Order 1

Order Details: Order below exhibit
Pdf Text: Order below Exh. 41 and 42 1
in Suit No. 297 of 2018
MHCC010006882018
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
ORDER BELOW EXH. 41 and 42
IN
SUIT NO. 297 OF 2018.
1.Induslnd Bank. … Defendant No.1
3.Mr. Prakash V. Makhija. ...Defendant No.3
4.Mr. Srichand Makhija. ...Defendant No.4/
Applicants
In the matter of :-
M. Rajiv S. Khanna & Ors. ..Plaintiffs.
V/s.
1. Induslnd Bank & Ors. ..Defendants.
Appearances :-
Adv. Ali Abbas Delhiwala a/w Adv. Tripty Kapadia i/b Adv. Joy Legal
Consultants for plaintiff.
Adv. Megha Jani for defendant No.1.
Adv. Mr. Jai Jagdish Chhabaria Counsel a/w Adv Shankar Mhatre for
defendant Nos. 3 & 4
Coram : Shri.U. C. Deshmukh.
C.R. No.: 59.
Date : 25/09/2023.
-- 1 of 8 --
Order below Exh. 41 and 42 2
in Suit No. 297 of 2018
ORDER.
The application below Exh. 41 is moved by defendant No.1
and application at Exh.42 is moved by defendant Nos.3 & 4 seeking one
and similar prayer to reject the plaintiff’s affidavit of evidence dated
18.04.2013 and 12.07.2023 filed at Exh.15 and Exh.15A respectively.
2. It is contention of defendant that affidavit at Exh.15 and
15(A) (in short ‘affidavits’) are violating the provision of Order 19 rule
3 of the Code of Civil Procedure (in short ‘Code’). Defendants
specifically contend that affidavits are not in consonance with the
provision of Order 19 rule 3 of the Code. The witness does not state in
verification clause as to the matter narrated in affidavit to which facts
are relating to his own knowledge and fact which he believes.
Therefore, prayed to reject affidavit.
3. Plaintiffs filed his reply at Exh. 43 and 44. It is his
contention that applications are filed at belated stage. Once affidavits
are marked as exhibits those cannot be taken off the record.
Applications are moved to prolong the matter when the Hon’ble High
Court expedite the matter. Applications are nothing but abuse of
process of law. Hence, prayed to reject the application.
4. Ld. advocate for defendant No. 3 & 4 argued that affidavit
at Exh. 15A are beyond pleadings. Hence, both affidavits cannot stands
on record. He also argued that affidavit at Exh. 15A is filed to fill up
lacuna in pleadings. The affidavits suffer from verification clause. The
witness of the plaintiff ought to have state as to which facts deposed are
as per his own knowledge and belief. Affidavit are not in consonance
-- 2 of 8 --
Order below Exh. 41 and 42 3
in Suit No. 297 of 2018
with provisions of Order 19 rule 3 of the Code. Hence, prayed to reject
the affidavit.
5. Ld. advocate for defendant No.1 also argued in support of
advocate for defendant Nos.3 & 4.
6. The advocate for defendants placed reliance upon the
decision of Hon’ble High Court in F.D.C. Ltd V/s. Federation of Medical
Representative Association India and Others AIR 2003 BOMBAY 371,
the decision of Hon’ble Karnataka High Court in Writ Petition No. 2585
of 1975 Smt. Savithramma V/s. CECIL Naronha And Another 1988
(Supp) Supreme Court Cases 655 and decision of Hon’ble Delhi High
Court in Prakash Rattan Lal V/s.Mankey Ram ILR (2010) III DELHI 315
CM (MAIN).
7. On the other hand, Ld. advocate for the plaintiff submits
that provision of Order 19 Rule 3 of the Code would applicable when
affidavit/petition is filed under Article 32 or 226 of the Constitution of
India and not when affidavits are filed before Civil Court. Defendants
failed to take objection when affidavits are filed. Hence, they are
estopped from challenging legality thereof. He also argued that if there
is any irregularities or ambiguity in verification clause, the court has
ample power to direct the plaintiff to correct it. He also submits that
the plaintiff is ready to correct the verification clause, if it is directed by
the Court. He placed reliance upon the decision of Hon’ble Supreme
Court in Miscellany Marketiers Pvt Ltd V/s. Sun-N-Sand Hotel Pvt Ltd.
W.P. No. 2082 of 2009 and decision of Hon’ble High Court of Judicature
-- 3 of 8 --
Order below Exh. 41 and 42 4
in Suit No. 297 of 2018
at Allahabad, Lucknow Bench in Associated Journals Ltd V/s. Mysore
Paper Mills Ltd (2006) 6 SCC 197.
8. Defendants have filed on record Rules and Forms
appended to The Bombay City Civil and Sessions Court Rule 1948 and
Form No. 3. Form No. 1 appended to Bombay City Civil & Sessions
Court pertains to the verification of plaint or written statement. Order
19 Rule 3 of the Code mandates that the deponent has to states and
verify as to the facts narrated in the affidavit. The deponent shall state
which facts he asserts are within his personal knowledge and in respect
of which fact he belief to be true. The similar observations are made by
Hon’ble High Court in FDA Limited (Supra). The Hon’ble Supreme
Court in Smt.Savithramma (Supra) has observed that when affidavit is
filed before the Court, it is necessary for that the person filing affidavit
must take care to verify the facts stated in the affidavit. It must be
strictly in accordance with the Rules 5 and 13 of Order XI of the
Supreme Court Rules.
