JUDGMENT 1. Present petition is directed against the order dated 23.8.2010 passed by the learned Trial Court below Exhibit 94 in Special Civil Suit No. 151 of 1994 whereby the learned Trial Court has directed present petitioner for discovery on oath of the documents and granted the request made by the respondent No.1 vide application Exhibit 94 filed under the provisions of Rules 12 and 14 of Order XI of the Code of Civil Procedure (“Code”, for short). The learned Trial Court has also directed the petitioner to produce on record the available documents from amongst those mentioned in the application. Aggrieved by the said order dated 23.8.2010, the original defendant has preferred present petition. The petitioner is the original defendant No.1 and present respondent No.1 is the original plaintiff. 2. Heard Mr. Thakore, learned Senior Counsel with Mr. Majmudar, learned advocate for the petitioner and Mr. Kavina, learned Senior Counsel with Mr. H.S. Mulia, learned advocate for the respondents, and perused the record. 3. Having regard to the contention raised in the petition and the submissions made by the learned Counsel for the contesting parties, the petition deserves consideration. Hence, Rule. Mr. H.S. Mulia, learned advocate for the respondents has waived service of notice of Rule. At the request and with the consent of the learned advocates appearing for the contesting parties, the petition is taken up for final decision. 4. The facts involved in and relevant for the purpose of present order can be summarized thus. 4.1 The petitioner is the original defendant No.1 in the aforesaid Civil Suit No.151 of 1994. Present respondent No.1 is the original plaintiff in the said Civil Suit and present respondent Nos. 2 and 3 are the original defendants Nos.2 and 3 in the suit. For the sake of convenience, the parties in the petition are described as per their respective status and description in the plaint of the civil suit. 4.2 The aforesaid Civil Suit No.151 of 1994 has been filed against the defendants who are the petitioner and respondent Nos. 2 and 3 in present petition. The original plaintiff (present respondent No.1) has filed the said suit under Section 20 read with Section 8 of the Arbitration Act 1948 (hereinafter referred to as the “Act”). 4.2 The aforesaid Civil Suit No.151 of 1994 has been filed against the defendants who are the petitioner and respondent Nos. 2 and 3 in present petition. The original plaintiff (present respondent No.1) has filed the said suit under Section 20 read with Section 8 of the Arbitration Act 1948 (hereinafter referred to as the “Act”). The plaintiff (respondent No.1) has prayed for in the said suit for appointment of arbitrator in respect of the disputes said to have arisen between the parties (to the suit) in connection with the execution of the contract which was awarded by the original defendant Nos. 2 and 3 (present respondent No.2 & 3) in favour of the original defendant No.1 (present petitioner) who in turn had engaged the plaintiff (respondent No.1) as sub-contractor. 4.3 The said Suit Application No.151 of 1994 was resisted by the defendant. The defendant No.1 had filed the written statement (exhibit-95) 4.4 It transpires that for the purpose of engaging the plaintiff as a sub-contractor, the defendant No.1 had entered into a contract dated 22.3.1992, with the plaintiff. 4.5 By virtue of the said contract dated 22.3.1992 the plaintiff came to be engaged as sub-contractor for executing the contract originally awarded to the original defendant No.1 by defendant Nos. 2 and 3 and it is in respect of the said contract dated 22.3.1992 that the disputes and differences are said to have arisen between the plaintiff and the defendant No.1. 4.6 It is not in dispute between the parties that the said contract dated 22.3.1992 does not contain any arbitration agreement-clause providing for appointment of and reference to the arbitrator, in case of disputes and differences between the parties. 4.7 The plaintiff, however, while filing the aforesaid application-suit No.151 of 1994 has averred and stated that subsequently (i.e. subsequent to the aforesaid contract dated 22.3.1992) two supplementary agreements dated 25.9.1992 and 17.11.1992 were entered into between the plaintiff and defendant No.1 and the said supplementary contracts contain the arbitration agreement-clause on the strength of which the said suit seeking appointment of arbitrator has been filed. 4.8 Thus, according to the plaintiff, the request for appointment of the arbitrator is made in light of the said supplementary agreements dated 25.9.1992 and 17.11.1992 which, allegedly contain the arbitration agreement-clause obliging the parties to go to the arbitration proceedings in case of disputes. 4.8 Thus, according to the plaintiff, the request for appointment of the arbitrator is made in light of the said supplementary agreements dated 25.9.1992 and 17.11.1992 which, allegedly contain the arbitration agreement-clause obliging the parties to go to the arbitration proceedings in case of disputes. 