Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No. 1633/2018 in Suit No. 5035/2008
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1633 OF 2018
(CNR NO. MH CC010051732018)
IN
L.C. SUIT NO. 5035 OF 2008
CNR NO. MH CC010060952008)
Hab Pharmaceuticals and Research Ltd. ]....Plaintiff
V/s.
The State of Maharashtra and 2 Ors. ]...Defendants
Advocate Mr. Alankar Kirpekar for the plaintiff.
Advocate Mr. Kudalkar for defendant nos.1 to 3.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.12)
DATE : 29th JUNE 2019
ORAL ORDER
This Notice of Motion has been taken out by the defendants
for recalling and examining the witness under OrderXVIII Rule 17 of
the Code of Civil Procedure and taking on record the invoices/bill
nos.501, 518, 534, 559 and 565 along with the endorsement thereon
for the reduction of payment.
2 In support of notice of motion, the Chief Administrative
Officer at Joint Director of Health Services Smita Ravindra Karegaonkar
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of the defendants has filed her affidavit, wherein she has averred that
the plaintiff had filed their affidavit of evidence in the suit on
09.07.2015 alongwith the compilation of the documents. The said
documents at serial Nos.8, 9 and 10 were not admitted at the stage of
admissibility of the documents, as same were photocopies of the suit bill
nos.501, 518, 534, 559 and 565. The documents at serial Nos.8, 9 and
10 were marked as Exh22, Exh23 and Exh24. After completion of the
crossexamination of the plaintiff, she has filed affidavit of evidence on
27.02.2017 and filed compilation of documents on 27.03.2017. The
defendants also relied upon same bill nos.518, 534 and 565 which have
been marked in the evidence as Exh32 colly.
3 It is further averred that the defendants by their letters
dated 19.01.2007 and 07.02.2007, clarified to the plaintiff that the
payment shall be done as per the lowest rates available and called upon
the plaintiff to confirm the same. The plaintiff was aware of rate of
contract. In view of the contract of another Pharmaceutical Company
under D.M.E.R., the plaintiff expressed their willingness to accept
payment in respect of the supply of the tablet at reduced rate and
accepted the payment in respect of their payment bills.
4 It is further averred that the endorsement of reduction in
the payment was mentioned on the back side of the invoices of the
plaintiff. The said invoices were before the Hon'ble High Court at the
time of filing of written statement on behalf of the defendants. The
plaintiff has filed photocopies of the said invoices and deliberately hide
their acceptance of payment, after reduction in their actual bill.
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5 It is further averred that the defendants have also filed
copies of the said bills, but inadvertently in hurry, failed to produce it
together with endorsement of the reduction of the payment accepted by
the plaintiffs. At the time of final arguments, it was noticed that the
said endorsement of bill nos. 501, 518, 534, 559 and 565 are not on
record. The said documents are important documents and go to the
roots of the matter and for the purpose of determining the present issue
of dispute and the said bills are best evidence in the hands of the
defendants. The defendants have good case on merits and grave harm,
prejudice and injury would be caused to the defendants, if the reliefs as
prayed for are not granted in favour of the defendants. Hence, prayed
for allowing this notice of motion.
6 The plaintiff has filed affidavit in reply by filing affidavit of
the Director of the plaintiff company. It is contended that the
defendants have filed affidavit of evidence of Miss Smita R.
Karegaonkar on 23.02.2017 alongwith the compilation of documents.
By order dated 21.01.2016, in the presence of Advocate for defendants,
the photocopy of bill nos. 501, 518, 534 and 565 have been marked as
Exhibits22 to 25.
7 It is further contended that Advocate for the defendants has
conducted cross examination of plaintiff's witness and it was recorded
on 21.01.2016. The defendants filed their affidavit of evidence on
23.02.2017 and filed compilation of documents. The defendants have
tendered the same photocopies, which have already been marked as
Exhibits22 to 25 and the same were admitted by the plaintiff and
marked Exh32 colly.
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8 It is further contended that the plaintiff has conducted
cross examination of witness of the defendants. Thereafter, the matter
was argued at the length on 07.04.2018. The purported certificate at
the back side of invoices, appears to have been created for the sake of
justifying the part payment of amount in Exhibit33 as full and final
payment. The purported certificate of reduction is of no consequence to
the present proceeding and it is not admissible in evidence for the
reason that there is no pleading to that effect made by the defendants in
their written statement or affidavit of evidence filed earlier. The
defendants have made every possible attempt to somehow delay the
matter. Hence, prayed for dismissal of notice of motion with costs.
9 Heard the learned advocate for the defendants and the
learned advocate for the plaintiff. Admittedly, after final argument by
the plaintiff and when the matter was posted for arguments of the
defendants on 18.04.2018, the defendants have taken out this notice of
motion.
10 The plaintiff has filed this suit for recovery of sum of
Rs.38,24,158/ against bill nos.501,518, 534 and 565 raised by the
plaintiff upon the defendants. The goods under bill were duly received
and acknowledged by the defendants. On record, there is no written
complaint about quality and quantity of sold medicines to the
defendants. Thus, for recovery of amount of bill no501, 518, 534 and
565, the plaintiff has filed this suit. Defendants no.1 to 3 filed their
written statement, wherein the defendants have pleaded that the
plaintiff received the payment in full and final settlement of their claim
and therefore, the plaintiff did not raise any objection while issuing the
receipts on 21.03.2007 and 26.03.2007 in full and final settlement of
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their claim. Till the plaintiff issued letter dated 09.04.2007, the
contract for supply of medicine is completed in full and final
settlement. The defendants have filed documents alongwith written
statement.
