ORDER

1. The present petition, under Article 227 of the Constitution of India, has been filed by the petitioner against the order dated 22.8.2022 passed by Court of Commercial Court and Commercial Appellate Court, District Gwalior in Case No.98 of 2020; whereby, by invoking the provisions of Order 11 rule 21 of CPC, dissatisfied with the affidavits filed by petitioner/defendant No.3 in respect of production of the original copies of the document dated 20.11.2013 had struck out his right of defence.

FACTS

2. Short facts of the case are that plaintiff/respondent No.1 had filed a suit for declaration and permanent injunction against defendant No.2 to 4 as well as the present petitioner. The present petitioner/defendant No.3 had filed his written statement and had denied the averments in the plaint. Alongwith the plaint, respondent No.1/plaintiff had filed an application under Order 39 rule 1 & 2 CPC, but the same was not decided and during the pendency of the suit, defendant No.2/respondent No.2 had filed an application under Order 11 rule 14 of CPC wherein it was prayed that defendant No.3 be directed to produce the original copy of letter dated 20.11.2013 alongwith affidavit. Vide order dated 13.11.2019 learned trial Court allowed the said application and further directed the petitioner/defendant No.3 to produce the original copy of letter dated 20.11.2013 on affidavit. In compliance of the said order dated 13.11.2019, the petitioner’s authorized signatory, namely, Gautam Khanna, S/o Anil Khanna, had filed an affidavit and alongwith the affidavit, certain documents were filed which reflected the fact that all the conversation made between the defendants No.1 and 3 were through the email and in said letter, the possession of the said letter was denied.

3. On 17.07.2022, learned trial Court, after considering the affidavit held that in the affidavit, no particulars had been given in relation to the letter dated 20.11.2013, therefore, once again directed the petitioner/defendant No.3 to file an affidavit in compliance of order dated 13.11.2019. The petitioner had again filed an affidavit in which it was categorically stated that on 23.07.2013, the deponent vide his Official email address 'trust_international@ymail.com' had sent an email to defendant No.1 on his Official email address i.e. and media_international@yahoo.co.in wherein the deponent had specifically stated that except 07 films mentioned in the email, all rights pertaining to the remaining films are not with the defendant No.3, to which, the deponents asked the defendant No.1 to send all the link agreements and NOC by 25.07.2013. In the said affidavit, it was also stated that in continuation of the said email, deponent's son Gautam Khanna went to meet defendant No.1 at his Office located at 1596, 2nd Floor, Deewan Hall Street, Bhagirath Palace, Chandni Chowk, Delhi, where he met one Suraj Sabharwal an authorized representative of Prem Kaushal and gave a photocopy of the letter dated 20.11.2013 and though had shown the original letter for reference and assured that the original letter will be given alongwith other original documents after formalities which though was never given despite several requests.

4. Learned trial Court, being dissatisfied with the averments made in the affidavit vide the impugned order dated 22.8.2022, suo-motu invoked the provisions of Order 11 Rule 21 of CPC and struck off the defence of the petitioner. Aggrieved by the aforesaid, the present petition has been filed.

ARGUMENTS

5. The argument which has been raised on behalf of the petitioner is that the provisions of Order 11 rule 21 CPC are not applicable to the Commercial Courts and Tribunals, as per the State Amendment of 2016 vide Order 11 rule 5(4) of CPC, the Commercial Court has powers only to draw adverse inference on being dissatisfied with the averments made by any party for non-production of the documents required to be produced, no more no less and when only an adverse inference could have