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2015 DIGILAW 1609 (BOM)

Hiren P. Doshi v. State of Maharashtra

2015-07-17

K.R.SHRIRAM

body2015
JUDGMENT : Plaintiff has taken out this chamber summons to admit documents mentioned at Serial Numbers 1 to 194 in the list of documents at Ex.A to the affidavit-in-support, as duly admitted by defendants. 2 Plaintiff has filed the present suit for recovering an amount of Rs.1,84,35,061/from defendants together with interest and costs. 3 Plaintiff has also filed his affidavit in examination-in-chief and also compilation of documents in his possession. 4 Plaintiff by his advocate's notice dated 4.8.2014 issued notice in the form prescribed under Order XII Rule 3 of the Code of Civil Procedure, 1908 to defendants calling upon defendants to inspect and admit documents mentioned therein (the said notice). 5 Defendants neither personally nor through their advocate took inspection of the documents mentioned in the said notice or even responded to the said notice. Plaintiff, therefore, have taken out this chamber summons on 22.9.2014 for the reliefs as mentioned at paragraph 1 above. 6 Order XII Rule 2, 2A, 3 and 3A of the Code of Civil Procedure, 1908 read as under: “2. Notice to admit documents. Either party may call upon the other party [to admit, within [seven] days from the date of service of the notice any document,] saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is, in the opinion of the Court, a saving of expense. 2A. Document to be deemed to be admitted if not denied after service of notice to admit documents.(1) Every document which a party is called upon to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in his reply to the notice to admit documents, shall be deemed to be admitted except as against a person under a disability; Provided that the Court may, in its discretion and for reasons to be recorded, require any document so admitted to be proved otherwise than by such admission. (2) Where a party unreasonably neglects or refuses to admit a document after the service on him of the notice to admit documents, the Court may direct him to pay costs to the other party by way of compensation. 3. Form of notice. A notice to admit documents shall be in Form No.9 in Appendix C, with such variations as circumstances may require. 3A. Power of Court to record admission. Notwithstanding that no notice to admit documents has been given under rule 2, the Court may, at any stage of the proceeding before it, of its own motion, call upon any party to admit any document and shall, in such a case, record whether the party admits or refuses or neglects to admit such document.” 7 It is, therefore, clear that Rule 2 permits a party to serve notice on an opposite party to admit documents and provides further that a party refusing or neglecting to admit documents after such a notice shall be liable to pay costs of proving the documents to other party irrespective of the result of the suit. Rule 3 prescribes form of the notice and Rule 3A Empowers the Court to call upon a party to admit documents notwithstanding no notice to admit documents is given under Rule 2. Rule 3A, however, does not prescribe any penalty if a party neglects or refuses to admit documents like Rule 2 which provides that such a party shall be saddled with costs. 8 In order to make Rule 2 and Rule 3A more effective, the legislature in 1976, inserted by the Code of Civil Procedure (Amendment) Act, 1976, Rule 2A which provides that if a party called upon to admit documents does not admit or neglects or refuses to admit the same, the documents shall be deemed to be admitted and the Court may also direct him to pay costs to the other party by way of compensation. By proviso to Rule 2A the discretion is given to the Court and for reasons to be recorded, that even if the other side has neglected or refused to admit the documents, the Court may still require any document so admitted to be proved otherwise than by such admission. By proviso to Rule 2A the discretion is given to the Court and for reasons to be recorded, that even if the other side has neglected or refused to admit the documents, the Court may still require any document so admitted to be proved otherwise than by such admission. Rule 2A also prescribes the safeguard inasmuch as only those documents which have not been denied specifically or by necessary implication or stated to be not admitted in the pleadings of that party or in his reply to the notice to admit documents, shall be deemed to be admitted except as against a person under a disability. 