- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.2013 of 2007 IN SUIT NO. 3624 of 2004 A.C.Care Motors Private Limited ...Plaintiffs V/s. Tata Motors Limited & Ors. ...Defendants Mr.C.K.Rajan for the plaintiffs Mr.G.R.Joshi with Mr. Vipul Bilve i/b Mulla & Mulla for defendant no.1 CORAM: SMT.ROSHAN DALVI, J CORAM: SMT.ROSHAN DALVI, J CORAM: SMT.ROSHAN DALVI, J 14th July, 2008 14th July, 2008 14th July, 2008 P.C. P.C. P.C. . The defendants have taken out this Chamber Summons for a direction to the plaintiff to produce for inspection of the defendants, all the documents referred to and relied upon by them in the plaint and the list annexed thereto under the provisions of Order XI Rule 18 of the Civil Procedure Code. The defendants have also prayed for a direction that upon refusal to give inspection by the plaintiffs, the suit be dismissed for want of prosecution. The defendants further apply for the direction that filing of the written-statement be extended and defendant no.1 be permitted to file the written-statement within eight weeks from the date the inspection of the documents is complete. - 2 - 2. The defendants have specified in the Schedule to the Chamber Summons the precise documents relied upon by the plaintiffs which are required to be inspected by the defendants. 3. The Suit is filed for recovery of Rs. 45,46,61,081/- with interest amount. 4. There was earlier litigation between the parties. Both the defendants have independently sued the plaintiff earlier. It is the contention of the defendant that this Suit is filed as a counter blast to the defendants’ litigation. 5. The Suit is also filed for several declarations that the plaintiffs are not liable to pay the defendants certain amounts and that an Award passed in the Arbitration Proceedings initiated by the defendants is not binding on the plaintiffs and other ancillary reliefs. The plaintiffs have relied upon three specific documents in the list of documents annexed to the plaint. These are the Books of Accounts of the plaintiff, correspondence with the defendant and the Arbitration Proceedings. Besides these, the plaintiffs have annexed several documents as exhibits to the plaint. There are several documents merely referred to - 3 - and relied upon in certain paragraphs of the plaint which are specified in the Schedule annexed to the Chamber Summons. Those are not annexed to the plaint. The defendants would be required to defend the claim and reply to the plaintiff’s claim based upon those documents and after inspecting them. 6. The Suit has been filed in 2004. Official liquidator was appointed in respect of plaintiff company on 7-1-2005. The Writ of Summons was served upon the defendants on 25-1-2005. The defendants wrote a letter requesting inspection of the documents relied upon by the plaintiffs on 2-5-2005 and then on 25-6-2005. The plaintiff’s advocate contended that the plaintiff could not offer inspection as the official liquidator appointed in respect of the company was in charge of the documents at the relevant time. 7. Winding up order of the plaintiff company was stayed on 8-9-2001. Consequently, the appointment of the official liquidator also came to be stayed and official liquidator did not require the documents for carrying on the process of winding up of the plaintiff company. 8. After the order of stay, the defendants further requested inspection of the documents relied upon by the - 4 - plaintiff in the Suit on 26-9-2006 and 14-9-2007. The documents have not been offered for inspection. 9. The defendants contend that they cannot file written-statement in the absence of the documents. 10. It is true that the defendants have 90 days time under the provisions of order VIII Rule 1 of CPC to file written-statement. This would commence from the date of service of writ of summons. Hence, in the ordinary course, the defendants would have been required to file their written-statement on or before 24-3-2005. This was after the plaintiff company was ordered to be wound up and the official liquidator was appointed. The defendants state that in this case they have applied for extension of time to file written-statement. 11. It is contended on behalf of the plaintiffs that until the defendants file their written-statement, they cannot ask for inspection and the Court has no jurisdiction to grant inspection. This argument proceeds on a footing that if the plaintiff relies upon the number of documents but they are not annexed into plaint, the defendants must file the written-statment without knowledge of what the documents would be. The only knowledge the defendants would derive is some description of the documents in the averments in the - 5 - plaint or in the list of documents annexed to the plaint. 