Interim Order 4

Order Details: Notice of Motion
Pdf Text: NM No. 103935 / 2022
Lodha – Atomberg
Order (Exh.7) 1 of 9
City Civil and Sessions Court, Mazgaon, Greater Mumbai
Court Room No. 31 – Commercial Court
(Additional District Judge : Vijay S. Hingne, LL. M.)
MHCC010114992022
Notice of Motion Filed : 13.10.2022
Arguments Over : 02.04.2024
Decided on : 03.04.2024
Duration : 1 Y, 05 M, 21 Days
Exhibit No.7
Commercial Suit No. 100032 / 2021
Notice of Motion No. 103935 / 2022
Plaintiff : Lodha Capital Markets Limited
VERSUS
Defendants 1 Atomberg Technologies Private Limited
2 Manoj Meena
3 Sibabrata Das
Appearances
Plaintiff
: Adv. Ms. Disha Mehta
Defendants
: Adv. Shri Yuvraj Singh
Notice of Motion for filing Additional documents
****************************************************
ORDER
(Pronounced on this 3rd Day of April, 2024)
Through present Notice of Motion, plaintiff is seeking
permission to file additional documents on record.
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Order (Exh.7) 2 of 9
2) Lodha Capital Markets Limited, Kolkata, Mumbai,
(hereinafter,
Plaintiff), is registered company providing financial
advisory services.
Defendant No. 1 Atomberg Technologies Pvt. Ltd.,
Navi Mumbai, Maharashtra, is registered company,
manufacturing smart and energy efficient appliances.
Defendant No. 2 Manoj Meena and defendant No. 3
Sibabrata Das are promoters, shareholders and directors of
Defendant No. 1 (hereinafter,
defendants / D1 / D2 / D3).
3) Vide Agreement Dt. 18.01.2018 / 22.01.2018, plaintiff
agreed to provide financial advisory services to defendants so as
to enable defendants to raise fresh investment and capitals. As per
said Agreement, plaintiff was
exclusive financial advisor of
defendants during 22.01.2018 to 22.02.2019. This
Exclusivity
Term, is defined in the Agreement. It prohibited defendants from
seeking advice from any other person.
4) However, during the Exclusivity Term, defendants
shared the material prepared by plaintiff with Suman Munjal
group to seek further investments. Thereby, defendants violated
the Exclusivity Term from the Agreement.
5) As per Agreement, plaintiff is entitled to receive
.84,96,000/- as	₹
Success Fees from the defendants. Despite
Notice, defendants failed to make said payment, but issued false
reply. Hence, plaintiff preferred present Commercial Suit for
recovery of .	₹ 92,83,684/- with interest @ 18 % per annum.
Summons for Judgment :
6) Perusal shows, plaintiff had preferred Summons for
Judgment. Same was replied by defendants by seeking
unconditional leave to defend.
My Learned Predecessor, vide Order Dt. 01.04.2022,
dismissed the Summons for Judgment and granted unconditional
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Order (Exh.7) 3 of 9
leave to the defendants. In said Order, he observed in Paragraph
No. 11 as follows :
In addition to it, discussion between parties to the
Agreement is not sufficient to demonstrate the services
rendered by the plaintiff had culminated in attracting the
investments. The plaintiff was rendering financial
services to the defendants almost for one year, but he is
claiming success fees on the basis of sole transaction
which is entered into between defendant no.1 and the
investor after termination of the Agreement due to
efflux of time. Therefore, there is prima facie force in
the contention of the defendants that the plaintiff could
not attract the investments. For all these reasons, the
defendants have succeeded in demonstrating that they
have substantial defence and there are triable issues
involved in the matter. Case of the defendants is
covered by guidelines of Hon'ble Supreme Court in the
cases of IDBI and B.L. Kashyap (referred above).
Therefore, the defendants are entitled to get
unconditional leave to defend.
Accordingly, defendants filed their Written Statement at Exh. 5
on 06.05.2022.
