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TMI Blog2003 (12) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... and (2) a sum of Rs. 3,77,21,54,857 with interest at the rate of 12% per annum on the principal amount of Rs. 48,11,00,000. 2. This motion taken out by respondent No. 1 herein seeks through prayer (a) to produce and rely upon the documents listed in the schedule annexed to the motion. Prayer (b) seeks that Mr. Ravi Parthasarthy, Managing Director of ILFS, who has verified the plaint and who has filed an affidavit on 4th August, 2003, be ordered to attend cross-examination. Mr. Kapadia and Mr. Dhond appearing for the appellants object to both these prayers being granted. 3. Now as can be seen from paragraph 33 of the order passed by the learned Single Judge, it was at the last moment at the close of the arguments before him that the respondents herein produced two letters before the learned Single Judge, which were enclosed as Exhibits 1 and 2 to an affidavit dated 25th July, 2003, and the learned Judge allowed them in the interest of justice. As seen from paragraph 33 of the impugned order, the two letters have gone in a great way to decide the matter in favour of the respondents. 4. When the present appeals were filed, the appellants took out two motions therein bearing Nos. 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents had to be obtained from the Bankruptcy proceedings in U.S. Mr. Kapadia, on the other hand, submitted that practically all of them are listed in the list of documents filed with the written statement and the belated production is not justified. That apart, prayer (b) of the motion is to seek cross-examination of Mr. Ravi Parthasarthy, Managing Director of Infrastructure Leasing and Financial Services, which is a shareholder of the appellant company. Mr. Kapadia has stoutly opposed this request being considered. 7. Mr. Desai, learned Counsel for the respondents, submitted that some of the documents, which were now being produced, were documents which ought to have been produced by the appellants themselves since they are documents concerning their record. Documents at Sr. Nos. 4, 7, 9 and 11 to 14 are such documents. Rest of the documents are from the record of Iridium LLC which is in liquidation and there was much difficulty in obtaining them. Mr. Desai has no objection to the two letters produced by the appellants being considered. He however submits that in the interest of justice, these documents be also taken on appeal record. Mr. Desai referred to the observations of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in State of Rajasthan v. N. Sahani (2001) 10 SCC 619, A.P. State Wakf Board v. All India Shia Conference [2000] 2 SCR78 and R.R. Naidu v. State of M.P., (2000) 10 SCC 141. 10. Mr. Dhond with Mr. Kapadia submitted that no case is made out under sub-clauses (a) or (aa) of Rule 27(1) of Order 41 of Civil Procedure Code and the power under sub-clause (b) should not be invoked for the benefit of any party which may attempt to improve upon its case. Mr. Dhond, learned Counsel for the appellants, relied upon a good number of judgments to oppose the motion of the respondent No. 1. To begin with, he referred to and relied upon the judgment of Privy Council in the case of Kessowli Issur v. Great Indian Peninsule Railway Company, reported in I.L.R. 31 Bom. 381, for the observations therein on the phrase. "If the Appellate Court requires" occurring in section 568 of the then prevalent Civil Procedure Code of 1882, which phrase is similar to the phrase occurring in Rule 27(1)(b) of the Civil Procedure Code of 1908, namely that the Appellate Court requires any document to be produced. The Privy Council observed in that behalf on page 390 of the report as follows: "On this phraseology, "in app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord. The Apex Court held in paragraph 9 of the judgment that this provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment. It is only for removing the lacuna in evidence that the appellant is empowered to produce additional evidence. In that matter, the High Court did not say that there was any such lacuna. On the other hand, it said that certain documentary evidence on record supported in a large measure the plaintiffs contentions about fraud and mala fides, and then the Apex Court observed "we must point out that the power under Clause (b) of sub-rule (1) of Rule 27 cannot be exercised for adding to the evidence already on record except upon one of the ground specified in the provision". Mr. Dhond emphasised the fact that this was also a Constitution Bench judgment and this was subsequent to the one in the case of K. Venkataramiah v. Seetharama Reddy [1964] 2 SCR 35 relied upon by Mr. Desai. It is however material to note that this judgment in the case of Municipal Corporation of Greater Bombay does not refer to the earlier judgment in the case of Venkataramiah (supra). The judgment in Ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was already adjourned for orders before the Single Judge. The respondent No. 1 was already under criticism for producing two documents before the Single Judge at the last stage. These documents are being produced to show the knowledge of the appellants with respect to various stages of the transaction in controversy. Mr. Desai showed a willingness that if the appellant felt so prejudiced, the respondent No. 1 was ready to leave it to the Court that the impugned order be set aside and the matter be sent down again to the Single Judge to decide the motion afresh in the light of these documents. However, it is the appellants themselves who did not want any remand to the trial Court on the ground that this will result into further delay in decision on their motion in the suit. 15. We have considered both these requests. The submission of Mr. Kapadia and Mr. Dhond is undoubtedly correct that from time to time the respondents are producing more and more documents. Mr. Desai has however taken us through the documents and having gone through them, we are of the opinion that it would be desirable that the respondents are permitted to produce these documents so that the entire material w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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