Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1034 of 2018
CNR MHCCO10033702018
IN
L.C.SUIT NO. 3175 OF 2013
CNR MHCC010046432013
M/s. Charms Corporation )...Plaintiff.
V/s.
1. New Ambika Cooperative Housing Society
Limited & Anr. )...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.08)
DATE : 22/03/2018.
Ld. Advocate Diwan Parmar for the plaintiff
Ld. Advocate Mr.Tembhe for the defendant no.1
Ld. Advocate Tadvi for BMC/defendant no.2
ORAL ORDER
This notice of motion is taken out by the plaintiff for
allowing him to file additional affidavit examination in chief of PW no.1
Lalit Vakharia. This notice of motion is supported by an affidavit.
Defendant no.1 has strongly opposed this notice of motion by filing
reply on affidavit being executed by Mr. Mansukh B. Gala. Learned
advocate for MCGM has also filed say on the notice of motion.
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2. Heard both the sides.
3. The main suit is for perpetual injunction restraining the
defendant no.1 from entering into the development agreement or
creating third party interest in the suit property vide Exhibi8.
Defendant no.1 has filed written statement and vide Exhibit9
preliminary issue is framed with regard to the maintainability of the
suit.
3. As per the record , for the decision of preliminary issue, on
behalf of the plaintiff PW no.1 Lalit Vakharia has filed affidavit in lieu
of examination in chief. Yet, the defendants have not started the cross
examination. It is contended on behalf of the plaintiff that plaintiff
wants to place on record certain documents and further wants to lead
evidence to that effect.
4. This notice of motion is mainly opposed on the ground that
till the date , the plaintiff has not produced any registration certificate.
It is further argued that the affidavit evidence contains the matter which
is irrelevant and inadmissible. There is no doubt about the fact that the
affidavit which contains irrelevant and inadmissible evidence is to be
redacted which principle is also laid down in the case of " Banaganga
Cooperative Housing Society Ltd., Vs. Vasanti Gajanan Nerurkar"
Reported in Chamber summons (L) No. 1678 of 2014 in Suit Nos.
1488 of 1980 and 1373 of 1992) of Hon'ble Bombay High Court.
However, only that affidavit evidence is placed on record. At this stage,
it cannot be said that the plaintiff is going to submit the irrelevant or
inadmissible evidence. Certainly after filing of the affidavit evidence
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on record, those issues can be taken into consideration. The only fact
which needs to be decided is whether the plaintiff can be permitted to
lead any additional evidence. The preliminary issue as it is framed is
with regard to maintainability of the suit. In view of the the bar as
envisaged under section 69 of the Indian Partnership Act 1932.
Whether the plaintiff will be filing any additional documents or not can
be considered at this premature stage. For deciding the preliminary
issue on merits and also for giving the fair opportunity to the plaintiff,
in my opinion , plaintiff can very well be permitted to file additional
evidence.
5. In my opinion, no prejudice would be caused to the
defendants as they will certainly get an opportunity to cross examine
the plaintiffs witness and further to lead their evidence, if any.
Considering the over all circumstances, I pass the following order.
ORDER
1. Notice of Motion no. 1034 of 2018 is allowed and
made absolute in terms of prayer clause (a) with
specific condition that on next date i.e. 4th June,
2018 the plaintiff shall file the additional affidavit
of evidence of PW no.1. Lalit Vakharia positively.
2. Notice of Motion is disposed of accordingly.
(Kishore M. Jaiswal )
Addl. Sessions Judge,
City Civil & Sessions Court,
Gr.Mumbai.
Date:22/03/2018.
Dictated on : 22/03/2018.
Transcribed on : 22/03/2018.
Signed on :
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“Certified to be True And Correct copy of the Original.
Signed Judgment/Order.”
Upload Date And Time
23/3/2018 at 5.30 p.m.
Name of Stenographer
(Mrs. V.V.Mhatre)
Name of the Judge (With Court
room No.)
H.H.J Shri Kishore M. Jaiswal
(C.R. No.08)
Date of Pronouncement of
JUDGMENT / ORDER
22/3/2018
JUDGMENT / ORDER signed by
P.O.on
22/03/2018
JUDGMENT / ORDER uploaded on 23/03/2018
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