Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010017322020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 669 OF 2020.
IN
SHORT CAUSE SUIT NO.8662 of 1998.
M/s. Gavde Finance Pvt. Ltd. … Applicant.
(Plaintiff)
In the matter between
M/s. Gavde Finance Pvt. Ltd. …Plaintiff
V/s.
M/s. Sai Consultancy and Anr. ...Defendants.
Appearance:
Adv. Shri B. P. Pandey, for Plaintiff.
Adv. Asad Bukhari, for Defendant.
CORAM : H. H. JUDGE AND
ASST SESSIONS JUDGE,
SHRI. S. B. PAWAR (C.R.No.59)
DATE : 26th SEPTEMBER, 2022.
ORDER
Plaintiff has taken out this Notice of Motion with a prayer
to give full fledged exhibits to the documents listed in Exh.15 and to
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consider the same at the hearing of the suit.
2. Plaintiff has contended that documents with list Exh.15 are
produced pursuant to the direction of the Court on 15.04.2016 when
during the cross examination, advocate for defendant Nos.1 & 2 called
upon the witness to produce those documents. Application at Exh.16
filed by the defendants for production of further documents is rejected
vide order dated 24.01.2016. The documents are produced on
production notice of defendants and direction of the Court and
deponent is cross examined on those documents. Therefore, those
documents deserve to be marked as exhibits.
3. Defendants filed their reply and contested the Notice of
Motion on the ground that it is afterthought and is an attempt to fill up
lacuna in the case of the plaintiff. There is no pleading in respect of
the documents sought to be exhibited. The witness was never
confronted with the documents during the cross examination. The
documents are not proved in the evidence. The documents are also not
admissible in the evidence. This Notice of Motion is filed at the stage of
final arguments and thus it is not maintainable. In fact, advocate for the
defendants has argued the matter finally. Thereafter the Notice of
Motion is filed with malafide intention in order to fill up lacuna,
therefore, it is liable to be dismissed.
4. Heard Ld advocates for the both parties.
5. Ld. advocate for plaintiff submits that the documents are
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produced during cross examination of the witness on the direction given
by the Court at the instance of advocate of defendants. Documents are
confronted to the witness during cross examination. Therefore, it is
necessary that the documents are exhibited in evidence.
6. Per Contra, Ld. advocate for defendants submits that
documents sought to be executed are beyond the pleading and are the
photocopies. Therefore, these are not admissible. The prayer of the
plaintiff, made at a belated stage when the suit is for final argument, is
not tenable. Even if the documents are confronted, the contents are not
proved. Therefore, the documents cannot be not marked as fullfledged
exhibits.
7. Perused the Notice of Motion, supporting affidavit, reply
affidavit and affidavit in rejoinder. Perused the evidence affidavit at
Exh.5, the cross examination of the witness and the documents
produced with list Exh.15. The cross examination of plaintiff’s witness
No.1 conducted on 15.04.2016 indicates that advocate for defendants
questioned the witness with reference to the documents, consisting of
minute books of the resolution passed by the Company, Profit & Loss
accounts maintained by plaintiff's company from 1998 and the
documents to show the rates of the share involved in the transaction
fixed by the stock exchange mentioned in the invoices. At the end of
the cross examination conducted on the said date, advocate for
defendants called upon the witness to produce the aforesaid documents.
Thereafter the witness was directed to produce the said documents.
Accordingly on next date i.e. on 20.06.2010, documents with list Exh.15
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are produced by the plaintiff. The court allowed production of the said
documents.
8. The cross examination of the witness conducted on
01.07.2010 reflects that the witness is confronted with certain
documents produced with list Exh.15. It is submitted on behalf of the
defendants that the documents are beyond pleading and even if those
are confronted, contents of the documents are not proved and
therefore, these documents cannot be marked as fullfledged exhibits as
prayed in the Notice of Motion. In support of the above submissions,
reliance is placed upon following judgments:
i) Vishwas Vasantrao Mugalikar V/s. Jyoti d/o. Mulidharrao
Mugalikar, 2000(1) BCR 421:1994(4) ALL MR 20;
ii) Chanchal d/o. Manakchand Sharma and another V/s. Gangaram
Dajiba Nagare (Since deceased) through LRs. Ganesh Haribhau
Nagare and others, 2014(S) MhLJ 575: 2014(61) R.C.R.(Civil) 90:
2016(Sup) CivCC 645;
iii) Michele Boutique and Others V/s. State of Maharashtra and
Others, Writ Petition No.12496 of 2018;
iv) Chunni Lal Sony V/s. Sarwan Kumar, 2020(2) R.C.R. (Rent) 554;
v) Prem Lal V/s. Sh. Rajinder Kumar, 2018 Latest HLJ (H.R.) 188;
9. I have gone through all the above authorities relied upon
by Ld. advocate for the defendants. The authority in Vishwas
Vasantrao Mugalikar V/s. Jyoti d/o. Mulidharrao Mugalikar
(supra), deals with documents reserved for cross examination. In
Chanchal d/o.Manakchand Sharma and another V/s. Gangaram
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Dajiba Nagare (Since deceased) through LRs. Ganesh Haribhau
Nagare and others (supra), it is observed that production of
documents on record and allowing them to be exhibited are distinct
from each other. In Michele Boutique and Others V/s. State of
Maharashtra and Others (supra) it is held that the documents which
are not backed by pleading cannot be recorded as relevant. Judgment
in Chunni Lal Sony V/s. Sarwan Kumar (supra) deals with secondary
evidence. The last authority in Prem Lal V/s. Sh. Rajinder Kumar
(supra) deals with the production of documents at belated stage. The
facts of the present case are altogether different from the above
authorities. Therefore, the above authorities cannot be squarely made
applicable to the present case.
10. It is the matter of record that at the instance of advocate
for defendants, the Court directed during the cross examination of the
plaintiff's witness to produce the documents called upon by the
advocate for defendant and accordingly plaintiff produced those
documents with list Exh.15. Even some documents are confronted with
the witness during the subsequent cross examination. Therefore, at
least, for the purpose of the identification, the documents produced
with list Exh.15 require to be exhibited.
11. The present Notice of Motion is filed with a prayer to mark
documents as fullfledged exhibits. It is objected on behalf of the
defendants that contents of the documents are not proved, therefore,
those cannot be marked as fullfledged exhibits. The matter is on the
stage of final arguments. In my view, the issue regarding proof of
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contents of the documents, as per requirements of the Evidence Act can
be kept open at the time of final arguments by marking the documents,
for the sake of identification. In the above circumstances, following
order is passed:
ORDER
1. Notice of Motion No. 669 of 2020 is partly allowed in the
following terms:
a) The documents at Sr. No. 1 to 6 with list Exh.15 are marked
as Exh. Nos. 36 to 41 for the purpose of identification.
b) The issue regarding proof of those documents as per the
Evidence Act is kept open for argument during the course of final
argument in the suit.
2. Notice of Motion No. 669 of 2020 is disposed off accordingly.
(S.B. Pawar)
Judge,
Dated: 26/09/2022 City Civil and Sessions
Court,
Greater Bombay (CR 59)
Declared on : 26.09.2022
Dictated on : 26.09.2022
Transcribed on : 01.10.2022
Checked on : 06.10.2022
Signed on : 07.10.2022
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
03.11.2022 at 01.10 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
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Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 26.09.2022
Order signed by P.O. on 07.10.2022
order uploaded on 03.11.2022
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