Final Order 1

Order Details: Notice of Motion
Pdf Text: : 1 : Notice of Motion No.823 of 2018
CNR No.MHCC010028902018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.823 OF 2018
IN
SUIT NO.6117 OF 2007
Tarun Keshrichand Shah and anr. .. Plaintiffs.
Versus
M/s. Kishor Engineering Company .. Defendants
AND
Nak Engineering Company Pvt. Ltd and anr. .. Respondents
Appearance:
Ld. Advocate Aayush Singhvi for plaintiff.
Ld. Advocate Arun Mehta for defendants.
CORAM : HIS HONOUR JUDGE
SHRI ANAND L. YAWALKAR
(COURT ROOM NO. 31)
DATED : 05.10.2018
: ORDER :
This Notice of Motion is taken out by plaintiff for directing the
complaint to be filed against the respondents u/s. 191 and 192 of IPC.
2. Counsel for plaintiff submitted that a deliberate and
intentionally false statement was made by the respondent no. 2
Himanshu Patwa that Nak Engineering Company Pvt. Ltd. is the
successor of M/s. Kishor Engineering Company under Part IX of the
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Companies Act, 1956. It was further submitted that it is false statement
was made on oath in the affidavit filed in support of the Notice
of Motion No. 1925/2017. M/s. Kishor Engineering Company had
illegally and unlawfully inducted the Nak Engineering Company in the
suit premises and Himanshu Patwa was aware of this fact. But in
order to delay and defeat the suit such false statement is made in
Notice of Motion No. 1925/2017. It was submitted that Himanshu
Patwa has not submitted any documents to demonstrate that Nak
Engineering Company is the successor of the Kishor Engineering
Company. They had filed on record a true extract of Kishor Engineering
Company received by them on 20.09.2016. It was further asserted
that certificate of incorporation of Nak Engineering is not issued
under Part IX of the Companies Act and is not registered under
part IX. Himanshu Patwa is the Chartered Accountant and he is
aware about the provisions of Company Law and had filed the
application with dishonest intention. They prayed to issue necessary
directions to file the complaint against Himanshu Patwa.
3. Respondent appeared and submitted that the present notice
of motion is not maintainable. Respondent submitted that the plaintiff
had filed the suit in Small Causes Court, which is pending for
disposal. Plaintiff had earlier filed criminal complaint of which
cognizance was not taken by the Magistrate and revision filed against
it, was also dismissed. It was further submitted that the plaintiff has
accepted the cheque given by Nak Engineering Corporation. They
denied making any false statement on oath. Registrar of the company
had approved and accepted their memorandum of association and
certificate of incorporation dated 22.02.1988. They again reiterated the
contention that Nak Engineering Company is the successor of Kishor
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Engineering Company. The respondent denied of making any false
statement in the affidavit and prayed to dismiss the motion.
4. Heard Ld. Counsel Ayush Singhvi for the plaintiff and Ld.
Counsel Arun Mehta for applicant. Perused the material on
record.
5. Upon considering the hearing the major contention of the
plaintiff is regarding the false statement made on oath in affidavit filed
in support of Notice of Motion No. 1925/2017. Plaintiff had objected
to the statement that Kishor Engineering Company was taken over by
Nak Engineering. And that the Nak Engineer is the successor of the
Kishor Engineering Company. It was also contended that the registered
of partnership firm was converted into a registered Private Limited
Company under Part IX of the Companies Act.
6. It is on record that both the plaintiff and respondents are
litigating against each other over the suit premises. Admittedly the
premises was first letout to M/s Kishor Engineering. Now it is in the
possession of Nak Engineering Company. According to plaintiff Nak
Engineering Company are the trespasser. Whereas the Nak
Engineering Company contended that they are the successor of M/s.
Kishor Engineering and the entire dispute aroused out of it.
7. In regard to the allegations levelled the respondent relied
upon certificate of incorporation dated 22.02.1988. The said certificate
is issued by Registrar of Company. The respondent further relied
upon memorandum of association of Nak Engineering Company. It
shows that Nak Engineering Company had acquired M/s. Kishor
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Engineering. Thus, upon considering this both documents alongwith
the submission of the counsel for respondent it primafacie appears
that Nak Engineering Company is the successor of Kishor Engineering
Company. This court has no jurisdiction to adjudicate the authenticity
of the certificate and procedure followed by the Registrar of the
Company. Thus, considering this statement there does not appears to
be a false statement made by the respondent and accordingly,
directions as prayed in the impugned notice of motion cannot be
issued. Accordingly, I pass the following order.
: ORDER :
Notice of Motion No.823 of 2018 is rejected.
Anand.L.Yawalkar
Judge,
City Civil & Sessions Court,
Date: 05.10.2018 Gr. Mumbai
Dictated on : 05.10.2018
Transcribed on : 06.10.2018
Signed on : 06.10.2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
On 10.10.2018 at 2.38 p.m.
UPLOAD DATE AND TIME Mrs. P.R.Vengurlekar
NAME OF STENOGRAPHER
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Name of the Judge
(With Court Room No.)
H.H.J. Anand.L.Yawalkar
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
05.10.2018
JUDGMENT/ORDER signed by P.O. on 06.10.2018
JUDGMENT/ORDER uploaded on 10.10.2018
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