Time to bury ‘pernicious practice’ of courts accepting documents in “sealed cover” against transparency : Bombay HC judge 

In her plea against developer Ranka Lifestyle Ventures, Tandle had said that she was entitled to a larger area in the redeveloped building.A division bench of Justice Girish S Kulkarni and Justice Rajesh N Laddha had earlier this year had noted that the developer in the project had not appeared before the court through the lawyer and continued to defy the court orders.  The developer and MHADA were issued show-cause notices to explain why the contempt action should not be initiated for continuous defiance of court orders. The developer was asked  to file a “disclosure affidavit” containing a list of unsold flats and financial statements.

Justice Patel-led bench noted, “We note that the previous Division Bench accepted without comment the tendering of some documents in sealed cover by the Respondent developer. This Court has previously thoroughly deprecated this practice. So has the Supreme Court, most recently in Madhyamam Broadcasting Ltd v Union of India case. We specifically disapprove of this and do not permit it.””…The simplest general principle is that anything that the Court can see, the opposing party must be allowed to see.  Any exceptions must be narrowly tailored, whether under the Evidence Act or some other governing law. Nothing in this matter invites a single one of the exceptions in the Evidence Act regarding privilege, i.e., immunity from disclosure,” it stated.

The bench said that in the United Kingdom limited disclosure or non-disclosures are permitted, mostly in  cases of national security or immigration” among others. “It is never for a party to decide for itself what it will or will not disclose,  most especially when there is an order of the Court ordering and compelling disclosure on affidavit,” the court noted.

It added that in the present case, due to non-compliance of judicial order, the same will invite contempt action against the respondent developer. “We refuse to accept these sealed covers,” the bench said and asked the respondent to place the information in sealed covers on an affidavit by Monday, September 11

In September, 2020, Justice Patel had said in his court, there will never be a question of anything being done “in sealed cover” and any document that the judge is privy to peruse, all parties to the case would be entitled to see.

The judge had said that this was the only method to ensure “an open and transparent decision-making process”. Justice Patel who was hearing a clutch of commercial arbitration pleas against Anugrah Stock & Broking Pvt Ltd, had also said that he cannot curtail rights of free press at the instance of parties to the case.