceedings.
(6) Any party may seek directions
irections from the Court and the Court
may of its motion issue directions for submission of further
proof of any electronic record including metadata or logs
before admission of such electroni
electronic record.
7.. Certain provisions of the Code of Civil Procedure, 1908 not
For avoidance of doubt, it is hereby clarified that
to apply.–For
Order XIII Rule 1, Order VII Rule 14 and Order VIII Rule 1A of the
Code of Civil Procedure, 1908 (5 of 1908) shall not apply to
suits or applications before the Commercial Divisions of High
igh
Court or Commercial Courts.”
18. It is lastly contended that the provisions of the
Commercial Courts Act are mandatory in nature and have to be strictly
complied with. In the present case even no application was filed by the
petitioner for producing
producing the pen drive. The petitioner cannot be permitted
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to just pull the pen drive out of his pocket and confront the respondent
with the same during his cross-examination.
cross examination.
19. In support of his contentions, learned Senior Counsel
judgment off Delhi High Court in “Great Gatsby Club of India
relies upon judgments
Vs. Mahesh Prefab Pvt. Ltd.” 2022 SCC OnLine Del 2099
2099;; “Phonepe Private
Limited Vs. EZY Services & Another” 2022 SCC OnLine Del 2638
2638;; “Eli Lilly
and Company and Anr. Vs. Maiden Pharmaceuticals Limited” Law Finder
Doc ID # 816101;
816101 “Entertainment Network (India) Ltd Vs. HT Media
Limited” Law Finder Doc ID # 2029006; judgment of Gujarat High Court in
“Jay Krishna Printers Vs. S.N. Tradelink Pvt. Ltd.” Law Finder doc ID #
2121370; judgment of Bombay High Court iin “Khanna Rayon Industries
Pvt. Ltd. Vs. Swastik Associates & Others” Law Finder Doc ID # 2264937;
“Bank of Baroda Vs. Gujarat Cables and Enamelled Products Pvt. Ltd.”
2023(2) Mh. L.J. It is accordingly prayed that the present petition be
dismissed.
20. In rebuttal, learned counsel for the petitioners submits
that Order XI Rule 1(10) CPC will apply when defendant evidence is going on
and defendant witness produces a document. It is submitted that it is only
then an objection can be made by the plaintiff that document was not
included with the written statement.
21. No other argument is raised on behalf of the parties.
22. I have heard learned counsel for the parties and given
my thoughtful consideration to the rival submissions advanced on behalf
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of both the parties. I find the submissions made on behalf of the
petitioners are liable to be rejected for the reasons recorded hereinbelow
hereinbelow.
23. The Prayer in the present Civil Revision is for quashing
Impugned Order dated 22.09.2023 (P-1)
(P 1) passed by Ld. Additional District
Judge-cum-Presiding
Presiding Judge Exclusive Commercial Court at Gurugram
whereby the Petitioners/Defendants have been denied permission to put
video clipping in cross-examination of PW-1.
1.
24. The brief facts of the case are as follow
follows:
a) 01.02.2022 – The Respondent/Plaintiff through its authorized signatory
handed over the possession of the suit property to Defendant No.1
No.1.
b) 24.03.2022 – Police Complaint (P-7) was filed by the Petitioners against
the Respondent/Plaintiff alleging that when the Petitioner
Petitioners receivedpossession of the said property the same was badly damaged and that
certain movable properties were missing. The Complaint mentions the
video clipping and goes on to describe its contents.
c) 08.04.2022 – E-mail (P-8) was sent by the Petitioners to ACP Udyog
Vihar, Gurugram regarding the above-mentioned
above mentioned Police Complaint. Itmentions the video and the fact that the same was acqu
acquired by the Police.
d) 30.05.2022-Present
30.05.2022 Suit (P-2) is filed by Respondent/Plaintiff forrecovery of Rs.1,39,94,230/-
Rs.1,39 being the principal amount together with
sewage repair cost of Rs.2,12,400/-
Rs.2,12,400 and Rs.5,81,830
Rs.5,81,830/- being the
accumulated interest calculated @ 18% per annum thereupon from
01.02.2022 till 30.04.2022.
