Final Order 2

Order Details: Notice of Motion
Pdf Text: NM No.3238/2019 in S.C Suit No.7292/2002. 1 Order.
MHCC010088382019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3238 OF 2019
IN
S.C. SUIT NO.7292 OF 2002
Bank Of India ... Plaintiff
V/s.
Mr. Keyur Ghoda And another ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 14-09-2023
Appearance:-
Advocate Smt. Priya Nigawekar for the plaintiff.
Advocate Shri. Dipen Furia for the defendant No.1.
ORDER
1. At the stage of final argument, plaintiff has taken out this
notice of motion seeking permission to lead additional evidence by way
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NM No.3238/2019 in S.C Suit No.7292/2002. 2 Order.
of documents annexed to affidavit in support of notice of motion.
Defendant No.1 filed reply affidavit and opposed notice of motion.
2. Advocate Smt. Priya Nigawekar for the plaintiff filed
written argument. I have heard Ld. Advocate Shri. Dipen Furia for the
defendant No.1.
3. Plaintiff has filed the present suit for recovery of amount of
Rs.7,90,512.50/- against the defendant No.1. Plaintiff and defendant
No.1 adduced evidence in support of their respective claims. At the
stage of final arguments plaintiff wants to adduce documentary
evidence.
4. Ld. Advocate for the plaintiff submitted in written
argument that, defendant No. 1 is proprietor of M/s. Seven Seas, having
Current Account No.14220, since 07-06-1997 and had availed several
Credit Facilities time to time. In order to secure facilities, defendant
No.1 had taken insurance policy from Export Credit Guarantee
Corporation (hereinafter referred as, ‘ECGC’). In or about 22.06.1999
plaintiff had granted Packing Credit facility of Rs.6,40,000/- to the
defendant No.1. The amount of said facility was outstanding with
interest for which the present suit is filed. It is contention of plaintiff
that it is the case of defendant No.1 that plaintiff bank received
Rs.8,75,000/- and Rs.2,34,000/- from ECGC. As per bank norms, bank
has to repay the payments to ECGC and to recover the amount from the
party. ECGC issued letter dtd.15.02.2014 requesting plaintiff’s bank to
repay the recovery amount and also inquired about the status of the
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NM No.3238/2019 in S.C Suit No.7292/2002. 3 Order.
recovery. As the officer of plaintiff's bank are frequently transferred,
hence, plaintiff’s bank could not adduce documentary evidence in
respect of the amount sought to be recovered and to be paid to ECGC.
Therefore, in the written submission advocate for plaintiff prayed to
allow the notice of motion and to allow the plaintiff bank to adduce
additional evidence in the form of documents.
5. Advocate for defendant no. 1 submitted that, as per
affidavit of plaintiff the new Manager of plaintiff bank joined on
03.08.2019 and surprisingly within three days on 06.08.2019 he traced
out the correspondence and statement of accounts, which sought to be
produced as additional evidence. The plaintiff bank was negligent in not
producing documents at the time of adducing his evidence. At the stage
of final argument, no such permission to adduce documentary evidence
can be granted. He further argued that, the policy of ECGC taken by the
defendant no.1 is the contract between defendant No.1 and ECGC.
Plaintiff bank is not party to the said policy. Two claims of defendant no.
1 have been passed by ECGC and the amount of Rs.8,75,396/- of the
first claim was received by cheque from ECGC, which was credited to
the plaintiff bank. The amount of Rs.2,00,000/- of the second claim
was also credited to plaintiff’s bank. The officer of bank denied
receiving the said payment received to bank in his cross examination.
The plaintiff bank has freezed account of defendants. Defendants have
adduced evidence by way of letters Exhs. 22 to 27 in respect of the said
payments. Plaintiff bank had opportunity to adduce counter evidence
when defendant No.1 taken specific stand in his written statement
about the said payments credited in the bank by ECGC. In cross
examination, PW 1 Vikram Singhal, Officer of the bank shown
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NM No.3238/2019 in S.C Suit No.7292/2002. 4 Order.
unawareness about the transactions of ECGC and not replied the
questions in that regard. Defendant No. 1 has adduced ample evidence
by way of documents as regard said two transactions. Plaintiff sought to
adduce additional documentary evidence and most of the letter out of
the said documents are already produced by the defendant no. 1 in the
evidence. There is absolutely no pleading in the plaint that the
plaintiff’s bank has to return the payment of ECGC. Plaintiff’s bank has
accepted receiving payment of Rs.10 lacs from ECGC. Moreover, the
evidence of advocate of ECGC shows that ECGC has not required to pay
recovery from the amounts to be recovered i.e. Defendant No. 1.