11 It appears from the record and proceeding that on
21.01.2016, photocopies of the bill nos.501, 518, 565 and 534 have
been exhibited as Exh22 to Exh25. Considering the fact that said
documents are admitted by the defendants in paragraph no.7 of the
written statement. After perusal of paragraph no7 in written statement,
it is seen that the defendants have relied upon said bills raised by the
plaintiff, which are annexed with the plaint. Further, it seems from the
cross examination of PW1 that the plaintiff's witness has denied the
suggestion given in respect of endorsement on bills regarding reduction
in payment. Further, it reveals that on 27.02.2017, the defendants have
filed evidence of the witness vide Exh30 and filed photocopies
photocopy of suit bills, which are marked at Exh32 colly. The said bills
are not showing any alleged endorsement regarding reduction of
payment. It further appears that in the cross examination, the defence
witness admitted that except Exh33 i.e. receipts dated 21.03.2007 and
26.03.2007, the defendants does not have any other documents to show
that the plaintiff has received full and final settlement amount.
12 Thus, it is to be noted that during the recording of evidence
the defendants have not tendered original bills raised by the plaintiff
and only filed photocopies of suit bills vide Exh32, which are also
without alleged endorsement in respect of reduction of payment. After
perusal of the Exh32, it discloses that at the back side of the suit bills,
there is no certificate or endorsement regarding reduction of payment.
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Exh32 are exactly similar with Exh22 to Exh25 produced by the
plaintiff.
13 In such above facts and circumstances, after completion of
final arguments by the plaintiff, the defendants have come before the
court by way of this motion for seeking permission to produce the said
bills alongwith back side certificate regarding alleged reduction of
payment. Basically it seems that in the written statement there are no
pleadings to that effect. Further, even the defendants have not filed
copies of the suit invoices alongwith their written statement.
14 During the course of arguments, learned Advocate for the
defendants has drawn my attention towards bills produced alongwith
with written statement and pointed out the certificate at the back side
of the said bills. It is pertinent to note that the said bills are not of suit
bills. The said bills are bill nos.559 and 566. The said bills have no
relevance with the suit bills. I would like to mention here that the
defendants are showing some different bills, which have no relevancy
with the suit bills and on the basis of the same, the defendants are
placing their reliance on allegedly agreed reduction by the plaintiff in
payment of bills.
15 Exh33 payment receipts nowhere discloses that said
payment was made as full and final settlement against suit bills.
Basically, the defendants have not pleaded in respect of back side
endorsement/certificate on the suit bills regarding reduction, as alleged
and even not produced same at the time of filing Exh32 i.e.
photocopies of suit bills.
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16 In this back ground of keeping silence since appearance
and that too, without producing the same till filing this notice of motion
itself speaks as lot. The defendants have not given any explanation as
to why the suit bills alongwith the endorsement did not file at the time
of filing of written statement. Therefore, reasons stated for not, filing
the same at the time of filing Exh32 are not acceptable and believable.
The conduct of the defendants not to file the same earlier is creating
doubt in mind about genuineness in respect of alleged endorsement
backside of suit bills. Further, even alongwith the motion the
defendants have filed bill nos.559 and 566. The suit bills are bill
nos.501, 518, 534 and 565. The said bills are not the suit subject bills
and therefore, bill nos. 559 and 566 annexed with the present notice of
motion are not relevant documents to be taken on record.
17 The learned Advocate for the plaintiff has placed his
reliance in Bagai Construction V/s Gupta Building Material Store,
reported in (2013) 14 Supreme Court Case1. With respect the
Principle held is applicable for deciding present notice of motion.
18 The learned advocate for the plaintiff has further placed his
reliance in Vadiraj Naggappa Vernekar V/s. Sharadchandra
Prabhukar Gogate reported in (2009) 4 Supreme Court Cases410.
OrderXVIII Rule17 of the Code of Civil Procedure is not intended to be
used to fill up the omission in the evidence of the witness and to fill up
lacuna in the evidence.
19 On the other hand, the learned Advocate for the defendants
has placed his reliance in Maria Margarida Sequeira Fernandes and
Ors. V/s. Erasmo Jack De Sequeira reported in (2012) 5 Supreme
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Court Cases370. With respects facts in hands are different. Hence,
authority cited is not applicable to the present set facts.
20 Thus, in the background of above discussion, I have no
hesitation to hold that this notice of motion is not maintainable and it is
nothing but attempt made to cause delay in the suit. Hence, notice of
motion is to be dismissed with costs. With this, I proceed to pass the
following order:
ORDER
1. Notice of Motion No.1633/2018, is hereby dismissed with cost.
2. Notice of Motion No.1633/2018, stands disposed of accordingly.
(S. P. PONKSHE)
Judge,
Date: 29/06/2019. City Civil Court,
Gr. Bombay.
Dictated on : 29/06/2019
Transcribed on : 0304 /07/2019
Signed on : 08/07/2019.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
08/07/2019 At 11.00 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.12)
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Date of pronouncement of
Judgment/Order
29.06.2019
Judgment/Order signed by P.O. on 08.07.2019
Judgment/Order uploaded on 08.07.2019
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