M/S. Amazon Distributors Pvt. Ltd., Vs M/S. Saisanj Retail Pvt. Ltd.

M/S. AMAZON DISTRIBUTORS PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956 REGISTERED OFFICE AT NO 32/5, 3^RD FLOOR, ROOPENA AGRAHARA, BOMMANAHALLI POST, HOSUR MAIN ROAD, BENGALURU - 560 068 REPRESENTED BY RAVINDRA S ASSOCIATE MANAGER FINANCE AND ACCOUNTS

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…PETITIONER

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(BY SRI. RAJESWARA.P.N, ADVOCATE)

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AND:

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Digitally signed by CHANDANA B M

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Location: High Court of Karnataka

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M/S. SAISANJ RETAIL PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956 REGISTERED OFFICE AT NO 38 AND 39, SOUKYA ROAD, KACHERAKANAHALLI, HOSAKOTE TALUK, BENGALURU - 560 067 ALSO AT : M/S. SAISANJ RETAIL PVT. LTD., FLAT NO 4-6-3 1090/1/9/5/6 SOMAVARAPUR TOWERS RAJBHAVAN ROAD, SOMAJIGUDA, HYDERABAD – 500 096 ALSO AT : M/S. SAISANJ RETAIL PVT. LTD., NO B-27, ROAD NO 07, FILIMINAGAR, JUBILEE HILLS HYDERABAD – 500 096.

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…RESPONDENT

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(BY SRI. SRINIVAS C H.,ADVOCATE)

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HC-KAR

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUITON OF INDIA PRAYING TO SET ASIDE THE COMMON ORDER DTD. 22.07.2024 PASSED ON I.A.NO. 15 IN COM.O.S.NO. 1051/2021 BY THE HONBLE COURT OF X ADDITIONAL DISTRICT AND SESSIONS JUDGE (DEDICATED COMMERCIAL COURT) BENGALURU RURAL DISTRICT, BENGALURU, AT ANNX-A INSOFAR AS REJECTING THE APPLICATION I.A.NO. 15 TO PRODUCE THE DOCUMENTS NO.1 TO 10 FILED ALONG WITH THE APPLICATION I.A.NO.15 (ANNX-H TO U).

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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This petition by the plaintiff in Com.O.S.No.1051/2021 on the file of X Addl.District and Sessions Judge, Bangalore Rural District, Bangalore (commercial court), is directed against the impugned order dated 22.07.2024, whereby the applications filed by the petitioner in I.A.Nos.12, 13, 14 and 15 to reopen the case, to recall PW-2 and for production of documents, were allowed in part by the commercial court as hereunder:-

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ORDER ON IA-12, 13, 14 AND 15 FILED BY THE PLAINTIFF.

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The plaintiff has IA-12 under section 151 of CPC, IA13- under order 18 rule 17 read with section 151 of CPC, IA-14 under order 16 rule 1 read with 151 of CPC and IA-

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HC-KAR

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15- under order 11 rule (5) read with section 151 of CPC as amended by the commercial courts act 2015 in order to recall and reopen Pw2 for further evidence and permission to produce the document and to take the witness list and such other reliefs by condoning the delay.

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2. Along with the applications, the plaintiff has filed affidavits sworn to by its authorized person by name Ravindra. In the said affidavits, it is stated by him that the case is set down for arguments on merits. In his cross examination, it is suggested by the defendant that it has paid the amount and in that regard he (PW.1) has stated that the amount paid by the defendant are not pertaining to pending invoices. Therefore, the plaintiff has to produce said documents in order to establish its case. It is further say of the plaintiff that this court has framed an additional issue as to the maintainability on 20/9/22. In this regard the plaintiff has already led the evidence and produced a document with the application. But this court has rejected the said document which is nothing but the affidavit of the witness proposed to be examined. In the cross examination, it is further suggested that the signature found in Ex. P.15 is not the signature of the witness referred in the list. Therefore, in order to establish that Mr. Nileesh Agarwal still working in this company as Director, it is just and necessary to reopen PW.2 by recalling the order dated 5/1/23. It is further contended by the plaintiff that if the application is rejected, it will be put to greater hardship and injury and on the other hand it will not prejudice the defendant. Hence the the application has to be allowed.

