Order 5

Order Details: Notice of Motion
Pdf Text: NM No. 101376 / 2025 B.K. Infratech – Maharashtra Airport Order 1 of 6
City Civil and Sessions Court, Mazgaon Greater Mumbai
Court Room No. 31 – Commercial Court
MHCC010035832025
Notice of Motion Filed : 01.03.2025
Arguments Over : 10.03.2025
Decided on : 10.03.2025
Duration : 09 Days
Notice of Motion No. 101376 / 2025
from
Commercial Suit No. 100066 / 2020
Plaintiff : B. K. Infratech Private Limited
VERSUS
Defendant : Maharashtra Airport Development Company Limited
Appearances
Plaintiff
: Adv. Indrakumar Lahoti
Defendant
: Adv. Asmita Rajbhar
CORAM : H. H. JUDGE SHRI S. B. BHANSALI
COURT ROOM NO.31.
DATE : 10.03.2025
***************************************************************
ORDER
1) By the present Notice of Motion, the defendant seeks production of
the documents under Schedule A and B.
-- 1 of 6 --
NM No. 101376 / 2025 B.K. Infratech – Maharashtra Airport Order 2 of 6
2) The plaintiff by affidavit in reply opposed the said Notice of Motion
on the ground that it is filed after completion of plaintiff’s evidence and
at such a belated stage, the production of documents cannot be allowed.
With respect to the documents under Schedule B, the plaintiff stated
that there is no justification, given in the Notice of Motion nor there are
pleadings in the Written Statement which the defendant filed on
07.10.2020, therefore, production of the documents under Schedule B
cannot be allowed.
3) I have perused the record and heard the Ld. Advocates appearing
for the defendant and plaintiff. Points for consideration, findings and
reasons are as under:
Points Findings
1 Is the defendant entitled to the relief
as sought in the Notice of Motion?..... Partly in Affirmative
2 What Order? ………………………….. As per final order.
R E A S O N S
Reasons as to Point No. 1 & No. 2 :
4) The bone of contention of the arguments of learned Advocate for
the defendant is, the defendant in the Written Statement Dt. 07.10.2020
had already disclosed the facts in paragraph No.4(h) to 4(s) and these
documents were not in their power, possession, control or custody and
these documents were in the custody of the Engineer appointed by them
to supervise the work to be carried out by the plaintiff and now they
have received the documents from the said Engineer and accordingly
they are seeking leave to produce them on record by way of this Notice
of Motion. In respect of the documents in Schedule B, the Ld. Advocate
-- 2 of 6 --
NM No. 101376 / 2025 B.K. Infratech – Maharashtra Airport Order 3 of 6
for the defendant did not point out any pleadings/justification for not
producing it either with the Written Statement or within the extended
period of 30 days, as amended under the Commercial Courts Act, 2015.
5) As against this, the Ld. Advocate appearing for the plaintiff
strenuously argued that there is no absolute justification, given by the
defendant for production for leave to produce the documents under
Schedule A and B at such a belated stage and that too after conclusion
of the evidence of plaintiff. Alternatively, the Ld. Advocate submits that
if this Court inclines to allow the Notice of Motion, exemplary costs may
be saddled upon the defendant for such belated production of the
documents.
6) Having heard the Ld. Advocates appearing for the parties and
perusal of the record show that the defendant indeed had filed Written
Statement on 07.10.2020 on record, wherein vide Paragraph No.4(h) to
4(s), the defendant has discussed and relied on the documents which
the defendant is seeking leave to produce them on record under
Schedule A. In the affidavit in support of the Notice of Motion, the
defendant has given clear justification in not producing the documents
under Schedule A, on record, either along with Written Statement or
within the extended period of 30 days as these documents were not in
the custody, power or possession of the defendant.
7) It is an admitted fact that the Engineer Consulting Engineering
Services (India) Pvt. Ltd. was appointed by the defendant to supervise
the work, which was to be carried out by the plaintiff on the site in
question.
-- 3 of 6 --
NM No. 101376 / 2025 B.K. Infratech – Maharashtra Airport Order 4 of 6
8) Perusal of the documents under Schedule A shows that these are
letter communications addressed to the Site In-Charge of the plaintiff by
the Consulting Engineering Services (India) Pvt. Ltd. for the defendant
and the Chief Engineer of the defendant was kept in CC. The
explanation/justification given by the defendant for not producing the
documents under Schedule A on record within the stipulated time is
plausible and acceptable. Accordingly, on the preponderance of the
probability, I accept the same. Therefore, to the extent of granting leave
to the defendant to produce the documents under Schedule A on record
is liable to be allowed, however, as the defendant has applied for such
leave after almost 4 years from their filing Written Statement on record
and this being the Suit filed under the Commercial Courts Act, 2015
and keeping in mind very objective of the said Act, such leave can be
granted by saddling costs upon the defendant.
9) Now turning to the documents under Schedule B, it is abundantly
clear from the pleadings of the defendant as raised in the Written
Statement and contents in the present Notice of Motion and the reply
filed by the plaintiff to the said Notice of Motion that the defendant
nowhere pleaded nor placed reliance on the documents which are
described under Schedule B to the Notice of Motion. Therefore,
allowing or permitting the defendant to produce the documents under
Schedule B would not help the defendant in any way in proving the
defence raised by the defendant. It is trite law that in the absence of
pleading, the evidence which the defendant wants to lead by way of the
documents under Schedule B would not be admissible in the eyes of the
law. Hence, the Notice of Motion is liable to be allowed partially to the
extent of permitting the defendant to produce on record the documents
-- 4 of 6 --
NM No. 101376 / 2025 B.K. Infratech – Maharashtra Airport Order 5 of 6
under Schedule A. Hence, I answer point No.1 partially in the
Affirmative and to answer point No.2, I proceed to pass the following
order :-
ORDER
1. The Notice of Motion No.101376 / 2025 is partly allowed and
made absolute to the extent of leave to produce on record, the
documents under Schedule A to the notice of motion, subject
to costs of Rs.10,000/- and out of the said costs Rs.7,000/- to
be paid to the plaintiff and Rs.3,000/- to the DLSA, Mumbai
within 04 weeks from the date of uploading of the order.
2. The defendant to file compliance by next date.
3. It is needless to state that failure of the defendant to comply
clause 1 of the Operative Part of the Order, the Notice of
Motion No.101376 / 2025 shall stand dismissed with costs of
Rs.3,000/- payable to the DLSA, Mumbai.
4. Order dictated and pronounced in Open Court.
5. Proceeding of Notice of Motion No.101376 / 2025 is closed.
6. Record of Notice of Motion No.101376 / 2025 shall be part of
Commercial Suit No. 100066 / 2020.
Mumbai
Dated : 10.03.2025
(S. B. Bhansali)
District Judge,
Court Room No.31 - Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
Visit ecourts.gov.in for updates or download mobile app “eCourts Services” from Android or
iOS
-- 5 of 6 --
NM No. 101376 / 2025 B.K. Infratech – Maharashtra Airport Order 6 of 6
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
13.03.2025 11.05 a.m. Sonali S. Sawant
Stenographer - Grade III
Name of the Judge HHJ Shri. S. B. Bhansali
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
10.03.2025
Judgment/order signed by P.O on 12.03.2025
Judgment/order uploaded on 13.03.2025
-- 6 of 6 --