Notice of Motion No. 103935 / 2022 (Exh. 7 Dt. 13.10.2022) :
7) Plaintiff preferred the Notice of Motion on 13.10.2022
and sought permission to file additional documents. In Paragraph
No. 3 of his Notice of Motion, the plaintiff pleaded as follows:
contending as follows :
I say that the plaintiff has filed the present Summary
Suit and subsequently taken out the Summons for
Judgment. The Defendants filed their Affidavit in Reply
dated 25th August 2021 wherein for the first time the
Defendants claimed that the services as provided by the
Plaintiff were deficient and further argued this point at
the stage of hearing of Summons for Judgment. The
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Order (Exh.7) 4 of 9
Plaintiff, inter alia, as a counter in its affidavit in
Rejoinder dated 2nd September 2021 relied on certain
additional documents demonstrating the work carried
out by the plaintiff for the Defendant and further made
submissions at the stage of hearing of Summons for
Judgment. However, the Summons for Judgment as
taken out by the Plaintiff was dismissed by the Hon'ble
Court's order dated 1st April 2021. Therefore, the
plaintiff is filing the present application for producing
and taking on record the additional documents which
are relevant and necessary to show that the plaintiff had
rendered sufficient services to the Defendant at all
times. At all times the services of the plaintiff were
availed by the Defendants under the Engagement
Letter/Agreement dated 18th January, 2018. The
foundation of the documents being produced now is set
out in the affidavits filed by Plaintiff. The Defendants
were served with the Affidavit and documents by the
Plaintiff and had dealt with the same in the Sur-
Rejoinder dated 28th September, 2021 filed by the
Defendant.
Reply by defendants (Exh. 9, Dt. 22.12.2022) :
8) Defendants opposed Notice of Motion on grounds as :
Plaintiff has already filed Statement of Truth stating
that, it has filed all documents in its possession.
Defendants have already opened their defense. To
counter the same, plaintiff is coming with additional documents.
No explanation is provided by plaintiff for not filing
these documents along with the Suit.
Hence, now plaintiff cannot be permitted to introduce
new documents. Hence, Notice of Motion be dismissed.
Points for determination :
9) Heard both Learned Counsels. Perused written
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Order (Exh.7) 5 of 9
arguments of plaintiff at Exh. 10 (02.04.2024) and of defendants
at Exh. 11 (02.04.2024). Perused Record.
Points for determination, findings and reasons are as
follows :
Points
Findings
1 Is plaintiff entitled for filing
additional documents on record?.... In the Negative.
2 What Order? ……………………... As per final order.
R E A S O N S
Reasons as to Point No. 1 & No. 2
10) Important events in Suit are as follows :
Date Events
18.01.2018 to
22.02.2019 Existence of Agreement and Exclusivity Term.
11.06.2019 to
20.09.2019 Exchange of Notices / e-mails between parties.
17.10.2019 Plaintiff applied for Pre-Institution Mediation.
24.02.2020 Non – Starter Report.
06.03.2020 Filing of present Suit.
03.02.2021 Statement of Truth
02.06.2021 Filing of Summons for Judgment.
25.08.2021 Leave to Defend filed by defendants.
03.09.2021 Rejoinder by plaintiff.
28.09.2021 Sur -rejoinder by defendants.
17.03.2022 Sur -rejoinder by defendants.
01.04.2022 My Learned Predecessor dismissed Summons for
Judgment and granted unconditional leave.
06.05.2022 Written Statement filed by defendants.
13.10.2022
Notice of Motion No. 103935 / 2022, by plaintiff,
seeking permission to file additional documents.
22.12.2022 Reply filed by defendants to Notice of Motion.
02.04.2024 Written arguments filed by plaintiff.
Written arguments filed by defendants.
11) Perusal shows that, along with Plaint, Plaintiff has also
filed Statement of Truth as required U / Order 6 Rule 15 (5).
Plaint is filed on 06.03.2020. It is having Index with 80
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Order (Exh.7) 6 of 9
pages. In said Index, there is no Statement of Truth.
It appears that, Plaint was admitted on 04.02.2021.
It is thereafter, Statement of Truth bearing Date as
03.02.2021, was annexed to the Plaint at Page No. 81.
Said Statement of Truth Dt. 03.02.2021, is affirmed by
Paras Shah, who has filed the present Suit. In its Paragraph No. 4
and No. 5, plaintiff / Paras Shah affirmed as follows :
4. I say that there is no false statement or concealment
of any material fact, document or record and I have
included information that is according to me, relevant
for the present Suit.
5. I say that all documents in my power, possession,
control or custody pertaining to the facts and
circumstances of the proceedings initiated by me have
been disclosed and copies thereof annexed with the
Plaint and that I do not have any other documents in my
power, possession, control or custody.
It means, plaintiff has filed statement of Truth, affirming that, it
has filed each and every document related with the Suit.
12) Order 11 of Code of Civil Procedure, as applicable to
Commercial Courts, deals with,
Disclosure, Discovery and
inspection of documents in suits before the Commercial Division
of a High Court or a Commercial Court. Its relevant Rule 2 to 5
reads as follows :
(2) The list of documents filed with the plaint shall
specify whether the documents in the power,
possession, control or custody of the plaintiff are
originals, office copies or photocopies and the list shall
also set out in brief, details of parties to each document,
mode of execution, issuance or receipt and line of
custody of each document.
