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2012 DIGILAW 293 (KER)

K. L. Constantine v. Bruss Foods B. V.

2012-03-12

S.S.SATHEESACHANDRAN

body2012
Judgment : 1. The original petition has been filed seeking the following reliefs: i. to call for the records in I.A. No. 3436 /2011 in O.S. No.43/2009 on the file of the Ist Additional Sub Court, Ernakulam. ii. To set aside Ext.P6 order. iii. To issue such other appropriate writ, order or direction with this Honorable Court deem fit iv. To award cost of proceedings. 2. Petitioners are the defendants 1 and 2 in O.S. No. 43 of 2009 on the file of the Ist Additional Sub Court, Ernakulam. Suit is one for recovery of money and mandatory injunction. Ext. P1 is the copy of the plaint. Plaintiff is engaged in the business of trading sea food including tuna, and its operations involve procurement of sea food from various countries and also supply to other countries. It had business transactions for a period of time from 2006 to 2007 with the 1st and 2nd defendants, and on several occasions it placed orders with the 1st defendant to various persons identified by the plaintiff. According to the terms of each contract, plaintiff was entitled to a commission of 5 % on the sale price of each consignment. Under the purchase contracts entered between the plaintiff and the 1st defendant on various dates, the 1st defendant exported yellow fin tuna fish through the 2nd defendant, to M/s. Conserves Isabel De Galicia SL, Spain. Such exports were conducted from 30.09.2006 to 11.05.2007. However the commission payable to the plaintiff in respect of the consignment under the exports made on the basis of purchase contracts with the plaintiff was not paid, is the basis of the suit claim for money from the defendants 1 and 2. The 1st and 2nd defendants are license holders registered with the 3rd defendant, a statutory body, which regulated marine export activities in India. In view of the non-honouring of the commitments made by the 1st defendant in the course of export of marine products arising from the transactions with the plaintiff, a decree of mandatory injunction has to be passed directing the 3rd defendant to cancel the export registration and export licenses issued to the 1st and 2nd defendants, was the further case of the plaintiff. Ext.P1 is the copy of the plaint. 3. Suit claims were resisted by defendants1 and 2 the petitioners herein filing a written statement disputing the case of the plaintiff. Ext.P1 is the copy of the plaint. 3. Suit claims were resisted by defendants1 and 2 the petitioners herein filing a written statement disputing the case of the plaintiff. The defendants contended that the 1st defendant never entered into any contract with the plaintiff for supply of yellowfin tuna fish to M/s. Conservas Isabel De Galicia SL, Spain and that neither the 1st defendant nor the 2nd defendant effected any shipment to M/s. Conservas Isabel De Galicia SL, Spain against the alleged purchase contracts with the plaintiff. 4. The trial of the above case is now in progress. After examination of the Managing Director of the plaintiff as PW1 in the case, the plaintiff moved Ext. P4 application for a direction to the defendants to produce the documents listed in that petition. The defendants resisted that application filing Ext.P5 objections. The learned Sub Judge negativing the objections raised by the defendants vide Ext. P6 order directed them to produce the documents listed in Ext.P4 petition or to file an affidavit. Ext.P6 order is challenged as unsustainable and illegal by the petitioners/defendants invoking the visitorial jurisdiction vested with this Court under Article 227 of the Constitution of India. 5. I heard the counsel on both sides. 6. The learned Sub Judge has gone wrong in forming an opinion that the documents sought for, covered by Ext.P4 application of the plaintiff, are in the possession of the defendants, is the submission of the learned counsel for the petitioners urging that such a view had been taken ignoring the categorical and unequivocal admissions made by the managing director of the plaintiff examined as PW1 in the case. Adverting to Ext.P3, copy of the deposition statement of PW1, it is contended by the counsel that he had admitted in cross examination, of having had the originals of contracts referred to in the plaint and of handing over them to his lawyers. The documents produced with the plaint do not come within the sweep of secondary evidence as envisaged under Section 66 of the Evidence Act as their accuracy could not be ensured for, and knowing that, the plaintiff has filed the petition for production of the documents alleging that the original contracts are with defendants 1 and 2, submits the counsel. The documents produced with the plaint do not come