4.9 In its written statement the defendant No.1 not only disputed and denied the existence of the alleged supplementary agreements dated 25.9.1992 and 17.11.1992 but has also asserted that any supplementary agreement, as alleged by the plaintiff, was never entered into and executed between the plaintiff and the defendant No.1 or any duly authorized representative of defendant No.1. The defendant No.1 also claimed that the documents purporting to be the supplementary agreements dated 25.9.1992 and 17.11.1992 are forged and fabricated and there is no valid binding arbitration agreement between them i.e. the plaintiff and the defendant No.1. 4.10 Hence, before making any order either appointing the arbitrator or rejecting the said application-suit, No. 151 of 1994 it became necessary for the Court to decide as to whether any valid and binding arbitration agreements-clause existed between the plaintiff and defendant No.1 or not and even before embarking upon the said issue it became necessary for the Court to determine the existence and genuineness of the said two documents viz. the alleged supplementary agreements dated 25.9.1992 and 17.11.1992. 4.11 Actually, the said two alleged supplementary agreements happen to be the foundation of plaintiff's application-suit inasmuch as the plaintiff claims that the arbitration clause exists in the said supplementary agreements. 4.12 It is not in dispute, and even the plaintiff also did not and does not claim, that the arbitration clause is contained in the contract dated 22.3.1992 between the defendant No.1 (petitioner) and the plaintiff (i.e. present respondent No.1). Even as per the plaintiff's claim the arbitration agreement is contained in the alleged supplementary agreement/s. 4.13 While the said application-suit No. 151 of 1994 was pending, the original plaintiff (present respondent No.1) filed the application dated 30.4.2010 (Exhibit-94) under Rule 12 and 14 of Order XI of the Code seeking discovery and production of about 58 documents described in the said application. The petitioner (defendant No.1) opposed the said application by filing its reply (Exhibit 95). After considering rival contentions, the learned Trial Court, by impugned order dated 23.8.2010 allowed the said application. Hence, present petition. 5. Mr. The petitioner (defendant No.1) opposed the said application by filing its reply (Exhibit 95). After considering rival contentions, the learned Trial Court, by impugned order dated 23.8.2010 allowed the said application. Hence, present petition. 5. Mr. Thakore, learned Senior Counsel with Mr.Majumdar, learned advocate for the petitioner has submitted that the impugned order, besides being arbitrary has been passed without having regard to the provision under Rule 12 and 14 of Order XI of the Code. Since the order has been passed overlooking that the discovery on oath of the documents in possession of the other side can be asked for, and such request may be granted, provided the documents are “related to any matter in question”. Mr. Thakore, learned Senior Counsel also referred to and relied upon the provision under Rule 15 of Order XI of the Code. The purport of the submission by the learned Counsel is that in view of the provision under Rule 15, any application directly to the Court without prior notice to the other side would not be maintainable. 5.1 Mr. Kavina, learned Senior Counsel for the respondents has submitted that the petition against an interlocutory order should not be entertained. He also contended that by the impugned order the learned Trial Court has merely directed the petitioner to file affidavit for discovery of certain documents which would not adversely affect the petitioner in any manner. Mr. Kavina, learned Senior Counsel for the respondents also relied upon the provision under Section 33 of the Act, particularly the proviso thereof and submitted that in view of the said proviso, the Court may pass appropriate orders for discovery of all particulars while entertaining the application seeking appointment of Arbitrator and/or while considering the challenge against the existence and genuineness of the arbitration agreement. He also submitted that since in present case the petitioner has disputed the existence of arbitration agreements, the proviso to Section 33 of the Act would be attracted and that therefore, the order is not invalid or improper but it has been passed in just and proper exercise of Court's jurisdiction. 6. I have heard the learned Counsel at length and also perused the relevant record. 6. I have heard the learned Counsel at length and also perused the relevant record. 6.1 So as to appreciate the submission by the learned Senior Counsel, it is appropriate to take closer look at the provision under Rule 12,14,15 of the Order XI of the Code and Section 33 of the Act, which read thus:- “12. Application for discovery of documents— Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit : Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. 14. Production of documents— It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just. 15. 