Obligations under Section 15 of the Commercial Courts Act, 2015 and Order XI
of the Code of Civil Procedure: Liberal Interpretation by the Calcutta High
Court due to general lack of awareness
The Calcutta High Court had on 12th February, 2020 passed an order interpreting
the application of the provisions of Order XI Rule 1(5) of the Code of Civil
Procedure on the parties to a regular suit when it is transferred to the
Commercial Courts pursuant to Section 15 of the Commercial Courts Act, 2015 and
prescription of timelines under the Commercial Courts Act, 2015 from the date of
service of fresh summons upon the defendants.
The application was filed by the Plaintiffs for recalling and/or clarification
of an order dated 22nd January, 2020 wherein the plaintiffs were denied the
opportunity file 91 additional documents in the suit as they failed to comply
with Order XI Rule 1(5) of the Code of Civil Procedure which disallows the
Plaintiffs from relying “on documents, which were in the plaintiff’s power,
possession, control or custody and not disclosed along with plaint or within the
extended period” except by leave of Court and such leave to be granted by the
Court “only upon the plaintiff establishing reasonable cause for non–disclosure
along with the plaint.”
The application arises out of a suit filed in the year 2017 by the Plaintiffs
against 42 defendants as a regular suit before the Calcutta High Court and by an
order of the Calcutta High Court dated 7th January, 2019, the regular suit was
ordered to be “renumbered as a commercial cause”.
The ground for filing the application was that the plaintiffs’ advocate on
record was under the belief that the amended provisions of Order XI and the
Rules thereunder would come into effect only after the suit is renumbered as a
commercial cause. Based on that belief, the Plaintiffs had filed an amendment
application to amend the plaint filed by them to comply with the provisions of
the Commercial Court Act, 2015 but omitted to include 91 additional documents
required for proving the Plaintiffs’ cause of action in the suit due to which
the order dated 22nd January, 2020 was passed disallowing the Plaintiffs from
relying on such additional documents.
Due to the limited scope of appeal before a Commercial Appellate Court under
Section 13 of the Commercial Courts Act, 2015, the Plaintiffs had filed an
application for recalling and/or clarification of the order dated 22nd January,
The Court held that the issues before the court stem from “a general lack of
awareness of the procedural changes brought in by The Commercial Courts Act,
2015” and since there is no procedure in place for a designated indication for
commercial suits court as apprise by the department “the suit continues to
retain the old CS number”.
The Court further held that although the Plaintiffs failed to adhere to the
provisions under Order XI Rule 1 by failing to disclose the additional documents
in the amendment application, the plaintiffs had proceeded on the belief that
the provisions under Order XI “would kick in only after the suit is renumbered
as a Commercial Cause”.
The Court observed that the lack of familiarity with the "transformed procedural
regime” on the part of the plaintiffs “was compounded by the department's
silence” with regard to the subsequent steps to be taken by the plaintiffs in a
transferred suit under the Commercial Courts Act. Thus,
“…a collective lack of acquaintance with the new rules cannot result in putting
roadblocks to a litigant's right to present its best case for a complete
adjudication of the issues which are to be decided in a suit…..The stage
contemplated under Rule 1(9) and (10) of Order XI concerning filing of all
documents with the written statement or counter claim is a mirror of Rules 1(4)
and (5) of Order XI. The construction of the rules leads to the inescapable
conclusion that all the parties to a commercial suit must be given a fair
opportunity to disclose all documents in their power and possession at the
relevant point of time with a declaration on oath under Order VI Rule 15-A(5) as
The court also opined that the Plaintiffs’ case was clearly a case where the
discretion contemplated under Rule 1(5) Court should be exercised in favour of
the plaintiffs as the plaintiffs and their advocate on record did not have the
benefit of a correct construction of the rules as to the stage of filing of the
The court also opined:
"Section 13 of the Commercial Courts Act limits the scope of appeal before a
Commercial Appellate Court which means that a litigant may not have recourse to
challenging an order passed by a Commercial Division under the amended
provisions of Order XI. This would mean that a party would not have the chance
to test the correctness of an order by which the party would not be permitted to
bring in urgent documents for all times to come.
This surely cannot be the intended objective of any legislation, far less a
legislation the nuances of which are yet to be fully comprehended by all
concerned including the court. A just and fair decision entails consideration of
all material documents throwing light on the controversy between the
parties. After all, can any party be deprived of its right to present its
complete evidence by reason of a collective awakening to the rigours of a new
procedural regime introduced by the 2015 Act?”
The Court while allowing the application of the plaintiffs/petitioners and
permitting them file all 106 documents (15 documents as already disclosed in the
plaint and 91 additional documents), directed the Plaintiffs to comply with the
stages enunciated by Order XI of the CPC.
The defendants who had already filed their written statements were allowed to
respond to the additional documents brought in by the plaintiff by way of
additional written statements or otherwise. The other defendants who had not
filed their written statements or had failed to enter appearance in the suit
were directed to proceed under the relevant rules of The Commercial Courts Act.
Furthermore, the Court while exercising its discretion under the proviso to
Section 15(4) of the Commercial Courts Act, 2015 directed that “the timelines
prescribed by the Commercial Courts Act will apply to the suit from the date on
which the summons are served on the defendants by the plaintiff.”
- The Plaintiffs/petitioners were represented by Senior Advocate, Mr. S.
K. Kapur, Senior Advocate, Mr. S.N. Mookherjee, Mr. Rudraman Bhattacharyay,
Ms. Priyanka Prasad, Mr. S. R. Kakrania, and Mr.Tanuj Kakrania.
- The Defendant No.1 was represented by Senior Advocate, Mr. Hirak Kumar
Mitra, Senior Advocate, Mr. Ratnanko Banerji, Ms. Suchismita Chatterjee and
- The Defendant No.3 was represented by Senior Advocate, Mr. Siddhartha
Mitra and Mr. Domingo Gomes.
- The Defendant Nos. 2, 4-6, 8-24, 26-30 & 32-38 were represented by Mr.
Siddhartha Datta, Ms. Surabhi Binani, Mr. Anupam Prakash and Mr. Utkarsh
- The Defendant No.39 was represented by Senior Advocate Mr. T.K. Bose.
- The Defendant Nos. 41 & 42 were represented by Senior Advocate, Mr.
Anindya Kumar Mitra, Senior Advocate, Mr. Soumabho Ghose, Ms. Anshumala
Bansal, Mr. Arunabha Deb, Mr. Tanmoy Chakravarty, Ms. Ashika Daga and Ms.
- The Defendant No. 40 was represented by Mr. Rishad Medora and Mr.
Avishek Roy Chowhdury.