30.04.2022
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e) 02.09.2022 – Written Statement (P-3)
3) and Counter Claim (P
(P-4) are filed
by Petitioners. The incident of vacation of premises is mentioned in both,
the Written
ritten Statement as
a well as the Counter Claim
Claim. However, the fact of
existence of any such video does not find mention despite the same being
in the knowledge and possession of the Petitioners. Even in the Statement
of Truth attached with the said Written Statement and Counterclaim
under Order XI Rule 3, it is averred that the Defendants have disclosed
all documents in their power, possession, control and custody and the
Defendants do not have any other documents.
documents.
f) 13.03.2023-During
13.03.2023 cross-examination
examination of PW-1/Nitesh Bhardwaj
authorized person of Plaintiff, who is present at the time of vacation of
premises,, the Petitioners sought to confront PW
PW-1 with the video clipping.
Upon which objections were raised by the Respondent against the same.
25. Vide the Impugned Order dated 22.09.2023 (P
(P-1)
passed by the Ld. Additional District Judge-cum
Judge cum-Presiding Judge Exclusive
Commercial Court at Gurugram exercising
xercising Jurisdiction under the
Commercial
cial Courts Act, 2015,
2015 the objection raised by the Respondent was
accepted and the Petitioners were denied to put the video clipping in the
cross-examination
examination of PW-1
PW 1 as the same was not a relied
relied-upon document.
Hence, present Revision Petition.
26. During the course of hearing, it has been informed that
the cross-examination
examination of PW-1
PW 1 stands concluded on 04.04.2024
04.04.2024. Be that as
it may, it has first been contended by ld. Counsel for the petitioners that the
pen drive/video
video clipping produced by the petitioners could not have been
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rejected for want of Certificate under Section
ection 65-B
B of the Indian Evidence
eliance has been placed upon T. Naseer supra wherein it is stated to
Act. Reliance
be held that the said Certificate u/s 65-B can be produced at any stage. I
find no merit in the said argument as,
as the provision of Section 65-B
B of the
Indian Evidence
vidence Act serves a very important and useful purpose viz of
attesting to the admissibility of the evidence produced. In the absence of
such
h a Certificate, the authenticity of the evidence produced cannot be
determined// established;
established; thus, possibly compromising the outcome of trial
trial..
Reliance
eliance of ld. Counsel for the petitioners on judgment of the Hon’ble Apex
Court in T. Naseer supra is based on a misreading/ misinterpretation of the
same. Relevant extract of the above said judgment of the Hon’ble Supreme
Court in T. Naseer supra is as under:-
“11. Coming to the issue as to the stage of production of the
certificate under Section 65-B of the Act is concerned, this Court
in Arjun Panditrao Khotkar’s case (supra) held that the
certificate under 65-B
B of the Act can be produced at any stage
if the trial is not over. Relevant paragraphs are extracted
below:
“56.. Therefore, in terms of general procedure, the
prosecution is obligated to supply all documents upon
which reliance may be placed to an accused before
commencement of the trial. Thus, the exercise of power
by the courts in criminal trials in permitting ev
evidence
idence to
be filed at a later stage should not result in serious or
irreversible prejudice to the accused. A balancing
exercise in respect of the rights of parties has to be
carried out by the court, in examining any application
by the prosecution under Se Sections
ctions 91 or 311 CrPC or
Section 165 of the Evidence Act. Depending on the facts
of each case, and the court exercising discretion after
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seeing that the accused is not prejudiced by want of a
fair trial, the court may in appropriate cases allow the
prosecution
tion to produce such certificate at a later point
in time. If it is the accused who desires to produce the
requisite certificate as part of his defence, this again
will depend upon the justice of the case — discretion to
be exercised by the court in accord
accordance with law.
