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Judgment
C.O.S.No.6 of 2016 on the file of Principal Special Court in the cadre of District Judge for Trial and Disposal of Commercial Disputes at Hyderabad is filed praying to declare that the defendants are jointly and severally liable to pay the claim amount of 90,00,00,000/- to the plaintiff for business interruption and loss of profit under the Mega Risks Policy Nos.552600/11/13/ 3400000044 dated 01.07.2013 and 552600/11/14/3400000043 dated 01.07.2014 issued by the first defendant and consequently direct the defendants jointly and severally to pay 1,11,60,00,000/- being the total of the principal claim amount of 90,00,00,000/- and interest of 21,60,00,000/- and to direct the defendants to pay further interest @ 12% per annum on the principal claim amount of 90,00,00,000/- from the date of the suit till date of full payment of the principal amount.
The suit initially filed before the Civil Court was transferred to the Commercial Court after it was established. As required by the amended Civil Procedure Code, 1908 applicable to Commercial Courts, the Commercial Court passed orders on 02.12.2015 determining the Case Management Hearing. Order on first Case Management Hearing reads as under:
“Both the parties shall file documents, if any not filed which are relevant, by 08.01.2020”.
Taking clue from this Order of the Commercial Court, on 08.012020 plaintiff filed list of documents. On 02.03.2020, plaintiff filed I.A.No.150 of 2020 praying the Commercial Court to receive additional documents filed under the list of documents dated 08.01.2020 and to mark the said documents. The said application was opposed by the defendants.
On consideration of the respective submissions, by Order dated 05.08.2020, the Commercial Court dismissed the said I.A. The Commercial Court observed that plaintiff is under obligation to disclose list of all the documents and relevancy of the documents in plaint. The Court below observed that plaintiff did not mention about the documents in the plaint and has not stated the reasons for not filing those documents when plaint was presented. The Court below further observes that the documents filed now under Serial Nos.2 to 6 are nothing to do with the pleadings of the plaintiff. It is further observed that plaintiff has only filed the notarized copies and has not filed the originals. The lower Court observed that when plaintiff has filed notarized copies, it is under an obligation to explain as to why notarized copies are being filed and why their originals are not being filed and petitioner should disclose where the originals are available. The lower Court further observed that the affidavit filed in support of the petition does not contain any single reason for not filing the documents earlier.
The defendants filed I.A.No.425 of 2021 praying the Hon’ble Court to direct the plaintiff to file all the papers in three claims as stated by GAIL (India) Limited before the Hon’ble Court i.e, petition, counter, written statements and documents filed by both parties in the Court/ before Arbitration Tribunal between Nagarjuna Fertilizers and Chemicals Limited (NFCL) and GAIL (India) Limited for the same cause of action. Though the said petition was opposed by the plaintiff stating that the said documents have no relevance as dispute in the suit is different from the dispute pending before the Arbitrator, overruling the objection, the Court below allowed the I.A,., directing the plaintiff to file copies of the claim statements, statement of defences and other documents filed by it before the learned Arbitral Tribunal.
Aggrieved by the Order in I.A.No.150 of 2020, plaintiff filed CRP No.2970 of 2022 and aggrieved by the Order in I.A.No.425 of 2021, plaintiff filed CRP No.2962 of 2022. As these two Revisions arise out of two interlocutory orders passed in the same suit and parties to both revisions are same, we have heard both the Revisions together and this common order is passed.
CRP No.2970 of 2022:
Learned senior counsel Sri V.Srinivas contends that the trial Court grossly erred in holding that the plaintiff has not disclosed in the plaint about the documents now sought to be presented. He has drawn our attention to the averments in paragraph-3 of the plaint to show that in the said paragraph, he has discussed about the documents. With reference to further observation of the lower Court regarding filing of notarized copies, he would submit that all the documents are filed before the Arbitrator and the Arbitrator is not competent to furnish certified copies of the documents filed before him and, therefore, only notarized copies are filed.
Learned counsel for the respondents contends that these documents were very much available with the plaintiff when the suit was instituted. Therefore, he ought to have filed those documents at the time of institution of the suit. He would submit that as per the Order XI of CPC, as amended by the Commercial Courts Act, all the documents have to be presented along with the plaint only and no documents can be filed after the plaint was filed. Only in exceptional circumstances, trial Court may permit filing of additional documents. The suit is of the year 2016 and all the documents were available with the plaintiff, therefore no case is made out by the plaintiff to file these documents at this distance of time and in view of the specific provision in CPC as amended by the Commercial Courts Act, it is not permissible to file such documents at this stage. He would further submit that in matters concerning orders of the Commercial Court, jurisdiction of the High Court is very limited. The High Court can interfere if the order passed by the Commercial Court is patently illegal, whereas in the instant case, Commercial Court has considered all the aspects and having regard to the provision in CPC as amended by the Commercial Courts Act, the Commercial Court has exercised its discretion and has not committed any error in exercising its jurisdiction warranting interference by this Court.
