Order 1

Order Details: Chamber summons
Pdf Text: C/s 200/2018 1/5 Date : 19.10.2018
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CNR No.MHCC010014772018
CHAMBER SUMMONS NO.200/2018
IN
SUIT NO.7291/1997
Bombay Dyeing and Manufacturing Co. Ltd ]... Plaintiff
V/s.
Dr. Cavas F. Billimoria And Ors. ]… Defendants
Adv.Sequeira for plaintiff.
Adv. Bhadang for defendant no.1.
CORAM : HHJ Shri G. R. Agrawal
C. R. No.03
DATE : 19.10.2018
ORDER
(Dictated in open court)
1. By this chamber summons, the defendant no.1 has prayed
to strike off the affidavit evidence of PW1 Mr. Raja filed by the
plaintiff and in the alternative it is prayed that paragraphs no. 3 to
38 of the affidavit be struck off. The plaintiff has filed reply to the
chamber summons.
2. Heard Ld. Counsel for the parties. Perused the record.
3. During the course of hearing the chamber summons, after
taking instructions, the Ld. Counsel for plaintiff has submitted that
the plaintiff is ready to delete some paragraphs from the affidavit
of PW1. Those paragraphs were marked on a separate copy of
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evidence and thereafter, the chamber summons was heard.
4. The Ld. Counsel for defendant no.1 submitted that the
entire evidence of the PW1 is liable to be struck off since the said
witness has joined the plaintiff company in the year 1997 and the
dispute in the present suit pertains to the period prior to the year
1997. He submitted that hearsay evidence is inadmissible and
therefore, the evidence of PW1 may be struck off. He placed
reliance on the Judgment of Hon'ble Bombay High Court in the case
of Harish Loyalka V/s. Dileep passed in suit no.3598/1996. In the
said ruling it is held that 'no affidavit can contain material that is
hearsay or in the form of arguments'. He also placed reliance on
the commentary of Sarkar on Law of evidence and submitted that
hearsay evidence has to be rejected.
5. Per contra, the Ld. Counsel for plaintiff has submitted
that PW1 has deposed on the basis of official records. He has
perused all the documents and on that basis he has deposed in his
affidavit. He therefore, submitted that the evidence of PW1 is not
hearsay as he himself has perused the documents. He placed
reliance on the ruling of Hon'ble Delhi High Court in the case of T.
Balasubramanian V/s. Shriram Scientific, 2006 SCC OnLine Del
503 and Vinay V/s. Court Receiver 2010(6) Mh.L.J., 407.
6. I have considered the submissions of both sides and
perused the rulings cited by them. The PW1 – Mr. Raja has
deposed in his affidavit that he is working with the plaintiff in the
capacity of Vice President of Corporate Accounts and Taxation
since the year 1997. He has stated that he is personally aware of
the facts that occurred subsequent to the year 1997. He has
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further deposed that he has also perused all necessary records
available/maintained by the plaintiff in usual and ordinary course
of business. He has also perused documents handed over by the
plaintiff to the police during the investigation of criminal complaint.
7. It is clear from the affidavit of PW1 that he is deposing
on the basis of official records maintained by the plaintiff company
as well as his personal knowledge. In the case of Harish (Supra),
the Hon'ble Bombay High Court has held in paragraphs no.16 to
18 that the material that is possibly relevant but is not to the
personal knowledge of the witness are also matters that must be
retained since the issue of relevancy is always subject to arguments
at the final hearing of the suit. It is only when the material is
completely extraneous and not to the personal knowledge of the
witness, it cannot be part of testimony.
8. On perusing the entire affidavit filed by PW1, I find that
he has stated about several facts which are possibly relevant but not
based on his personal knowledge. However, those statements
cannot be stated as “hearsay evidence” for the reason that the
witness has himself seen the documents in connection with those
events.
9. The Ld. Counsel for defendant no.1 has drawn my
attention to the paragraph no.22, wherein PW1 has deposed that
defendant no.1 was confronted with evidence and statements by
the plaintiff's Chairman and Vice President on 10.8.1994.
However, said statement in paragraph no.22 is supported by the
letter of defendant no.1, addressed to the plaintiffs and that is
available to the plaintiff no.1 for perusal in the records maintained
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by the Company. Hence, it cannot be said that it is 'hearsay'. The
defendant no.1 has also admitted in his written statement that he
wrote that letter. In the case of T. Balasubramanian (Supra), the
Hon'ble Delhi High Court has observed that the witness has
deposed on the basis of official records and documents and
therefore, his evidence cannot be regarded as hearsay and not
based upon his personal knowledge. In the case of Vinay (Supra),
the Hon'ble Bombay High Court has also observed that a witness
can depose on the basis of documents.
10. As regards paragraphs no.33, the witness has deposed
about the statements of various witnesses recorded by police and
they are filed in the compilation of documents. Those statements
are inadmissible in law and therefore, said evidence is liable to be
struck off.
11. The paragraph no.12 is in respect of Auditor's report and
therefore, PW1 is not competent to depose about the same.
12. In the facts and circumstances and in view of the settled
possession in law, I find that the entire evidence of PW1 cannot be
struck off. Apart from the paragraphs which plaintiff has agreed to
delete voluntarily, only some of the paragraphs and part of some
paragraphs are liable to be struck off from the evidence of PW1.
Hence following order.
ORDER
1. Chamber summons no.200/2018 is partly allowed.
2. The prayer clause (a) is rejected.
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3. The paragraphs no.8 to 21, 36, 38, 39 & 41 are struck
off completely.
4. Part of paragraphs no.23 & 33 are struck off.
(G. R. Agrawal)
Judge
City Civil Court,
Date : 19.10.2018 Gr. Bombay.
Dictated on : 19.10.2018
Typed on : 24.10.2018
Signed on : 24.10.2018
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
24.10.2018 at 3.15 pm (Mrs. S. W. Tuscano)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
room no.)
HHJ Shri G. R. Agrawal, C.R.
No.3
Date of Pronouncement of
JUDGMENT/ORDER
19.10.2018
JUDGMENT/ORDER signed by
P.O. on
24.10.2018
JUDGMENT/ORDER uploaded
on
24.10.2018
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