ORDER :

Heard.

1. A suit was filed before the Commercial Court for recovery of Rs.2,42,04,198.58 alongwith interest @ 18% per annum, total amounting to Rs.4,02,46,610/- against the defendants/respondents on 13.9.2019.

2. The written statement was filed by the defendants and thereafter, issues were framed on 29.11.2021 by the concerned Court. On 7.7.2022, the plaintiff moved an application under Order XI Rule 1(4) of the Code of Civil Procedure on the ground that some documents were missing from the brief and when the documents were found, this application has been moved. In paragraph 3, the petitioner has categorically pleaded that “documents which the petitioner desires to produce before this Court in the matter does contain malafide intention to delay or hide its importance but was not able to be annexed during the filing due to continuous hardships during the time of the global pandemic”. The application moved by the petitioner was dismissed by the Commercial Court vide order dated 9.9.2022 relying upon the judgment of Supreme Court in the matter of Sudhir Kumar @ S. Baliyan vs. Vinay Kumar G.B., reported in (2021) SCC OnLine 734 and Societe DES Produits Nestle S.A. and Anr. Vs. Essar Industries and Ors., reported in (2016) SCC OnLine Del 4279.

3. Learned counsel for the petitioner would submit that due to inadvertence the documents could not be included in paragraph 3 of the application dated 7.7.2022. It is further submitted by learned Senior counsel that it was not an urgent filing as required under Order XI of the CPC and the application could have been allowed by the learned Commercial Court after imposing cost. The provisions of Order XI Rule 1(4) of the CPC are not penal in nature and its purpose is to facilitate the parties and not to punish.

4. On the other hand, learned counsel for the respondents would submit that if the word “not” which is not written in paragraph 3 of the application dated 7.7.2022 is ignored, then also the application moved by the petitioner is not within the limitation. Order XI Rule 1(4) of the CPC grants 30 days from the date of institution of civil suit to file documents whereas, in the instant case, this application has been moved after lapse of 33 months and no plausible explanation has been given in this regard. She would further submit that the contention made by learned Senior counsel with regard to urgent filing is not tenable as application was moved under Order XI Rule 1(4) of the CPC which particularly provides for urgent filing and she also submits that the provisions of CPC have been amended with regard to Commercial Court with effect from 23.10.2015, hence, the petition deserves to be dismissed.

5. I have heard learned counsel for the parties and perused the record.

6. As per Section 16 of the Commercial Courts Act, the provisions of the Code of Civil Procedure as amended under the Act, shall apply in the trial of suit in respect of a commercial dispute of a specified value. Section 16 of the Act in its application through commercial disputes reads as under:

‘16. (1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a Specified Value, stand amended in the manner as specified in the Schedule.

(2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a Specified Value.

(3) Where any provision of any rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908 (5 of 1908), by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail.’

The Schedule to the Commercial Courts Act amends various provisions of the Code of Civil Procedure and thereby makes significant depar