15. Inspection of documents referred to in pleadings or affidavits— Every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document [168][or who has entered any document in any list annexed to his pleadings] or produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse with the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs an otherwise as the Court shall think fit. “33. Arbitration agreement or award to be contested by application:- any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit.” 6.2 The crux of the petitioner's contention against the request for discovery on oath of about 58 documents and for production, on record of the suit, of the available documents is that said documents are not related to any matter in question and that therefore the learned Trial Court could not have directed discovery on oath of the said documents. 6.3 The application (Exhibit-94), as noted above came to be filed by the plaintiff on 30.4.2010 i.e. almost sixteen (16) years after the suit under Section 20 and Section 8 of the Act was filed. 6.3 The application (Exhibit-94), as noted above came to be filed by the plaintiff on 30.4.2010 i.e. almost sixteen (16) years after the suit under Section 20 and Section 8 of the Act was filed. In the said suit the plaintiff prayed for appointment of arbitrator and also prayed for various other relief/s. 6.4 The defendants entered appearance after notice and resisted the relief/s prayed for in the suit. One of the main grounds on which the suit and the relief for appointment of arbitrator came to be opposed was that (according to the petitioner-defendant No.1) there was no arbitration agreement-clause in the contract dated 22.3.1992 hence there was no scope for granting plaintiff's request for appointment of arbitration. The existence and genuineness of the alleged supplementary agreement dated 25.9.1992 and 17.11.1992 was disputed and denied on the ground that the said documents were forged inasmuch as the same were not signed by any of the authorised officer of the defendant No.1. 6.5 While the said rival contentions and disputes were pending the adjudication, the application (Exhibit-94) in question came to be filed after 16 years of the presentation of the suit. After hearing the parties and upon considering the rival submissions, the learned Trial Court passed the order impugned in the petition. 7. In opposing the petition the learned Senior Counsel for the petitioner has relied upon the provision under Section 33 of the Act. 7.1 In view of the provision under Section 33 the provision can be invoked and an application to challenge the “existence and/or validity” of arbitration agreement can be preferred and such challenge can be raised by “any party to agreement” or any one claiming under him, the question about the applicability and relevance would arise in the facts of present case, however since the petitioner has not opposed the contention on the said ground, the said aspect is not examined in this case. 7.2 The said provision opens avenue and allows the parties to the arbitration agreement to challenge, by an application, the existence or validity of arbitration agreement or an award. 7.2 The said provision opens avenue and allows the parties to the arbitration agreement to challenge, by an application, the existence or validity of arbitration agreement or an award. The proviso to Section 33 of the Act postulates that if in any application made to the Court challenge to the “existence or validity” of the arbitration agreement is raised, then the question will be decided by the Court and during the hearing of such objection the Court may pass order for discovery and particulars, “as it may do in the suit.” 7.3 Thus, the relevant phrase is “as it may do in the suit”, which guides and regulates the power of the Court under Section-33 in view of which the Court may pass such order for discovery, as it would pass in the suit and in the process of passing the order for discovery and particular, even the restrictions attached to the said power and discretion would be attracted along with the power and discretion to pass the order. 7.4 The said provision, therefore, in turn, would also bring in picture the provision contained under Rules 12, 14 and 15 of Order XI of the Code. 7.5 So far as the Rule 12 of the Order XI is concerned, it provides that the Court can, on an application by the parties, order (meaning, under this provision order can be passed for) discovery of all such documents which are “related to any matter in question”. 7.6 Thus, the requirements under Rule-12 are that the documents, discovery on oath of which is prayed for, should be (a) “related to any matter in question” (b) should be necessary for deciding the suit and (c) should be in possession of the other party. 7.7 If the Court is not satisfied that the documents in question are necessary to dispose the suit and are “related to any matter in question” or differently put, if the Court is satisfied that the documents are not “related to any matter in question” and would not be necessary to dispose the suit, the Court would decline to pass the order for discovery on oath of such documents. 