9. The Hon’ble High Court in Miscellany Marketiers Pvt. Ltd
(Supra) has observed and reiterated its findings in FDC (Supra) in
respect of the affidavit filed in terms of rule 4 of Order 18 of the Code.
It is observed by the Hon’bel High Court that affidavit under Order 18
Rule 4 of the Code has to be confirmity with Rules 3 of Order 19 of the
Code. The defect, if any, in verification clause of the affidavit will not
be fatal and it can always be permited to be cured. The observation of
Ho’ble Supreme Court in Associated Journals Ltd (supra) para No. 21
and 22 are relevant. Hence, reproduced as under :
-- 4 of 8 --
Order below Exh. 41 and 42 5
in Suit No. 297 of 2018
‘21.A careful perusal of the affidavit filed by the respondent
and Form 3 as prescribed under Rule 21 would show that
there is substantial compliance with the said rule. A three
judge bench of this Court in an identical matter in Malhotra
Steel Synidcate v. Punjab Chemi Plants Ltd has also opined
that even if there is some slight defect or irregularity in the
filing of affidavit, the appellant should have been given an
opportunity to rectify the same. In the instant case, the
same liberty was given to the respondent by the Company
Judge as also by the Division Bench of the High Court. We
are, therefore, of the opinion that the Division Bench was
right in dismissing the appeal filed by the appellant.
22. This Court has in a catena of decisions held that
substantial compliance is enough. Rules are undoubtedly
statutory and the forms are to be adopted wherever they
are applicable. The rules relating to the affidavit and the
verification cannot be ordinarily brushed aside, but then
what is required to be seen is whether the petition
substantially complies with the requirement and, secondly,
even when there is some breach or omission. Whether it
can be fatal to the petition. In the instant case, both the
learned Company Judge and also the Division Bench were
of the opinion that there is substantial compliance with
Rule 21. In
Khaitan Overseas and Finance Ltd V.s
Dhandhania Bros. (P) Ltd. A petition was filed by the
Chairman-cum- Director of the Company. He annexed with
the petition a resolution of the Board of Directors
permitting him to execute necessary petitions, documents
applications, affidavits and to lodge a suit for recover dues
from the debtor Company. This was held to include the
authority to file a winding up petition also. The affidavit
accompanying the petition was signed, sworn and affirmed
on oath in the prescribed manner. The court said that the
affidavit conformed with the requirement of law.”
10. The sum and substance of observations of Hon’ble High
Court in aforesaid decision is that the affidavit and pleading of parties
shall be in in- consonance with the rules set out. It is also observed that
the parties to the proceeding shall adopt and adhere the Forms
-- 5 of 8 --
Order below Exh. 41 and 42 6
in Suit No. 297 of 2018
whenever, they are applicable. Considering the dictum of the Hon’ble
Supreme Court and High Court it is essential to see whether the
affidavits in question pass conditions laid down.
11. Defendants have mainly challenged affidavits on the
ground of defect of verification. It is also submission of defendants that
affidavit are beyond pleadings. However, during the course of
arguments none of advocate for defendants have pointed out the
portion of affidavits which is beyond pleading. Hence, these application
are considered in respect of the defects of the verification clause only.
12. During the course of arguments Ld. advocate for the
plaintiff candidly admits that the affidavits are silent as to the
clarification in verification clause as to the facts which are within
knowledge of deponent and facts which the deponent believes. Hence,
he prayed to allow the plaintiff to correct it.
13. It is also necessary to note that the deponent in his affidavit
has stated on oath that he affirmed the fact therein on his own accord.
Perusal of affidavit further reveals that affidavits do not contends in
matter in nature of the arguments or in nature of the submission. All
facts narrated in the affidavit are relating to the facts. As earlier
observed defendants failed to argue which part of of the affidavit is
without pleading. Hence, it cannot be said that any portion of the
affidavit is liable to be excluded because it is without pleadings.
Moreover, if there is any affirmation in the affidavit without pleading,
its admissibility can be decided at the time of final hearing of the
proceeding. As it is settled principle of law that evidence without
-- 6 of 8 --
Order below Exh. 41 and 42 7
in Suit No. 297 of 2018
pleading in judicial cases needs to be excluded. It is matter of argument.
In such circumstances, if plaintiff is permitted to amend the verification
clause in consonance of provision of Order 19 Rule 3, no prejudice will
be caused to other party. In the result following order is passed :
ORDER
1. Applications at Exh. 41 and 42 are hereby rejected with cost.
2.The plaintiff to correct verification clause of the affidavit in
consonance with Order 19 Rule 3 of the Code.
3.The plaintiff to carry out the necessary amendment on or
before next date in presence of witness and it shall carry
initialized with the signature of the deponent before the Court.
4. There shall be no need to file amended affidavit.
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:29.09.2023 Greater Bombay (CR 59).
Declared on : 29.09.2023
Dictated on : 29.09.2023
Transcribed on : 05.10.2023
Checked on : 07.10.2023
Signed on :
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
09.10.2023 at 3.00 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
-- 7 of 8 --
Order below Exh. 41 and 42 8
in Suit No. 297 of 2018
Room No.) Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 29.09.2023
Order signed by P.O. on 07.10.2023
order uploaded on 09.10.2023
-- 8 of 8 --