Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1125/19 SUM.SUIT 435/2018 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1125 OF 2019
(CNR NO.: MHCC010029222019)
IN
SUMMARY SUIT NO. 435 OF 2018
Kesar Lalji Shah, ...Plaintiff
Versus
Kanchi Manish Shah and anr. ...Defendants
Appearances:
Advocate Jiten Bhardwaj for the Plaintiff.
Advocate Neeta V. Parikh for the Defendant.
CORAM : HIS HONOUR JUDGE
SHRI.M.S.LONE
(C.R.NO.28)
DATE : 05th OCTOBER 2019
ORDER
This Notice of motion is to initiate perjury proceedings against
the defendants under section 340 of Cr.PC for offences under sections
200, 199, 191 of Indian Penal Code, with prayer to direct police to
register FIR against to the defendants.
2. From the material on record following points come for my
determination and my findings with reasons are as follows:
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NM 1125/19 SUM.SUIT 435/2018 2
POINTS FINDINGS
1.Whether there is sufficient cause
to initiate proceeding under section
340 of Cr. P C as prayed?
No
2. What order? As per final order
REASONS
AS TO POINT NOS.1 &2.
3. The Ld. counsel for applicant has submitted that the defendants
have made false submissions before the court and has succeeded in
getting favourable orders. In Notice of Motion no.2214/2018 this court
on relying upon false submission of defendants had made observations
in para 5 of the order as, '' I have duly considered the above submissions
of both the sides so also, I have gone carefully through the case record. It
appears that the plaintiff moved the Notice of Motion No. 448/18 in
Commercial Suit no. 608/17 before Hon'ble High Court seeking the relief
to restrain the defendant from selling the said flat and that Notice of
Motion no. 448/18 is disposed off by the Hon'ble High Court on
22.03.2018 and the defendant did not restrain from dealing with the said
flat”. The above observations of the court were based on false
submissions of the defendants that they have sold the said flat in month
of April, 2018, whereas in the pursis filed before the Ld. MM the
defendants, who are accused therein, have stated that they are residing
in the said flat. That pursis is of June 2018. The defendants had
misguided the court and obtained order of unconditional leave to
defend. Therefore, the defendants have committed offences under
section 340 of Cr.PC.
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NM 1125/19 SUM.SUIT 435/2018 3
4. To support his argument Ld. Counsel has relied on copy of order
passed by this court in Notice of Motion No. 2214/2018, copy of order
passed by this court in Notice of Motion No 2262/2018, copy of order
passed by this court in SJ No. 184/2018, Copy of pursis filed by
defendants in C C No. 1929/PW/2016 and relied on Sanjeev Kumar
Mittal Vs. The State, Test. Case No. 19 of 2004, New World Resources
Vs. Mahesh S. Parekh, Perjury Petition No. 1 of 2018 in Commercial
Suit No. 138 of 2015, Pritish Vs. State of Maharashtra and Ors. Appeal
(Crl) 1188 of 2001 and Union of India Vs. Haresh Virumal Milani Writ
petition (St) No. 4899 of 2017.
5. The defendants resisted this motion by filling reply. The Ld.
advocate for defendants have submitted that all the orders are passed
by the court after perusing the records. If the plaintiff is aggrieved by
those orders they could approach the higher courts. The defendants
had never made any false submissions. Infact, in the month of April,
2018 the defendants had created third party interest in the said flat by
accepting part payment of the sale and till the end of July 2018, the
transaction was completed, hence in the pursis filed in the month of
June, 2018 the defendants have stated their address as to the said flat,
which was true.
6. The Section 340 of the Code of Criminal Procedure 1973 deals
with the offences committed in relation to proceeding of the court or in
respect of the documents produce or given in evidence in a proceeding
in court. In this case the plaintiff has alleged that at the hearing of
Notice of Motion No. 2214 of 2018 the defendants had made false
statement that in the month of April, 2018 they had sold the said flat to
third party. On the other hand in pursis before the Ld. MM filed in June,
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NM 1125/19 SUM.SUIT 435/2018 4
2018 the defendants stated that they are residing in the said flat. This
Court while passing the order below Notice of Motion No. 2214 of 2018
had observed that since the Hon’ble High Court in Notice of Motion No.
