Interim Order 2

Order Details: Order below exhibit
Pdf Text: 1 Order Below Exh.1 in Commercial Suit No. 241 of 2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER BELOW EXHIBIT 1
IN
COMMERCIAL SUIT NO. 241 OF 2019
CNR NO. : MHCC010065182019
Krishna Trading Company ....Plaintiff.
V/s.
Mr. Rajesh Mehra, Proprietor, ....Defendants.
Appearance:
Ld. Adv. Mr. Yogesh Despande for plaintiff
Ld. Adv. Mr. Dharam Jumani for defendant.
CORAM : HIS HONOUR JUDGE
SHRI A. S. SALGAR
(COURT ROOM NO.31)
DATE : 01.03.2023
ORAL ORDER BELOW EXH.1
The Court heard arguments of both sides on marking of
documents.
2. Learned Advocate for plaintiff submitted that the plaintiff
has filed affidavit of examination chief of witness namely Mr. Manoj
Shah at Exh.14. He also submitted that the plaintiff filed the documents
along with list of Exhibit 15. He also submitted that the documents
were proved by the plaintiff by adducing evidence. Hence, it is prayed
that the documents be marked as Exhibit.
3. On the contrary the Learned Advocate for the Defendant
raised objection for giving Exhibit to the documents. Objections are on
various grounds including admissibility and genuineness as well as
mode of proof and contents of documents. The documents can not be
admitted in the evidence. The defendant did not admit any document
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2 Order Below Exh.1 in Commercial Suit No. 241 of 2019
on record. It is also submitted that defendant has disputed the existence
and contents and receipts of the invoices. Hence, he submitted that
documents should not be marked Exhibit. In support of submission the
defendant placed reliance about the rulling of Hon'ble Bombay High
Court in the case of Dady Kaishushroo Banaji and Ors vs. Bakhtawar
Maneksha Jijina in suit number 236 of 2014 dated 05.09.2014.
Wherein Hon'ble High Court held that Exhibiting or marking of
documents after such formal proof is tender does not mean that the
question of genuineness of document is finally concluded in the trial.
The Hon'ble High Court also laid down the principles regarding marking
of documents and admissibility as well as genuineness and mode of
proof.
4. After considering the arguments of both sides it appears
that plaintiff company has examined it’s partner namely Mr. Monoj
Shah at Exhibit 14. The plaintiff filed documents along with list of
Exhibit 15. The list of documents filed on record by the plaintiff was
taken on record. The defendant has filed admission and denial and
denied all the documents. The PW1 has made reference of all the
documents in his affidavit.
5. Learned Advocate for the Defendant objected for marking
of all the documents on record.
6. First set of document objected by defendant is the authority
letter. The authority letter filed at Serial Number 1 is original
document. There is sufficient formal proof tendered and document can
certainly be admitted on record and marked in evidence. The defendant
can cross examine witness of plaintiff.
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3 Order Below Exh.1 in Commercial Suit No. 241 of 2019
7. Second set of document objected by the defendant are the
copies of invoices at Serial Number 2 to 43. These are copies of original
invoice. All the invoices bear the signature of authorized person of the
plaintiff company. The invoices were made from original. PW1 deposed
about contents of documents in his affidavit and the formal proof of the
invoices has been tendered by the PW1. Hence, said all the invoices can
be marked as Exhibit.
8. Third set of document are lorry receipts at serial Number
44 to 83. These are copies of original lorry Receipt. All the lorry
receipts bear the signature of authorized person of the plaintiff
company. The lorry receipts were made from original. PW1 deposed
about contents of documents in his affidavit and the formal proof of the
lorry receipts has been tendered by the PW1. Hence, said all the lorry
receipts can be marked as Exhibit.
9. Fourth set of the document is the original ledger account at
serial number 84 and 85. The ledger statement is original one and bear
the signature of authorized representative of plaintiff. It is original one.
It's needs to be marked as Exhibit.
10. Fifth set of the documents is the office copy of legal notice
at serial number 86 and copy of track report at serial number 87
Courier report at serial 88 and at serial number 89 original envelope.
The document at serial number 86 to 89 are the original documents.
They can be marked Exhibit. The sufficient formal proof tendered and
hence, said document can be marked in evidence.
