* % + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
11. h September, 2019. CS(COMM) 1674/2016 ZEE ENTERTAINMENT ENTEPRISES LTD ..... Plaintiff Through: Mr. Joy Basu, Sr. Adv. with Ms. Petal Chandhok, Mr. Kanak Bose & Ms. Smridhi Sharma, Advs. with Ms. Kriti, Mr. Mudit, POA Holder. Versus SAREGAMA INDIA LTD ..... Defendant Through: Mr. Vikas Mehta with Mr. Ankur Sangal, Ms. Sucheta Roy & Ms. Richa Bhargava, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW IA No.12490/2019 (of plaintiff u/O XI R-5 CPC) 1. The plaintiff in this commercial suit, after framing of issues on 9th October, 2017 and after commencement of the recording of evidence, seeks leave to file additional documents.
2. The counsel for the defendant appears on advance notice and considering the nature of the application, need for a reply is not felt.
3. 4. The counsels have been heard. The plaintiff, in paragraphs 3 and 4 of the application, has pleaded as under:-
"It is stated that the pleadings are complete in the present “3. proceedings and the matter is listed for cross examination of PW-1. CS(COMM) 1674/2016 Page 1 of 10 It is pertinent to note that the documents filed by the Plaintiff along with its pleadings includes, but are not limited to, assignment agreements executed by and between its predecessors-in-interest with the producers/production houses or their successors-in-interest. It is humbly submitted that in view of the age of such documents, two assignment agreements were left out from the list of documents filed along with the present plaint in lieu of which one other agreement with the same party was placed on record erroneously. the plaintiff or It is stated that considering the nature of such inadvertent 4. error, the plaintiff is moving the present Application and seeks liberty of this Hon’ble Court to place on record the following documents along with the Additional Evidence by way of Affidavit: (a) Agreement dated 02.04.1995 between M/s Bombay Finvest Enterprises and M/s Essel Vision for the assignment of Negative & other rights of movie “Dil Ka Heera” may be marked in the Additional Evidence Affidavit as Exhibit PW119. (b) Agreement dated 02.04.1995 between M/s Bombay Finvest Enterprises and M/s Essel Vision for the assignment of Negative & other rights of movie “Sacchai” may be marked in the additional Evidence Affidavit as Exhibit PW120.” 5. The senior counsel for the plaintiff has argued, (i) that the plaintiff has instituted this suit to restrain the defendant from infringing the copyright of the plaintiff in 29 cinematograph films named in paragraph 18 of the plaint; (ii) that the plaintiff, in paragraph 19 of the plaint has disclosed the agreements vide which the copyright in the said films stood assigned to the plaintiff or its predecessor-in-interest M/s Essel Vision; (iii) that the plaintiff, while filing the agreements of assignment of copyright in each films, filed wrong agreements with respect to two of the films namely „Dil Ka Heera‟ and „Sacchai‟ and is now seeking to file the correct assignment agreements with respect to the subject films; and (iv) that it is the case of CS(COMM) 1674/2016 Page 2 of 10 inadvertence simplicitor. Reliance is placed on Nitin Gupta Vs. Texmaco Infrastructure and Holding Limited 2019 SCC OnLine Del 8367 and Sadhu Forging Ltd. Vs. Continental Engines Ltd. 2017 SCC online Del 10039.
6. However, Sadhu Forging Ltd. supra pertains to ordinary suits as distinct from a „commercial suit‟ within the meaning of the Commercial Courts Act, 2015 and would thus have no application to the controversy in hand.
7. The senior counsel for the plaintiff, with reference to Nitin Gupta supra has contended that this Court has carved out a difference between non- disclosure of documents and non-filing of documents; this is a case of non- filing or inadvertent filing, the plaintiff having disclosed the assignment agreements in its favour in paragraph 19 of the plaint.