59.. Subject to the caveat laid down in paras 52 and 56
above, the law laid down by these two High Courts has
our concurrence. So long as the hearing in a trial is not
yet over, the requisite certificate can be directed to be
produced by the learned Judge at any stage, so that
information contained in electronic record form can
then be admitted and relied upon in evidence.
evidence.”
(Emphasis added)””
27. Read as a whole it is clear that the Hon’ble Supreme
Court, while relying upon 3-Judge Bench judgment in Arjun Panditrao
Khotkar v. Kailash Kushanrao Gorantyal (SC) : Law Finder Doc Id #
1731377 has granted discretion to the Court to permit production of the
Certificate at a later stage, however, subject to the conditions that no
prejudice is caused to the other party in the trial, and such discretion is to
be exercised in accordance with law. Permission to produce
documents/evidence
evidence at a later stage is also subject to the caveatcontained in paragraph
para 52 of the judgment in Arjun Panditrao (supra),which reads as follows:
“52.
52. It is pertinent to recollect that the stage of admitting
documentary evidence in a criminal trial is the filing of the
charge-sheet.
sheet. When a criminal court summons the accused to
stand trial, copies of all documents which are entered in the19 of 31
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charge-sheet/final
sheet/final report have to be given to the accused.
section 207 of the CrPC, 1973 which reads as follows, is
mandatory[6*]. Therefore, the electronic evidence, i.e. the
computer output, has to be furnished at the latest before the
trial begins. The reason is not far to seek; this gives the
accused a fair chance to prepare and defend the charges
levelled against him during the ttrial. The general principle in
criminal proceedings therefore, is to supply to the accused all
documents that the prosecution seeks to rely upon before the
commencement of the trial. The requirement of such full
disclosure is an extremely valuable right an
and an essential
feature of the right to a fair trial as it enables the accused to
prepare for the trial before its commencement.
commencement.”
28. It would therefore, appear that the argument of ld.
Counsel for the petitioners is based on a piecemeal reading
reading/misreading of
the above judgment.
judgment
29. It has next been submitted that the case of the
petitioners falls under the exception carved out under Order XI Rule
1(7)(c)(i) which explicitly allows documents to be produced for first time
during cross-examination.
cross Said Order XI Rule 1(7) as applicable to
commercial disputes reads as under:
“(7) The defendant 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 written
statement or with its counterclaim if any, including
including-
(a) the documents referred
ferred to and relied on by the defendant
in the written statement;
(b) the documents relating to any matter in question in the
proceeding in the power, possession, control or custody of the20 of 31
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defendant, irrespective of whether the same is in support of
or adverse
verse to the defendant’s defence;
(c) nothing in this Rule shall apply to documents produced by
the defendants and relevant only
only-
(i) for the cross-examination
examination of the plaintiff’s witnesses,
(ii) in answer to any case set up by the plaintiff
subsequent to the filing of the plaint, or
(iii) handed over to a witness merely to refresh his
memory.”
30. It is my considered view that th
this argument of ld.
Counsel for the petitioners is also misconceived
nceived inasmuch as the above
said provision cannot be read in isolation; and has to be read in
conjunction with Order XI Rule 1(9) and Order XI Rule 1 (10). Order XI Rule
1(9) and Order XI Rule 1(10) CPC as applicable to commercial disputes
disputes,
read as follows:-
follows:
“(9) The written statement or counterclaim shall contain a
declaration on oath made by the deponent that all
documents in the power, possession, control or custody of the
defendant, save and except for those set out in sub
sub-rule
(7)(c)(iii) pertaining to the facts and circumstances of the
proceedings initiated by the plaintiff or in the counterclaim,
have been disclosed and copies thereof annexed with the
written statement or counter claim and that the defendant
does not have in its power, possession, control or custody, any
other documents.
(10) Save and except for sub-rule
rule (7) (c) (i
(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
ith the written statement or counterclaim,21 of 31
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save and except by leave of Court and such leave shall be
granted only upon the defendant establishing reasonable
cause for non-disclosure
disclosure along with the written statement or
counterclaim.”