12. My attention is drawn by the plaintiff’s advocate to the judgement of this Court in the case of Divisional Controller, Maharashtra State Road Transport Divisional Controller, Maharashtra State Road Transport Divisional Controller, Maharashtra State Road Transport Corporation V/s. Abdul Aziz (2007(5)Mh.LJ 691) Corporation V/s. Abdul Aziz (2007(5)Mh.LJ 691) Corporation V/s. Abdul Aziz (2007(5)Mh.LJ 691) in which it is held that under Rule XI the Court would have no jurisdiction to order inspection until the affidavit of documents is directed to be filed. The affidavit of documents of the plaintiffs is required to be filed under the provisions of order XI Rules 12 and 13 of the Civil Procedure Code upon an application for and order of Discovery. The Court can call upon the plaintiff to enumerate each of the documents related to the action and call upon the plaintiffs to file an affidavit of documents. The affidavit which show the documents in possession, power and custody of the plaintiffs and the documents in the possession, power and custody of others which are also to be relied upon by the plaintiffs. In this case, no discovery is called for or directed. The observation in the judgment (supra) does not apply in this case. It may be mentioned that in the above case (supra) certain documents were directed to be produced at an early stage which practice the Court frowned upon, since those documents were not relied upon in the affidavit of documents of the party. - 6 - 13. The law relating to the right to claim inspection of documents, and the duty of the Court to grant inspection is set out in Order XI Rules 12,13,14,15 and 18. Under Order XI Rule 12 which relates to discovery of documents, a party may apply to Court to direct the other party to make discovery of the documents which are in possession of the party. 14. Order XI Rule 13 relates to the affidavit to be made by the party against whom an order under Rule 12 is passed specifying the documents which he objects to produce. 15. Under Order XI Rule 14, the Court can direct the party to produce the documents in his possession and power. 16. Order XI Rule 15 relates to inspection of documents referred to in the pleadings and affidavits. Under that rule every party to the Suit would be entitled, on or before the settlement of issues, to give notice to any other party in whose pleadings or affidavits reference is made to any document to produce such documents for the inspection of that party and to take copies thereof. Under that rule a party not complying with the notice would not be able to rely upon - 7 - such a document in evidence. 17. Under Order XI Rule 18 if the party does not give inspection when so notified, the Court may order inspection to be granted. 18. It is contended on behalf of the defendants that the application made by them under Order XI Rule 18 is upon their right to claim inspection of the documents referred to by the plaintiffs in the plaint under Order XI Rule 15 of the Civil Procedure Code and not the application for discovery of documents in which case the affidavit of documents would be required to be filed. 19. A reading of the aforesaid provisions thus shows two separate statements for the production and reliance upon documents in a Civil Suit. Rules 12 and 13 relate to discovery of documents and the enumeration of them in the affidavit of documents. Rule 15 relates to inspection of documents relied upon by the other party. 20. It may be mentioned that under Order XI Rule 15 of the Civil Procedure Code, the right of any party to claim inspection of the document relied upon by the other party was "at any time". Upon the amendment of Civil Procedure Code which came into effect on 1-7-2002 the words "at any time" came to be replaced by the words - 8 - "at or before the settlement of issues". Consequently, every party to a Suit would be entitled before the issues are settled to ask for inspection. That is the stage of this Suit also. The issues in this Suit are not settled. The written-statement is not filed. It is claimed that defendants cannot file the written statement before they inspect the documents and take copies thereof under Order XI Rule 15 of Civil Procedure Code. It is for this reason that notices have been issued for claiming inspection and the statutory time for filing the written-statement is extended. The defendants would be entitled to file the written statement upon showing cause for delay, if any, in filing the same. Before they file the written-statement, they require inspection of the documents which are merely referred to in the plaint and not exhibited. The Plaintiffs have relied upon the judgement in the case of Nagpur Glass Works Vs. Onama Nagpur Glass Works Vs. Onama Nagpur Glass Works Vs. Onama Glass Works (AIR 1938 Nagpur 239) Glass Works (AIR 1938 Nagpur 239) Glass Works (AIR 1938 Nagpur 239). In that judgement the object of Order XI Rule-15 is set out. That is to enable the other side to see the whole of the document referred to by a party. It is observed that a party must give notice to his opponent for that purpose. It is observed that in such a case written-statement need not be filed until the whole document has been seen. The plaintiffs rely upon the last para of the judgement which requires the party claiming inspection to make - 9 - their application without any delay. They claim that because the defendants’ application is delayed, it would be a good ground for refusing them to inspect the plaintiff’s documents. It is also observed that if the application is too long delayed, the Court may refuse to grant time to the defendants for filing the written-statement until after inspection has been made. It is further observed that there can be no hard and fast rule to the same. In that case the documents relied upon by the plaintiffs were not referred to in the pleadings but appeared only in the list annexed to the plaint. It was observed that the defendants should have proceeded under Order XI Rule 18 (2) if the defendant wanted to inspect the documents. The defendant had not filed any application under that provision. The defendant has not shown any facts which entitled them to inspection and hence further time could not be granted to file the written-statement. 