within the sweep of secondary evidence as envisaged under Section 66 of the Evidence Act as their accuracy could not be ensured for, and knowing that, the plaintiff has filed the petition for production of the documents alleging that the original contracts are with defendants 1 and 2, submits the counsel. The court below has gone wrong in passing Ext.P6 order without entering a finding whether the documents produced by the plaintiff are admissible as secondary evidence, is the further submission of the counsel. Reference is also made by the learned counsel to Rules 12 to 14 of Order XI of the Code of Civil Procedure, for short, the ‘Code’ to contend that Ext.P6 order has been passed by the learned Sub Judge without following the procedure envisaged thereunder. The learned counsel also relied on Shri. M.L. Sethi V. Shri. R.P. Kapur (AIR 1972 SC 2379), Ashok Dulichand V. Madhavlal Dube and another (AIR 1975 SC 1748), M/s. J.S. Construction PVT. Ltd. V. Damodar Rout (AIR 1987 Orissa 207), Thampy T.V. V. Varkey Emmanuel (2005 KHC 1226), Smt. J. Yashoda v. Smt. K. Shobha Rani (AIR 2007 SC 1721) and H. Siddiqui (Dead) by KRS . V. A. Ramalingam [(2011) 4 SCC 240] to buttress the contentions canvassed to impeach Ext. P6 order of the learned Sub Judge as unsustainable. 7. Ext.P4 is the application filed by the plaintiff for ordering production of documents by the defendants 1 and 2. Export transactions of yellowfin tuna fish were conducted by defendants 1 and 2 based upon the export orders arranged/placed by the plaintiff and the same were recorded in various contracts, invoices, bills of lading etc. and as per the arrangement, defendants 1 and 2 have to give commission at the rate of 5% of the actual invoice amount and since the plaintiff was only a commission agent in the export transactions, the original documents relating to the export would not be handed over to the plaintiff by the Indian Exporter or the foreign buyer, but, defendants 1 and 2, to convince the plaintiff about the production and the actual amount due to it used to send copies of the invoices and bills of lading to the plaintiff and the same have been produced along with the plaint, according to the plaintiff. Since the plaintiff never came into possession of the original documents, and defendants 1 and 2. who are in possession of such documents, disputed the purchase contracts entered with the plaintiff resisting the marking of the documents produced by the plaintiff as inadmissible as they are only copies the plaintiff got produced the customs documents of the transactions through the process of the court and the same were marked despite the objection of the defendants, as Exts. X1 to X29, was its further case. Asserting that the defendants 1 and 2, who exported the goods based upon various purchase orders sourced by the plaintiff, are in custody of the purchase contracts, invoices and bills of lading pertaining to the export transactions forming the subject matter of the case, the plaintiff applied for production of such documents by defendants 1 and 2. Production of the documents applied for, by the defendants, who have disputed the veracity of the documents produced by the plaintiff, is essential for a proper adjudication of the controversy in the case was the case of the plaintiff listing 93 documents relating the export transactions naming the particulars of each document thereof. The defendant 1 and 2 filed Ext. P5 objections denying the averments set out in the affidavit of the plaintiff sworn to in support of Ext. P4 application. They contended that they are not in possession of the documents listed in the petition, reiterating the contentions taken in their written statement that they had not entered into purchase contracts with the plaintiff in exporting of yellowfin tuna fish, nor of any arrangement with the plaintiff to give commission to it at the rate of 5% on export transactions. 8. Defendants 1 and 2 in Ext. P5 objections, have, no doubt, contended that they did not have any export transactions based upon the alleged export orders arranged/placed by the plaintiff and there was no agreement or any arrangement between the plaintiff and defendants 1 and 2 to give commission to the plaintiff at the rate of 5% of the actual invoice amount. P5 objections, have, no doubt, contended that they did not have any export transactions based upon the alleged export orders arranged/placed by the plaintiff and there was no agreement or any arrangement between the plaintiff and defendants 1 and 2 to give commission to the plaintiff at the rate of 5% of the actual invoice amount. But, at the outset, it has to be taken note that producing and exhibiting in evidence customs documents relating to export transactions, Exts.X1 to X29, and also copies of the transactions, which