31. Thus, as per the above provisions, it is clear that the
defendant is required to disclose and annex with the written statement/
counterclaim all the documents relevant to the lis which are in his power,
possession etc. No exception is permissible save and except under sub-
rule (7)(c)(iii). Further, any document not so disclosed cannot be relied
upon except with leave of Court; and which leave can be granted only
upon the defendant establishing reasonable cause for previous non
non-
disclosure. It is a fairly settled
settled position of law that the proscription under
Order XI Rule 1 (10) is absolute and has to be applied stringently. The
Commercial Courts Act, 2015 is special statute brought in with the object
and purpose of speedy disposal of suits relating to commercia
commercial disputes
and it cannot be plagued with the same malaise of lengthy trials as Civil
Procedure Code.
32. It is also to be noted that the Legislature in its wisdom
has limited exception only to sub-rule
sub rule (7)(c)(iii), and not to sub
sub-rule
(7)(c)(i) and sub-rule
sub rule (7)(c)(ii). Thus, reliance placed by the petitioners
upon the said provision of Order XI Rule 1(7)(c) is misconceived. It would
appear that the Petitioners are trying to surpass the proscription that
video had to be disclosed with the Written Statemen
Statement/Counter Claim by
unfairly taking advantage of Sub-rule
Sub rule (7)(c)(i) of Rule 1 Order XI. Further,
the
he only exception to Order XI Rule 1(10) as mentioned in the statute, is
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Order XI Rule 1(7)(c)(iii);
1(7)(c)(iii) and no exception is given qua Order XI Rule
1(7)(c)(i) and (ii).
(i ). To remove any ambiguity around the same, reference
could also be made to Order XI Rule 1(5) which deals with disclosure and
discovery of documents by plaintiff. Notably, no parallel exception is given
to the plaintiff as given to the defendant under Order XI Rule 1(10). The
explicit inclusion of Order XI Rule 1(7)(c)(iii) aas an exception only in case of
defendants while leaving out Order XI Rule 1(7)(c)(i) and (ii), is telling. The
Judgments of Subash Chander and Pandharinath Laxman Bhandari
(supra) relied upon by the Petitioners
Petitioner have no applicability to the facts at
hand. It may also be mentioned that these judgments do not deal with
Commercial Disputes to begin with.
33. Additionally, it may be emphasized that there is a
further non-compliance
compliance of Order XI Rule 6(3) where any electronic record
forming part of documents has to be dec
declared on oath. It has been
contended by the petitioners that such a declaration is required to be
made only in respect of ‘documents
documents disclosed
disclosed’. However, the said
argument of the petitioners is a misnomer as, in terms of Order XI Rule 1
discussed above there is already a presumption that the defendant has
necessarily disclosed
disclose all documents/electronic
electronic evidence relevant to the lis
lis.
34. It has further
her been submitted by ld. counsel for the
petitioners that the provisions of Order XI CPC as amended by the
Commercial Courts Act are pari-materia
pari materia to the already existing provisions
of Order VII Rule 14(4); Order VIII Rule 1(A)(4)
1(A)(4); as well as Order XIII Rule
1(3) of the CPC. However, in submitting as above, ld. Counsel for the
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petitioners is ignoring the provision of Order XI Rule 7 CPC as applicable to
the Commercial Courts which stipulates as follows:
“7.
7. Certain provisions of the Code of Civil Procedure, 1908
not to apply – For avoidance of doubt, it is hereby clarified
that Order XIII Rule 1, Order VII Rule 14 and Order VIII Rule 1A
of the Code of Civil Procedure, 1908 (5 of 1908) shall not
apply to suits or applications before the Commercial Divisions
of High Court or Commercial Courts.”
