The court allowed the production of documents not annexed to the plaint due to lack of coordination, establishing that reasonable cause for non-disclosure can be recognized under procedural rules.

ORDER :

1. This Interim Application seeks leave of this Court to produce certain documents consisting of balance sheets of the Defendant no.1 and email correspondence exchanged between the Plaintiff and the Defendant no.1 and thereafter to permit the Applicant to file further affidavit in lieu of examination-in-chief or permit the Applicant to conduct further examination-in-chief to admit in evidence the documents sought to be produced through this application.

2. Mr.Aseem Naphade, learned Counsel, appearing for the Applicant has submitted that this application has been filed under Order XI Rule 5 of the Code of Civil Procedure, 1908 (“CPC”) as amended by the Commercial Courts Act, 2015. Mr.Naphade has submitted that Rule 1 of the said Order provides that the Plaintiff shall file a list of documents and photocopies of all documents in its power, possession, control or custody pertaining to the Suit along with the plaint. Mr.Naphade submits that, that is the rule, however, exception to the said rule is provided in Rule 5 where with the leave of the Court, the documents which were in plaintiff’s power, possession, control or custody and not disclosed along with the plaint or within the extended period set out in the Rules shall be allowed, provided the Plaintiff establishes reasonable cause for non-disclosure along with the plaint. Mr.Naphade has submitted that the documents consist of balance sheets of the Defendants for the year ending 31^st March 2014, 31^st March 2015 and 31^st March 2016 as well as 31^st March 2017. Mr.Naphade submits that the Plaintiff has referred to the balance sheets in the plaint wherein the Defendant no.1 has admitted the debt payable to the Plaintiff.However, it is only in the balance sheet for the year ending 31^st March 2017 that the Defendant no.1 retracted from the aforesaid admission of liability. As far as the emails are concerned, Mr.Naphade submits that the affidavit of evidence of the Plaintiff’s witness refers to the emails dated 28^th November 2015, 28^th January 2016, 5^th February 2016 and 11^th February 2016 which have been exchanged between the Plaintiff and the Defendants and they relate to the matters in controversy. The said emails show that the Defendants have been reneging from their obligation to pay the monies due and payable to the Plaintiff and that these emails have also been referred to in the affidavit of evidence of the Plaintiff’s witness. Mr.Naphade submits that the balance sheets and the e-mail correspondence constitute important evidence to decide the matter in controversy. It is submitted that it is not that these balance sheets and e-mail correspondence have not been disclosed but they were just not annexed or exhibited.

3. Drawing this Court’s attention to paragraph 8 of the rejoinder, Mr.Naphade would further submit that this is not just a case of sheer inadvertence but lack of co-ordination. Mr.Naphade would submit that the aforesaid documents were of utmost importance to determine the real issue between the parties to the Suit and the balance sheets and emails will assist the Court in ascertaining the truth in the matter. That, the Plaintiff has filed the present Summary Suit in respect of an admitted liability which can be seen from the balance sheet of the Defendant no.1. It is submitted that the Plaintiff inadvertently could not produce the said documents with the plaint and affidavit of evidence as the plaint and affidavit of evidence has been signed by the Plaintiff’s witness Mr.Rahul Gupta, who is the director of the Plaintiff and has been ordinarily residing in Dubai since 2013 for his business whereas the Advocates of the Plaintiff are in Mumbai. Therefore, there was some lack of co-ordination and as a result, although the documents are referred to in the plaint and affidavit of evidence, were not annexed. It was only on the visit of the Plaintiff’s witness to India for cross-examination that the Plaintiff realized the inadvertent non-production of the said documents