Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.362/2019 in Sum. Suit No.2540/2012
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 362 OF 2019
CNR NO.: MHCC010009372019
IN
SUMMARY SUIT NO. 2540 OF 2012
M/s. Store One Retail India Ltd. ...Applicant
(Orig. defendant)
IN THE MATTER BETWEEN:
M/s. Liberty Process Works ...Plaintiff
Versus
M/s. Store One Retail India Ltd. ...Defendant
Appearances:
Advocate Mrs. Joshi for the plaintiff.
Advocate Ms. Mahi Lalka for the defendant.
CORAM : HER HONOUR ADHOC JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 1st OCTOBER, 2019.
ORAL ORDER
1. Defendant has stated that his Advocate was busy in Hon'ble High
Court when the matter was kept for admission and denial and marked
the documents on 23.08.2018. Defendant has stated that the documents
filed by the plaintiff are either photocopy, carbon copy or computer
printout. Defendant has further stated that he will suffer irreparable
harm if order dated 23.08.2018 is not recalled and defendant is not
allowed to raise objection for admission and denial.
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2. Plaintiff has filed reply to this Notice of Motion and stated that,
filing of present Notice of Motion is an attempt of defendant to delay
the hearing of suit. Plaintiff has further stated that he has filed evidence
affidavit along with second additional Compilation of documents on
01.03.2017. Plaintiff has further stated that all the copies of documents
were supplied to defendant. Plaintiff has stated that the compilation of
documents and additional compilation of documents were filed in this
Court much earlier at the stage of hearing of Summons for Judgment.
Defendant has also filed reply to the Summons for Judgment and
opposed the same. Plaintiff has further stated that documents were
exhibited on 23.08.2018 as since long the defendant had not filed their
objections to the documents. Plaintiff has stated that documents are
exhibited as per Law. Plaintiff has further stated that defendant has an
opportunity to crossexamine the witness of the plaintiff. Plaintiff has
further stated that the Notice of Motion is barred by law of limitation.
Plaintiff has further stated that no explanation whatsoever is given for
the delay in taking out the Notice of Motion. Plaintiff has denied that
there is difference in the documents filed and served upon the
defendant. Plaintiff has further stated that defendant could have filed
say on admission and denial of documents of plaintiff on 23.08.2018 or
on any of the dates prior to the said date. But as part of their strategy to
delay the hearing of the suit the defendants avoided to file their say on
the documents for a very long time. Plaintiff has further stated that
defendants are raising objection as an afterthought for the first time
after more than 6 years after the original and additional compilation of
documents were served upon them and prayed for rejection of the
Notice of Motion.
3. It appears the documents are exhibited as exhibit 17 to 158 by
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order dated 23.08.2018 which runs as under:
“Plaintiff given formal proof in affidavit of evidence except Xerox, other
originals are marked as Exhibited Nos. 17 to 158.”
4. Ld. Counsel for defendant cited judgment of Hon'ble High Court,
Nagpur Bench in case of Satish Janardhan Bhusari vs. Ramesh s/o
Rambhau Bidkar and ors. in Writ Petition No.6707 of 2016, in which
it is held that, “the trial Court erred in proceeding to mark exhibits and
depriving the petitioner of a fair opportunity to raise objections with
regard to the said documents”. It is further held that, “the impugned
orders are quashed and set aside and the petitioner is directed to place on
record objections”. In the cited case it is stated regarding objection that,
“in the first case, the Court, before which the objection is taken about
admissibility of document on the ground that it is not duly stamped, has
to judicially determine the matter as soon as the document is tendered in
evidence and before it is marked. It is further held that, “in the second
category of the case, the objection should be taken when the evidence is
tendered”. It is further held that, “in the third case merely because a
document has been marked as “an exhibit”, an objection as to its
admissibility is not excluded. It is available to be raised even at later stage
or even in appeal or revision. It is further held that, “such a document,
therefore, can be tentatively exhibited and the decision thereon can be
postponed till the suit reaches the stage of judgment. However such
objection has also to be decided before the judgment is delivered”. It is
further held that, “the exercise of classifying documents and examining as
to whether the documents could be at all marked as exhibits was not
undertaken”. In the cited case, the reasoning of the Trial Court was that
the Petitioner would not suffer prejudice as he could raise the objections
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with regard to the documents at the stage of evidence. In the case in
hand, it appears from the roznama that, plaintiff filed his evidence
affidavit and second additional list of documents on 01.03.2017 and
thereafter, matter is specifically kept for admission and denial. It
appears from 01.03.2017 till 23.08.2018 defendant has utterly failed to
file any say though the matter was kept for admission and denial stage.
Hence, it appears that ample opportunity was given to defendant to put
on record his objection in writing to the documents adduced by
plaintiff. Therefore, it appears that the fair procedure of giving
opportunity to defendant is followed by this Court. Furthermore, the
order dated 23.08.2018 has specifically classified the documents and
stated that, the only original copies are to be marked as exhibit and not
the xerox copies. Defendant has failed to state how these documents
are wrongly exhibited, facts of case cited and in hand are different
therefore, this case law is not applicable to the case in hand.
5. Ld. Counsel for the plaintiff cited judgment of Hon'ble Bombay
High Court, Nagpur Bench in case of Naginbhai P. Desai vs. Taraben
A. Sheth, 2002 INDLAW MUM 327, in which it is held in para 13 that,
“in view of this as laid down in Bipin Shantilal Panchal v. State of Gujarat
(supra), whenever an objection to admissibility of any document in
evidence is raised (whether on the ground that the document is not
properly stamped or otherwise) such objection need not be decided there
and then but the Court can take note of such objection and mark the
objected document tentatively as an Exhibit in the case and subject to such
objection to be decided at the last stage in the final judgment. If this course
is followed, then perhaps no injustice would be caused of the order
overruling the objection of insufficiency of stamp being binding on the trial
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Court as well as the appellate Court because the decision as to the
admissibility of the document would then be a part of the final judgment
and the validity of the final judgment is tested in an appeal”. Hence, as
per above such ratio of Hon'ble Apex Court, it will be proper to allow
defendant to state his objection regarding admissibility of the
documents.
6. It appears that the defendant was given an ample opportunity to
state his objection as to the admissibility of the document by keeping
matter months together on the stage of admission and denial.
Furthermore, only original documents are exhibited, hence, it will not
be proper to recall the order to exhibit in the documents. But at the
same time, it will be proper to allow defendant to give his objection in
writing as to the admissibility of the document on record which can be
considered at the time of final hearing of the suit. Hence, following
order:
ORDER
1. Notice of Motion No.362 of 2019 is rejected.
2. Defendant is allowed to state his objection regarding admissibility
of the documents which are already exhibited.
3. Such objection will be considered at the time of final hearing of
the suit.
4. Notice of Motion No.362 of 2019 stands disposed of.
(SONALI P. AGARWAL)
Adhoc Judge,
Date: 01.10.2019. City Civil Court,
Gr. Bombay.
Dictated on : 01.10.2019
Transcribed on : 01.10.2019
Signed on : 01.10.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04.10.2019 At 04:00 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
01.10.2019
Judgment/Order signed by P.O. on 01.10.2019
Judgment/Order uploaded on 04.10.2019
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