35. In the same vein it has also been submitted on behalf
of the petitioners that the Delhi High Court in Subhash Chander (supra)
has held that these provisions requiring the parties to file documents
along with pleadings do not apply to the documents produced for cross
cross-
examination of the opposite party witnesses
witnesses; and that the legislative
intent behind these provisions is to permit aan element of surprise.
However, the said argument of the petitioners is also incorrect as
admittedly, in the present case there was no element of surprise left. The
record bears out that the Police Complaint filed by the Petitioners against
the Respondent and the subsequent E-mail
mail sent to ACP Gurguram pre
pre-
date the Written Statement and Counter Claim, wherein not only the fact
of existence of the video clipping is explicitly mentioned but also the
contents of the same are elaborated.
elaborated. Thus, despite admitted kknowledge
of these documents/ evidence, the same was neither disclosed nor
produced. Further, this shows that the same is also in knowledge of the
Respondent (as admitted by the Petitioners in para (xi), pg. 18 of the Civil
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Revision). Hence,
ence, the entire case of the petitioners
etitioners based on the plea that
the objective behind producing the video at the time of cross
cross-examination
is to affect an element of surprise, falls apart.
36. To sum up, from the above discussion it is clear that
the Petitioners are barred from subsequently relying upon any document
in their knowledge, possession or power unless the same was disclosed at
the time of filing of the Written Statement/Counter Claim save and except
by leave of Court which is subject to the defendants establishing a
reasonable cause for non-disclosure.
non disclosure. From the perusal of the facts
facts, it is
clear that Petitioners did not at any given time
time, even aver to the existence
of any reasonable cause.
37. In addition to the judgments cited by ld. Counsel for
the respondent, the above view(s) taken by this Court are supported by
the following judgments/ precedential case law: Reliance is placed upon
judgment of Hon’ble Supreme Court in “Sudhir Kumar @ S. Baliyan Vs.
Vinay Kumar G.B.” (2021) 13 SCC 71,
71 relevant part of which is as under:-
“9.2.
9.2. At the outset, it is required to be noted that as such the
said application for leave to produce on record additional
documents was preferred by the appellant herein, original
plaintiff under Order 7 Rule 14(3) CPC. However, considering
Order
rder 11 Rule 1 as applicable to the commercial suits by
which the Civil Procedure Code has been amended with
respect to the suits before the Commercial Court and in view
of Section 16 of the Commercial Courts Act, Order 7 Rule
14(3) CPC shall have no application
cation at all. After Order 11 Rule
1 has been amended with respect to the suits before the25 of 31
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Commercial Courts and a specific provision/procedure has
been prescribed with respect to the suits before the
commercial division and before the Commercial Court, th
the
provision of the Code of Civil Procedure as has been amended
by the Commercial Courts Act, 2015 shall have to be followed
and any provision of any rule of the jurisdiction of the High
Court or any amendment to the Code of Civil Procedure by the
State Government
ernment which is in conflict of the Code of the Civil
Procedure as amended by Commercial Courts Act, the
provision of the Code of the Civil Procedure as amended by
the Commercial Courts Act shall prevail. Therefore, Order 11
Rule 1 as amended by the amendm
amendment in the Commercial
Courts Act, with respect to the suits before the commercial
division and the Commercial Court, the provisions of Order 7
Rule 14(3) shall not be applicable at all. Therefore as such the
plaintiff applied the wrong provision seeking le
leave of the
court to place on record the additional documents. However,
considering the fact that thereafter, both the learned
Commercial Court as well as the High Court treated and
considered and even applied Order 11 Rule 1 CPC as amended
by the Commerciall Courts Act and as applicable to the suits
filed before the commercial division, Commercial Court, we
proceed to consider the application submitted by the
appellant herein, original plaintiff, as if the same was
submitted under Order 11 Rule 1(4) CPC.
9.3.
