Dismissed

Amit Gautam v. Indecomm Global Services (Mauritius)

Karnataka HC3 Sept 2021WP/31414/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed writ petitions seeking quashment of an order rejecting an application under CPC Order XI Rule 12 for inspection of non-executed share and non-competition agreements, holding that production cannot be directed if documents do not exist or are not in custody.

What did the court decide?

Liberty reserved to petitioners to lead secondary evidence under Section 65 of the Indian Evidence Act.

Amit Gautam Vs Indecomm Global Services… — Contract and Commercial Disputes | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO.31413 OF 2016 (GM-CPC)

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C/W

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WRIT PETITION NO.31414 OF 2016 (GM-CPC)

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IN W.P.NO.31413/2016

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BETWEEN:

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AMIT GARG AGED ABOUT 44 YEARS S/O G.P. GARG R/AT B 501 BHATNAGAR AVENUE VIMAN NAGAR PUNE- 411 014.

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... PETITIONER

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(BY SMT. NEERAJA KARANTH, ADVOCATE)

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AND:

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INDECOMM GLOBAL SERVICES (MAURITIUS) PVT. LTD., 502/A, 40^TH CROSS, 1^ST MAIN JAYANAGAR 8^TH BLOCK BENGALURU – 560 078 REP BY ITS MANAGING DIRECTOR.

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... RESPONDENT

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(BY SRI. SAJI P JOHN, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD. 8.3.2016 PASSED ON I.A.NO.IV IN O.S.NO.1137/2011

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ON THE FILE OF VIII ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU, VIDE ANNEX-A TO THE W.P AND THAT THE I.A.NO.IV IN O.S.NO.1137/2011 MAY PLEASE BE ALLOWED IN ITS ENTIRETY AND FOR SUCH OTHER WRIT OR ORDER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND ETC.,

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IN W.P.NO.31414/2016

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BETWEEN:

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AMIT GAUTAM AGED ABOUT 41 YEARS S/O KHEMCHAND GAUTAM R/AT T-6/1103 KAPIL MALAHAR BANER ROAD, BANER PUNE- 411 045. (BY SMT. NEERAJA KARANTH, ADVOCATE)

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... PETITIONER

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AND:

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INDECOMM GLOBAL SERVICES (MAURITIUS) PVT. LTD., 502/A, 40^TH CROSS, 1^ST MAIN JAYANAGAR 8^TH BLOCK BENGALURU – 560 078 REP BY ITS MANAGING DIRECTOR. (BY SRI. SAJI P JOHN, ADVOCATE)

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... RESPONDENT

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD. 8.3.2016 PASSED ON I.A.NO.IV IN O.S.NO.1136/2011 ON THE FILE OF VIII ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU, VIDE ANNEX-A TO THE W.P AND THAT THE I.A.NO.IV IN O.S.NO.1136/2011 MAY PLEASE BE ALLOWED IN ITS ENTIRETY AND ETC.,

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THESE WRIT PETITIONS COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners are before this Court seeking for certiorari to quash the order dated 08.03.2016 passed on I.A.No.IV in O.S.No.1136/2011 & O.S.No.1137/2011 passed by the VIII Additional City Civil and Sessions Judge, Bengaluru.

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IA No. IV is one filed under Order XI Rules 12 & 14 R/w Section 151 of CPC in O.S.No.1136/2011 & O.S.No.1137/2011.

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The petitioners herein have filed a suit for recovery of a sum of 37,510 U.S. Dollars along with interest at 12% per annum for alleging sale of shares and for declaration of non-competition and nonsolicitation agreement sought for by the defendant is illegal.

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In the application under Order XI Rule 12 of CPC a direction was sought for to the defendant to produce the original share purchase agreement

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dated 07.12.2007 as also original non-competition and non-solicitation agreement proposed to be entered into between the plaintiffs and defendant.

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The Trial Court has rejected the same on the ground that there were no grounds made out for the production thereof. The Trial Court took into consideration the contention by the defendant that the defendant did not have custody of the said documents. Furthermore, the Trial Court held that there was inconsistent stand in as much as it was contended that original share certificate and transfer deed has deposited with Brainvisa Technologies Private Limited. On the other hand, in the application it was contended that the said documents were available to the defendant. The Trial Court also took into account the submission made by the learned counsel for the plaintiffs that there are no documents to show that they were signed or executed. In view thereof, the defendants

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have contended that they were not in possession of the documents.

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The petitioners are before this Court aggrieved by the same.

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Smt. Neeraja Karanth, learned counsel for petitioners submits that the Trial Court ought to have taken into account the fact that the petitioners have signed and submitted the documents and defendants ought to have been directed to produce the same. Mere denial by the defendant ought not to have constrained the Court to reject the application. She further submits that even the Escrow agent has been acquired by the defendant and any document in the custody of the Escrow Agent would be in custody of the defendant and ought to have been produced.

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Per contra , Sri Saji P John, learned counsel for the respondent submits that the said documents have

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never been executed, there is only offer made by the defendant in the process of acquiring Brainvisa Technologies Private Limited to the employees of the said Brainvisa Technologies Private Limited to purchase the said shares at the time of acquisition since the petitioner did not agree for the condition, which have been imposed, the transaction did not go through. There was no transfer having been made and the transaction was not effected on the documents not having been executed, the question

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of directing the defendant to produce the nonexecuted documents would not arise.

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Heard Smt Neeraja Karanth, learned counsel for the petitioners and Sri Saji P John, learned counsel for respondent and perused the papers.

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An application has been made under Order XI Rule 12 & 14 of CPC directing the defendant to produce certain documents. For the purpose of such a direction to be issued, firstly, there has to be a

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document in existence, secondly, the document ought to be in custody of the defendant, who is party to the suit.

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If neither of these two conditions are satisfied, there cannot be any order passed under Order XI Rule 12 of CPC directing the defendant or any other parties to produce the particular documents.

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In the event of the party filing the application relying on a photocopy of the said document and the party, who is sought to be directed to produce the document, fails to produce the same, adverse inference could always be drawn and the photocopy or otherwise of the document available with the applicant be marked as secondary evidence in terms of Section 65 of Indian Evidence Act, 1872.

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In the present case, the defendant having categorically refused both the execution as also custody of the documents, there cannot be any

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order directing the party to produce the document, which he contends does not exist. Liberty is however reserved to the petitioners herein to lead secondary evidence on the said document, if so available by applying under the provision of Section 65 of the Indian Evidence Act.

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Petitions are dismissed with the above

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observations.

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Sd/- JUDGE

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NMS

Amit Gautam v. Indecomm Global Services (Mauritius)

Case brief

What is this about?

What did the court decide?

Amit Gautam v. Indecomm Global Services (Mauritius)

Case brief

What is this about?

What did the court decide?

What the court decided

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