Final Order 1

Order Details: Chamber summons
Pdf Text: : 1 :
CNR No.MHCC010010812018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.135 OF 2018
IN
SUIT NO.7259 OF 2004
Syndicate Bank .. Plaintiff
Versus
United Computer Services Pvt. Ltd. .. Defendant
Appearance:
Ld. Advocate Yasmin for plaintiff.
Ld. Advocate Padma Sing for defendant.
CORAM : HIS HONOUR JUDGE
SHRI ANAND L. YAWALKAR
(COURT ROOM NO. 31)
DATED : 28.01.2019
: ORDER :
1. This Chamber summons is taken out by the defendant for
permitting them to deliver interrogatories under Order XI Rule 8 of
CPC.
2. Counsel for the defendant submitted that, they had leased
out their premises admeasuring 369 sq. ft. area on the first floor at
Nariman Bhavan, Nariman Point, Mumbai to plaintiff bank on
01.04.1991 for a period of 10 years. Similar agreement was entered by
the plaintiff with 3 other parties i.e. C and A Investments, V and A
Investments and JAS Investments. The license fee was agreed to be
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increased by 25% after every 5 years. The defendant obtained an
advanced amount of Rs. 17,71,200/ being 60 months license fees. It
was agreed that license fee of Rs. 29,520/ was to be adjusted by the
bank against monthly installment. During the time the defendant
noticed that the plaintiff bank was overcharging the rate of
interest then the agreed rate of interest. Plaintiff bank acted in
contrary to the agreement and started appropriating only part of the
amount out of license fee. There was no provision authorizing the
plaintiff bank to deduct any amount from the license fee towards
TDS or otherwise. On or about 11.09.2003 plaintiff bank sought to
vacate the premises and on 12.09.2013 informed the defendant
about the surrender of said premises. Defendant further submitted
that due to faulty accounting system maintained by the plaintiff bank,
interest liability remained at the higher side. There was dispute on
the outstanding amount and both the plaintiff and defendant filed
the suit one another. It was submitted by the defendant that in
the suit filed against V and A Investment by the plaintiff bank on
04.08.2004, was settled by setting out the mode and terms of
settlement. This defendant also put similar note with the plaintiff bank
for settlement. But it could not materialize. Defendant filed an
application Under RTI Act was rejected. As per the contention of
the defendant they were given differently treatment by the plaintiff
and thus, they want interrogatories to be answered by the plaintiff
in respect of settlement done by the plaintiff.
3. Counsel for plaintiff submitted that the chamber summons is
abuse of the process of law. No reason is given by the defendant for
filing interrogatories. They agreed of taking premises on leave and
license basis on 01.04.1991. Defendant was given loan of Rs.
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17,71,200, which was payable in 120 monthly installment of Rs.
33,500/. The loan was to carry 16.5% p.a. interest. As per agreement
amount payable by the defendant was agreed to be adjusted
towards the demand loan account every month. On 09.09.2003
plaintiff surrendered the suit premises and thereafter defendant
was to pay installment and interest directly to the plaintiff, which
they neglected to pay and accordingly an amount of Rs. 5,47,679.56
was due and recoverable from the defendant. They further submitted
that thereafter they settled the other 3 matters in 2004 and the
agreement entered between them with the 3 parties is not available
in the record and it was not mandatory requirement for the plaintiff
bank to hold such document. It was submitted that the TDS was
deducted as per the provisions of Income Tax Act and thus, they
prayed to dismiss the motion.
4. Heard argument of both parties. Perused the material on
record.
5. Upon considering the hearing it is evident that defendant
had filed this chamber summons under Order 11 Rule 8 of CPC for
permitting them to deliver interrogatories in writing to the plaintiff and
thereby to direct the plaintiff to answer the interrogatories and to
produce the document on record. Upon considering the hearing it is
apparent that plaintiff bank had filed the suit for recovery of amount on
the basis of loan transaction. Defendant appeared and filed written
statement. In this written statement there is no whisper from the
defendant regarding other 3 agreements and there settlement done by
the plaintiff.
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6. The defendant relied upon a case of Kishorilal Vs. Ramlal
reported in 2014(1) Mh.L.J. 782. In this case the Hon'ble High Court
discussed the scope of Order 11 Rule 1 of CPC, wherein it was observed
that restriction on presenting interrogatories and for delivering it, leave
of the court is necessary and permission can be granted to give
interrogatories second time. As per Proviso the restriction is placed on
delivery of more than one set of interrogatories to same party. But the
court is empowered to allow second set of interrogatories to the same
party, at a time in appropriate cases if justifiable reason is given. The
issue before the Court was, whether the interrogatories under Order
11 Rule 1 of CPC be delivered to the same party second time or
not ?
7. The plaintiff relied the case of Jamaitrai Bishansarup Vs.
Rai Bahadue Motilal Chamaria reported in AIR 1960 Cal 536
wherein it was observed in para 7 that,
7. “In the present case the interrogatories asked for are
relevant and arise on the issues and will shorten the trial and
may also show that the defence which is set up is unfounded.
The interrogatories should, therefore be allowed.”
8. The plaintiff further relied the case of P. Balan Vs. Central
Bank of India, Calicut on 22.09.1999 reported in AIR 2000 Ker 24.
