JUDGMENT

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA IAs 21706-07/2022

1. The above applications have been filed by the defendants inter alia praying for the permission to lead rebuttal evidence, and for the same, summon the Assistant Commissioner of Customs (in short, ‘BRC Cell’), Tughlakabad, New Delhi and the Bank Manager, HDFC Bank, Connaught Place, New Delhi, to produce the Exports Data Processing and Monitoring System (in short, ‘EDPMS’) report of the plaintiff-company (under IEC Code-0588080632).

SUBMISSIONS OF THE LEARNED COUNSEL FOR THE PLAINTIFF:

2. The above applications are opposed by the learned counsel for the plaintiff, submitting that the issues in the present suit were framed by this Court vide its order dated 07.05.2015. It was further recorded in the said order that having regard to the nature of issues framed, in the first instance, the defendants shall lead the evidence followed by the plaintiff.

3. In compliance with the said order, the defendants led their evidence and closed the same, as recorded by the learned Local Commissioner in the proceeding held on 29.09.2015. The defendants, at the time of closing their evidence, did not reserve their right to lead rebuttal evidence.

4. While the evidence of the plaintiff was being recorded, the defendants filed an application seeking to confront the witness of the plaintiff with certain documents which were not on record, running into around 150 pages. The said application was dismissed by the learned Joint Registrar vide order dated 20.10.2016. A Chamber Appeal against the same was also dismissed by a learned Single Judge of this Court vide order dated 19.01.2018.

5. In an appeal filed challenging the said order dismissing the Chamber Appeal, being FAO(OS) No.21/2018, the Division Bench of this Court, vide order dated 24.05.2018, allowed the appeal and remanded the matter back to the learned Single Judge for fresh consideration of the application filed by the defendants. The challenge of the plaintiff to this order was dismissed by the Supreme Court vide order dated 24.09.2018.

6. Finally, by the order of 20.09.2019, with the consent of the learned counsels appearing for the parties, the application filed by the defendants was allowed, subject to the condition that the defendants shall not lead any further evidence.

7. The learned counsel for the plaintiff submits that the defendants had undertaken that they would not lead any further evidence in the suit and their evidence already stands concluded. He submits that it is on that basis that the plaintiff gave its consent for the plaintiff’s witness to be confronted with the additional documents as was being prayed for by the defendants. He submits that the defendants cannot be allowed to wriggle out of the said undertaking. He submits that, in fact, the plaintiff’s evidence had also been concluded on 01.05.2017 and the defendants had taken a conscious call that no further evidence needs to be led even in rebuttal when they gave the above undertaking.

8. The learned counsel for the plaintiff submits that in the meantime, the witness of the plaintiff, Mr.A.K.Mohanty, Vice President (IR & Legal) had retired. The plaintiff, therefore, was compelled to seek substitution of the said witness with Mr.Paras Kumar. The plaintiff filed an application seeking substitution of the witness, which was allowed by this Court vide its order dated 14.01.2020. The defendant, however, continued to remain bound by the statement that no further witness will be examined by the defendants. He submits that substitution of the witness cannot give an excuse to the defendant to lead rebuttal evidence.

9. The plaintiff, thereafter, filed the affidavit of Mr.Paras Kumar. In the affidavit, Mr.Paras Kumar clearly stated that his affidavit is limited to the documents sought to be produced by the defendants and as permitted and allowed by this Court vide order dated 20.09.2019.

He, further stated as under:

4. I say that as the present suit relates to recovery of