Interim Order 2

Order Details: Order below exhibit
Pdf Text: Comm. Suit No. 79/19. 1 Order below Exh.10.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 79 OF 2019
Executive Trading Company Private Limited )...Plaintiff
Versus
Maruti Steel Fab )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 1st SEPTEMBER, 2021.
Mr. Giriraj, Advocate for the plaintiff.
Mr. S.Bhojwani, Advocate for the defendant.
ORDER BELOW EXHIBIT 10.
1. This is an application filed by the defendant under Section
340 of the Cr.P.C. r/w Section 197 of the IPC. Perused application and
reply (Exh.10A). I have also gone through proceedings of Commercial
Suit No. 79/2019. Heard learned counsel Shri Giriraj for the plaintiff
and learned counsel Shri S.Bhojwani for the defendant.
2. It is contention of the defendant that he never approached
the plaintiff till date and never expressed desire for purchasing any mild
steel, verbally or in writing. He further disputed contents in para 4, 5
and 6 of the plaint by stating that the plaintiff had never raised any
delivery challan and the defendant only received an email on
10/06/2016. He further contended that the plaintiff did not file
relevant documents regarding statement of calls and requests of the
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Comm. Suit No. 79/19. 2 Order below Exh.10.
defendant for the extension of time with 60 days. He further contended
that goods have been supplied by Top Worth Pipes & Tubes Pvt. Ltd.
and the plaintiff has made false statement on oath regarding delivery of
goods. He further disputed other contents in the plaint and submitted
that the plaintiff is making false statements on oath. By raising all these
contentions, the defendant filed this application for taking action
against the plaintiff for commission of the offence of perjury.
3. The plaintiff has denied contents in the application in his
reply. According to him, case of the plaintiff is subject to the evidence
likely to be adduced on record. The plaintiff raised objection to the
contents in the application by stating that it would cause serious loss of
reputation of the plaintiff. He further contended that the defendant has
admitted invoice of the plaintiff in written statement. According to him,
goods were supplied on verbal purchase order of the defendant. He
prayed for rejection of the application.
4. Learned counsel Shri S.Bhojwani submitted that the
defendant had transaction with Top Worth Pipes & Tubes Pvt. Ltd.
which is separate juristic entity. The plaintiff filed the suit by assuming
that the defendant is a private limited company and the plaintiff does
not know with whom he dealt with. According to him, Top Worth Pipes
& Tubes Pvt. Ltd. is part of the proceeding, but it has not been made
party to the suit. The plaintiff tried to clarify the aspect of Top Worth
Pipes & Tubes Pvt. Ltd. in para 8(d) of the reply and it should have
been stated in the plaint. He further submitted that Deepak and
Chaturbhuj are only two partners of the defendant firm and Harish is
not the partner. According to him, the plaintiff filed the suit on the
basis of false statements. He further submitted that all facts should
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Comm. Suit No. 79/19. 3 Order below Exh.10.
have been pleaded in the plaint. He insisted for action under Section
340 of the Cr.P.C.
5. Learned counsel Shri Giriraj for the plaintiff submitted that
elements of perjury and misrepresentation are missing. He further
submitted that the defendant did not point out wrongs done by the
plaintiff. Exh.10 is filed as a counter blast to Chamber Summons No.
488/2021. Perjury application should be in the form of chamber
summons as per the Bombay City Civil & Sessions Court Rules, 1948.
Issue of nonjoinder of parties cannot be basis of perjury application. He
further submitted that names of partners of the firm have been
disclosed by the defendant as per order on Exh.8. He relied upon para
18 & 19 in the case of Iqbal Singh Marwah and another V/s.
Meenakshi Marwah and another (Appeal (Criminal) No. 402/2005
decided on 11/03/2005 by Hon'ble Supreme Court). He also relied
upon para 23 in the case of Jose Kuruvinakunnel Vs. A.T.Jose 1997
Cri.L.J. 816 (Kerala High Court). He submitted that application is not
tenable and it be rejected.
6. On perusal of the record, it is clear that issue of legal status
of the defendant is a question that had arisen for consideration due to
different stands in the plaint and written statement. The defendant
claimed his status as a partners in firm. Names of partners are
communicated to the defendant as per order below Exh.8. Chamber
Summons No. 488/2021, in which relief of amendment regarding
names of the defendants is sought, is pending. Sum and substance of
the defendant's contention is that the defendant had dealing with Top
Worth Pipes & Tubes Pvt. Ltd. and he has nothing to do with the
plaintiff. The plaintiff as well as the defendants are free to adduce
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Comm. Suit No. 79/19. 4 Order below Exh.10.
evidence in order to substantiate their respective cases / pleadings.
Matter is at initial stage. Therefore, there is lack of prima facie material
to reach to any conclusion regarding alleged perjury committed by the
plaintiff. In such circumstances, it is not possible to proceed ahead on
the strength of assertions made in the application. Even otherwise, both
sides are totally free to take their own stands while opposing the claims
of each other. Ultimate effect of pleadings of the parties can be decided
after evidence is adduced by them in support of their respective case.
For all these reasons, this application is not maintainable for want of
necessary material. Hence, I pass the following order :
ORDER
1. Application (Exh.10) is rejected.
2. Application (Exh.10) is disposed off accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 01/09/2021. Mumbai.
1. Dictated online on : 01/09/2021.
2. Signed on : 01/09/2021.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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Comm. Suit No. 79/19. 5 Order below Exh.10.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
01/09/2021. 5.34 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 01/09/2021.
Judgment/Order signed by P.O. on 01/09/2021.
Judgment/Order uploaded on 01/09/2021.
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