3. It is true that Order 11 Rule 1 CPC as applicable to the
commercial suits brought about a radical change and it
mandates the plaintiff to file a list of all documents,
photocopies of all documents, in its power, possession, control
or custody, pertaining
g to the suit, along with the plaint and a
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followed by the plaintiff and the defendant, when the suit is
the commercial suit…
xxx
9.5. Order 11 Rule 1(5) further provides that the plaintiff shall
not
ot 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
disclosure along with the plaint.
Therefore on combined reading of Order 11 Rule 1(4) read
with Order 11 Rule 1(5), it emerges that (i) in case of urgent
filings the plaintiff may seek leave to rely on additional
documents; (it) within thirty days of filing of the suit; (iii)
making out a reasonable cause for non
non-disclosure along with
plaint.”
38. Reliance may be placed upon judgment of Delhi High
Court in “Nitin Gupta Vs. Texmaco Infrastructure & Holding Limited“
2019 SCC OnLine Del 8367,
8367 wherein it has been held as under:
under:-
“38.
38. Unless, the Commercial Divisions, while dealing with the
commercial suits, so start enforcing Rules legislated for
commercial suits, and refuse to entertain applications ffor 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
ring 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 late27 of 31
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filing of documents, without
without any good cause being
established for non-disclosure
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, d
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
sclosure 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 satisf
satisfaction of the Court
for non-production
non production thereof”. Post amendment with effect
from 1s 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 fil
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
o 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
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document was within their knowledge or not. I emphasise,
only reason for ‘non-production’
production’ was to be stat
stated and not the
reason for ‘non-disclosure’.
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’
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
‘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 discl
disclosed at the appropriate time.
Thereunder, documents, even if not immediately available,
are required to be disclosed.”
39. Reliance is also placed upon judgment of Delhi High
Court in “Saregama India Limited Vs. ZEE Entertainment Enterprises
Limited” 2023 SCC OnLine Del 2437, wherein it is held as follows:-
“38.
38. The plaintiff has invoked sub
sub-Rule (1) (c) (ii) of Order XI
Rule 1 read with sub-Rule
Rule (5) of Order XI Rule 1 of the CPC to
file additional documents. As is evident from the passages set
file
out above, it has specifically been pleaded by the plaintiff
that the aforesaid documents are being filed to counter the
case set up by the defendant and hence, could not be filed at
the time of filing
iling of the suit. However, no explanation has
been given by the plaintiff as to why the aforesaid documents
were not filed along with the replication. Further, the plaintiff29 of 31
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has failed to provide any reasonable cause for filing the
aforesaid documents at this stage, 5 years after the
replication was filed.
39. In a commercial suit, the plaintiff cannot be permitted to
file additional documents at any stage of the suit on the
ground that the same are in response to the case set up by
the defendant in the written
ritten statement. Permitting a party to
file additional documents at any stage would make a
complete mockery of Order XI of the CPC as applicable to
commercial suits. The whole object of the aforesaid provisions
of the CPC pertaining to commercial suits wo
would be defeated
if a party is permitted to file additional documents at any
stage of the suit.”
40. Thus, as the petitioners/ defendants had not disclosed
or relied upon the video clipping in their pleadings or documents placed
before the Court, they could not be permitted to rely upon the said video
clipping/ evidence of such nature. Further, there is Non-compliance with
Section 65B of Indian Evidence Act.
Act No certificate under Section 65 was
tendered to establish the authenticity of electronic evidence making it
admissible. The procedural requirements as stipulated for Commercial
Suit have not been followed. Since
ince the case is a commercial suit, it must
adhere to Order XI CPC as amended which mandates prior disclosure,
discovery and inspection of documents, including electronic records.
Order XI Rule 6(3) further requires a declaration on oath regarding
electronic
ic evidence,
evidence which was also not complied with. As such, the
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Defendants have been correctly barred from confronting witness with
video clipping,
clipping given the procedural lapses.
41. Dismissed.
42. Pending application(s) if any also stand(s) disposed of.
21.04.2025 (Nidhi Gupta)
Sunena Judge
Whether speaking/reasoned: Yes/No
Whether reportable: Yes
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