Order 1

Order Details: Chamber summons
Pdf Text: : 1 : Chamber Summons No.310 of 2018
CNR No.MHCC010022472018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.310 OF 2018
IN
S.C.SUIT NO.5670 OF 2007
Naresh Gulab Tahiliani and another. .. Plaintiffs
Versus
Jitendra Amritlal Sheth and ors. .. Defendants
Ld. Advocate Yagnesh Aher with Pawar for plaintiff.
Ld. Advocate Sonal More for defendants.
CORAM : HIS HONOUR JUDGE
SHRI ANAND L. YAWALKAR
(COURT ROOM NO. 31)
DATED : 21.08.2018
: ORDER :
This Chamber summons is filed by plaintiffs for directing the
contesting defendant no. 23 to produce the agreement for sale dated
31.12.2004 and exhibit the same.
2. Plaintiffs submitted that in August, 2004 he had booked flat
No. 1008, 10th floor at Nahar Amrit Shakti, Saki Vihar, Powai, Andheri
(East), Mumbai alongwith two car parking spaces. Plaintiff had
obtained loan from HDFC bank. Accordingly, agreement for sale was
executed on 31.12.2004 with SubRegistrar and the agreement of sale
was deposited with the bank. There was dispute and for enforcement
of the agreement the suit was filed. During the trial before the Hon'ble
High Court Notice of Motion No. 3388/2007 taken out. Court
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receiver came to be appointed and the plaintiff came in possession of
the suit flat as an agent of the court receiver. The issues were famed.
Plaintiff filed compilation of documents and adduced his evidence.
Thereafter plaintiff issued summons to Assistant Manager to HDFC
Bank to produce agreement for sale on 22.12.2017, wherein the said
manager informed that the original registered agreement for sale has
been handed over to the defendant no. 23. Plaintiff was not aware
about this. He has taken out the impugned chamber summons
alleging that the defendant no. 23 had dishonestly obtained the
registered agreement for sale from HDFC bank. He had deposited
the entire sale consideration with the court receiver. Plaintiff
thereafter through advocate sent a letter to the defendant for
producing the said agreement for sale on record. But they have not
received any reply. Thus, he had filed this chamber summons for
directing the defendant no. 23 to produce the agreement for sale on
record. He had further prayed that the same be exhibited on
production and on failure of the defendant to produce it their
evidence be struck off.
3. On the other hand, defendant submitted that the chamber
summons is not maintainable and it is filed on premature stage.
Agreement for sale was terminated by the defendant due to non
payment of the price of flat by the plaintiff. It was further submitted
that plaintiff deposited the price of the suit flat with the court
receiver after availing the loan facility from the HDFC bank. It was
mischievous of the act of the plaintiff. They have paid the plaintiff's
amount to HDFC bank and accordingly, agreement for sale was
handed over to them by bank and denied that they have dishonestly
obtained it. Ld. Counsel for defendant no. 23 while arguing submitted
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that they have not denied the agreement and the contents of the
document. They are admitting it and they have no objection if the said
sale deed is exhibited.
4. Heard both the parties. Perused the material on record.
5. It is admitted fact that the plaintiff had booked the flat
with defendant no. 23. He availed the loan from HDFC bank.
Thereafter there was dispute. The court receiver was appointed by
the Hon'ble Bombay High Court. Plaintiff came in possession as the
agent of court receiver. Plaintiff deposited entire consideration of the
flat with the court receiver. Defendant paid the consideration to HDFC
bank and obtained the agreement for sale from HDFC bank are
undisputed facts.
6. Upon considering the proceeding it is apparent that the
plaintiff adduced his evidence and also evidence of his witness Prasad
Adate and thereafter issued witness summons to HDFC bank for
producing the agreement for sale on record. The main purpose of the
plaintiff for calling the agreement for sale was to exhibited it and
to be proved it in evidence. On the other hand, defendant had
admitted the documents alongwith its contents. They have no
objection if the said agreement for sale is exhibited and read in
evidence. As per the contention of the defendant they cannot be
called as witness to prove the case of plaintiff and when they steps
in the witness box plaintiff can take appropriate steps.
7. That as per Order11 Rule14 of CPC, wherein the court has
power at any time during the pendency of suit order the production of
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document to any party having its possession and relating to the matter
in question. This provision gives power to the court to call upon the
party to the suit, at any stage to produce the document in its possession.
The court agrees with the contention of the plaintiff that it is necessary
that the agreement of sale should be produced on record so that the
plaintiff can prove it and it can be read in the evidence.
8. This agreement for sale was obtained by the defendant
no.23 from HDFC bank without the knowledge of the plaintiff. This
was revealed when the employee of the said bank disclosed this fact in
the court. Thus the plaintiff could not make the application earlier. In
this regard the defendant no.23 is only called to producethe document
on record. He is not directed and cannot be directed to step into the
witnesses box. He is only directed as per Order11 Rule14 of CPC, to
produce the agreement for sale on record. Thus in the opinion of the
court the defendant no.23 can be directed to produce the agreement
for sale on record. No prejudice can be caused to them considering
their contention raised. Accordingly, I pass the following order.
: ORDER :
1. Chamber Summons No.310 of 2018 is partly allowed.
2. Defendant no. 23 is directed to produce original agreement
for sale dated 31.12.2004 before this court.
Anand.L.Yawalkar
Judge,
City Civil & Sessions Court,
Date: 21.08.2018 Gr. Mumbai
Dictated on : 21.08.2018
Transcribed on : 21.08.2018
Signed on : 21.08.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
On 23.08.2018 at 5.10 p.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
21.08.2018
JUDGMENT/ORDER signed by P.O. on 21.08.2018
JUDGMENT/ORDER uploaded on 23.08.2018
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