Delhi High Court: In a case filed by the petitioner challenging dismissal order in relation to an application filed seeking to place on record, certain additional documents which, according to the application, were a necessary and essential part of the suit, but could not be filed with the plaint due to negligence on the part of the plaintiffs, Hari Shankar J. held the petition being devoid of merits and observed that negligence of Counsel cannot constitute reasonable cause, within the meaning of Order XI Rule 1 (5) Civil Procedure Code (CPC); else, the very requirement of adducing reasonable cause for failure to disclose the documents with the plaint would be reduced to a formality.
A commercial suit was instituted by the petitioner Anita Chhabra, before the District Judge (Commercial Court) against the respondent Surender Kumar for recovery of ₹ 66 lakhs along with interest, under the Code of Civil Procedure, 1908 (CPC) as amended by the Commercial Courts Act, 2015 along with a list of the documents on which the petitioner proposed to place reliance, along with copies thereof.
Later, however, an application was filed under Order VII Rule 14 CPC placing on record certain additional documents. This application was dismissed by the Commercial Court on 04-12-2021 and review application came to be dismissed on 08-04-2022. Both these orders are under challenge in the present petition preferred under Article 227 of the Constitution of India.
Order dated 04-11-2021
The dismissal order was on the grounds:
(i) the documents were not contained in the list of documents filed with the plaint, on which the petitioners sought to place reliance,
(ii) the petitioners were not seeking to contend that the documents were not in their power and possession at the time when plaint was filed and
(iii) the application did not provide any reasonable cause for default, on the part of the petitioners, in filing the said documents with the plaint.
Order dated 08-04-2022
The additional documents like copies of the sale deed etc. that the plaintiffs seek to place on record were of no consequence while adjudicating the present suit along with no reasonable ground was found for delay of the same.
Filing additional documents vis a vis Commercial Suit (Provisions)
The Court noted that an application by a plaintiff, to place on record additional documents in a commercial suit, is required to be filed under Order XI Rule 1 (4) or (5) of CPC and not under the provision filed by the counsel for the plaintiffs.
In Sudhir Kumar v. Vinay Kumar G.B, 2021 SCC OnLine SC 734, the Court held that an application for placing additional documents on record in a commercial suit, even if filed under Order VII Rule 14 of the CPC, could be treated as an application under Order XI Rule 1 (4) or (5) of the CPC, thus, the present application will be treated as an application under Order XI Rule 1 (4) or (5) of the CPC.
In the case of “urgent filing”, Order XI Rule 1 (4) CPC permits additional documents to be filed by the plaintiff within 30 days of filing of the suit, subject to grant of leave by the Court.
Documents, which have not been brought on record either under Order XI Rule 1 or/and 4, i.e., documents which have not been brought on record till the expiry of 30 days from the filing of the suit, may be brought on record under Order XI Rule 1 (5), subject to leave from the Court establishing reasonable cause for non-disclosure of the documents along with the plaint. Thus, the requirement to establish reasonable cause for non-disclosure of documents with the plaint is only under sub rule (5).
Statutory Scheme of Order XI Rules 4 and 5 Of CPC (for commercial disputes)
On the touchstone of Order XI Rule 1(5)
The Court noted that the petition filed by the petitioners in the present case does not contain any such disclosure as to why the two documents that the petitioners desired to bring on record were not filed with the plaint. It is admitted that the documents were in the possession, power and custody of the petitioners even when the plaint was filed. All that is stated in the application is that the documents were not brought on record owing to negligence of the learned Counsel who filed the plaint.
Thus, the Court held that the Commercial Court is perfectly justified in holding that no reasonable cause for failure to file the two additional documents along with the plaint had been shown by the petitioners to exist.
On the touchstone of Order XI Rule 1 (4)
Counsel for plaintiff submitted that the period of limitation of 30 days, envisaged by Order XI Rule 1 (4) stands extended, by operation of the orders passed by the Supreme Court In re: Cognizance for Extension of Limitation, (2022) 3 SCC 117 wherein limitation period was extended for filing appeal, application, petition or other legal proceedings in light of COVID 19 pandemic.
Counsel for defendant submitted that the petitioners would not be entitled to benefit of Order XI Rule 1 (4) because the said provision applies only to “urgent filings”.
Placing reliance on Sudhir Kumar (supra), the Court noted that in commercial suits, the time periods and other formalities stipulated in the Commercial Courts Act are binding and are required to be strictly followed.
Thus, the Court held that the present petition was not instituted as “urgent filing” by the petitioners and benefit under Order XI Rule 1 (4) would not be available to the petitioners in the present case.
The Court further observed that the suit filed by the petitioners was a simple money suit. Neither an application for interlocutory relief was preferred therewith nor any urgency, of any sort, is reflected in the pleadings in the suit. Thus, it is clear that the facts of the case should disclose “urgency” in the filing of the suit, in order to avail the benefit under Order XI Rule 1 (4) CPC.
The Court dismissed the petition on the following grounds:
(i) the additional documents in the present case having not been filed with the plaint as required by Order XI Rule 1 (1),
(ii) the plaint having not been filed as an “urgent filing” as envisaged by Order XI Rule 1 (4), and
(iii) no “sufficient cause” for not filing the documents with the plaint, within the meaning of Order XI Rule 1 (5) having been adduced by the petitioners.
[Anita Chhabra v. Surender Kumar, 2022 SCC OnLine Del 3089, decided on 26-09-2022]
Advocate who appeared in this case:
For petitioner: Ms. Sagarika Wadhwa
For respondent: Mr. Rohit Khurana
*Arunima Bose, Editorial Assistant has put this report together.