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Judgment
Valmiki J. Mehta, J
I.A. No.13912/2017 (condonation of delay)
For the reasons stated in the application, delay of 14 days in filing the appeal is condoned.
I.A. stands disposed of.
O.A.No.153/2017(filed by the plaintiff against order dated 26.9.2017)
This chamber appeal is filed by the plaintiff in the suit impugning the order of the Joint Registrar dated 26.9.2017 by which the Joint Registrar has
dismissed the I.A. No.13949/2016 filed by the plaintiff under Order VII Rule 14 of Code of Civil Procedure, 1908 (CPC). By the application, the
plaintiff wants to place on record audited balance sheets and income tax returns of the plaintiff-company from the year 2004 to 2016 in order to prove
the financial capacity of the plaintiff. Obviously this financial capacity is required to be proved in order to prove readiness and willingness under
Section 16(c) of the Specific Relief Act, 1963.
The Joint Registrar has dismissed the application by observing that issues in this case were framed way back on 13.3.2006 and parties had already
concluded their evidence by the time the application for filing the additional documents came up for hearing. The Joint Registrar has also observed that
surely the type of documents which are sought to be got placed on record and proved were always in the knowledge of the plaintiff-company being its
audited balance sheets and the income tax returns, and therefore, the application cannot be allowed for bringing on record additional documents in the
year 2016 i.e after around a period of 12 years. Joint Registrar has finally concluded that at the stage of final arguments if additional evidence being
additional documentary evidence is allowed the same will result in de novo trial because even the defendants will have to be given opportunity to lead
fresh evidence to rebut the evidence and the case which is then put forth on behalf of the plaintiff.
In my opinion the Joint Registrar has made the following relevant observations to dismiss the application under Order VII Rule 14 CPC filed by the
plaintiff and which read as under:-
“In order to appreciate, the rival contentions of the parties, it is expedient to reproduce the relevant provisions as contained Under Order 7 Rule 14
CPC. The same is reproduced here under for ready reference:
“Production of document on which plaintiff sues or relies
â€" (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter
such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document
and a copy thereof, to be filed with the plaint.
(2) where any such document is not in the possession or power of the plaintiff , he shall, wherever possible, state in whose possession or
power it is.
(3) A document which ought to be produced in court by the plaintiff when the plaint is presented, or to be entered in the list to be added or
annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his
behalf at the hearing of the suit.
(4) Nothing, in this rule shall apply to document produced for the cross examination of the plaintiff’s witnesses, or, handed over to a
witness merely to refresh his memory.â€
In the present case, record reveals that issues in the case were framed on 13.03.2006. The parties have already concluded their evidence.
The additional documents which are sought to be filed and brought on record by plaintiff at this stage were already in the knowledge of the plaintiff
and the plaintiff was in power and possession of the same. The plaintiff filed the present suit in the year 2004. He moved the application for bringing
the additional documents on record in the year 2016 i.e. after a period of around 12 years.
Plaintiff has not shown any just and reasonable grounds which precluded it from bringing the additional documents on record either at the stage of
pleadings or at the stage of admission/denial of documents or even during the course of evidence in the matter. Plaintiff has further failed to show on
record that the additional documents which are sought to be filed at this stage were not within the knowledge of plaintiff or the plaintiff despite due
diligence could not procure them at earlier stage.
The parties have already concluded their evidence. Matter is at the stage of final arguments. If the additional documents of plaintiff are taken on
record at this stage, it will result in de-novo trial as the opposite party will also have to be given chance to file additional documents in rebuttal and this
will lead to fresh trial.
The defendants cannot be permitted to be taken by surprise by filing additional documents at this stage when the parties have already concluded their
evidence.
Plaintiff has failed to furnish any cogent and sufficient grounds as to why the additional documents were not earlier filed, despite, they were in the
knowledge and possession of the plaintiff.
For the reasons discussed above, no justification or reasons for taking the additional documents of plaintiff on record at this stage is made out, hence
the application of plaintiff is hereby dismissed.
IA stands disposed of accordingly.â€
De hors what is held in the impugned order of the Joint Registrar dated 26.9.2017, I have gone through the audited balance sheets and the income
tax returns which are sought to be brought on record and proved by the plaintiff. Before examining these documents it is relevant to note that the
subject suit for specific performance is based on an oral agreement to sell and admittedly the plaintiff had paid only a sum of Rs.10 lacs out of the
alleged total sale consideration of Rs.6,76,50,400/- i.e the balance due and payable by the plaintiff to the defendants would be a sum of
Rs.6,66,50,400/-. Therefore, it is this balance amount or capacity to pay the balance amount which must be reflected in the audited balance sheets and
the income tax returns which are now sought to be filed.
A reading of the audited balance sheets and the income tax returns show that so far as bank balances of the plaintiff are concerned, the same were
barely in the region of about Rs.3 lacs as on 31.3.2004 and on 31.3.2005 the bank balances became about Rs.9,50,000/-. Even the subsequent balance
sheets do not show the availability of cash balance of Rs.6,66,50,400/-. In law besides actual liquid amount, Courts also have to see for determining the
financial capacity of a buyer/plaintiff the financial assets in a suit for specific performance and in this regard counsel for the plaintiff has taken me
through the fact that in the balance sheets fixed assets are shown of the plaintiff running into about Rs.8crores as on 31.3.2004 and approximately
Rs.15.89 crores as on 31.3.2005 and so on, however, in my opinion even if this evidence is considered it will be a very vague evidence because what
are the fixed assets in the sense that what are the immovable properties, what are the details of these immovable properties, where are the title deeds
of these immovable properties, whether these immovable properties are encumbered with any financial institution or not, what is the otherwise status
of these properties etc etc will have to be exactly known as all these aspects will be required to decide the issue of readiness and willingness under
Section 16(c) of the Specific Relief Act. Such vague evidence by simple categorization in the balance sheets of fixed assets and other assets will not
help the plaintiff more so because it is seen that plaintiff as per these very documents also is liable to its creditors on account of its liabilities running
into Rs.14 crores as on 31.3.2004 and running into over Rs.46 crores on 31.3.2005 onwards. The balance sheets etc will thus not exactly reflect the
exact financial capacity required to be proved in a suit for specific performance. Such evidences which are now sought to be brought do not reflect
exaction so far as the financial capacity, and that such documents being therefore only vague evidence the same cannot be looked into as being
evidence to decide the issue of readiness and willingness under Section 16(c) of the Specific Relief Act.
The aforesaid observations made by this Court are in addition to the correct reasoning given by the Joint Registrar for dismissing the application
vide the Joint Registrar’s order dated 26.9.2017.
Considering the facts of the present case, and the reasoning given by the Joint Registrar and as supplemented by this Court, I do not find any merit
in the appeal.
O.A. is accordingly dismissed.