21. This application is not for considering whether or not to grant leave to defendant to file the written-statement after the initial statutory period has expired. The defendants have applied under Order XI Rule 18 for inspection since it is not given despite four letters asking for inspection. The question of whether or not the defendants would be entitled to file their written-statement would be decided as and when - 10 - directions in that behalf are to be passed. At present under the provisions of Order XI Rule 15 the defendant’s notice to the plaintiffs to offer for inspection the documents relied upon by the plaintiffs and not complied with is to be considered. 22. The defendants have relied upon the judgement of this Court in the case of Ramdayal Saligram V/s. Noor Ramdayal Saligram V/s. Noor Ramdayal Saligram V/s. Noor Hari Balkrishna (1892 (18) ILR 368) Hari Balkrishna (1892 (18) ILR 368) Hari Balkrishna (1892 (18) ILR 368) in which it has been held that the defendants would be entitled to have inspection of documents referred to in the plaint although he had not filed his written statement. That is apparent from the reading of Order XI Rule 15 itself. Since any party is entitled before the settlement of issues to call for inspection and be granted inspection, it follows as a matter of corollary that he would file his affidavit or his pleadings after inspecting the documents relied upon by either party. It may be mentioned that the expression " at or before the settlement of the issues" would not necessarily mean only after the written-statement is filed. It can be at any stage before the issues are settled. The contention of Mr. Joshi that after the settlement of issues, the parties are now prohibited from asking for inspection, stands to reason. The purpose and object of the Amendment of Civil Procedure Code was to expedite the hearing of the Civil Suits and to prevent delay being - 11 - caused by unnecessary applications. Hence, though prior to amendment a party could ask for inspection at any time, after the amendment he would be prohibited from asking for inspection after the settlement of issues. 23. The application taken out by the defendants is, therefore, in consonance with provisions of Order XI Rules 15 and 18. The plaintiffs even now refuse to offer inspection on the premise that the documents are still with the official liquidator, the official liquidator would be required to take stock of the assets of the company which is ordered to be wound up. Official liquidator may not require all the documents of the company in winding up. Even if the official liquidator had the documents of the company such as the books of accounts of the company, the plaintiffs can call upon the official liquidator to comply with the defendant’s notice and offer inspection of the documents in his possession as the plaintiff is bound in law to do. In this case the order of winding up has been stayed. Hence, the order of appointment of official liquidator is also stayed. The official liquidator would not even require the documents for winding up the affairs of the plaintiff company. Hence inspection of the documents could have been given by the Official Liquidator. The Plaintiff has failed to do that. Infact the plaintiff refuses to do that. Hence, it - 12 - falls upon the defendants to apply to Court and for the Court to pass the necessary directions. 24. The document are stated to be in Ernakulam, Kerala. Consequently it would be inconvenient for the defendants to take inspection there. The Advocate for the defendants state that the official liquidator may give copies of those documents to the defendants certifying them to be the true copies. Such direction would be in sufficient compliance of provisions contained in Order XI Rule 15 read with Rule 18 of the Civil Procedure Code in this case. 25. The Advocate for the plaintiffs state that all the documents which were in the cabin of the plaintiffs which was locked by the official liquidator have been taken up by the official liquidator including the correspondence. Under those circumstances, the official liquidator would be in a position to give copies of all the documents requested by the defendants in the aforesaid letters and applied for in this application as shown in the Schedule annexed with the Chamber Summons. 26. It is stated that the reliance by the plaintiffs - 13 - upon the documents more specially the correspondence is vague and hence those documents shall have to be identified by the plaintiffs. 27. The plaintiffs shall inform the official liquidator of the request for inspection made by the defendants in the aforesaid four letters and in this application specifying the documents. The plaintiff shall identify the documents, more specially the correspondence relied upon by them to enable the official liquidator to give notice of those documents to the plaintiff’s advocate. - 14 - 28. The plaintiff shall inform the official liquidator of this order within two weeks. The plaintiffs shall identify the documents which are with the official liquidator at Ernakulam within two weeks thereafter. The Official liquidator shall supply zerox copies of all the documents relied upon by the plaintiffs in this Suit to the defendants certifying them to be true copies of the original in his possession. 29. Copies of documents which are not given shall not be relied upon by the plaintiffs in the Suit or put by the plaintiffs in evidence on their behalf. 30. Chamber Summons is disposed off accordingly. (SMT.ROSHAN DALVI,J) (SMT.ROSHAN DALVI,J) (SMT.ROSHAN DALVI,J)