Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2268 OF 2018
IN
SUIT NO. 3392 OF 2008
1. Shree Durgamata Premises
Coop Society Ltd. (Proposed)
Through Mr. Pradip Atul Mitra
Age : 56 years, Occup: Business
having address at Room No.10,
First Floor & Others. ...Plaintiffs.
V/s.
1. Nandu Tarachand Jain
age about 55 years & Others. … Defendants.
Appearance:
Advocate Mr. Jayesh Bhatt for the Plaintiffs.
Advocates Mr. J.V.Parmar for defendant Nos. 1 & 2
Adv. Vaibhav Mehta & Associates for defendant Nos.3 & 4.
Adv. Lalit Jain for the Defendant Nos.5 & 6.
CORAM: H.S. SATBHAI,
JUDGE, (C.R.NO. 59)
DATE : 25th August, 2021.
ORDER
The plaintiffs have moved the present notice of motion
under Order 11 Rule (1) and (2) of the CPC, seeking direction against
defendant Nos.1 to 7 to answer those interrogatories given in the
schedule annexed to the N/M.
2. According to the plaintiffs, certain transactions have been
taken place between the defendants and it is necessary to find out the
nature of those transactions, the same relate to the suit building.
Therefore, it is necessary to invoke Rule (1) and (2) of Order 11 of CPC
and to direct the defendants to answer the interrogatories.
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3. The N/M has been objected by defendant Nos. 1 to 6, vide
reply dated 04/02/2020 on the premise that N/M is false, vexatious and
not maintainable. Defendant Nos. 5 and 6 have already admitted that
they are willing to give necessary inspection of the documents to the
plaintiff. Therefore, there is no need to order the interrogatories.
4. Heard both. Perused the N/M, the reply, the rejoinder of
the plaintiffs dated 20.10.2020. On its basis, following points rise for
the determination and the findings to each of them for the reasons
recorded as below:
Sr.No. POINTS FINDINGS
1. Whether interrogatories asked are
relevant and material for the just decision
of the suit ?
No.
2. What order N/M is dis
allowed..
Reasons:
As to Point Nos. 1 & 2 :
5. Rule 6 Order 11 of CPC provides that any interrogatory, if
it is irrelevant or not exhibited bona fide for the purpose of the suit,
may be refused.
6. It appears from the N/M that, it was moved at the stage,
when the contesting defendants had not submitted their respective
written statements. Now, the written statements of the defendants is on
record, wherein not only they denied the claim of the plaintiffs but also
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pleaded certain facts, wherein most of the interrogatories have been
answered. In order to find out that indeed any transaction has been
taken place between the defendants, one can look into the written
statement of defendant Nos.1 to 6. If at all the contentions of the
defendants are ambiguous and not clear, the defendants may be
compelled to submit the true facts at the time of leading evidence in the
suit. It is not that while answering the suit claim in written statement,
the defendants have not at all touched the questions raised in the
interrogatories of the plaintiff.
7. While hearing of the N/M, Ld. Counsel for the plaintiffs
pointed out certain interrogatories, which according to the plaintiff, are
material and it is for the defendants to answer those. But as stated
above, when already written statements have been filed on record and
the suit is waiting for framing of issues, at the time of hearing of the
suit, all the disputed questions would be answered by the parties. The
defendants are going to lead evidence in the suit. If at all they do not
lead any evidence, at that time the order 11 Rule (1) and (2) of the CPC
may be invoked and they may be compelled to answer the crucial
questions, which arise after the exercise of examination and cross
examination of the plaintiffs' witnesses. Had it been concealing all the
facts in written statement by the defendants putforth by the plaintiffs in
the plaint then certainly there was need to invoke Rule 1 and 2 of Order
11 of CPC and to direct the defendants at this stage to answer the
interrogatories. But when substantial pleading is kept on record by the
defendants in their written statements, at the hearing of the suit, the
plaintiffs are going to get answers of the interrogatories. There are few
questions in the form of interrogatories, which need clarification from
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the defendants. But considering the age of the suit, it is just to frame the
issue first and to ask the parties to lead evidence. The fact that due to
pendency of present N/M, the suit could not be proceeded further. It is
not in the interest of the plaintiff to delay the hearing of the main suit
and make exercise of deciding the N/M by way asking the defendants to
answer the interrogatories and on answering interrogatories of the
defendants, again decide whether the answers given are complete or
not. Instead of making such exercise, it is just to proceed with the suit.
8. Hence, as at the trial of the suit, all the rival questions,
which according to the plaintiff, the defendants are concealing, going to
be answered by the defendants, at this stage present N/M is not
appearing to be workable. The plaintiffs are at liberty to approach the
Court with the similar application, if at all the defendants are not
willing to enter into witness box and lead any evidence. With this
observation, answering the point No.1 in the negative, following order
is passed.
ORDER
Notice of Motion No. 2268 of 2018 is disallowed and accordingly
disposed off.
Dated : 25.08.2021 (H.S. SATBHAI)
Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 25.08.2021
Transcribed on : 26.08.2021
Signed on : 03.09.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 04.09..2021 10.30 A.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri H.S. Satbhai
(C.R.No. 59)
Date of Pronouncement of
JUDGMENT /ORDER
25.08.2021
JUDGMENT /ORDER signed by P.O. on 03.09.2021
JUDGMENT /ORDER uploaded on 04.09.2021
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