Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Suit No. 4045-10
...Order on NM No. 1042 of 2019.
MHCC010027062019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1042 OF 2019
IN
SUIT NO. 4045 OF 2010
Union of India ]….Plaintiff
V/s.
Shyamsunder Narayan Shirsat ]....Defendants
Appearances :
Learned Adv. Bharat Mehta for plaintiff.
Learned Adv. P. G. Lad for defendants
CORAM : SHRI. ARVIND. M. BHANDARWAR
JUDGE, CITY CIVIL COURT
(C.R.NO.09)
DATE : 09th OCTOBER, 2025
ORDER
. The present notice of motion is filed to condone the delay
and permit the plaintiff to produce necessary documents to show that
the payment made by GPO to the R.D. Account holders mentioned in
Exhibit- A and further prayed to permit to file an additional evidence in
support of the documents. In support of the notice of motion affidavit is
filed.
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2. The plaintiff came with the case that previous Advocate
Mrs. Heena Shah after filing the Affidavit of Evidence, list of documents
and after filing Affidavit of Evidence by the Defendant's , withdrawn
from the above case as she was appointed as a member of Central
Administrative Tribunal, Mumbai somewhere in July, 2018.
Thereafter,plaintiff engaged the services of Advocate Mr. Bharat Mehta
who had to continue with the Trial of the said case by cross
examination of the Defendant somewhere in July 2018.
3. It is contended that after the fraud had come to light in the
year 1994, the GPO decided to restore the amount defrauded in respect
of the Recurring-Deposit Account Holders who were the victims of the
said fraud by making payment into their respective accounts of 253 R.D.
Account Holders who had made claim in respect of the loss sustained
by them. This fact was informed to the present advocate, who advised
to produce the documents evidencing the payment made by the GPO to
various RD Account holders who are subjected to the fraud played by
the Defendant. Thereafter took search for the necessary documents in
Record room and concerned departments/sections of office i.e. GPO,
only after extensive search the concerned Departments of GPO, could
trace out the above papers now. It is contended that much time took to
search the documents. The above documents ought to have been
produced at the time of filing earlier Affidavits of Evidence in the above
suit. However, the same had remained to be done due to oversight. In
any event, there is an averment in the Plaint at paragraph (1) and
paragraph (20) itself to the effect that 253 RD Account Holders were
repaid the misappropriated amount of Rs.3,07,885/- + interest of
Rs.79,266.30 = Rs. 3,87,151.30 and also in the particulars of claim at
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"Exhibit- N" to the Plaint. The documents indicating such payments are
now been searched and sought to be produced.
4. It is contended that Plaintiff's Arguments are yet not over
and that it is necessary to bring on record the necessary records of
repayment made to various RD Account Holders. In any event, the said
documents are necessary to adjudicate upon the issues involved in the
matte, and hence filed the present Application for grant of permission
to produce the documents. It is submitted that there is a delay in taking
out the present Application, but the said delay is not deliberate or
intentional but has been caused due to oversight. Hence prayed to
condone the delay in the interest of Justice and the Plaintiff's above
Notice of Motion may be granted, and prayed the Notice of Motion may
be made absolute.
5. Defendant has filed reply to the notice of motion and
strongly opposed the notice of motion. It is the contention of defendants
that the Notice of Motion taken out by the Plaintiffs for permission to
produce the documents indicating the payment made through G.P.O to
the Recurring Deposit Account Holders and the permission to file
Additional Affidavit of Evidence and to permit to prove the said
documents are not maintainable. The provisions of Order XIII Rule 1 of
Code of Civil Procedure, contemplates that all the documents are
required to be produced on or before the settlement of the issue. The
Plaintiffs have not stated any reason as to why the documents were not
produced before the settlement of the Issues.
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6. It is contended that the evidence of the plaintiffs is
completed, the evidence of the defendant is also completed and the
Defendant has argued the matter for final hearing and the Plaintiffs'
arguments for final hearing are almost completed. At this stage, the
present Application taken out by the plaintiffs is not maintainable and
the same is liable to be dismissed.
7. It is contended that in Paragraph No. 110 of the cross
examination of PW2 - D.M. Shukla, the specific suggestions were put to
the Witness of the Plaintiffs with respect to the documents showing the
payment made to the depositors by the Plaintiffs. The said suggestions
were put to the Witness on 21st March, 2017 and the Defendant has
disclosed his defence by giving the suggestion that such documents
were not produced and the same are not on record. The Plaintiffs
thereafter have also examined another Witness; however, no efforts
were made to place on records the required documents by the Plaintiffs.