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HC-KAR

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3. On the other hand, the defendant has filed a detailed objections to IA-14 and 15 and adaption memo to IA-12 and 13. It has contended that the applications are filed at a belated stage and hence they are not maintainable. This is the second time application for production of documents. This is the clear violation of order XV-A of commercial courts act. The plaintiff cannot take the opportunity given under law as granted to produce the documents in installments according to his convenience and whims and fancies. The plaintiff will keep on creating the documents to its convenience to cure its defects and substantiate its false claim. It is trying to introduce and incorporate new facts which were not disclosed in the suit plaint and by producing irrelevant documents. If the plaintiff want to introduce the new case, it must have done at the earliest point of time so that the defendant would have got an opportunity to response to it. The plaintiff has failed to assign any sufficient cause or reasonable cause as to non disclosure of the documents at the time of filing the suit as envisaged under order 11 rule 1(5) of CPC as amended by the commercial courts act. The reasons stated in the application does not prove the sufficient cause. The application is field to cause wrongly loss and harass the defendant.

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4. The applications are barred under order XI rule 1(5) of CPC as amended by the commercial courts act. The application of the plaintiff is also contrary to para no.4 and 5 of statement of truth filed with the suit. Since the inception the defendant is disputing the genuineness of the

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transaction. In the cross examination certain questions are asked disputing the documents. Even after that the plaintiff did not produce the documents. The defendant has further denied the entire averments of the affidavit filed with the applications. The plaintiff has not approached the court with clean hands. The application is merit less and liable to be rejected with exemplary cost. On these grounds, the defendant has sought for dismissal of the applications.

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5. Now the points that arise for the consideration of this court are as follows :-

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1. Whether the plaintiff has made out grounds to recall and reopen the case of the plaintiff for further chief examination of Pw2?

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2. Whether the plaintiff has made out reasonable cause to receive the documents by condoning the delay?

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3. Whether the plaintiff has made grounds to receive the witness list by condoning the delay?

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4. What order ?

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6. On hearing both and perusal of the necessary materials on record, this court answers the following points as follows:-

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Point No.1 and 2: In the Affirmative in part.

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Point No.3 : In the Affirmative

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Point No.4 : As per the final order for the following:

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REASONS

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7 . POINT No.1 to 3: As these points are interconnected each other and require common discussion

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and consideration, in order to avoid the repetition of stating facts and law and for brevity and clarity, they are taken together for discussion and consideration.

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8. At the very outset, it is pertinent to note that as rightly pointed out by the defendant the present applications are filed by the plaintiff when the matter is posted for reply arguments on merits. It is also to be noted that as rightly contended by the defendant, the plaintiff had filed the similar application under order 11 rule (5) of CPC as per IAXI seeking production of the documents and it has been partially considered by this court. Now, the plaintiff once again has filed the similar application seeking permission to produce the documents. But, it is pertinent to note that as contended by the defendant these document were not produced along with the plaint when the plaint was presented. It is also most significant to note that even when the plaintiff filed IA No.XI under Order 11 Rule 1 (v) (as amended under the Commercial Courts Act) also, the plaintiff has not chosen to disclose and produce the documents which are now proposed to be produced. As such, it is very clear from the records that the proposed documents were not produced for last two-three years and hence there is serious delay in production of the documents in question before this Court.

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9. It is pertinent to note that in pursuance to commercial courts act, certain provisions of code of civil procedure are amended. Order 11 Rule (3) and (5) of CPC as amended by Commercial Courts Act lays down as follows that :

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(3) “The plaint shall contain a declaration on oath from the plaintiff that all the documents in the power, possession, control or custody of the plaintiff, pertaining to the facts and circumstances of the proceedings initiated by him have been disclosed and copies thereof annexed with the plaintiff and that the plaintiff does not have any other document in his power, possession, control or custody.”