7.8 So far as the provisions under Rule 14 of Order XI is concerned it, inter alia, provides that the Court may, at any time during the pendency of the suit, order production of the documents in possession of a party or to declare on oath if such documents are not in its possession provided the documents are “related to the matter in question”. Thus, as per the provision under Rule 14 also, the vital and crucial requirement is that the documents, production of which is sought for, should be “related to any matter in question.” 7.9 The provision under Rule 12 and Rule 14 of Order XI postulate and mandate that the Court may order discovery on oath of such documents and/or pass order for production of such documents which are “related to any matter in question” and that therefore the party seeking production of documents will have to establish and satisfy the Court about the requirements viz. the documents are related to matter in question and will be necessary for deciding the suit and that the documents are in possession of the other side and the provision also cast an obligation on the Court to record its satisfaction, before passing any direction requiring the discovery on oath or production of documents, that the documents (the discovery on oath or the production of which is sought) are “related to any matter in question” or not and whether they are necessary for deciding the suit. Such satisfaction on part of the Court is sine-quo-non. 7.10 Now, when the proviso under Section 33 of the Act postulates and requires that the Court may pass such order for discovery and particulars “as it may do in suit”, it would, as a corollary, follow that the Court may pass such order for discovery and particulars, as it may pass in a suit, and in a suit Court can pass such order subject to the requirements under Rule 12 and Rule 14 of the Order XI of the Code. Thus, as noted earlier, the requirements or conditions would follow and will be applicable when the Court sets down for hearing the application challenging the existence or validity of an arbitration agreement. 8. Thus, as noted earlier, the requirements or conditions would follow and will be applicable when the Court sets down for hearing the application challenging the existence or validity of an arbitration agreement. 8. If the impugned order is examined in light of the aforesaid provision, it comes out that the learned Trial Court has noted one of the issues before it i.e. the “matter in question” is as to whether there is any arbitration agreement between the parties or not however, the learned Trial Court has missed the second issue i.e. about the existence and genuineness of the two alleged supplementary agreements. Furthermore, instead of satisfying itself about the compliance of the two major requirements, the learned Court seems to have addressed compliance of only one of the two major requirements under the Rule 12 and 14 viz. whether the documents would be necessary to decide the suit, but, the learned Trial Court has not addressed the compliance of other requirement viz. are the documents in question “related to the matter in question” viz. whether there is any valid and binding arbitration agreement between the parties or not; and the existence and genuineness of the alleged supplementary agreement. 8.1 The learned Trial Court ought to have examined the request on the touchstone of the question whether the documents in question are “related to the matter in question”. 8.2 At the stage when the Exh.94 application was submitted and came to be decided the “matters in question” which primarily arose, in view of the plaintiff's claim and the defence raised by the defendant No.1 before the learned Court, were about (i) the existence and the genuineness of the two supplementary agreements and (ii) as to whether there was any valid and binding arbitration agreement between the parties and that therefore the learned Trial Court ought to have recorded its satisfaction – i.e. the reasons for being satisfied-also about the fulfillment of the other two requirements viz. the documents in question (a) are related to the matters in question, and (b) are in possession of the defendant No.1 (petitioner). 8.3 The learned Court also ought to have addressed the issue as to whether the notice as contemplated under Rule 15 of Order XI was given to the defendant No.1 petitioner or not. the documents in question (a) are related to the matters in question, and (b) are in possession of the defendant No.1 (petitioner). 8.3 The learned Court also ought to have addressed the issue as to whether the notice as contemplated under Rule 15 of Order XI was given to the defendant No.1 petitioner or not. 8.4 On perusal of the impugned order it comes out that the aforesaid aspects have not been addressed by the learned Court and instead of addressing aforesaid issue which is the matter in question the learned Trial Court has proceeded merely on the ground that the documents in question are correspondence between the parties however, any reason as how the documents in question are “related to the matters in question” i.e. about any valid and binding arbitration agreement between the parties and existence as well as genuineness of the alleged supplementary agreements, are not recorded. 