Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1614 OF 2018
IN
SUIT NO.8281 OF 1998
M/s. Machine Bazar ...Plaintiff
V/s.
1. The Bombay Dying and Manufacturing
Company Ltd.
2. Union Bank of India ...Defendants
Appearances:
Ld.Adv. Mr.Hemant Ghadigaonkar for plaintiff
Ld.Adv. Mr.Nainesh Amin for defendant No.2
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 22nd October,2018
ORDER
By way of this notice of motion plaintiff prayed to direct
defendant No.1 to produce the original documents i.e bank guarantee
dt.05.11.1996 from the custody of defendant No.2.
2. In supporting affidavit Mr.Vipul Ghelani plaintiff submitted that,
they have filed suit for relief of declaration against defendant Nos.1
and 2. They have also filed examinationinchief and compilation of
documents wherein one document was referred by them in respect of
bank guarantee, which is lying with defendant No.2 and defendant No.2
has filed written statement in the aforesaid suit admitted that they have
invoked the bank guarantee on 05.08.1998. Thus, it is admission on
behalf of defendant No.2 that they are in possession of their bank
guarantee. The said admission is required to be produced before this
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Court for proper adjudication of the suit. For which plaintiff issued
letter dt.24.07.2015 called upon defendant No.2 to produce the original
bank guarantee, but they failed to comply with the letter. In such
circumstances, plaintiff has no other way but to file this notice of
motion for directing defendant No.2 to produce the bank guarantee on
record and submitted that, it will not cause any harm, prejudice to other
side and as such, they prayed that, notice of motion be made absolute.
3. After service of notice of motion defendant No.2 filed affidavitin
reply of Shiv Sharan Mishra, Chief Manager and denied requirement of
notice of motion. They also denied that, such document needs to be
produced on behalf of them due to the requisition of plaintiff, but if
plaintiff required to get exhibit the document, they may lead secondary
evidence and for which there is no necessity to file this notice of motion.
Thus, notice of motion is misconceived and it is liable to be dismissed
with costs.
4. Heard learned Advocate Mr.Hemant Ghadigaonkar for plaintiff
and learned Advocate Mr.Nainesh Amin for defendant No.2.
5. Learned Advocate for plaintiff submitted that, there is
typographical mistake in prayer clause (a) that defendant No.1 is
mentioned, but it should be defendant No.2 and they submitted that, in
view of that defendant No.2 from whose custody said document of bank
guarantee dt.05.11.1996 needs to be placed on record. Learned counsel
for defendant No.2 admitted that, they are in custody of the documents
and will produce if required by this Court. But if it is not at all
necessary then plaintiff be permitted to lead secondary evidence to that
effect.
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6. When original document is not in existence and copy of which
produced on record, the question of permitting plaintiff to lead
secondary evidence in respect of that document in view of Section 65
and 66 of Evidence Act does not arise. If defendant No.2 denied to
have possession of the documents then their contentions about leading
secondary evidence by plaintiff can be considered. But when notice was
issued by plaintiff to defendant No.2 on 24.07.2015 they ought to have
placed the said document on record. In such circumstances, prayer in
the notice of motion needs to be allowed by directing defendant No.2 to
place the said bank guarantee dt.05.11.1996 on record. By producing
the original document on record no harm or prejudice is going to cause
to defendant No.2, but it will definitely helpful to this Court for proper
adjudication of the matter. In such circumstances, notice of motion
needs to be made absolute by directing parties to bear their costs.
Hence, the order :
O R D E R
1. Notice of Motion No.1614 of 2018 in Suit No.8281 of
1998 is made absolute.
2. Defendant No.2 is directed to produce the original
document i.e bank guarantee dt.05.11.1996 before this
Court on next date.
3. Parties to bear their costs.
(ABHIJEET A. NANDGONKAR )
Judge, (C.R.No.20)
Dt.:22/10/2018 City Civil Court, Gr. Mumbai
Dictated on : 22.10.2018
Transcribed on : 22.10.2018
Signed on : 22.10.2018
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
22.10.2018 5.05 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 22.10.2018
Judgment/order signed by P.O. on 22.10.2018
Judgment/order uploaded on 22.10.2018
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