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(5) “The Plaintiff shall not be allowed to rely on documents, which were in the plaintiff’s power, possession, control or custody and not disclosed along with plaint or within the extended period set out above, save and except by leave of Court and such leave shall be granted only upon the plaintiff establishing reasonable cause for nondisclosure along with the plaint.”

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10. From the above provisions, it is very clear that when the plaintiff fails to produce any document along with the plaint, he shall not be allowed to rely upon such document subsequently without the leave of the Court. But the Court shall grant leave only if the plaintiff establishes a reasonable cause for non-disclosure along with the plaint . If these two provisions are applied to the present case, it is clear from the records that the plaintiff has not produced the documents in question when the suit was filed. Therefore, it is very clear the application filed by the plaintiff is clearly hit by order 11 rule (3) and (5) of CPC. For the better appreciation, the reason assigned by the plaintiff in the affidavit filed along with application for production of documents at para 4, 5, 6 and 7 are extracted hereunder and it reads as follows.

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4. I state that at the time of crossexamination it was suggested to me that the defendant has paid the amount and, in that regard, I have stated that whatever the payments made by the defendants are not pertains to the pending invoices. Therefore, to establish plaintiff case it is

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just and necessary to produce the documents referred below.

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5. I state that the I am producing the original tax invoices raised by our company to defendant on 04.04.2017, 07.04.2017, 07.04.2017, 05.04.2017, 13.04.2017, 14.04.2017 and 25.04.2017. These documents are very much required to prove the plaintiff case. Hence, these tax invoices are herewith produced and the same may be marked as Document No.1 to 13.

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6.I state that Mr. Nileesh Agarwal as one of the Director of plaintiff company. To show that still Mr. Nileesh Agarwal working in plaintiff company, I am herewith producing the certified copies of the Memorandum and Articles of Association of Amazon Distributors Private Limited, Form No.MGT-7 Annual return for the year of 01.04.2017 to 31.03.2018, Form No.MGT -7 Annual return for the year of 01.04.2018 to 31.03.2019, Form No.MGT-7 Annual return for the year of 01.04.2019 to 31.03.2020, Form No.MGT-7 Annual return for the year of 01.04.2020 to 31.03.2021,Form No.32. They are herewith produced and the same may be marked as Document No.14 to 20.

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7.I state that board of directors meeting was held on 16.08.2018, 16.12.2021 and 22.09.2022. In the board of directors meeting authorisation was given to PW.1 to prosecute the case. When he left the company, I was appointed as authorized representative of the plaintiff company to represent the matter on behalf of plaintiff company and held that I was the principal officer of the company. Therefore, to establish the said facts, it is just and necessary to me to produced documents. Hence, they are produced and the same may be marked as Document No.21 to 23.

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11. It is also significant to note that in the Statement of Truth filed along with the plaint, especially at

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para 4 and 5, the plaintiff has clearly stated that except the documents filed with the plaint, there are no other documents in its power, possession, control or custody pertaining to the facts and circumstance of the proceedings initiated by the plaintiff and there are no other documents in their power, possession, control or custody pertaining to these proceedings. It is to be noted that the said statement of truth was filed on 4/8/22 and all the documents referred in the affidavit filed with the present applications are of the year 2021 and prior to the said year, except the board resolution dated 22/09/2022. As such, except the board resolution dated 22/9/22, all other documents are hit by order 11 rule (5) CPC. With regard to resolution dated 22/09/2022 (document No.13 in the list), it is to be noted that, as the said document was not in existence by the time when the suit was filed, the plaintiff was not in position to produce at the time of filing the suit. Therefore, the said document is not covered under order 11(5) of CPC.

