Interim Order 1

Order Details: Order below exhibit
Pdf Text: 1 OBE.37 in
Comm SU-485-2020
MHCC010045682020
IN THE CITY CIVIL COURT AT MUMBAI.
(Court Room No.32)
ORDER BELOW EXHIBIT - 37
IN
COMMERCIAL SUIT No.485 OF 2020
M/s. Siddharth Trading Company …PLAINTIFF
VERSUS
M/s. Vijay Stores …DEFENDANT
Mr.Jash Vyas h/f. Sanket Shah, Learned advocate for plaintiff.
Mr.Harshal Damania, Learned advocate for defendant.
CORAM : JUDGE, SHRI VISHAL SADASHIVRAO GAIKE, COURT
ROOM NO.32
O R D E R
(Delivered on 14/12/2023)
1. This is an application on behalf of the defendant for issue
of witness summons under Order 16 of the Civil Procedure Code to the
officer of the Central Goods and Services Tax (GST) and Central Excise
Department, Mumbai. It is stated by the defendant that to prove its
defence, the examination of an appropriate officer of the GST
department is necessary. It is necessary to prove its defence that the
plaintiff has overcharged him for the goods supplied to him. Therefore,
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2 OBE.37 in
Comm SU-485-2020
witness summons be issued to the said witness.
2. The learned advocate of the plaintiff has given his
handwritten say on the application itself and has stated that, the filing
of the present application is an abuse of process of law. The defendant
has not shown any reason as to why the examination of the GST officer
is necessary for its defence. Hence, application is liable to be dismissed
with costs.
3. Heard the parties. Perused the record. The matter is
pending for defence evidence since 02/03/2023. The proprietor of the
defendant firm has examined himself as DW-1. It is an admitted
position that the goods for which invoices Exh.19 were raised by the
plaintiff, were supplied to the defendant firm and utilised by it. It is the
defence of defendant that the plaintiff company has overcharged it for
the goods which were supplied to it. Therefore, defendant firm is not
liable to pay the claim amount to the plaintiff company. Admittedly,
there was no prior written agreement between the parties for the rate of
the goods supplied by the plaintiff company. The terms and conditions
regarding payment are mentioned on the invoices Exh.19 but the
defendant/DW-1 has stated in his cross-examination that, it was orally
agreed between them that the terms and conditions of payment on the
invoices are not to be acted upon.
4. That, considering the defence of over charging of goods,
taken by the defendant and the admitted position between the parties
mentioned hereinabove, there is no necessity to examine any officer
from the Central GST and Excise Department. The said officer if
summoned as a witness in the court will not be in a position to testify
regarding the rates of the goods agreed between the parties. It will be a
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3 OBE.37 in
Comm SU-485-2020
futile exercise calling the said witness to the Court to testify on any
matter which is in the exclusive knowledge of the present parties. His
testimony will not be helpful to the Court to arrive at any just decision.
Besides that, the defendant/DW-1 had not filed any list of witnesses at
the time of commencing his evidence and the present application was
filed after his cross-examination was completed. There is no pleading or
any evidence by the defendant regarding the GST returns of the plaintiff
company. Therefore, calling of the said witness will unnecessarily
prolong the matter.
5. That, the learned advocate of the defendant relied on the
judgment of Hon’ble Bombay High Court in the matter of Dinesh Singh
Bhimsingh V/s. Vinod Shobhraj Gajariya and Anr., Writ Petition
No.11185 of 2022 decided on 25/01/2023. In the said matter, the
Hon’ble Bombay High Court had held that, “It is the case of the
respondent/plaintiff that the developers of the building (Two additional
witnesses sought to be examined ) are confirming parties to the
agreement that was supposed to be executed. They also want to prove
that NOC was given by the developers for completion of transaction
sale. In my view, therefore, examination of these two witnesses is vital
for the purpose of proving the case of respondents/plaintiff”.
6. Thus, the facts in the matter of Dinesh Singh (Supra) are
totally different from the facts of the present matter. The evidence of
proposed DW-2 is not relevant for proving the defence of the defendant.
Therefore, in my humble opinion, the case law relied upon by the
defendant is not helpful to its defence. Consequently, I proceed to pass
following order.
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4 OBE.37 in
Comm SU-485-2020
ORDER
Application Exh.37 is hereby rejected and disposed off.
( VISHAL SADASHIVRAO GAIKE )
JUDGE, CR NO.32,
Date : 14/12/2023. CITY CIVIL COURT,
Direct dictated on : 14/12/2023 GR. MUMBAI.
Checked on : 14/12/2023
Signed on : 14/12/2023
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5 OBE.37 in
Comm SU-485-2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
14/12/2023 at 4.10 p.m. Mrs. Rupali S. Bhor
Name of the Judge ( With Court
Room No.)
H.H.J. Shri Vishal S. Gaike
(Court Room No.32)
Date of Pronouncement of
JUDGMENT/ORDER
14/12/2023
JUDGMENT/ORDER signed by
P.O. on
14/12/2023
JUDGMENT/ORDER uploaded on 14/12/2023
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