SIMPLIFYING THE COMMERCIAL COURTS ACT, 2015-II
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II. Order XI : Disclosure Discovery and Inspection of Documents in Suit before the Commercial Division of A High Court or a Commercial Court
The Order XI of Civil Procedure Code applicable to commercial disputes of specified value as introduced by the Commercial Courts Act, 2015 is different from the Order XI of Civil Procedure Code applicable to other Civil Disputes in material ways.
This order has 7 rules divided into sub-rules and sub-sub-rules as opposed to 23 rules in the Order XI applicable to other civil suits. A brief, Rule-wise discussion is given .It is necessary to start the discussion by referring to the last Rule 7 of this Order.
Under Rule 7: Certain provisions of the Code of Civil Procedure, 1908 not to apply, the following provisions of CPC are stated not be applicable to commercial disputes of specified value:
1. Order 13 Rule 1 – Original documents to be produced at or before the settlement of issues.
2. Order 7 Rule 14 – Production of documents on which plaintiff sues or relies
3. Order 8 Rule 1A – Duty of defendant to produce documents upon which relief is claimed.
The Rule 7 is closely associated with the Rule 1 where the inapplicable provisions of Order VII Rule 14 and Order VIII Rule 1Ahave been re-introduced.
The Rule1: Disclosure and Discovery of Documents –reintroduces the provisions of Order 7 Rule 14 under sub-rules 1 to 6. The rule 1(1-6) provisions deal with the procedure for plaintiffs to file all available documentary evidence in his power, possession, control or custody along with the plaint in the form of a list. The noteworthy feature of this rule is that photocopies of documents are stated to be admissible for filing after declaration of their full and true disclosure has been made in the statement of truth. In case of urgent filings, a time of 30 days have been allowed for the plaintiff to file additional documents which could not be a filed along with the plaint. The sub-rules 7 to 11of Rule 1, the provisions of Order 8 Rule 1A are reintroduced. Under Rule 1(7-11), provisions as to filing of all available documents along with the written statement by the Defendant have been laid out along with requirement of declaring their full and true disclosure on oath with the statement of oath.
The Order XI 1(12) pertaining to duty to disclose documents to subsist till the disposal of suit is common to both Plaintiff’s and Defendant’s disclosure of documents.
Under Rule 2 : Discovery by interrogatories, the pari-materia provisions of Order 11 under rules 1-11 applicable to civil suits have been verbatim retained .
Under Rule 3 : Inspection, much clarity as compared to the provisions for inspection contained in the Order XI applicable to other civil disputes has been introduced. A time of 30 days has been allowed for the purpose of inspection of documents further extendable by 30 days by the Court after the written –statement and/or the written-statement to counter-claim have been filed. Further, provisions have been introduced whereby a party cannot rely on a document not disclose by it or not permitted to be inspected by other party at the relevant time. Provisions for imposition of exemplary costs has also been introduced against defaulting parties failing to disclose to all documents.
Under Rule 4: Admission and Denial of documents, the conditions have been imposed on
parties to suit to state in their affidavit explicitly whether they are admitting or denying:
(a) Correctness of contents of a document
(b) Existence of a document
(c) Execution of a document
(d) Issuance or receipt of a document
(e) Custody of a document
The important feature of this rule is that it is in addition to Order XII : Admissions provisions
of CPC,1908.
The Rule 5 : Production of documents. The Court or any party to a proceeding may seek production of documents from other party at any time during the suit proceedings which the other party would be obliged to produce within 15 days unless sufficient reasons exist for non-production of the same.
The Rule 6 : Electronic Records makes mention of disclosure and inspection of electronic records as defined in the Information Technology Act, 2000 while providing that print outs of electronic records are sufficient for production as valid documents in addition to audio and video content subject to satisfaction of the Court as regards the admissibility of the electronic records. The need to produce originals of these print outs has been done away with subject to certain exceptions.
It may also be mentioned that in the Order XI applicable to other civil suits, provisions for inspection and production of documents are interspersed between Rules 12 and 21. But in the Order XI applicable to commercial suits, the same are neatly provided under Rule 3 and Rule 5 respectively.
In light of the above discussion on Order XI as applicable to Commercial Courts Act, 2015, a comparison becomes necessary to the Order XI, CPC.
| Order 11 Code of Civil procedure, 1908 | Order 11 applicable to Commercial Courts Act, 2015 | |
|---|---|---|
| Heading | Discovery and Inspection | Disclosure, Discovery and Inspection of documents in suits before the Commercial Division of a |
| Rules | 23 Rules | 7 rules, divided into sub- rules |
| Special feature | Order applicable to minors & their next friends and guardians of persons under disability. | Applicable to Commercial Suits |
| Disclosure by Plaintiff | Order 7 Rule 14 applicable | Pari Materia provisions of Order 7 Rule 14 inserted in Rule 1(Sub rule 1-6) |
| Disclosure by Defendant | Order 8 Rule 1A applicable. | Pari Materia provisions of Order 8 Rule 1A inserted in Rule 1 (Sub rule 7- 11) |
| Discovery by Interrogatories | Rules 1 to 11 and 22 to apply | Rule 2 to apply. All provisions same as Order XI applicable to other civil suits |
| Inspection | Rules 15, 17 and 18 to apply | Rule 3 to apply |
| Admission & Denial | Order 12 of CPC to apply. No provision in Order XI | Rule 4 to apply along with Order XII, CPC, |
| Production of documents | Rules 12,13,14, 16 & 21 to apply. | Rule 5 to apply |
| Discovery by Interrogatories | Rules 1 to 11 and 22 to apply | Rule 2 to apply. All provisions same as Order XI applicable to other civil suits |
| Electronic Record | No specific provision | Rule 6 specifically for production of electronic derived evidence in the form of photocopies, audio and visual content. |
| Non- applicability of certain provisions | Under Rule 7 Specific exclusion : – Order 13 Rule 1 for production of original documents; – Order 7 Rule 14 for production of Plaintiff’s documents; and – Order 8 Rule 1A for production of Defendant’s documents |
Provisions of Order XI under rules 18-23 relating to Order for inspection 1 ,Verified Copies 2 , Premature Discovery 3 ,Non-compliance with order for discovery 4 , Using answers to interrogatories at trial 5 , and Order to apply to minors 6 have not been given any place in the Order XI constituted for the Commercial Courts Act.
1 Order 11, Rule 18 of CPC, 1908
2 Order 11, Rule 19 of CPC, 1908
3 Order 11, Rule 20 of CPC, 1908
4 Order 11, Rule 21 of CPC, 1908
5 Order 11, Rule 22 of CPC, 1908
6 Order 11, Rule 23 of CPC, 1908
Much of the newly introduced provisions under Order 11 revolve around the idea that commercial disputes arise between parties in commercial transaction where a purely electronic form of documentation might be there without any physical form of Contract.
Seen in this light, it is understandable why the three provisions as mentioned above have been made in applicable to the commercial disputes under Rule 7.
Rule 1 and Rule 6 both amply cover situations where Rule 7 restrictions regarding filing of documents and production of original documents come into play.
Conclusion:
The Order XI applicable to Commercial Courts Act, 2015 is a paradigm shift over Order XI, CPC. It is like a common window for requirements of procedure pertaining to disclosure (filing of documents), service of interrogatories for examination of parties, admission & denial and inspection and production of documents with added feature of admissibility of electronic documents by parties under supervision of the Court under specified time-frames.
No doubt, the purpose behind the amendment is to shorten the time of trial of Commercial Suits with a view to decide the commercial dispute of a specified value in a timely and gainful manner.