The court affirmed the right to reopen evidence in commercial suits for substantial justice, even post-cross-examination, rejecting procedural objections when new evidence emerges.

JUDGMENT :

Ravi Nath Tilhari, J.

Heard Sri D.S. Sivadarshan, learned counsel for the petitioner and Sri K. P. Sundar Rao, learned counsel representing Sri Venkata Srujan Vegi, learned counsel for the respondent No.1/plaintiff.

2. Sri Mudunuri Anand Kumar, learned standing counsel appeared for National Highways Authority of India (in short, NHAI), the 4^th respondent.

I. FACTS:

3. The petitioner M/s. Unitech – NCC (IV) is the 1^st defendant in C.O.S.No.17 of 2018, (in short, COS suit) filed by the plaintiff-1^st respondent on the file of the court of the Special Judge for Trial Disposal of Commercial Disputes, Visakhapatnam (in short, the Special Court).

4. The suit was filed against the petitioner and the respondents 2 to 4 (defendants 2,3 and 4 respectively in C.O.S) for a decree against the defendants jointly and severally for a sum of Rs.6,56,64,661/- and for subsequent compound interest @ 10.5% p.a on Rs.1,39,20,192/- from the date of filing of the suit till realisation, as also for costs of the suit.

5. 1^st defendant filed the written statement inter alia denying the material averments of the plaint and praying to dismiss the COS.

6. The plaintiff-respondent No.1 filed I.A.No.472 of 2023 under Order VII Rule 14 read with Section 151 Code of Civil Procedure, 1976 (in short C.P.C), to grant leave and receive the document i.e extract of Board Resolution of the plaintiff company in original dated 30.06.2023, supported with the affidavit. It was inter alia submitted that during the cross- examination of P.W.1, namely Ravi Kumar Raju, Executive Director of the plaintiff company, the learned counsel for the defendants 1 and 2 got elicited that the plaintiff did not file the extract of resolution of the Board of the plaintiff company for filing the suit though no such defence was taken in the written statement. Consequently, to bring on record, the resolution of the Board of Directors of the plaintiff company, dated 30.06.2023, ratifying the acts, deeds, evidences etc. of P.W.1 the Executive Director, in connection with the COS was being filed and for recall of witness P.W.1.

7. The plaintiff also filed I.A.No.471 of 2023 supported with affidavit in which, it was stated inter alia that the plaintiff filed I.A.No.267 of 2023 for direction to defendant No.4 to produce the certified copies of certain documents which was allowed on 26.07.2023. Pursuant thereto the 4^th defendant – National Highway Authority of India, filed documents. It was prayed to mark the documents as given in the list of documents.

8. The defendants 1 and 2 filed counter to I.A.No.472 of 2023 inter alia that the application for recall of P.W.1 for the purpose of marking the documents i.e resolution passed by the Board of Directors was not maintainable. The plaintiff should have been vigilant and diligent in filing the resolution. The plaintiff should not be given an opportunity to fill in the lacuna. It was an attempt to drag on the proceedings.

9. They filed separate counter to I.A.No.471 of 2023 inter alia to the same affect, however adding further that there was no reference in the plaint with respect to the legal requirements of Order XI CPC, so as to permit the other evidences by the plaintiff as to the documents produced by the officials of the 4^th defendant.

II. ORDER OF LEARNED SPECIAL COURT:

10. The Special Court vide the common order dated 21.12.2023, allowed I.A.No.472 of 2023 and I.A.No.471 of 2023 by receiving the documents and recalling P.W.1.

11. The Special Court observed that the cross-examination of P.W.1 was completed on 04.05.2023. Sin