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2013 DIGILAW 859 (CAL)

Dhanlaxmi Bank Ltd. v. Aditya Birla Nuvo Ltd.

2013-11-28

PRASENJIT MANDAL

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Judgment : Prasenjit Mandal, J. Challenge is to the order dated July 5, 2013 passed by the learned Civil Judge (Senior Division), 2nd Court, Howrah in Title Suit No.63 of 2010 thereby rejecting the petitioner’s application for recall of the order dated February 4, 2013. The plaintiff/opposite party herein instituted the aforesaid suit for a decree of recovery of Rs.14,50,000/- interest, further interest and other reliefs against the defendant/petitioner herein and the defendant/petitioner herein is contesting the said suit by filing a written statement denying the material allegations raised in the suit. The said suit is at the stage of recording evidence and at this stage the plaintiff has filed an application under Order 11 Rule 21 of the C.P.C. and the said application of the plaintiff has been allowed on contests thereby striking out the defence indicating that the defendant is placed in the same position as if he had not defended. Being aggrieved, the defendant has filed an application under Section 151/152 of the C.P.C. for reconsideration of the order dated February 4, 2013 and the said application has also been rejected by the order dated July 5, 2013. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the question of inspection of certain original documents is the subject matter of the impugned order. By filing the application under Order 11 Rule 21 of the C.P.C. the plaintiff has called for the documents which have been indicated in the seizure list showing the xerox copies of these documents had been seized by the police in connection with a police case and the originals are lying with the defendant. The defendant bank has categorically stated that it is not in possession of those documents and as such it is unable to comply with the directions of the order dated February 4, 2013. What I find that such a recourse for inspection under Order 11 Rule 14 of the C.P.C. has been taken at the time of trial, i.e., recording an evidence and, in fact, the recording of the further evidence on behalf of the plaintiff is going on. What I find that such a recourse for inspection under Order 11 Rule 14 of the C.P.C. has been taken at the time of trial, i.e., recording an evidence and, in fact, the recording of the further evidence on behalf of the plaintiff is going on. By the order dated July 5, 2013 the learned Trial Judge has recorded that since the application for recall stands rejected on contests in view of the order dated February 4, 2013 the evidence on behalf of the defendant stands closed and the matter has been fixed for argument. If the learned Trial Judge is of opinion that the defendant is not producing the relevant documents as called for under Order 11 Rule 14 of the C.P.C. deliberately, he may debar the petitioner from producing those documents at the time of trial but, the steps of striking out the entire defence, closing the evidence and fixing the date for argument, in my view, cannot be sustained. Thus, I find that the defendant has been debarred from adducing evidence at the stage of recording further evidence under the provision of Order 11 Rule 21 of the C.P.C. This, in my view, is not permissible. So far as allowing the application under Order 11 Rule 21 of the C.P.C. is concerned, it is the discretionary power to the Court to exercise such power at the appropriate stage. It may be recorded herein that the discovery, inspection, production of the document, etc., are to be done at the stage of either before the settlement of issues or at the time of settlement of the issues. But, in the instant case the direction under Order 11 Rule 14 of the C.P.C. has been given at the time of trial of the suit and the defendant bank has expressed its inability to produce same on the plea that it is not in possession of such documents. This being the position, in my view, the impugned orders, i.e., allowing the application under Order 11 Rule 21 of the C.P.C. by the order dated February 4, 2013 and the second order dated July 5, 2013 for fixing the matter for hearing arguments after rejecting the prayer for recall of the order dated February 4, 2013, in my view, cannot be sustained at all. The impugned orders suffer from illegality and material irregularity. The application succeeds and is, therefore, allowed. The impugned orders suffer from illegality and material irregularity. The application succeeds and is, therefore, allowed. The impugned orders are hereby set aside. The Court, at best, may debar the defendant/petitioner herein from producing those documents since they have not complied with the provisions of Order 11 Rule 14 of the C.P.C. He shall proceed with the suit in accordance with law and in the perspective of above observations. Considering the circumstances, there will be no order as to costs.