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12. With regard to the reasonable cause as to the non-disclosure of the other documents, it is pertinent to note that very affidavit filed by the plaintiff is vague and bald in nature and they do not satisfy whether the said documents were in the power, possession, control and custody of the plaintiff or not and why it could not be produced at the time of the filing of the suit. In the affidavit, it is not the contention of the plaintiff at the time of filing the suit they were not in its possession, power, custody and control and it has been secured by him subsequently filing of the suit. There are no photocopies of the said documents being produced before

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this Court at any point of time. It has to be noted that even in the list produced at the time of filing the suit also there is no reference with regard to these documents which is attached with the present application. Therefore, it is very clear from the very affidavit filed by the plaintiff itself that the plaintiff has not established a reasonable cause to receive the documents as required under Order 11 Rule 3 and 5 of CPC as amended by Commercial courts Act. It has to be noted that the word used under Order 11 Rule 1(v) of CPC is shall . This shows that it is a mandatory provision of law and therefore, this Court does not have any discretion to take a documents on record unless there is a reasonable cause being established by the plaintiff, for their nondisclosure while filing the suit.

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13. Learned counsel for the plaintiff in his augments relied upon the decision rendered in case of Ram Rati Vs Mange Ram Died by Lrs ., reported in (2016) 11 SCC 296, and in case of State of Uttar Pradesh Vs Preetam and others reported in (2011) 11 SCC 286. Both these decisions are rendered in respect of the powers of the court to recall and reopen the witness/parties for further examination. These two decisions are applicable to an extent of recalling and reopening the case of the plaintiff for marking the document No.13 produced with the application.

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14. The plaintiff also produced another citation reported in 2021 SCC on line Del 4080 rendered in case of Valo Automotive pvt ltd Vs Sprint cars Pvt ltd. But this decision is not helpful to the plaintiff. Because of the reason that the Hon’ble High Court in that matter allowed the

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application as the trial court had over looked the provisions of order XI 1(1) (c) (ii) of CPC which permits the plaintiff to file the document in answer to the case set up by the defendant subsequent to the filing of the plaint. But in the present case there is no such circumstance. In fact, it is not the contention of the plaintiff that the documents are produced to answer the defense set up by the defendant subsequent to the filing of the plaint. Moreover, in the present case very long back the plaintiff has filed his written statement. It is not the contention of the plaintiff that subsequently the defendant has amended the written statement and raised a defense fresh or additional. Therefore, this decision is also not applicable to the case on hand. The plaintiff also relied upon another decision rendered in case of Sudhir Kumar Aliyas Baliyan Vs Vinay Kumar reported in (2021) 13 SCC 71 . In this case, it is held that rigor of establishing reasonable cause in non-disclosure along with the plaint may not arise in case where additional documents sought to be produced and relied upon are discovered subsequent to filing of plaint. But in the present case, it is not the contention of the plaintiff that the documents proposed to be produced are discovered after filing the suit. Therefore, both these decision are not applicable to the case on hand and not helpful to the plaintiff. Hence, this Court does not find any merits on the application filed by the plaintiff in so far as others documents are concerned except document No.13, shown in the application filed under Order XI Rule (5) of CPC (IA.15).

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15. However , in respect of document No.13 produced with the application, as mentioned above, the plaintiff has got justifiable cause for its non-disclosure as the said document was not in existence when the suit was filed. Therefore, the said document needs to be taken on record and to be marked. However, it is further pertinent to note that the plaintiff could have produced the same at the least after filing the suit before matter being posted for arguments. It is produced at the fag end of proceedings. Therefore, the plaintiff needs to compensate the delay by way of cost. It is significant to be noted that for the purpose of marking this document, Pw2 has to be recalled for further chief examination. It is significant to note that the defendant also produced two decisions rendered in CIVIL APPEAL No. 5620/22 (Sudir Kumar @ Baliyan Vs Vinay Kumar) and CM(m) 548/22 c/w 26752 /22 (Anitha Chhabra and other Vs Surendra Kumar). Both these decisions are relied by this Court to any extent of they are applicable to this case.

