Basic Purpose Of Order XVIII Rule 17 Of CPC Is To Enable Court To Clarify Position, Not To Fill Lacuna In Evidence: Calcutta High Court

Justice Sugato Majumdar of the High Court at Calcutta, while dismissing an application under Order XVIII Rule 17 read with Section 151 of CPC, 1908, ruled “Unexplained lethargy and long delay in production of document which is otherwise available cannot be cured at this belated stage. Therefore, it is not a fit case where the instant application should be allowed.”The judgment emanates from a recovery suit filed in 2011 by the sellers and erstwhile Directors (who then held controlling block of shares) of M/s. Bhoomi Minerals Ltd. due to distressed sale of the company in view of failure of a Memorandum of Understanding ('MoU') between the parties and a counter-suit to the said recovery suit filed in 2012 by the intended 1st buyer and party to the said MoU which is being heard conjointly by the Court. The application was for recalling the seller's witness for further cross-examination to the extent of confronting him with the list of shareholders of the said company. Admittedly, such Application was filed after the stage of arguments of the seller when a preliminary note on the subject suits had also been filed by the seller of the company. Such application for re-calling the witness was necessitated owing to discovery by the intended 1st buyer, at this juncture, of a list of share-holders of the company (which is now in liquidation) from the website of Ministry of Corporate Affairs. Such information when contrasted with the evidence adduced by the seller's witness being, one of the ex-Directors of the said Company, necessitated his re-calling. Per contra, it was argued by the Advocate for the sellers/ex-directors of the Companys that, apart from the application being an abuse of process of law, it was filed at a belated stage, ie., after conclusion of submission/arguments and filing of preliminary written notes. Moreover, the said witness being contemplated for recall, has been subjected to elaborate and lengthy recording of testimony over a period of 4 years with 180 questions (approx..). Admittedly, the list of share-holders were in public domain as early as 30.09.20211, even prior to filing of the suit and counter-suit, despite which the intended 1st buyer had failed to make any pleading in their plaint or mention in their Judge's Brief and as such, allowing such application would have tantamounted to departure from the case made out. In any event, such application was sought to be filed after taking adjournments prior to commencing of arguments which is nothing but a ploy to delay adjudication being aware that their suit, filed as contra-blast to the seller's suit is without any merits and is completely misconceived.After consideration, the Court rejected the application since there existed no reasons as to why the intended 1st buyer did not try to locate the documents being sought to be brought on record when such documents were available well before filing of the suit as well as counter-suit. It was after closure of witness action that the intended 1st buyer suddenly realised to look into the official website of Ministry of Corporate Affairs – “It is not so much a question of belated stage. There is no explanation in this regard.” In appropriate cases, witness may be re-called, however, the Supreme Court has clarified that “that the power is discretionary and should be used sparingly in appropriate cases to enable the Court to clarify any issue or doubt... It is also clarified that this power is not intended to be used to fill up omissions in the evidence of witness.” If the application is allowed, same would just lead to filling up of lacuna and omission in evidence – “Unexplained lethargy and long delay in production of document which is otherwise available cannot be cured at this belated stage.”Case: SRI NIRMAL KANODIA & ORS. Vs UMADEVI AGARWALLA & ANR. Case No: In CS/264/2012Advocate for Applicants (intended 1st buyer): Mr. Sukrit Mukherjee and Mr. Karanjeet Sharma, Advocates. Advocate for Respondents (seller & ex-Directors): Ms. Urmila Chakraborty, Mr. Amit Meharia, Ms. Paramita Banerjee and Mr. Sayan Dey, Advocates (MCO Legals – Meharia & Company). Click here to read order

Basic Purpose Of Order XVIII Rule 17 Of CPC Is To Enable Court To Clarify Position, Not To Fill Lacuna In Evidence: Calcutta High Court

Srinjoy Das

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