8.5 It is pertinent to note that it is not the case of the plaintiff that the existence of the arbitration agreement is required to be culled out from the correspondence between the parties. On the contrary the plaintiff has relied upon the alleged supplementary agreements dated 25.9.1992 and 17.11.1992 to claim that there is valid and binding arbitration agreement between the parties which is expressly contained in the said supplementary agreement, whereas the defendant No.1 has termed the alleged supplementary agreements as forged and fabricated. It also deserves to be noted that so far as the defendant No.1 (petitioner) is concerned, it is not the case of the petitioner that the alleged two agreements do not contain any arbitration clause/agreement but, as noted above, the assertion and the claim of the petitioner is that the alleged supplementary agreements were never executed by or on behalf of the petitioner. 8.6 Thus, for the purpose of deciding the application Exhibit 94 the learned Court was required to address the issue, and record its findings as regards all the three aspects viz whether the documents in question (i)“are related to matter in question” and (ii) would be necessary to decide the suit; and (iii) are in possession of the other side. So far as the first point is concerned, the learned Court has not addressed the issue and has not recorded any finding or its satisfaction, much less the reasons. So far as the first point is concerned, the learned Court has not addressed the issue and has not recorded any finding or its satisfaction, much less the reasons. As regards the second point, the learned Court has recorded that the documents are necessary but no reasons are recorded. So far as the third point is concerned, neither the petitioner nor the respondents have raised any contention and have not addressed the Court, on that count, hence there is no need to enter into and examine the said aspect at this stage. Thus, the impugned order has been passed without considering the relevant aspects. The impugned order and direction could not have been passed without addressing the issue as to whether the documents in question are related to the matter in question or not and without recording the reasons as to how the documents would be necessary to decide the suit. In view of the said infirmity and for the reasons noted hereinabove earlier, the impugned order is vitiated. 9. As regards the contention raised by the respondent that the petition ought not be entertained, more particularly because the interlocutory order does not harm the interest of the petitioner, it deserves to be noted that the learned Trial Court has also directed that the petitioner should file an affidavit on oath stating which of the documents are not available. The said direction, it is needless to state, would, in the facts of this case, act prejudicially to the interest of the petitioner in subsequent stages of the proceeding. Furthermore, the impugned order and directions, though interlocutory, are passed without addressing the primary requirement of the provision and that therefore in view of the judgment in case between Surya Dev Rai vs. Ram Chander Rai and others ( AIR 2003 SC 3044 ) wherein the Apex Court has in sub-paras (2), (3) and (4) of para 38 observed that:- “38. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.” I am not inclined to accept the contention that the petition against the impugned order ought not be entertained. 10. At the same time, the case of the plaintiff- respondent, seeking discovery on oath of the documents in question, also cannot be permitted to be frustrated inasmuch as it is possible that if not all, at least some of the documents may be related to the matter in question. Under the circumstances it would be appropriate that the issue is duly examined by the learned Trial Court and appropriate order for discovery on oath and/or production of document in question with regard to each of the documents is passed keeping in focus the relevant considerations prescribed under Rules 12, 14 and 15 of Order XI of the Code. 11. Hence, following order is passed. 12. The impugned order dated 23.8.2010 passed by the learned Trial Court below Exhibit-94 in Special Civil Suit No. 151 of 1994 is set aside and the case is remitted to the learned Trial Court for reconsideration in light of the foregoing discussion. 13. 11. Hence, following order is passed. 12. The impugned order dated 23.8.2010 passed by the learned Trial Court below Exhibit-94 in Special Civil Suit No. 151 of 1994 is set aside and the case is remitted to the learned Trial Court for reconsideration in light of the foregoing discussion. 13. The application (Exhibit-94) shall be taken-up for consideration, hearing and decision by the learned trial Court and after hearing the parties the learned trial Court would pass appropriate order afresh after taking into account the relevant considerations prescribed under Rule 12, 14 and 15 of order XI of the Code and upon examining the matter from all relevant perspectives, as expeditiously as possible. 14. With the aforesaid clarification the petition is partly allowed. Rule is made absolute to the aforesaid extent. In the facts of the case, no cost.

GAMMON INDIA LTD. v. SHETH ESTATE DEVELOPERS PVT. LTD.