(3) The plaint shall contain a declaration on oath from
the plaintiff that all documents in the power, possession,
control or custody of the plaintiff, pertaining to the facts
and circumstances of the proceedings initiated by him
have been disclosed and copies thereof annexed with
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the plaint, and that the plaintiff does not have any other
documents in its power, possession, control or custody.
Explanation.––A declaration on oath under this sub-rule
shall be contained in the Statement of Truth as set out in
the Appendix.
(4) In case of urgent filings, the plaintiff may seek leave
to rely on additional documents, as part of the above
declaration on oath and subject to grant of such leave by
Court, the plaintiff shall file such additional documents
in Court, within thirty days of filing the suit, along with
a declaration on oath that the plaintiff hasproduced all
documents in its power, possession, control or custody,
pertaining to the facts and circumstances of the
proceedings initiated by the plaintiff and that the
plaintiff does not have any other documents, in its
power, possession, control or custody.
(5) The plaintiff shall not be allowed to rely on
documents, which were in the plaintiff’s power,
possession, control or custody and not disclosed along
with plaint or within the extended period set out above,
save and except by leave of Court and such leave shall
be granted only upon the plaintiff establishing
reasonable cause for non-disclosure along with the
plaint.
13) Suit is filed on 06.03.2020. Through Statement of Truth
filed by plaintiff on 03.02.2021, plaintiff affirmed that, it has filed
all the documents, which are in its possession.
So, as per Order 11 of the Code of Civil Procedure,
plaintiff cannot file any document after 03.02.2021, unless
plaintiff provides proper explanation.
14) Overall facts from case of Plaintiff, leads to following
conclusions :
1. After filing of Suit (06.03.2020), plaintiff filed
Statement of Truth on 03.02.2021, claiming that, it has
filed all the documents.
2. Through Rejoinder dated 03.09.2021 and through
Notice of Motion Dt. 13.10.2022 plaintiff is seeking
permission to file additional documents.
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3. It is not case of plaintiff that, it got possession of these
additional documents at subsequent stage or they were
discovered subsequently.
4. It also means that, at the time of filing of the Suit,
plaintiff was in possession of additional documents.
5. It means, that, despite having possession of additional
documents, Plaintiff deliberately did not filed it on
record.
6. It also means that, in the Statement of Truth, plaintiff
made false affirmation that, it has filed all the document
from its possession, in the Suit.
7. By filing improper Statement of Truth, plaintiff has lost
his creditworthiness.
8. Most importantly, once defendants opened their defense
through Leave to Defend on 25.08.2021, then, plaintiff
subsequently, through rejoinder Dt. 03.09.2021 and
Notice of Motion Dt. 13.10.2022, came with case of
additional documents.
It means, plaintiff is filing these documents, because of
defenses raised by defendants.
9. Another important aspect is that, plaintiff is not giving
any explanation as to why it did not filed these
documents at the time of filing of the Suit.
15) Reason stated by plaintiff that, it is filing the additional
documents because of disclosures / defenses made by defendants
in Leave to Defend, cannot be accepted as proper explanation for
delayed filing of the documents.
16) Plaintiff relied on following Judgments of the Hon’ble
Superior Court :
1. Valo Automotive Vs. Sprint Cars, 2021 SCC OnLine
Del 4080,
2. Bhutani and Company Vs. Vias Dev, 2023 SCC OnLine
Del 5598,
3. Narendra Hirawat Vs. Generation Three Entertainment,
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IA (L) No.13069/2022 Dt.15.02.2023 (BHC).
In view of contradictions disclosed from the Statement of Truth
and as plaintiff is filing documents because of defenses raised by
defendants and as plaintiff has not given proper explanation for
delayed filing of documents, then, with humbleness and respect, I
submit that, aforesaid Judgments of the Hon’ble Superior Courts,
cannot help the plaintiff.
17) For aforesaid discussion, it is held that, plaintiff failed to
make out any case so that, he can be allowed to file the additional
documents on record. Hence, Points are so answered and Notice
of Motion is disposed off, by following Order :
ORDER
1. Notice of Motion No. 103935 of 2022, is rejected.
2. Proceeding of Notice of Motion No. 103935 of 2022 is
closed.
3. Suit is adjourned for admission and denial.
4. Order pronounced in Open Court.
5. Plaintiff be informed about his right to challenge this
Order and limitation for same.
6. Record of Notice of Motion shall be part and parcel of
main Commercial Suit No. 100032 / 2021.
Mumbai
Dated : 03.04.2024 (Vijay S. Hingne)
Additional District Judge,
Court Room No.31 – Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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