Final Order 1

Order Details: Chamber summons
Pdf Text: C.S.No.725/2018 : 1 : Suit No.4165/2009
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.725 OF 2018
IN
SUIT NO.4165 OF 2009
(HIGH COURT SUIT NO.2220 OF 2009)
Mr. Virendra Chunilal Doshi & Anr. .. Plaintiffs
Versus
Mr. Jayesh Chunilal Doshi & Anr. .. Defendants
N.V. Bhutekar, Learned Advocate for plaintiffs.
N. N. Vaishnava, Learned Advocate for defendant No.1
CORAM : HER HONOUR JUDGE
SMT. ULKA L. JOSHI
(COURT ROOM NO.31)
DATE : 05th May, 2018
: ORDER :
This Chamber Summons is by defendant No.1 for production
of documents.
2. Story put forth by defendant No.1 in short is that,
During cross examination PW has admitted possession of all
documents, books of accounts of suit partnership firm. By letter dated
12/03/2018 defendant requested plaintiff to furnish details of
transaction. By letters dated 15/03/2018 and 20/03/2018 he has
requested plaintiff to furnish details of purchase. By reply letter dated
06/04/2018 plaintiff intimated that those documents are already
produced before court commissioner. Further they are bulky in nature.
In such eventuality production of those documents will through light on
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C.S.No.725/2018 : 2 : Suit No.4165/2009
true affairs. Hence this chamber summons for production of sales bills,
purchase bills, bank statements, cash book, journal book and relevant
register.
3. By filing reply affidavit plaintiff has raised strong objection.
Chamber Summons is objected by plaintiffs by filing reply. As per
plaintiffs, record is bulky and can not be produced in court. Considering
this bulky nature and inability Court Commissioner is appointed with
consent of both parties to inspect the record. Accordingly Court
Commissioner has taken inspection of entire accounts and submitted
his report. Inspite of this, defendant No.1 is seeking production of
those documents once again. In spite of this plaintiff is ready to give
inspection of those documents. However defendant is not ready for
inspection. This shows that application is not bonafide and made only
with intention to delay the trial. On all these grounds, plaintiffs prayed
for rejection of Chamber Summons.
4. On rival stand of both parties, following points arise for my
determination. I have recorded my finding to them together with
reasons as under,
POINTS FOR DETERMINATION FINDINGS
1. Whether defendant No.1 is entitled
for production of documents as
called for? .. In the negative.
2. What order ? Chamber Summons stands
rejected as per final order.
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REASONS
As to Point Nos.1 to 2 :
5. In support of contentions, defendant no 1 relied on Letters
dated 13/01/2007, 29/01/2007, 19/01/2007, 12/03/2018,
15/03/2018, 20/03/2018 and 06/03/2018 below Exh A collectively.
As against this plaintiff relied on order in Daily Status below Exh A,
order in Writ Petition No 9196/17 below Exh B,copy of complaint dated
06/03/2008 below Exh copy 0f letter dated 23/04/2008, 06/04/2018
below Exh D, E and F.
6. Before entering into actual merit let me quote that present
suit is for dissolution of Partnership Firm and rendition of accounts.
Admittedly PW 1 is under crossexamination. Admittedly Commissioner
who is CA by profession has taken inspection of accounts maintained by
suit Partnership Firm as well as individual Firms owned by PW 1 and
already submitted his report.
7. Material to note that Court Commissioner is appointed with
consent of both parties as record is bulky and it could not be produced
before the Court. Further Commissioner who is CA by profession has
already inspected available entries and submitted his report. Inspite of
this, defendant No.1 is seeking production of record which is inspected
by Court Commissioner and for which, report is already submitted and
that too on the allegation that plaintiffs have siphoned off money from
suit Partnership Firm. This conduct on the part of plaintiffs cannot be
accepted at all.
8. Pertinent to note that civil cases are to be decided on
preponderance of probability. It is specific contention of plaintiffs that
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C.S.No.725/2018 : 4 : Suit No.4165/2009
whatever documents are in their possession are produced in the Court
as well as before Court Commissioner. They further contended that
remaining documents are either destroyed or not in their possession.
What is the fate of such contention is matter of final consideration. At
this stage, directions for production of documents which are which are
not in their possession as well as which are produced before
commissioner.
9. Admittedly bank statements, are the personal documents of
plaintiffs. They are easily available with concern bank. If defendant
No.1 intends to prove his case of siphoning off money on the basis of
those documents then he can call concern record from concern bank at
the time of his evidence. Stepping ahead during crossexamination
question as regards those entries and those record is put forth to PW 1.
PW 1 has already answered those Question. In spite of this and in spite
of examination of that record by court commissioner defendant no 1 is
repeatedly putting said questions and insisting him to produce those
documents. Very intention of defendant is to delay the trial. Defendant
can not compel plaintiff to produce the documents to establish the
defence of defendant. Defendant is duty bound to establish his case on
his own footing. This conduct of defendant is not appreciable in the eye
of law. In that light also Chamber Summons must fail.
From above it is clear that whatever documents available with
plaintiffs are already produced on record and as per contention of
plaintiffs they cannot produce remaining documents on the ground that
they are not in their possession. Resultantly directions for production
cannot be issued. Therefore I answer both points accordingly and pass
the following order.
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: ORDER :
Chamber Summons No.725 of 2018 stands rejected.
(Pronounced in open Court.)
(Smt. U. L. Joshi)
Judge,
City Civil & Sessions Court,
Date : 05/05/2018 Gr.Bombay
Typed on : 05/05/2018
HHJ signed on :
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