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4 Order Below Exh.1 in Commercial Suit No. 241 of 2019
11. Six set of documents is the copy of application of non
starter report at serial number 90 and copy of non starter report at
serial number 91. The plaintiff has made reference of the documents in
his affidavit in examinationinchief. These document contain statement
of facts and truth of such statement is in issue. The defendant can cross
examine to the plaintiff. The court will finally decide on the truth in the
course of trial. The said document at serial number 90 and 91 can be
admitted in the evidence and marked as Exhibit. Plaintiff filed on record
particulars of claim at Exhibit 90. Said documents is original one and
bear the signature of partner of plaintiff and hence it can be exhibited.
12. Learned advocate for the defendant strongly objected for
exhibiting the documents. He also argued that witness is not author of
documents. He argued that witness has not identified and proved
documents. Hence, they can not be admitted in evidence and can not be
exhibited. In present case the documents are already taken on record.
The objections regarding the admissibility can be taken on record.
Exhibition of documents is administrative function. Mere exhibition of
document cannot dispense with the proof of documents. Hence, there
will be no prejudice to the defendant. Exhibiting or marking of a
document after such formal proof is tendered does not, however, mean
that the question of genuineness of the document is finally concluded in
the trial. There may be other aspects reflecting on the genuineness of a
document. If these aspects are in issue or relevant in a trial, they can be
brought out by the defendant in crossexamination or other
independent evidence. Only when all the evidence is led then the court
may take a final call on the genuineness of a document in this sense. So
also, exhibiting or marking of a document in evidence after its formal
proof is tendered does not mean that the truth of its contents is proved,
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5 Order Below Exh.1 in Commercial Suit No. 241 of 2019
whenever of course the truth is in issue, as explained above. The truth is
open to be questioned in the crossexamination or by producing
independent evidence and has to be determined in the trial. Therefore,
the objection raised by the defendant for exhibiting the document is not
acceptable.
13. Learned Advocate for the defendant submitted that lorry
receipts do not have any acknowledgment of receipt by defendant
hence, document can’t be relied upon. In present case plaintiff tendered
formal proof in respect of documents. In my view the defendant can get
opportunity to crossexamine the witness. So also whether the evidence
adduced by PW01 is admissible or not that can be decided at the time
of final hearing of the case. Hence, at this stage it would not be proper
to make any observation about the evidential value of document.
14. Considering the submission and affidavit of examinationin
chief tendered by PW01. It is just and proper to exhibit the document
filed alongwith list Exhibit 22. Mere exhibition of documents doesn't
mean that document is proved. Hence, no prejudice will be caused to
the defendant. Hence, documents filed by the PW01 are given
following exhibits.
Exh.16 Authority letter.
Exh.17 to 58 Invoices at Sr.No. 2 to 43 of Exh.15.
Exh.59 to 98 Lorry receipts at Sr. No. 44 to 83 of Exh.15.
Exh.99 and 100 Ledger statements.
Exh.101 Office copy of legal notice with original of postal receipts.
Exh.102 Copy of track report.
Exh.103 Copy of courier receipt.
Exh.104 Original returned envelope of the defendant.
Exh.105 Copy of application for mediation.
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6 Order Below Exh.1 in Commercial Suit No. 241 of 2019
Exh.106 Copy of nonstarter report.
Exh.107 Particulars of claim.
Order accordingly.
(A. S. Salgar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date:.01.03.2023 (C.R. No.31)
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 14.03.2023 NAME OF STENOGRAPHER(GI)
Mr. Mahesh Lugade
TIME: 3.00 p.m.
Name of the Judge (With Court room no.) HHJ Shri. A.S. Salgar
(Court Room No.31)
Date of Pronouncement of JUDGEMENT/ORDER 01.03.2023
JUDGMENT/ORDER signed by P.O. on 14.03.2023
JUDGEMENT/ORDER uploaded on 14.03.2023
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8 Order Below Exh.1 in Commercial Suit No. 241 of 2019
The objections regarding the admissibility can be taken on record.
Exhibition of documents is administrative function. Mere exhibition of
documents cannot dispense with the proof of documents. Hence, there
will be no prejudice to the defendant. Exhibiting or marking of a
documents after such formal proof is tendered does not, however, mean
that the question of other aspects reflecting on the genuineness of a
document. If these aspects are in issue or relevant in a trial, they can be
brought out by the defendant in crossexamination or other
independent evidence. Only when all evidence is led that the court may
take a final call on the genuineness of a document in evidence after its
formal proof is tender does not mean that the truth of contents is
proved whenever of course the truth is in issue, as explained above the
truth is open to be questioned in the crossexamination or by producing
in defendant evidence an has to be determined in the trial.
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