are alleged to have been supplied by the defendants in the transactions, the plaintiff has applied for production of the originals from defendants 1 and 2 giving specific particulars of each invoice, bill of lading, purchase contract etc. asserting and affirming that they relate to the export transactions arranged by it to defendants 1 and 2, as being the exporters, the originals of such documents are with such defendants. The assertion by defendants 1 and 2 that they are not in possession of such documents disputing the case pleaded by the plaintiff for the reliefs claimed in the suit for the production of the documents, in such circumstances, necessarily have to be appreciated as to what they have to say on the export transactions covered by the documents produced. A copy of the written statement though not produced with the original petition was made available by the learned counsel for the petitioners for my perusal. Strangely enough, not even any reference, leave alone, any denial is there that the purchase contract, bill of lading, invoice etc. sought to be produced do not relate to the export transactions carried by them. This necessarily has to be viewed in the backdrop of the challenge raised to the copies of documents produced by the plaintiff with the plaint at the time of institution of the suit and also later, the customs documents got produced relating to export transactions, exhibited in evidence as Exts. X1 to X29. This necessarily has to be viewed in the backdrop of the challenge raised to the copies of documents produced by the plaintiff with the plaint at the time of institution of the suit and also later, the customs documents got produced relating to export transactions, exhibited in evidence as Exts. X1 to X29. True, the defendants 1 and 2 have contended in their written statement that the sea food operation of the 2nd defendant are conducted through its trading division, a separate private company with the 1st defendant as its managing director and that private company is stated to be the sea food division of the 2nd defendant, if that be so, there is no excuse from causing production of the documents of the export transactions, which are alleged to have arisen as covered under the transactions involved in the suit between the plaintiff and the 1st and 2nd defendants. I may also point out that the aforesaid contentions raised in the written statement do not also find place in Ext. P5 objections. In ordering production of the documents covered under Ext.P4 application moved by the plaintiff there were materials before the court, as evidenced by Exts. X1 to X29, the customs documents relating to the export transactions, to form a prima facie opinion that the defendants 1 and 2 are in possession of the documents applied for by the plaintiff. The defendants have objected to the copies of the documents produced with the plaint disputing the export transactions with the plaintiff and also their case to claim commission for arranging the export transactions, is not a relevant factor, but, the controversy requiring for adjudication in the suit and also the prima facie opinion formed by the court on the pleadings and materials tendered to hold that the defendants are in possession of the documents, in ordering their production. 9. In case, the export transactions which are stated in the plaint are carried out by the 1st and 2nd defendants or the sea food division of the 2nd defendant, even if it has been formed as a private company, in the nature of the controversy requiring adjudication in the suit, the larger question is whether they are bound to produce such documents to sustain the challenges raised against the suit claim. In the written statement also, it is seen specific advertence has not been made whether the export transactions stated by the plaintiff, over which, it claimed commission, were in fact carried out by the defendants 1 and 2 or their sea food division, which is stated to have been formed as a separate company. So, in the light of Exts. X1 and X29, the customs documents relating to the export transactions, which are stated to be having some nexus and connection with the export transactions described in the plaint, on which the suit claim for commission was canvassed, I find, the learned Sub Judge is justified in passing Ext. P6 order after forming a prima facie opinion that defendants 1 and 2 are in possession of the documents applied for, directing them to produce such documents. 