In this case defendant presented interrogatories to the plaintiff
regarding the amount of loan, interest calculated, regarding
enhancement of interest, whether amount paid upon by 1st
defendant and mentioning the amount in account statement. It
was rejected by the trial court on the ground that this
information was within the knowledge of the defendant. While
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allowing the interrogatories the Hon'ble High Court observed in para 9
that,
9. “I find some merit in the contention of the revision
petitioner that the question of admissibility of the
interrogatories have not been considered by the Court below
from the right perspective. The order is not speaking in
nature. It may be that some of the interrogatories are not
admissible; but at least some of them cannot be stated to be
totally irrelevant. On such question is the basis of calculation
in the statement of account with regard to the interest
prevailing from time to time. The petitioner's case that the
agreement entered into between the parties mentioned only
of interest linked with the R.B.I. rate and not any specific rate
appears to be correct. A lot of time and energy can be saved if
the specific rate of interest prevailing at each period is let
known to the defendant so that he can verify the statement of
accounts produced in the case from that perspective. It is true
that the respondent is a Bank; but even Bank's statements can
be erroneous. The impugned order is found to be defective as
it has not considered each of the interrogatories bearing in
mind the provisions of law and legal principles
aforementioned. It is accordingly set aside and the matter is
remitted to the Court below for fresh decision through a
speaking order.”
9. Upon considering the hearing and pleadings of the plaintiff
and defendant and scope of administering the interrogatories in the
light of Order 11 Rule 8 and the cited case laws it is evident that,
plaintiff has asked 7 questions, in which question no. 1, 3 and 5
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relates to V and A Investment and two other cases referred in question
no. 3 and settlement of the matter with them. Question no. 2 is
regarding Bank prepared the background notes for setting out the
mode of terms of settlement with the defendant. Question no. 4 is
regarding the plaintiff has not followed the same account method in
the case of defendant. Questions no. 5, 6 and 7 are relating to letters
written by the plaintiff to defendant and General Manager, Advance
UnitI, Zonal Office, Mumbai.
10. It is grievance of the defendant that the plaintiff bank
had settled 3 other matters from whom the property was taken
on leave and license basis alongwith them by the plaintiff bank.
But they had been given differential treatment. Plaintiff did not
settle the matter with them. Defendant wants the plaintiff bank to
follow the same practice and to adopt the same mode and terms of
settlement with them that was adopted with other 3 defendants. In
this case plaintiff had filed the notes of terms of settlement that was
adopted with V and A Investment. Defendant had also adopted the
route of Right to Information Act, but information was denied. They
also filed first appeal, which was also not allowed and it was
mentioned that the information sought is prohibited under Section
8(1)(d) and 8 (1)(h) of RTI Act.
11. The alleged compromised took place between the plaintiff
and the V and A Investment in 2004. It is admitted by the
plaintiff and according to their statement they do not have any of
this record available pertaining to the settlement entered by them
in the 2004 and as per Bankers books it is not mandatory for
them to hold such document. Upon considering the pleadings and
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arguments advanced, the suit of the plaintiff is a recovery suit
based on the loan taken by defendant. It is also admitted that
license fee was to be deducted. The dispute arosed due to the increase
in the interest rate and deduction of amount towards TDS, as
claimed by the defendant in his written statement and also in
chamber summons.
12. It is also apparent that the bank entered 4 different
leave and license agreement with 4 individual entities. Out of it
3 were settled except the case of the defendant. The suit filed by
the plaintiff is based on the loan agreement signed between the
plaintiff and defendant. There is no reference of any third party
in the suit. This contention was not taken in written statement
and by way of interrogatories defendant wants the plaintiff to ask
question regarding the settlement. But considering the individual loan
agreement of the plaintiff the interrogatories tendered by him for
obtaining the admission to facilitate and to prove his own case
does not appears to be relevant to the matter in question in the
suit. They are not directly concerned to the fact in issue. There
are only two material issues framed regarding the entitlement of
plaintiff for recovery and limitation.
13. Similarly, interrogatories needs to be confined to a party,
to a suit. Plaintiff cannot be forced to give information about the
stranger, who is not the party to the suit. A person/entity like a
V and A Investment who is not concerned with the suit and who
is not having individual interest in the suit. Also considering the
scope and the ambit of the present the suit the information about the
V and A Investment does not appears to be material. Thus, considering
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all these reasons in the opinion of this Court the chamber summons
cannot be allowed and accordingly, I pass the following order.
: ORDER :
Chamber Summons No.135 of 2018 is dismissed.
Anand.L.Yawalkar
Judge,
City Civil & Sessions Court,
Date: 28.01.2019 Gr. Mumbai
Dictated on : 28.01.2019
Transcribed on : 29.01.2019
Signed on : 29.01.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
On 30.01.2019 at 11.05 a.m.
UPLOAD DATE AND TIME Mrs. P.R.Vengurlekar
NAME OF STENOGRAPHER
Name of the Judge
(With Court Room No.)
H.H.J. Anand.L.Yawalkar
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
28.01.2019
JUDGMENT/ORDER signed by P.O. on 29.01.2019
JUDGMENT/ORDER uploaded on 30.01.2019
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