9 Mr. Vaishnav the learned counsel for plaintiff stated that all the documents are deemed to have been admitted whereas, Mr. Lad the learned counsel for defendants submitted that Rule 2 and Rule 2A arise in different situations. The learned counsel for defendants submitted that defendants not having replied to the notice from plaintiff can be only saddled with costs that plaintiff may incur to prove the documents as mentioned in Rule 2. According to Mr. Lad, Rule 2A gets triggered only if defendant has replied to the notice to admit documents and in that notice, he has wrongfully not admitted all or some of documents. In other words, according to Mr. lad where defendant is totally silent despite, receiving the notice to admit documents, Rule 2 of Order XII will be applicable and when there has been some response then Rule 2A of Order XII will be applicable. It is very difficult nay impossible to accept such an argument. 10 The counsel for plaintiff also relied upon the unreported judgment of this Court (Coram: F.I.Rebello, J.) in the matter of M/s. Kaizer Vs. The Municipal Corporation of Greater Bombay & Anr., dated 19.8.1997 in Civil Revision Application No.683 of 1997 and on the following judgments: (1) Life Insurance Corporation of India and Anr. V/s. Ram Pal Singh Bisen, (2010) 4 Supreme Court Cases 491 (2) Union of India V/s. Ibrahim Uddin and Another, (2012) 8 Supreme Court Cases 148. (3) Shree Ram Finance Corporation Vs. Murlidhar and Ors., 1988 ACJ 734 (4) Canara Bank V/s. Eastern Mechanical Works & Anr., AIR 2008 Bom 188 . (5) G.M.Worsted Spinning Mills V/s. Lakshmi Commercial Bank Ltd., AIR 1986 P & H 310. (3) Shree Ram Finance Corporation Vs. Murlidhar and Ors., 1988 ACJ 734 (4) Canara Bank V/s. Eastern Mechanical Works & Anr., AIR 2008 Bom 188 . (5) G.M.Worsted Spinning Mills V/s. Lakshmi Commercial Bank Ltd., AIR 1986 P & H 310. 11 It is well settled that different provisions of statute should be considered harmoniously. If Rules 2 and 2A are read together, it is clear that Rule 2A covers not only those cases where notice has been sent by a party to the other party under Rule 2 but also those cases where a Court directs a party to admit documents and a party refuses or neglects to admit such documents. Otherwise, it would be easy for any party to keep quiet. The Code of Civil Procedure, (Amendment) Act, 1976 inserted amendments not only to Order XII but also to the other provisions of the Code to ensure speedy disposal of matters and to check defendant from unnecessarily delaying or dragging the matters. If we accept what Mr. Lad submits, then Rule 2A of Order XII was not necessary at all. At the same time, I cannot accept the submissions of the counsel for plaintiff that all the documents mentioned in the said notice are deemed to have been admitted if there is no specific denial to the notice for admission of documents within seven days as provided under Order XII Rule 2 of the Code of Civil Procedure, 1908. In terms of Rule 2A of Order XII of the Code of Civil Procedure, 1908, only those documents which were not denied specifically or by necessary implication or stated to be not admitted in the pleading of that party or in his reply to admit documents shall be deemed to have been admitted except as against a person under a disability. In this case, defendants have not expressed any disability. Therefore, only such documents which defendants have not denied specifically or by necessary implication or stated to be not admitted in the written statement can be considered to have been admitted under this Rule. At the same time, Court also has discretion and for reasons to be recorded, to require plaintiff to prove the documents otherwise than by way of admission under Rule 2A. At the same time, Court also has discretion and for reasons to be recorded, to require plaintiff to prove the documents otherwise than by way of admission under Rule 2A. This means that the Court should generally admit that if it feels that the plaintiff despite the defendants not denying specifically or by necessary implication or the defendants not stating in the pleading that the document is not admitted or has failed to reply to the notice to admit documents, has to prove the documents, the Court has to give reasons for that and write other way round. The intention behind Rule 2A of Order XII is to speed up the trial. 12 It is also clarified that the effect of the admission of the documents in terms of Order XII is only the admission of documents and not the admission of the truth of the contents of the documents. Party who is deemed to have admitted documents under Order XII can yet challenge truth or correctness of the contents of the documents in which event burden would lie on such party who relies on the documents to prove the truth or correctness of such documents. Order XII is a procedural requirement dispensing with formal requirement of proving of documents which otherwise a party has to comply with in order to admit documents in evidence. 13 In order to give defendant, which is the state of Maharashtra, the Commissioner of employees State Insurance Scheme and the Maharashtra Antibiotics and Pharmaceuticals Ltd. (A Government of India Enterprise), one chance, Chamber Summons be listed for Directions on 23.7.2015 to enable defendants to point out which are those documents which defendants have denied specifically or by necessary implication or as stated to be not admitted in the Written Statement.