Interim Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 3018/21 in Comm. Sum. Suit No. 4/21. 1 Order.
MHCC010098412021
Presented on : 29-11-2021
Registered on : 29-11-2021
Decided on : 23-12-2021
Duration : 0 years, 0 months, 24 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3018 OF 2021
IN
COMMERCIAL SUMMARY SUIT NO. 4 OF 2021
Kamal Khandhadia ...Plaintiff
Versus
M/s Shree Tirupati Greenfield and Others ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 23rd DECEMBER, 2021.
Shri Simil Purohit a/w Shri Saurabh Oak, Advocate for the defendants.
Shri Narayan Sahu i/b Shri A.K.Upadhyay and Shri S.K.Dubey,
Advocate for the plaintiff.
ORDER
1. The defendants have filed present notice of motion for
direction to the plaintiff for production of documents and inspection of
those documents. Perused notice of motion, affidavit in reply and
citations. I have gone through the suit proceeding. Heard learned
counsels Shri Simil Purohit and Shri Saurabh Oak for the defendants
and learned counsel Shri Narayan Sahu for the plaintiff.
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N/m No. 3018/21 in Comm. Sum. Suit No. 4/21. 2 Order.
2. Learned counsel Shri Simil Purohit for the defendants
submitted that the plaintiff has filed the suit for recovery of money i.e.
Rs.33,67,613.33. It is case of the plaintiff that he had paid
Rs.14,00,000/ in cash to the defendants. According to him, the
defendants have specifically denied the receipt of money and therefore,
notice dated 11/10/2021 was issued to the plaintiff for production of
certain documents i.e. IT Returns and Balancesheet, Money Lending
Licence and Audited Ledger Account. Advocate for the plaintiff gave
reply to the notice on 23/10/2021 and refused to provide documents.
Subsequently, the defendants issued notice dated 05/11/2021 under
Order XII Rule 8 of the CPC to the advocate of the plaintiff for
production of documents, but he refused to do so by giving reply on
09/11/2021. He further submitted that the plaintiff has to prove cash
payment made to the defendants. He relied upon observations of
Hon'ble Supreme Court in the case of G. Pankajakshi Amma & Ors.
V/s. Mathai Matthew (dead) through L.R.'s and Anr. (2004) 12 SCC
83 in which it is observed in para 10 that,
“10. There is any reason also why the
impugned judgment cannot be upheld. According
to the 1st respondent these transactions were to be
unaccounted transactions. According to the 1st
respondent, all these amounts are paid in cash. If
these are unaccounted transactions then they are
illegal transactions. No court can come to the aid
of the party in an illegal transaction. It is settled
law that in such cases the loss must be allowed to
lie where it falls. In this case as these are
unaccounted transactions, the Court could not have
lent its hands and passed a decree. For these
reasons also the suit was required to be dismissed.”
With the help of these observations, he submitted that notice of motion
may be allowed and the plaintiff may be directed to produce the
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N/m No. 3018/21 in Comm. Sum. Suit No. 4/21. 3 Order.
documents as per notice dated 05/11/2021 (Exh.C annexed with notice
of motion).
3. On the contrary, learned counsel Shri Narayan Sahu for the
plaintiff opposed the notice of motion by stating that present suit is
Commercial Summary Suit to which Order XXXVII of the CPC applies
exclusively. He further referred Section 269SS of the IncomeTax Act,
1961 which provides that no person shall take or accept from any other
person any loan or deposit or any specified sum, otherwise than by an
account payee cheque. According to him, taking and accepting of
money is prohibited by the Income Tax Act, 1961. Therefore, the
defendants are trying to impose wrong burden upon the plaintiff by way
of present notice of motion. The defendants are doing fishing and
roving enquiry just to protract the hearing of the present suit.
According to him, the plaintiff is a senior citizen of 68 years age and he
has shown the amount given to the defendants in his incometax
returns. The plaintiff has annexed Certificate of the Chartered
Accountant (Exh.A) with affidavit in reply in order to show that the
amount given to the defendants is reflected in books of accounts, other
records and income tax returns. Learned counsel Narayan Sahu further
submitted that above referred citation is not applicable to the case in
hand. He prayed for dismissal of notice of motion.
4. Considering rival submissions and material on record, it
reveals that the plaintiff has filed the suit for recovery of Rs.14,00,000/
with accrued interest on the basis of three bills of exchange and three
postdated cheques issued by the defendants as elaborated in para 11
and 12 of the plaint. The defendants have taken defence in their
affidavit in reply to Summons for Judgment No. 130/2021 that they
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N/m No. 3018/21 in Comm. Sum. Suit No. 4/21. 4 Order.
have not received the amount of Rs.14,00,000/. In the light of these
rival contentions, the defendants want documents of the plaintiff to
show that they had not paid any amount and it is not reflected in their
books of accounts, incometax returns etc..
5. The plaintiff has filed Certificate of the Chartered
Accountant with affidavit in reply to present notice of motion. The said
certificate clearly states about amount of Rs.30,00,000/ given to the
defendants by the plaintiff during financial year 20142015 and 2015
2016. This certificate is positive assertion on the part of the plaintiff
regarding reflection of payments made to the defendants in his accounts
and income tax returns. For this reason, the defendants have got
sufficient information from the side of the plaintiff. Considering stage
of the matter, further developments in the matter are depending upon
decision in Summons for Judgment No. 130/2021. Above referred
citation is not applicable to the case in hand due to positive statement
on the part of the plaintiff regarding mentioning of the amounts paid to
the defendants in his income tax returns. For all these reasons, this
notice of motion is liable to be dismissed. Hence, I pass the following
order :
ORDER
1. Notice of Motion No. 3018/2021 is dismissed.
2. The proceeding of N/m No. 3018/2021 is closed.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 23/12/2021. Mumbai.
1. Dictated online on : 23/12/2021.
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N/m No. 3018/21 in Comm. Sum. Suit No. 4/21. 5 Order.
2. Checked on : 24/12/2021.
3. Signed on : 24/12/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
24/12/2021. 12.50 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 23/12/2021.
Judgment/Order signed by P.O. on 24/12/2021.
Judgment/Order uploaded on 24/12/2021.
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