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16. With regard IA-14 filed for seeking permission to produce the witness is concerned, it is undoubtedly true that there is delay in supplying the witness list. But, it is well settled principle of law that delay unless it violates any provision of law or cause serious prejudices, always has to be condoned on cost. In the present case the defendant though raised questions as to the delay has not stated specifically how the defendants would be put to hard ship or injury if the application is allowed and delay is compensated on cost. Moreover, it is undisputed fact that the signature of the witness shown in the application has been denied in the

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cross examination. Such being the in order to establish and prove the signature, the plaintiff needs to be given an opportunity and the witness shown in the application needs to be examined before this court. Therefore, in order to avoid the multiplicity of proceedings and to put an end to the litigation among the parties fully and completely, IA- 12, 13 and 15 need to be allowed in part to an extent of production and making the document No.13 produced with IA-15 and IA-14 has to be allowed to full extent for examining the witness. Accordingly, Point No.1 and 2 is answered in the affirmative in part and Point No.3 is answered in the Affirmative and this court proceeds to pass the following :

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O R D E R

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IA- 12 filed under section 151 of CPC and IA 13 filed under order 18 rule 17 and 151 of CPC are allowed in part on cost of 250/- each and Pw2 is recalled for specific purpose of marking only document No.13 produced with IA15.

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IA-15 filed under order 11(5) of CPC is allowed in part on cost of Rs. 250/- and only document No.13 produced with the said application is taken on record and application in respect of other documents (No.1 to 12) is rejected.

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IA-14 filed under order 16 rule 1 read with section 151 of CPC is hereby allowed on cost of Rs. 250/-.

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Call for further chief of PW.2 and further evidence of plaintiff.”

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HC-KAR

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Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.

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The limited grievance of the petitioner in the present petition is that all the documents produced along with I.A.No.15 are relevant and material for the purpose of adjudication of the issues in controversy between the parties and the petitioner may be directed to adduce further evidence of PW-2 and examine one more witness as PW-3 and mark all the documents in evidence by setting aside the impugned order and allowing all the applications.

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Learned counsel for the respondent would vehemently oppose the aforesaid submissions and support the impugned order and submits that there is no merit in the petition and the same is liable to be dismissed.

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A perusal of further oral and documentary evidence sought to be adduced by the petitioner would indicate that the same are relevant and necessary for the purpose of adjudication of the issues in controversy between the parties. Under these circumstances, by adopting a justice oriented approach and in order to provide one more opportunity to the petitioner to adduce

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additional oral and documentary evidence, I deem it just and appropriate that the impugned order deserves to be set aside, subject to payment of cost of Rs.25,000/- by the petitioner to the respondent and issue certain directions to the commercial court for disposal of the suit.

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In the result, I pass the following:-

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ORDER

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(i) Petition is hereby allowed.

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(ii) The impugned order dated 22.07.2024 passed in Com.O.S.No.1051/2021 by the commercial court is hereby set aside, subject to payment of cost of Rs.25,000/- payable by the petitioner to the respondent before the commercial court.

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(iii) I.A.Nos.12, 13, 14 and 15 are fully allowed and the commercial court is directed to permit the petitioner to examine PW-2 further and to receive all the documents produced along with I.A.No.15 on record on 25.02.2026.

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(iv) The commercial court is directed to permit the petitioner to examine one more witness as PW-3 also.

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(v) Immediately upon further cross-examination-in-chief of PW-2 and examination-in-chief of PW-3, the respondent shall be at liberty to cross-examine PWs 2 and 3 on all aspects of the matter.

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(vi) Liberty is also reserved in favour of the respondent to

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adduce rebuttal evidence after completion of evidence of PWs 2 and 3.

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(vii) After completion of the evidence of PWs 2 and 3, the commercial court shall dispose of the suit in accordance with the time lines and schedule prescribed under the Commercial court.

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(viii) All rival contentions between the parties on all aspects

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of the matter are kept open and no opinion is expressed on the same.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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SRL List No.: 2 Sl No.: 35

M/S. Amazon Distributors Pvt. Ltd., v. M/S. Saisanj Retail Pvt. Ltd.

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M/S. Amazon Distributors Pvt. Ltd., v. M/S. Saisanj Retail Pvt. Ltd.

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