There was ample opportunity to produce the documents, but Plaintiffs
have not availed the opportunity to produce the said documents and
evidence to that effect. The Defendant has argued this matter for final
hearing before the Hon'ble Court and much emphasis was made that
there is no evidence/documents showing that Plaintiffs have paid the
amount. Therefore, the Plaintiffs cannot be permitted to produce the
document to fill up the lacuna in the case. Hence, the Application is
liable to be dismissed.
8. Heard advocate of plaintiff and defendant and the point for
consideration is whether case is made out for grant of permission to
produce the documents at this stage.
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9. It is not a disputed fact that the suit is of the year 2010 and
plaintiff has examined 3 witnesses. Defendant has also filed evidence
affidavit. In the year 2018 and defendant’s witnesses is cross examined.
The matter was posted for final hearing and arguments were also about
to complete. Considering these circumstances at this stage, whether
plaintiff can be allowed to produce the documents at this stage.
10. The suit is filed for recovery of the amount of Rs.
3,12,676/-. It is the case that the defendant while working in the
Savings Bank Department, RD lot of Rs. 3,475/- with 21 passbooks and
cash from his relative Mandakini Shirsat was an agent of Maharashtra
Pradhan Bachat Yojna. However, it was not deposited in the
Government Account. He has opened 338 accounts. The plaintiff came
with the case that the defendant misappropriated the amount and
plaintiff has paid the amount to the extent of Rs. 3,07,885/- to 253
recurring deposit accounts holders, alongwith interest of Rs. 79,266-30
and as such loss to the extent of Rs. 3,87,151.30 is caused. The said
amount is recoverable from the defendant after adjusting the amount of
Rs. 74,385/- recovered from the defendant. Balance amount of Rs.
312766.30 is recoverable from the defendant.
11. The plaintiff wants to produce the documents on record to
prove the fact that the amount was paid to 253 accounts holders and
the said amount is recoverable from the defendants.
12. In the written statement, the defendant has shown
unawareness about the payment made by the plaintiff to the account
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depositors/account holders. I have gone through the evidence of
plaintiff and defendant. The plaintiff has deposed that amount is paid,
and in support of the said contention, the plaintiff, who is Union of
India, wants to place on record these documents to prove the payment
made.
13. The plaintiff has given the detail reason running from
paragraph 1 to 6 of the affidavit to the notice of motion. This court is of
the view that the documents are concerning the payment made by the
plaintiff. The said stand is already taken by the plaintiff and it is
pleaded. As such, the plaintiff wants to bring on record the fact that the
amount is paid to the depositors. In this point of view, if the plaintiff is
permitted to take on record these documents, no prejudice will cause to
the defendants. To decide the facts in dispute about the entitlement of
the plaintiff to recover the amount, this court is of the view that
opportunity to place the document on record needs to be granted. It is
true that there is a delay but, taking into consideration the claim of the
Government, and circumstances of the case as stated to the extent of
proving the documents filed, the permission to adduce evidence also
needs to be granted. Plaintiff is not entitled to adduce any evidence
except to prove the documents filed at Exhibit-A with the notice of
motion. The matter is at the fag end, and by taking the documents on
record trial will be protract, hence defendant needs to be compensated.
In view of the discussion made above, the notice of motion No. 1042-
2019 is allowed subject to the costs of Rs. 3000/- payable to the DLSA,
and proceed to pass following order.
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ORDER
1) The Notice of Motion No. 1042 of 2019 is allowed subject to the
payment of costs of Rs. 3000/- payable to the District Legal
Services Authority, Mumbai.
2) Production of documents filed with the Notice of Motion is
allowed.
3) Plaintiff is at liberty to adduce the evidence, if any, to the extent
of documents filed with Exhibit-A, and no further evidence with
respect to the facts and other material is permissible.
4) The Notice of Motion is disposed of accordingly.
5) The order is digitally signed; hence, it be uploaded on Case
Information System (CIS) and the printout of the digitally signed
order, additionally signed by me be kept on record as the physical
record is maintained by the Court.
(Arvind. M. Bhandarwar)
Judge,
City Civil Court,
Gr. Bombay.
Date: 09.10.2025
Dictated on : 09.10.2025
Transcribed on : 09.10.2025
Checked on : 13.10.2025
Signed on : 14.10.2025
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
15.10.2025 at 12.00 p.m. Mrs. Shruti Mangesh Raut
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.A. M. Bhandarwar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of
/Order
09-10-2025
Order signed by P.O. on 14-10-2025
Order uploaded on 15-10-2025
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