Order 1

Order Details: Notice of Motion
Pdf Text: NM No.142918 in S.C. Suit No.681704
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1429 OF 2018
IN
S.C. SUIT NO. 6817 OF 2004
Gujarat Themis Biosyn Limited ... Plaintiffs
versus
Aristo Pharmaceuticals Ltd. … Defendants
Appearance:
Smt. Nandini Joshi, Advocate for plaintiff.
Shri. S.T. Mishra, advocate for defendant.
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 29/01/2019
ORAL ORDER
1) This application is filed by defendant to produce
document alongwith the affidavit of evidence in view of
examination in chief on behalf of defendant No.2's witness. The
Notice of Motion is supported by affidavit of Satish Dattatray
Kalyani who on oath stated that he is Senior General Manager,
Quality Control of the defendant company. The defendant has
examined witness and he has deposed on behalf of defendant. It
is disclosed in the list of witness that he will examine Mr.
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Balramreddy Arjunareddy Bommareddy, the person who
conducted the tests in respect of the disputed drug Rifampicin. In
the cross examination, the question was specifically put whether
there were tests conducted of other components of Coxinex
capsules, Coxina3 capsules and Coxina4 capsules besides the
disputed drug. The witness assured that there was no
requirement of producing test reports of the component of
Coxinex capsules, Coxina3 capsules and Coxina4 capsules along
with disputed drug. In view of the cross examination in para
16,17, and 18, it is necessary to file the documents. Hence,
prayed to allow the Notice of Motion.
2) The plaintiff filed affidavit in reply to the Notice of
Motion and strongly objected for allowing to file documents. The
plaintiff contended that the defendants has not come with clean
hands. There negligence on the part of defendants. Therefore,
they are not entitled for relief of production of the document. On
the contrary, the cross examination of DW1 he felt it not
necessary to produce the document. The DW1 cannot produce
the document in the evidence of DW2. Defendant is directed to
produce document which is neither related upon or even
completed in the written statement. The inspection of the
document is not given to the plaintiff. In the written statement,
there is no pleading in respect of the documents which he now
wants to produce. The DW1 in cross examination in para 24 has
specifically stated that its report dated 11/6/02 was not carried
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out by DW1 but was carried out by his assistance. The defendant
cannot be allowed to fill up the lacuna. Hence, prayed to reject
the Notice of Motion.
3) Heard advocate Smt. Nandini Joshi for plaintiff and
advocate S.T. Mishra for defendant. Perused application and
reply. I have also gone through the evidence of plaintiff's and
defendant's witnesses.
4) The defendant desire to produce the documents
about the report at Sr. Nos. 4 to 7 in the compilation of document
of defendant's witness No.2. The defendant in para 2 of written
statement has specifically stated that
“defendant had withheld payment as material
supplied i.e. Rifampicin were of substandard
quality which has led doctors of repute to lodge
complaints with the defendants which has further
led to loss of reputation of the defendants. The
plaintiff had at the behest of and in collusion with
the competitors of the defendants supplied sub
standard quality material to blemish the defendant's
reputation. Para 5(a) to (d) represents some of the
part of letters received addressed about the quality
of medicine. Para (c) and (d) states about the
contents of Rifampicin used in the medicine.”
5) The defendant in para 9 (n) of the written statement
specifically stated that,
“it is evident that earlier the plaintiffs supplied
Rifampicin with a very high potency level and
thereafter have supplied Rifampicin with a potency
level of 91.27%, 91.615%. The defendants crave
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leave to refer to and rely upon the reports
mentioned herein above. Thus the defendants
noticing the change in the quality supplied by the
plaintiffs addressed various letters (being exhibits
14, 15 to 18) above, requesting the plaintiffs to
depute their technical personnel to resolve the
matter amicably. However, the plaintiffs failed to
neglected to do so. It is submitted that in view of
this declining quality which is evidence from the
reports referred to herein, the defendants started
receiving complaints in respect of the results on the
patients. The reputation of the defendants has been
affected adversely.”
6) The plaintiff is not denying the about the evidence of
DW2. But, it is the contention of the plaintiff during the
argument that by way of evidence of DW1's witness, this report
cannot be allowed to be filed on record. The defendant cannot fill
up lacuna in the evidence of this witness. DW1 is directed to
bring the document on record but he is examining the witness
DW2 B. Reddy who has conducted the test in respect of disputed
drug.
7) The witness Rajneesh Anand, is thoroughly cross
examined by defendant. In para 21 is that,
“I therefore, say and submit that the plaintiffs are
entitled for a decree and the defendants are liable to
be decreed to pay to the plaintiffs a sum of
Rs.13,28,307/ as per the particulars of claim and
further interest @ 15% p.a. on the principle sum of Rs.
10,00,00/ from the date of filing of this suit till the
date of payment. I am producing the particulars of
claim, which is annexed at page No.44 to the
compilation of original documents separately filed
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alongwith this affidavit. The same be taken on record
and be exhibited.”
8) In the cross examination of defendant's witness S.D.
Kalyani, the question was to put to the witness that,
“Q: You have not produced original test report
given by the plaintiff alongwith the drugs supplied
in year 2000?
Ans: It is true to say. Witness volunteered that
plaintiff is in possession of the copy of the
documents and defendant company did not feel it
necessary.”
9) The plaintiff has relied on authority report “Rajesh
Shipping Services Vs. R.V. Akademik Boris Petrov & Anr.”
(Notice of Motion No.2269/15 in admiralty suit No.31/13) that
only when in cross examination it came out that there are no
other documents and plaintiff realized that they may have a
problem in proving their claim for interest etc. The Notice of
Motion has been filed …. It is settled law that evidence cannot be
led on facts which have not been pleaded in the plaint or in the
written statement. In the present fact of the above case
contention of the plaintiff is that in the written statement
formality of the document is not completed by the plaintiff
cannot be considered. In the written statement the defendant has
specifically stated about the test of the Rifampicin and he has
also referred the various letters. I have also gone through the
authority relied by the plaintiff. Considering the pleadings in the
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written statement and cross examination of plaintiffs and
defendant No.1's witness, it cannot be said that it is not within
the knowledge of the plaintiff. Plaintiff is well aware about the
contents and therefore, the ratio relied in the authority is not
applicable to the present facts of the case.
10) Defendant has stated in his written statement about
the test. Defendant desires to file said document and the said
document is necessary for proper adjudication of the dispute
between the parties. Plaintiff is aware of the pleadings of the
defendant when the written statement was filed wherein it has
been specifically stated about the drug of Rifampicin. The
objection of the plaintiff is that the defendant's witness No.1
desires now to bring the said document on record in his evidence
is not correct. The defendant in the written statement has
specifically stated that the said document is tested by witness
Reddy and his evidence affidavit is filed on record. The plaintiff
will get opportunity to cross examine the witness. Hence, pass
following order:
ORDER
1) Notice of Motion No.1429/18 is allowed.
2) Defendant is allowed to file document set out
in the compilation dated 2/12/17 submitted
alongwith the affidavit of evidence in lieu of
examination in chief on behalf of the defendant's
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witness No.2 dated 2/12/17.
(S.S. Nagur)
Date : 29/01/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 29/01/2019
Transcribed on : 13/02/2019
Signed on : 13/02/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF STENOGRAPHER
13.02.2019 & 2.57 p.m. : Mrs. S.A. Shekade (LG)
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 29.01.2019
Order
Judgment/Order signed by the P.O. on : 13.02.2019
Judgment/Order uploaded on : 13.02.2019
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