Additional Documents In Commercial Suits: How Order XIIIA Circumvents The Bar Created By Order XI

In contrast, Order XIIIA of the CPC, applicable to commercial disputes defined under the 2015 Act, allows for summary judgments without recording oral evidence, provided there is no real prospect of the opposite party succeeding. This provision also permits the parties to include additional evidence in their application or reply, and also for the hearing of summary judgement without meeting the stringent requirements of Order XI of the CPC.

The short question that this article seeks to answer is whether the additional evidence adduced by the parties under Order XIIIA of the CPC can be relied on in the main suit where the application for summary judgement has been rejected, or only partly allowed by the court.

Summary Judgements under Order XIIIA of the CPC

The intent behind Order XIIIA of the CPC is to provide a remedy independent, separate and distinct from a summary suit under Order XXXVII of the CPC. To that end, a summary judgement is clearly distinguishable from a summary suit under Order XXXVII of the CPC which is only applicable in a narrow factual matrix. Order XIIIA of the CPC, conversely, is broader in its operation for the following reasons:

1. It allows the court to decide any claim, part of the claim or any question relating to a claim in a summary manner, as opposed to Order XXXVII of the CPC, where the whole suit has to be determined.
2. It applies to all commercial disputes, whereas Order XXXVII of the CPC applies only to suits where the claim is liquified, or arises from a narrow set of facts.
3. An application for Order XIIIA of the CPC may be preferred by either party whereas a summary suit can only be preferred by the Plaintiff.

Further, an application under Order XIIIA of the CPC can be moved at any stage of the proceedings.

Lastly, but most importantly for our purposes, Rule 5 of Order XIIIA of the CPC allows the party applying for the summary judgement to bring on record additional documents based on which it is seeking a summary disposal. It is worth noting that unlike Order XI of the CPC, Order XIIIA Rule 5 of the CPC does not require the parties to establish any reasonable cause for production of new documents at a later stage.

The Conflict

The effect of the aforementioned is that firstly, an application under Order XIIIA can be moved even at the later stages of a proceeding; and secondly, such application can bring on record new documents without proving any reasonable cause for the initial non-disclosure. This is in blatant contrast to the strict mandate imposed by Order XI, which in express terms requires that no additional documents can be allowed to be brought on record unless it is proved that production of such documents at the initial stage was not possible for reasons beyond that party's control.

This conflict is not merely academic but rather practically undesirable and also patently illegal. As things stand, a party who is precluded from bringing on record new documents because of the rigours placed by Order XI, can strategically use Rule 5 of Order XIIIA to bring such documents on record in clear violation of the requirements placed by Order XI. A party can simply withhold documents at the institution of the suit, contrary to Order XI, and later introduce them to either obtain a summary judgement against a hitherto oblivious party, or to require such documents to be countered or disproved at a belated stage in the proceedings in clear violation of the object of speedy disposal in commercial suits.

Flawed Interpretation

It is clear that the amended Order XI has been inserted with the intent to achieve the objects of the 2015 Act, which is to facilitate an early disposal of high value commercial disputes. The ApexCourt has ruled that a strict interpretation of the Act is essential to achieve its goal of fast-tracking commercial disputes and a lenient interpretation would contradict the Act's very purpose, as highlighted by terms like "early" and "speedy" in its Statement of Objects and Reasons. Therefore, Order XI has to be interpreted strictly to preserve its intent of speedy disposal of commercial disputes by upfront disclosure of all documents, preventing any unnecessary delay later in the proceedings.

If the amendments brought forth to Order XI are allowed to be bypassed using other provisions, then it will be clearly and patently violative of the 2015 Act and the amendments introduced therewith. In a recent case before the Bombay High Court, where an attempt was made to introduce new documents under an Order VI Rule 17 application in a commercial suit, it was observed by the court that:

“21. In other words, if the approach canvassed on behalf of the Applicant is accepted, the Applicant i.e. Plaintiff would be able to avoid the mandatory requirement of Order XI Rule 1(5) of the CPC, as applicable to commercial suits, of establishing reasonable cause for non-disclosure of a document along with the plaint. The Applicant could simply annex documents to an application under Order VI Rule 17 of the CPC and avoid the rigor of Order XI of the CPC, as applicable to commercial suits. This cannot be permitted, as it would run counter to the objects and reasons for enactment of the Commercial Courts Act and the specific amendments brought about in the CPC.”

[Emphasis Supplied]

Similarly, introducing additional documents under Order XIIIA Rule 5 without establishing any reasonable cause as required by Order XI is also equally impermissible and illegal. If parties to a commercial dispute are allowed to subvert Order XI in such a manner, then the provisions of the 2015 Act and CPC as amended specifically with a clear object and made applicable to commercial suits will be rendered ineffective and otiose. Such an interpretation of the two provisions, which effectively renders Order XI toothless, is contrary to the basic principles of interpretation. It has been settled by the Hon'ble Supreme Court that apparently conflicting provisions of a statute should be harmoniously construed for giving effect to all the provisions as far as it may be possible, and any interpretation which may render any of the provisions ineffective or otiose is to be avoided.

Therefore, to achieve the intended efficiency in commercial disputes, an urgent solution is required. The courts need to interpret Order XIIIA Rule 5 restrictively in light of Order XI's mandate with a view to harmonise the two provisions. To that effect, documents should only be allowed to be relied on for a summary judgement if those documents meet the requirements of Order XI. Ultimately, the aim should be to ensure upfront disclosure while allowing for exceptional circumstances where new, hitherto unavailable documents come to light.

The author is a 5th Year student at Hidayatullah National Law University, Raipur. Views are personal.