10. Going through Ext.P6 order with reference to the submissions made by the learned counsel. I find, the decisions referred to by the learned counsel, some of which considered questions over the admissibility of documents as secondary evidence and the others with respect to discovery covered under Rule 12 of Order XI of the Code do not warrant detailed consideration in the given facts of the case, as the order of the learned Sub Judge squarely comes under Rule 14 of Order XI of the Code. That rule reads thus: “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.” Thought Ext. P4 application is seen filed by the plaintiff under Section 151 of the Code, it is essentially one coming under the above rule. There is suble difference as between Rules 12 and 14 of Order XI of the Code, with the former applicable for discovery ad the latter for production. In the applicability of both rules, it is only to be pointed out that documents sought to be discovered/ produced need not be admissible in evidence in the enquiry of the proceedings. There is suble difference as between Rules 12 and 14 of Order XI of the Code, with the former applicable for discovery ad the latter for production. In the applicability of both rules, it is only to be pointed out that documents sought to be discovered/ produced need not be admissible in evidence in the enquiry of the proceedings. The only requirement is that the documents sought to be discovered/produced have relevance for the purpose of throwing light in the matter of controversy. A document might not be admissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery/production either to advance his case or damage the adversary’s case or which may lead to a trial of enquiry, which may have either of these two consequences. (See Shri. M.L. Sethi’s case (referred above). So far as applications for discovery, interrogatory etc. they have to be moved before the case proceeds for trial. However, in the matter of production under Rule 14, the court can order the same at any stage of the suit or proceeding. Rule 14 of Order XI of the Code empowers the court to direct a party to the lis to cause production of the documents, if, in its opinion, the documents sought for have some relevance to resolve the controversy arising for adjudication in the suit or proceedings. In the context, it is worthwhile to take not that Rule 14 is not restricted by Rules 12 and 13 of the Code preceding, as that rule unequivocally states that the court can direct for production of the documents at any time during the pendency of a suit. No doubt, in passing orders under Rule 14, the court has to form an opinion that the documents are in possession of the party ordered to do so, and its production is required to resolve the controversy arising for adjudication. Whereas Rule 12 enables a party to the lis to seek discovery of document from the opposite party before the trial proceeds with, Rule 14 envisages of ‘production’ by order of the court. The question whether the documents, which are sought to be produced, satisfy the requirements thereof for admissibility, is quite alien to the consideration of the court, when it passes an order under Rule 14 of Order XI of the Code. The question whether the documents, which are sought to be produced, satisfy the requirements thereof for admissibility, is quite alien to the consideration of the court, when it passes an order under Rule 14 of Order XI of the Code. There is also no merit in the submissions made by the learned counsel for the petitioners that prejudice has been caused to him by the expression made by the learned Sub Judge in Ext. P6 order as to the opinion formed regarding the possession of the documents sought for with the defendants while ordering them to produce them. What has been stated is only a prima facie view after considering Ext. P4 application with reference to Ext. P5 objection, pleadings of the parties and materials already on record, and that too, only for the purpose of ordering production of the documents. That by itself will not have any impact on the merit over any disputed question arising for adjudication in the suit. If documents are not produced and reasons stated for its non-production in the affidavit, if any, filed by the defendants, whether they are acceptable or not, and in the event if they are found to be unacceptable, adverse inference if any to be formed for non-production of documents are all matters which will arise for consideration by the court at a later stage. In fact only on forming a prima facie opinion that the party is in possession of documents, production can be ordered. The learned Sub judge has only stated ‘it appears’ that the defendants are in possession of the documents, to pass Ext. P6 order for production of the documents. No prejudice or any injury has been caused to the defendants by the use of such expression in Ext. P6 order, and the submissions made to the contrary by the learned counsel are not correct. I do not find any impropriety, leave alone, any illegality in Ext. P6 order passed by the learned Sub Judge. Original petition is dismissed.