'Civil Proceedings Mean Nothing To Parties, Because Courts Are So Lax' : Supreme Court

Order dated 14.01.2016 also noticed the fact that the pecuniary jurisdiction of the High Court had been enhanced. The Court by order dated 14.01.2016 transferred the Records to the jurisdictional Court under the District & Sessions Judge and directed the parties to appear before the District Judge on 22.03.2016.

It is an admitted position that said order dated 14.01.2016, under Order 11 rule 12 CPC, was not complied with by the appellant within the period of eight weeks.

Thereafter, on 18.11.2017 subject application under Order 11 Rule 21 CPC was filed by the respondent seeking striking off of the defence of the petitioner for failure to comply with order dated 14.01.2016.

The Trial Court by the impugned order dated 04.08.2018 noticed that the contention raised by the petitioner was that the records sought to be produced are old and as such could not be produced. The Trial Court held that such a contention, if at all, should have been raised before the High Court at the time of consideration of the application under Order 11 Rule 12 CPC and not at the said stage.

The Trial Court has also held that the contention of the petitioner that the concerned officers who were in-charge of the relevant record had left their organization was a vague plea as neither detail of such officers nor facts relating to them leaving the organization had been furnished.

The Trial Court accordingly held that since there was no compliance by the appellant of the order dated 14.01.2016, the defence was liable to be struck off and consequently it was struck off.

In appeal, the Single Judge of the Delhi High Court noted that the reply to the application under Order 11 Rule 12 CPC itself shows that the stand was not that the documents were not available but the stand taken by the petitioner at the time was that the documents are very voluminous. "This objection of the appellant was addressed by the learned Single Judge while passing the order dated 14.01.2016 under Order 11 Rule 12 CPC wherein it is specifically directed that the work protocols entered into by the appellant with BHEL would be limited to such work protocols which had a direct bearing on the work which was sub contracted by BHEL to the respondent and the work protocols which had no bearing need not be discovered. This narrowed down the volume of the documents which the appellant was required to discover", observed the Single Bench.

The High Court noted that admittedly, the appellant did not comply with the order within eight weeks as directed by the Court. Even thereafter, when the application was mistakenly being taken up by the Trial Court afresh on 12.04.2017, it was pointed out by the appellant themselves that the application already stood disposed of. "This shows that the once again on 12.04.2017 were reminded of the order dated 14.01.2016. Despite being once again reminded about the said order, it was not complied with", said the Single Judge

The bench reflected that an affidavit dated 12.02.2018, alleged to have been filed in response to the order dated 14.01.2016 is filed alongwith the reply to the application under order 11 rule 21 seeking striking off the defence. "This affidavit is filed exactly after one year of 12.04.2017 and that is over two years and three months after the passing of the original order. As noticed above, the appellants have still not discovered the documents as directed. The affidavit is completely vague. In the affidavit appellant has not shown as to why and how these documents are no longer in their possession, custody or power. The stand rather is that the defendant has not been able to trace these documents (if at all these were available with the defendant during the execution of the Project)", said the Single Judge

The bench noted that it is not denied that the work protocols were executed at the relevant time, and that by the nature of the documents, they were to be in possession of the appellants.

"Since appellant has not given any explanation, it is clear that appellant is refusing to discover the said documents. Adverse inference is also liable to be drawn that the discovery of documents would not be favourable to the appellant for their defence. In that view of the matter, I find that this is an extreme case where the provisions of Order 11 Rule 21 CPC should be applied. The conduct of the appellant as noticed above would clearly bring it within the category of extreme cases, where there is contumacy on the part of the defendant or a wilful attempt to disregard the order of the court as laid down by the Supreme Court in Babbar Sewing Machine Company vs. Trilok Nath Mahajan (1978)", said the High Court in dismissing the appeal.

In Babbar Sewing Machine Co. v. Tirlok Nath, the Supreme Court held that the power for dismissal of a suit or striking out of the defence under Order 11 Rule 21, should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party.