8. The counsel for the defendant, on enquiry, whether has any objection to the application, has handed over a list of dates and on the basis thereof opposed the application, contending (i) that the suit was filed as a commercial suit, claiming urgent relief and came up before this Court unaccompanied with any application under Order XI Rule 1(4) of the CPC as applicable to the commercial suits, on 23rd December, 2016, when, while dealing with the application of the plaintiff for interim relief, a condition was imposed on the defendant to deposit a sum of Rs.20,00,000/- in this Court and which has been deposited and remains deposited; (ii) that the plaintiff, post-framing of issues on 17th July 2017, filed affidavit by way of examination-in-chief of one Anurag Bedi but while his examination-in-chief was underway, on 11th December, 2018 filed an application seeking to CS(COMM) 1674/2016 Page 3 of 10 withdraw the affidavit by way of examination-in-chief of the said Anurag Bedi on the grounds of errors therein, and which application was allowed on 21st January, 2019; (iii) that on 29th January, 2019, a fresh affidavit by way of examination-in-chief of Anurag Bedi was filed and Anurag Bedi was also partly examined-in-chief on 18th March, 2019 but subsequently on 8th May, 2019 an adjournment was sought by the plaintiff on the ground of the original documents being not available; (iv) that it is only therafter that this application for filing two additional documents has been brought on record; and, (v) that no ground for allowing the plaintiff at this stage to file additional documents is made out.
9. The counsel for the defendant has referred to Societe Des Produits Nestle S.A. Vs. Essar Industries 2016 SCC OnLine Del 4279 holding that though the Courts in the past have been liberal in allowing the documents to be filed even at a late stage, beyond the time prescribed in law for filing thereof, but the said view needs to be changed specially in the light of coming into force of the Commercial Courts Act, the whole purport whereof is to expedite the disposal of such suits and when certain edge has been given to the said suits in the manner of disposal thereof.
10. The senior counsel for the plaintiff has sought to distinguish the aforesaid judgment by contending that the suit therein was of 1993 vintage and as compared thereto, the present suit is of 2016 vintage only.
11. On enquiry, whether any affidavit of disclosure as required to be filed under Order XI Rule 1(3) & (6) as applicable to commercial suits has been filed by the plaintiff, attention is drawn to the affidavit at page 41 and 43 of Part IA file. CS(COMM) 1674/2016 Page 4 of 10 12. I have considered the respective contentions.
13. The changes brought about by the Commercial Courts Act, 2015 in respect of filing of documents having already been discussed in Nitin Gupta and Societe Des Produits Nestle S.A. supra, need to reiterate the same is not felt. Suffice it is to state that: (a) while Order VII Rule 14 of the CPC, applicable to ordinary suits, requires a plaintiff, when suing upon a document or relying upon documents in his possession or power in support of his claim, to enter such documents in a list and to produce it in the Court when the plaint is presented by him, Order XI Rules 1 to 3 of the CPC as applicable to commercial suits requires a plaintiff to 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 plaint including documents relating to any matter in question in the proceedings, in the power, possession, control or custody of the plaintiff, as on the date of filing the plaint, irrespective of whether the same is in support of or adverse to the plaintiff‟s case and to, in the said list also specify whether the documents in the power, possession, control or custody of the plaintiff are originals, office copies or photocopies and the list to also set out in brief, details of parties to each document, mode of execution, issuance or receipt and line of custody of each document; the plaint is also required to contain a declaration on CS(COMM) 1674/2016 Page 5 of 10 oath from the plaintiff that all 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 plaint, and that the plaintiff does not have any other documents in its power, possession, control or custody; (b) while Order VII Rule 14(3) of the CPC pertaining to ordinary suits provides that a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, but is not produced or entered accordingly, such document, without the leave of the Court, shall not be received in evidence on behalf of the plaintiff at the hearing of the suit, Order XI Rule 1(5) pertaining to commercial suits, bars the Court from allowing the plaintiff to rely on documents which were in the plaintiff‟s power, possession, control or custody and not disclosed along with the plaint, save and except by leave of the Court and which leave shall be granted only upon the plaintiff establishing requisite cause for non-disclosure along with the plaint. It would thus be seen that the requirement for filing of documents along with the plaint is much more detailed, precise and specific in a commercial suit than in an ordinary suit. The plaintiff in an ordinary suit is required to produce along with CS(COMM) 1674/2016 Page 6 of 10 the plaint only such documents on which he is suing or on which he intends to rely in support of his claim. On the contrary, in a commercial suit, the plaintiff along with the plaint is required to file all documents pertaining to the suit irrespective of, whether the same are in support of or adverse to the claim of the plaintiff. The list of documents required to be filed by a plaintiff in an ordinary suit is only required to have an entry of the document. On the contrary, the list of documents required to be filed by a plaintiff in a commercial suit is required to specify, whether the documents are originals or office copies or photocopies and also contain details of parties to each document, mode of execution and line of custody of each document. The plaint in a commercial suit is also required to contain a declaration on oath from the plaintiff with respect to the documents, as aforesaid. There is no such requirement in the ordinary suit.
