Moushumi Bhattacharya, J. - (1.) This is an application filed by the defendant no.2, JP Morgan Asset Management India Private Limited, for leave to produce further documents annexed to the application which are marked as 'A' to 'I' i.e. 9 documents. The suit was filed on 18th May, 2016 for a decree against the defendants for loss suffered by the plaintiff in relation to the plaintiff's investment in the Liquid Fund and the Treasury Fund which are debt funds of the first defendant. An application for rejecting the plaint and for deleting the names of some of the defendants was rejected by an order dated 24th August, 2018 by which the hearing of the suit was expedited. After the issues were settled on 24th January, 2019, the evidence of the plaintiff's witness was concluded on 13th January 2020. The examination-in-chief of the witness of the defendant no.1 commenced on 21st February 2020 and was due to resume in the middle of April, 2020 as the travel plans of the defendant's witness became uncertain by reason of the Coronavirus pandemic. The Physical hearings of Court matters were thereafter suspended from 23rd March 2020.
(2.) Mr. Jishnu Saha, learned Senior Counsel appearing for the applicant/defendant no.2 urges that four out of the nine documents which the defendant no.2 seeks to produce are in the public domain while one document has already been produced by the plaintiff. A list of what the defendant no.2 seeks to produce by way of the present application is given below; A) Web-pages from the respective websites of CARE, Brickwork, CRISIL and ICRA showing the respective credit rating scales of relevant debt instruments. B) Web-pages from the website of BSE containing Share Price Statement of Amtek Auto from January 2015 to August 2015. C) CARE Rating Statement dated 25th August, 2014 D) Brickwork Rating Statement dated 29th January, 2015 E) Research report of 5th January, 2015 relating to Amtek Auto F) Research Report of Amtek Auto dated 05th June, 2015 G) Bloomberg Screen Grab from the online portal of Bloomberg H) Monthly fact sheets from the Treasury Fund and the Liquid Fund from January 2015 to August 2015 I) Investment statement of the plaintiff in respect of its investment in the Liquidity Fund.
(3.) Counsel relies on Order VIII Rule (1-A) of The Code of Civil Procedure (the CPC) "Duty of defendant to produce documents upon which relief is claimed or relied upon by him" - which casts an obligation on the defendant to produce a document in court with the written statement which supports the defence or claim for set-off or counter-claim of the defendant. In essence, all documents in the possession or power of the defendant shall be filed with the written statement and the defendant can only produce a new document with the leave of the court. Counsel submits that the 9 documents became necessary to produce after the evidence given by the plaintiff's witness and that the present application was filed before the examination-in-chief of the defendant's witness commenced on 21st February 2020. According to counsel, since the written statements were filed before the suit was transferred under Section 15 of The Commercial Courts Act, 2015, the procedure prescribed under the mandatory provisions of the CPC will apply in this case. Even otherwise, counsel submits that under the proviso to section 15(4) of the 2015 Act dealing with transfer of pending suits, the court has discretion to prescribe a new time line under section 15(3) which provides that the 2015 Act will apply only to those procedures which were not complete at the time of transfer. In this case, since the written statements had already been filed before the suit migrated to the new regime under the Commercial Courts Act, the defendant will be governed by Order VIII Rule (1-A) of the CPC. Counsel submits that even if Order XI "disclosure, discovery and inspection of documents in suits before the Commercial Division of a High Court or a Commercial Court" of the CPC as amended by the Commercial Courts Act applies to the defendant, Order XI Rule 1 Sub-3 7(c) makes an exception to the obligation of a defendant to file all documents in its power, possession, control or custody, etc. where further documents are required for the cross-examination of the plaintiff's witnesses, or is not necessary to any new case set up by the plaintiff or handed over to a witness for refreshing his memory. Counsel also relies on Order XI Rule 1 Sub-rule 10 which preserves the power of a court to grant leave to a defendant to rely on further documents which were not disclosed along with the written statement upon the defendant establishing reasonable cause for such nondisclosure. Counsel submits that the plaintiff and/or its counsel will not be prejudiced as he will have the opportunity to cross-examine the defendant's witness on these documents.;