Interim Order 1

Order Details: Order below exhibit
Pdf Text: 1 COM SUI 182/2019 Ex.36
IN THE CITY CIVIL COURT AT MUMBAI.
(COURT ROOM NO. 32)
ORDER BELOW EX.36
IN
COMMERCIAL SUIT No.182 OF 2019
Canara Bank …PLAINTIFF
VERSUS
KAB Enterprises and Anr. …DEFENDANTS
Mr. Mahesh Chandanshiv, learned advocate for plaintiff.
Mr. Aaditya Mandavkar, learned advocate for defendants.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN
O R D E R
(Delivered on 17/03/2023)
This is an application filed by plaintiff for permission to
lead secondary evidence of the documents i) copies of receipt dated
18/08/2016, 11/06/2016, 30/07/2016 ii) copy of tax invoice dated
09/08/2016 iii) copy of fitness certificated dated 16/08/2016 bearing
No. 4157187 and iv) original letter dated 20/04/2018, postal receipt
with acknowledgment.
2. Plaintiff contended that above documents are lost and
misplaced from the custody of plaintiff and the same could not be
found. These documents are necessary to prove the case of plaintiff.
3. Defendant has filed reply at Exh.39 and contended that
plaintiff has made mere statement about misplaced and lost of the
documents, but has deliberately avoided to mention, whether plaintiff
has filed any police complaint about the lost of the said documents.
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Plaintiff has not given any explanation as to how and when the said
documents misplaced, destroyed or lost. Plaintiff has not even served
copies of the said documents.
4. Heard learned counsel of both parties. Perused record. As
per Order XI of CPC (Commercial Court Act Amendment), the plaintiff
shall file all documents and photocopies of all documents in its power,
possession, control or custody, pertaining to the suit, alongwith plaint.
As per Rule 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 the circumstances of the
proceedings initiated by him have been disclosed and copies thereof
annexed with the plaint, and the plaintiff does not have any other
documents in its power, possession, control and custody.
5. Rule 5 of Order XI provided that the plaintiff shall not be
allowed to rely on documents which were in the plaintiff’s power,
possession, control or custody and not disclosed alongwith plaint or
within the extended period set out above, save and except by leave of
the court and such leave shall be granted only upon the plaintiff
establishing reasonable cause for non disclosure alongwith plaint.
6. In the present case plaintiff has not filed copies of the
above documents with this application and also with the plaint. It seems
that these are additional documents. Plaintiff has mentioned only
receipt dated 18/08/2016, 11/06/2016, 30/07/2016, but he has not
given description of the said receipts i.e. payment receipt, postal receipt
etc. Plaintiff has not sought leave to file additional documents. If leave
to file additional document is granted, the request of permission to
secondary evidence will be decided. In view of above facts, it is not
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desirable to allow plaintiff to lead secondary evidence. Hence, I pass
following order.
ORDER
Application Exh.36 stands rejected.
Date : 17/03/2023.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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4 COM SUI 182/2019 Ex.36
Dictated on : 17/03/2023.
Checked on : 17/03/2023.
Signed on : 17/03/2023.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
18/03/2023 11.45 a.m. Samruddhi Jadhav
UPLOAD DATE AND TIME NAME OF CLERKTYPIST
Name of the Judge(with CR
No.)
HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 17/03/2023
Order signed by P.O. on 17/03/2023
Order uploaded on 18/03/2023
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