14. What emerges is, that the plaintiff in a commercial suit, before instituting the suit, is required to go through all the documents in his power, possession, control or custody pertaining to the subject matter of the suit, whether in support of or adverse to his case and make a declaration with respect thereto on oath. The requirement in a commercial suit of declaration on oath qua the documents is not an empty formality. The form of list of documents and the particulars/specifications to be contained therein, coupled with declaration on oath with respect thereto, in a commercial suit, requires a plaintiff to, at the time of institution of suit, rather than stating only the title and date of the document, which alone is required to be filled CS(COMM) 1674/2016 Page 7 of 10 in the list of documents in an ordinary suit, peruse each document and only then fill the particulars/specifications required to be filled in the list of documents. The requirement of such contents being declared to be correct on oath, places a more heavy onus on the plaintiff.
15. Preparation of such a list of documents as aforesaid, leaves no scope of „inadvertent errors‟ as is pleaded by the plaintiff.
16. A plaintiff in an ordinary suit, if desirous of producing a document required to be produced along with the plaint at a subsequent stage, is only required to obtain the leave of the Court. The Legislature has not laid down the grounds on which such leave is to be granted. I have however in Nitin Gupta supra held that grant of such leave by the Court is not a ministerial function and the Court has to be satisfied qua the reasons for non-production of the documents along with the plaint. The same however places no restriction on the power of the Court to grant such leave. As distinct therefrom, under Order XI Rule 1(5) as applicable to commercial suits, there is an embargo on the Court, not to allow the plaintiff to rely on any document which was in plaintiff‟s power, possession, control or custody and not disclosed along with the plaint. The disclosure under Rules 1(1) & (2) has to be accompanied with listing and filing of the documents. The said embargo placed on the Court can be lifted only upon the plaintiff establishing reasonable cause for non-disclosure along with the plaint. The use of the word „establishing‟ conveys that there should be something more than a mere explanation for non-production along with plaint, amounting to proof of the explanation. CS(COMM) 1674/2016 Page 8 of 10 17. A reading of paragraphs 3 and 4 of the application which have been reproduced here-in-above and in which alone the attempt, if any, at establishing reasonable cause has been made, are not found to satisfy the test. Not only is there no explanation as to why the inadvertent error now alleged was not detected at the time of institution of the suit when the plaintiff was required to sift through each document for entering its requisite particulars in the list, on oath, but even now, at the stage of applying for leave to file documents, no proper pleadings lest establishing a case have been made out. All that is pleaded is that “in view of the age of such documents, two assignment agreements were left out from the list of documents along with the present plaint in lieu of which other agreement with the same party was placed on record erroneously...”. No particulars have been given as to why the signatory of the plaint and of the affidavit in terms of Order XI Rule 1(3) & (6) did not go through the documents as required by law. In fact, no affidavit of Mr. Harsh Tripathi who had signed and verified the plaint and sworn on affidavit of disclosure of document, even has been filed, and the affidavit accompanying the application is of Mr. Mudit Raizada who, save for describing himself as authorised signatory of the plaintiff, has not even stated the position, if any, held by him in the plaintiff. There is again no explanation as to why, when the first affidavit of Mr. Anurag Bedi was drafted, the mistake or inadvertence even if any did not come to light. There is no explanation as to why the mistake, though not noticed at the time of filing the affidavit by way of examination-in-chief of Anurag Bedi, did not still come to light while withdrawing the said affidavit on the ground of errors therein. There is yet no explanation as to why even CS(COMM) 1674/2016 Page 9 of 10 at the time of drafting the fresh affidavit of Mr. Anurag Bedi or at the time of scheduling of examination-in-chief, the mistake did not come to light.
18. The plaintiff is thus found to have multiplied the inadvertence/mistake five times than as pleaded, and the plaintiff has made no effort of establishing any cause, lest reasonable cause, therefor.
19. If the Courts, in spite of the legislative mandate and change, continue to overlook such deficiencies, in the name of interest of justice, the litigants and practitioners of commercial suits would never wake up to the change required to be brought about in the conduct of such suits. It is thus necessary for the Courts to enforce such change and discipline, by ceasing to exercise the discretion in this respect.
20. No ground for granting leave to the plaintiff for placing the documents on record, at this stage, is made out. The application is dismissed. CS(COMM) 1674/2016 21. List before the Joint Registrar on 14th October, 2019 as already fixed. RAJIV SAHAI ENDLAW, J.
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