In the normal circumstances and when suit is instituted before the Commercial Court after Commercial Court is established, what is contended by the learned counsel for respondents is valid and the filing additional documents after presentation of the plaint cannot be permitted except in extraordinary circumstances subject to satisfaction of the Commercial Court. However, the instant case was filed before the regular Civil Court and later, it was transferred to Commercial Court after establishment of the Commercial Court. As required by Order XV-A of CPC, as amended by the Commercial Courts Act, the Commercial Court is required to prescribe Case Management Hearing. While prescribing the Case Management Hearing schedule, the Commercial Court also ordered the parties to file the documents, if any not filed and which are relevant, by 08.01.2020. This order of the Commercial Curt has become final. Thus, in terms of this order, plaintiff is entitled to file additional documents, which are not filed and which are relevant. In view of the case management order passed by the Commercial Curt, plaintiff filed the list of documents on 08.01.2020 and filed I.A.No.150 of 2020 praying the Commercial Court to receive additional documents and to mark the said documents.
In paragraph-3 of the affidavit, plaintiff explained the reasons why he intends to file additional documents. He stated that the Surveyor appointed by the defendants visited the premises of the plaintiff and prepared survey report, which was relied by the defendants and have not disputed about the supply of gas by M/s.GAIL India Limited and M/s.Reliance Industries Limited (RIL). It is further averred that defendants in their written statement have made bald allegations about the relevance of the documents and denied the supply of gas and plaintiff was put to strict proof of averments and in those circumstances, plaintiff sought to file additional documents.
We have also seen the averments in paragraph-3 of the plaint. In the said paragraph, plaintiff has listed out the documents, which he now seeks to present before the lower Court. Therefore, the lower Court grossly erred in observing that plaintiff has not mentioned about the documents in the plaint, which clearly shows non-application of mind on the part of the Court below. We are satisfied that the plaintiff has shown sufficient cause to file the additional documents.
We see merit in the contention of learned senior counsel on filing notarized copies. According to the learned senior counsel, the original documents are filed before the Arbitrator. This fact is not disputed.
Having regard to the case management order and the reasons assigned by the learned senior counsel, noted above, we are of the opinion that the lower Court grossly erred in rejecting the application to receive additional documents. The Civil Revision Petition is accordingly allowed setting aside the order under challenge and the Court below is directed to receive the documents and mark the said documents subject to relevance and proof. Plaintiff is directed to file certified copies of the documents filed on 08.01.2020.
CRP NO.2962 OF 2022:
Learned senior counsel for the plaintiff sought to contend that all the documents sought by the defendants are filed before the Arbitrator and the Arbitrator is not competent to issue certified copies filed before him. Therefore, the lower Court grossly erred in directing the plaintiff to obtain certified copies from the Arbitrator. He would further submit that the issue raised before the Arbitrator is entirely different from the issue raised in the suit and, therefore, lower Court grossly erred in directing the plaintiff to secure the documents, which have no relevance.
According to the plaintiff, plaintiff uses natural gas supplied by M/s. GAIL India Limited and M/s.Reliance Industries Limited as raw material and fuel in the process of manufacturing Ammonia and Urea in two manufacturing units at Kakinada plant. Plaintiff has entered into contracts with the said companies. Plaintiff obtained Mega Risk Policy covering various insurable perils from the 1st defendant with participation of other defendants to insure the buildings, stock-in-progress, plant and machinery, mechanical and electrical equipment, other equipment, operational business interruption etc., against all risks as per the terms of the policy.
According to the plaintiff, while plant was operating at capacity of 4000 MT per day, on 27.06.2014, GAIL informed the plaintiff about a fire accident in a section of the gas pipeline from Tatipaka Terminal towards Vijayawada at 05.45 a.m., on 27.06.2014 near Nagaram Village, East Godavari and that the efforts were being made to control and extinguish the fire. On 3.07.2014, gas supply to the plant from GAIL was stopped and only gas from RIL was supplied to the plaintiff’s plant and, therefore, plaintiff had to shutdown Unit-I at 8.20 a.m., on 03.07.2014. According to the plaintiff, the gas supply from RIL was also stopped from 20:00 hours on 06.07.2014. As a result, Unit-II was also shutdown and production was completely stopped in the plaintiff’s plant. According to the plaintiff, huge loss caused to the plaintiff and, therefore, plaintiff wants the insurance company to reimburse the loss caused to the plaintiff. Simultaneously, plaintiff also proceeded against two gas companies claiming compensation for non supply of gas. Therefore, the issue raised in the suit as well as in the arbitration proceedings are interconnected.
Having regard to the dispute involved, we do not see any error in the decision of Court below directing the plaintiff to file documents mentioned in the affidavit filed in support of I.A.No.425 of 2021. This Revision is accordingly dismissed.
In the result, (1) C.R.P.No.2970 of 2022 is allowed, setting aside the Order under challenge and the Court below is directed to receive the documents and mark the said documents subject to relevancy and proof. However, plaintiff is directed to file certified copies of the documents filed on 08.01.2020 within three weeks from the date of receipt of copy of this Order; (2) C.R.P.No.2962 of 2022 is dismissed. Pending miscellaneous applications if any shall stand closed.