Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1..
MHCC010062092023
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.2125 OF 2023
IN
SUIT NO.6361 OF 2004.
Shree Precoated Steels Limited. ...Plaintiff.
Versus.
China Merchants Bank & Ors., ….Defendants.
Appearance:
Advocate Ms. Rama Nageshwaran for plaintiff.
Advocate Mr. Saakshat Relekar i/b M/s. Crawford Bayley and Co. for
defendant no. 1.
CORAM : HIS HONOUR JUDGE
R.V. Bhakta
COURT NO.2
DATED : 22th July 2024.
ORAL ORDER
1. This is the notice of motion taken by the plaintiff asking
permission to lead secondary evidence.
2. The plaintiff averred that by way of this notice of motion the
plaintiff wanted to lead secondary evidence in respect of some original
papers and correspondence. The plaintiff added that the above said
original documents are not traceable despite of diligence search taken
by the plaintiff. The plaintiff added that as per the business transferred
agreement (BTA) dated 21.08.2009 Essar Steel Limited has been taken
-- 1 of 4 --
ORDER ..2..
over Shree Precoated Steels Limited with effect from 19.10.2009.
Therefore, these original documents with the possession of Essar Steel
Limited Company. As per the above said major changes in the
management the file which contents the original documents are
misplaced. The plaintiff further averred that it is the regular practice of
plaintiffs company to take photocopies of original document relating to
the business transaction with their clients in regular course of business.
Accordingly the plaintiff company has taken the copies of the said
original documents in the regular course of business. The said
documents are important and necessary to decide the real controversy
between the parties. Hence requested this Court to give him permission
to lead secondary evidence.
3. The defendant Company has taken strong objection to this notice
of motion by filing their reply. It is the contention of the defendant that
the Oral Account of the contents of the documents can be given by
person who has himself seen the documents or who has compared the
original with the photocopy. Therefore, the notice of motion taken by
the plaintiff is itself made with the malafide and fraudulent intention. It
is further contention of the defendants that the plaintiff has not made a
foundation to lead secondary evidence. On these grounds prayed to
reject this application.
4. Heard both the sides at length.
5. It is necessary to mention here that the plaintiff has taken out this
notice of motion to lead secondary evidence in respect of the some of
the documents i.e., copy of the business transferred agreement dated
21.08.2009 and copy of the statement of the account in the year of
2015-2016. According to the plaintiff that as per the BTA agreement
dated 21.08.2009 the business of Essar Steel Limited has been taken by
-- 2 of 4 --
ORDER ..3..
Shree Precoated Steels Limited with effect from 19.10.2009. However,
due to the change of management the said original agreement and the
statement of the account in the year of 2015-2016 is not traceable.
These facts mentioned in the notice of motion are probable due to
change of management. The facts mentioned in notice of motion clearly
shows that the plaintiff has kept the xerox copy of the above said
documents in the natural course of business as a routine practice.
Therefore it can be very well said that the plaintiff has made factual
foundation about the misplaced of the original document.
6. It is undisputed facts on the record that the plaintiff is a private
limited company. In the circumstances, for the ends of justice and to
decide the real controversy between the parties if the permission is
granted to plaintiff to lead secondary evidence then no prejudice will be
caused to the either party. So far as the objection of proof of contents of
the documents is concerned it will be decided as per the merits of case.
The defendant has every right to set up his case in cross. Hence for the
ends of justice application deserves to be allowed. As a result, following
order.
ORDER
Notice of Motion no. 2125 of 2023 is allowed.
(R.V. Bhakta)
Judge
City Civil Court, Gr.Mumbai
Date : 22.07.2024
Typed on : 22.07.2024
HHJ signed on : 22.07.2024
-- 3 of 4 --
ORDER ..4..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 22.07.2024, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. R.V. Bhakta
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
22.07.2024
JUDGMENT/ORDER signed by P.O.
on
22.07.2024
JUDGMENT/ORDER uploaded on 22.07.2024
-- 4 of 4 --