448/2018 in Commercial Summary Suit No. 608/2017 did not
restrained defendants from dealing with the said flat. This was the main
reason for rejecting the Notice of Motion No. 2214 of 2018 by this
court. This court never considered the submission about disposal of the
said flat by the defendants. It is to be noted that the plaintiff has not
challenged that order till date.
7. The ld. Advocate for the plaintiff has relied on following
authorities:
i) In the case of New World Resources (Supra), that case was
filed for recovery of the unpaid amount against the goods sold, supplied
and delivered. The defendant in that case in reply to summons for
judgment had denied about the receipt of any goods. On this
background the plaintiff filed the perjury application to initiate action
under section 340 of Code of Criminal procedure, 1973. Finding that
the statement made by the defendants were utterly false the Hon'ble
High Court of Bombay initiate inquiry under section 340 of Code of
Criminal Procedure. After perusal of whole authority, it is respectfully
submitted that authority is not applicable for the present case as in this
case it can be safely inferred that in the month of April, 2018 in fact the
defendant had created third party interest in the said flat by accepting
part payment and in the month of July, 2018 that transaction was
completed.
ii) In the case of Sanjeev Kumar Mittal (Supra) the Hon'ble
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NM 1125/19 SUM.SUIT 435/2018 5
High of Delhi, in a criminal case convicted the Medical officer of the
hospital for preparing false medical documents. After the perusal of
whole authority it is respectfully submitted that the authority is not
applicable to the present case as in this case it cannot be said that the
defendants have created false sale agreement of the said flat.
iii) In the case of Union on Indian And Ors. (Supra) the Hon'ble
High Court of Bombay has observed that before initiating proceeding
under section 340 of Code of Criminal Procedure, 1973 it is not
necessary to hear the other side. After the perusal of the whole
authority it is respectfully submitted that the authority is not applicable
for the present case as in that case the inquiry under section 340 of
Criminal Procedure Code, 1973 was initiated and court had already
proceeded with inquiry, while this case is still at preinquiry stage.
iv) In the case of Pritish (Supra) the Hon'ble Supreme Court
has observed that in the inquiry under section 340 of Code of Criminal
Procedure, 1973, it is not necessary for the would be accused to
participate in the proceeding. After the perusal of whole authority it is
respectfully submitted that the authority is not applicable for the
present case as this case is still at preinquiry stage.
8. The present is for recovery of earnest money of Rs.30,00,000/ paid
by plaintiff to defendant with regard to purchase of flat. It seems that
there is no deliberate false statements mad by defendants. Even if, for
the sake of arguments it is taken that defendants had made contrary
statement but it has no impact on admission of justice or will have no
impact on the final decision of the suit. My submission is fortitude by
the decision of Hon'ble High Court of Bombay in Dr. Santosh Shetty Vs.
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NM 1125/19 SUM.SUIT 435/2018 6
Mrs. Ameeta Santosh Shetty, Civil Application No. 72 of 2017 in Family
Court Appeal No. 113 of 2014 dated 05th January 2019. Hence, no
ground made by initiate proceeding and inquiry against the defendants
under section 340 of Code of Criminal Procedure, 1973. Therefore,
point No. 1 is answered as 'No' and following order is passed.
ORDER
1. Notice of Motion No.1125/2019 stands rejected with cost.
2. Notice of Motion No.1125/2019 stands disposed of accordingly.
(M.S.LONE)
Judge,
Date: 05/10/2019 City Civil Court,Gr. Bombay
Dictated on : 05/10/2019
Transcribed on : 05/10/2019
Signed on : 07/10/2019
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NM 1125/19 SUM.SUIT 435/2018 7
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
07/10/2019 at 5.40p.m. Mr. A. S. Sugdare
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Shri.M.S.Lone
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
05/10/2019
Judgment/Order signed by P.O. on 07/10/2019
Judgment/Order uploaded on 07/10/2019
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