Interim Order 4

Order Details: Notice of Motion
Pdf Text: NM No. 101006 / 2023
Infobip – Bhagyawan
Order (Exh.11) 1 of 5
City Civil and Sessions Court, Greater Mumbai
Court Room No. 31
(Additional District Judge : Vijay S. Hingne, LL. M.)
Notice of Motion Filed : 13.03.2023
Arguments Over : 08.09.2023
Decided on : 14.09.2023
Duration : 06 M 2 Days
MHCC010030732023
Exhibit No. 11
Notice of Motion No. 101006 / 2023
from
Commercial Suit No. 100041 / 2019
Plaintiff : Infobip India Pvt. Ltd.
VERSUS
Defendant : Bhagyawan Manjarekar
Appearances
Plaintiff
: Adv. Shri Dev Motta
Adv. Shri Vishesh Kulkarni
Defendant
: Adv. Shri Prashant Pophale
Adv. Shri Ganpat Monde
Notice of Motion for filing additional documents
************************************************************************
ORDER
(Pronounced on this 14th Day of September, 2023)
Plaintiff has preferred Notice of Motion for filing
additional documents.
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NM No. 101006 / 2023
Infobip – Bhagyawan
Order (Exh.11) 2 of 5
2) Infobip India Private Limited, Mumbai (hereinafter,
Plaintiff) is an international IT and telecommunications company
engaged in business of international messaging services.
Bhagyawan Manjarekar is Sole Proprietor of Websoft
Technologies (hereinafter,
Defendant). It is engaged in business
of website designing and development and digital agency.
3) According to plaintiff, defendant had executed
Messaging Services Agreement on 07.03.2015 and 19.06.2015
and has availed service relating to international messages, on
prepaid account basis. However, the defendant failed to make its
payment. As per accounts of plaintiff, it is entitled for .	₹
27,53,055.52/- with interest @ 12 % per annum. Hence, the Suit.
Chronology in the Suit :
4) Chronology in the Suit, which gave rise to the Notice of
Motion, is as follows :
18.06.2019 : Suit is filed
25.04.2022 : Issues are framed.
28.07.2022 : Order of Case Management Hearing directing
the parties to conclude arguments by 03.10.2022
20.08.2022 : Plaintiff filed evidence affidavit of Arpita Jadhav
24.02.2023 : Evidence affidavit of Arpita Jadhav is read and
recorded by the Court.
10.03.2023 : Present Notice of Motion is filed by the plaintiff
seeking permission to file additional documents.
19.07.2023 : Notice of Motion is objected by the defendant.
Points for determination :
5) Perused Record. Heard Adv. Shri Dev Motta with Adv.
Shri Vishesh Kulkarni for plaintiff and Adv. Shri Prashant
Pophale with Adv. Shri Ganpat Monde for defendant. Points for
determination, findings and reasons are as follows :
Points
Findings
1 Is plaintiff entitled for permission
to file additional documents?.......... In the Affirmative
2 What Order? …………………… As per final order.
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NM No. 101006 / 2023
Infobip – Bhagyawan
Order (Exh.11) 3 of 5
R E A S O N S
Reasons as to Point No. 1 & No. 2 :
6) According to plaintiff, his employee Sarthak Patkar
skipped these documents and thereafter he left the service.
Further, there was Lockdown period because of Covid-19
pandemic. Hence, plaintiff could not find and filed those
documents at proper time. These documents are very much
essential for proper disposal of the Suit. Hence, plaintiff be
permitted to rely on them.
7) Defendant objected on ground that, alleged documents
were already in the custody of plaintiff. Further, Order 9 Rule 4
and Rule 5 mandates that, plaintiff has to disclose the documents,
which are in his possession, at the time of filing of the Suit itself.
Despite that, plaintiff has not filed those e-mails at proper time.
Explanations given by the plaintiff are false and frivolous.
Documents are not related with the dispute. Hence, the Notice of
Motion be dismissed.
Conclusion :
8) Perusal shows that, documents which the plaintiff
intends to file, are in nature of e-mails from 16.11.2015 to
17.08.2016, between the parties.
Agreement is Dt. 07.03.2015. It means documents
whose production is being sought by the plaintiff appears to be
related with parties and the transaction.
So, the presence of those documents becomes essential
for just adjudication of the dispute.
9) If any party, for technical reasons, is deprived of raising
its case, then it may result in improper adjudication. That may
lead to complexity in dispute and may also lead to multiplicity of
litigation. If that happens, then it drags the parties into further
litigation, causing serious prejudices to them. Hence, it is always
in the interest of justice that, both parties are provided sufficient
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NM No. 101006 / 2023
Infobip – Bhagyawan
Order (Exh.11) 4 of 5
opportunities to raise their contentions and to prove their case.
10) Defenses are raised that, these documents are not related
with transaction, they were already in possession of the plaintiff
and despite that plaintiff did not filed them at appropriate time,
etc. Defendant can raise these defenses at the time of cross
examination of witness of plaintiff. Defendant will be having
absolute right to raise all its defenses surrounding these
documents, during said cross-examination. Accordingly the
evidential value of these documents and its bearing on the Suit,
can be decided.
11) Considering fact that, documents pertains to parties and
transaction and further considering that the defendant would be
having absolute right to raise defenses during cross examination
of the plaintiff and so also he can lead his own evidence, then, the
plaintiff can be permitted to file its documents.
12) As per Order of Case Management Hearing, the plaintiff
was required to conclude his oral and documentary evidence by
12.09.2022. Plaintiff filed his evidence affidavit on 20.08.2022
and thereafter preferred this Notice of Motion on 10.03.2023.
Thereby, plaintiff has jumped said Order of Case Management
Hearing.
13) Considering all these factors, the application can be
allowed by imposing cost on the plaintiff. In given facts and
circumstances, the cost of .10,000/- would meet the ends of	₹
justice. Accordingly, the Notice of Motion is allowed by
following Order :
ORDER
1. Notice of Motion No. 101006 of 2023, is allowed,
subject to Cost of . 10,000/- ( . Ten Thousand Only).
₹
	₹
2. The plaintiff shall pay said Cost by next date.
3. If the plaintiff pays the Cost to the defendant by next
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Infobip – Bhagyawan
Order (Exh.11) 5 of 5
date, then plaintiff be permitted to file additional
documents.
4. Order pronounced in Open Court in presence of Adv.
Dev Motta for plaintiff by explaining the substance of
Order.
5. Parties be informed about their right to challenge this
Order and period of limitation for it.
6. Proceeding of Notice of Motion No. 101006 of 2023 is
closed.
7. The record of Notice of Motion shall be part and parcel
of the main Commercial Suit No. 100041 / 2019.
Mumbai
Dated : 14.09.2023 (Vijay S. Hingne)
District Judge, Court Room No.31
City Civil & Sessions Court,
Greater Mumbai
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