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Judgment
S.R. Krishna Kumar, J
This petition by the plaintiff in Com.OS.No.7213/2012 on the file of the Commercial Court is directed against the impugned order dated 11.04.2023 passed on I.A.No.XIV, whereby the said application filed by the petitioner – plaintiff under Order XI Rule 5 r/w Section 151 CPC and Section 66 of the Indian Evidence Act to issue summons to respondent Nos.2 and 3 herein to produce documents was rejected by the Commercial Court.
Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record
A perusal of the material on record will indicate that petitioner – plaintiff instituted the aforesaid suit against respondent No.1 for recovery of a sum of Rs.270,11,91,123/- together with interest and for other reliefs. During the course of trial, petitioner filed the instant application seeking issuance of summons / notice to respondent Nos.2 and 3 to produce certain documents as enumerated in the application. In this context, it is relevant to state that in the suit before the Trial Court, respondent Nos.2 and 3 who have been impleaded as parties to the present petition are not arrayed as defendants to the suit. The said application having been opposed by respondent No.1 – sole defendant, the Trial Court proceeded to pass the impugned order rejecting the application – I.A.No.XIV, aggrieved by which the petitioner is before this Court by way of the present petition.
A perusal of the material on record will also indicate that respondent Nos.2 and 3 are the persons to whom summons / notice is sought to be issued for the purpose of summoning the documents as sought for in I.A.No.XIV.
Learned AGA for respondent Nos.2 and 3 on instructions submits that respondent Nos.2 and 3 would furnish the available documents or duly certified copies thereof as sought for in I.A.No.XIV in the suit before the Trial Court on the next date of hearing.
Learned counsel for respondent No.1 – defendant submits that in the event respondent Nos.2 and 3 produces the said documents before the Trial Court as stated supra, liberty may be reserved in favour of respondent No.1 to lead evidence in relation to the said documents. So also, learned Senior Counsel for the petitioner submits that upon respondent Nos.2 and 3 producing the aforesaid documents, liberty may be reserved in favour of the petitioner to adduce evidence in relation to the said documents.
In view of the aforesaid facts and circumstances and submissions made on behalf of the parties, I deem it just and appropriate to set aside the impugned order and dispose of I.A.No.XIV by issuing certain directions.
In the result, I pass the following:
ORDER
(i) The petition is hereby allowed.
(ii) The impuned order dated 11.04.2023 passed on I.A.No.XIV in Com.OS.No.7213/2012 by the Commercial Court, is hereby set aside.
(iii) I.A.No.XIV filed by the petitioner – plaintiff stands disposed of directing respondent Nos.2 and 3 to produce documents enumerated in I.A.No.XIV or duly certified copies thereof on the next date of hearing before the Trial Court.
(iv) Liberty is reserved in favour of the parties to adduce oral and documentary evidence in relation to the said documents.
(v) In the event respondent Nos.2 and 3 do not produce the documents sought for in I.A.No.XIV or duly certified copies thereof, liberty is reserved in favour of the petitioner to adduce secondary evidence in relation to the said documents as contemplated under Section 65 of the Indian Evidence Act.
(vi) The Commercial Court before whom the aforesaid suit is posted on 21.03.2024 is directed to adjourn the matter to 15.04.2024 so as to enable respondent Nos.2 and 3 to comply with the directions issued in this order.
(vii) Registry is directed to furnish a copy of this order to the learned AGA appearing on behalf of respondent Nos.2 and 3 forthwith to enable compliance of this order.