Therefore, plaintiff’s bank is not entitled to adduce additional evidence
by way of documentary evidence. Hence, Advocate for the defendants
prayed to dismiss the notice of motion.
6. I considered the submission and perused the record. It
appears from the pleading in the plaint that, the plaintiff bank has not
pleaded that the plaintiff bank has to repay payments to ECGC and it is
to be recovered from the party. Moreover, there is no relief claimed in
the plaint to recover amount paid to ECGC by the plaintiff bank from
defendant No.1. On this count alone notice of motion is liable to be
rejected. The plaintiff bank wants to adduce evidence without pleading
and only on the basis of contention of defendant No.1 that the plaintiff's
bank received amount of Rs.8,75,000/- and Rs. 2,34,000/- from ECGC.
7. It appears that, though the plaintiff bank had granted
Packing Credit facility on the condition to defendant No.1 to take
insurance policy from ECGC. However, there is no pleading in the plaint
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NM No.3238/2019 in S.C Suit No.7292/2002. 5 Order.
that, whatever amount the plaintiff bank had paid to ECGC, the
defendant No.1 is liable to pay such amount to ECGC. Moreover,
plaintiff bank has not pleaded as to how much amount the bank had
paid to ECGC which required to be recovered from the defendant No.1.
Though it is submitted that plaintiff's bank has to repay the amount to
ECGC, but evidence of DW2 Sudheer Yadcadally shows that ECGC is not
required to recover the amounts from the insured ie M/s. Seven Seas.
Plaintiff bank has no any privity of contract with ECGC and the policy
was between the defendant No.1 and ECGC. Hence, submission of Ld.
Advocate for the plaintiff that the plaintiff bank has to repay the
amount of ECGC is not acceptable.
8. Plaintiff Bank sought to produce on record correspondences
between defendant No.1 and the bank dtd. 26.03.2000. However, there
is no pleading in respect of the amounts mentioned in the said letter so
also said letter does not speaks about the policy taken by the defendant
No.1 and payment of amount of bank to ECGC . Hence, said letter is not
relevant with the purpose of claim in the plaint. The next documents is
letter dtd.29.06.2000, which is already filed by the defendant No.1 in
his evidence and marked as Exh. 41. The letter dtd. 09.02.2000 also not
disclosing that the plaintiff's bank had to repay the amount to ECGC. So
far as, extract are concerned, they are not disclosing any amount paid to
ECGC by the plaintiff's bank. Thus, said documents are without pleading
and not relevant with the amount claimed in the plaint. The plaintiff's
bank is seeking to adduce additional evidence without pleading in
respect of payment allegedly made to ECGC and to be recovered from
the defendant No.1. In absence of the pleading plaintiff's bank is not
entitled to adduce additional evidence by of documents.
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NM No.3238/2019 in S.C Suit No.7292/2002. 6 Order.
9. It appears that at very belated stage plaintiff bank is trying
to adduce additional evidence. Earlier also, plaintiff bank also filed
Exh.39 to place on record the documents and the said application is
rejected by order dtd. 07.02.2018. This is one more attempt by the
plaintiff bank to adduce additional evidence by way of documents.
However, in absence of pleadings, plaintiff bank cannot be permitted to
adduce additional evidence by way of documents. For these reasons,
notice of motion is liable to be rejected. Hence, I pass following order:
ORDER -
Notice of Motion No. 3238 of 2019 is dismissed and accordingly
disposed off.
(N.G. Shukla)
Judge
City Civil Court,
Date :14-09.2023 Gr. Bombay.
1. Dictated on : 14-09-2023
2. Transcribed on : 15-09-2023
3. Checked and Signed on : 16-09-2023
4. Delivered to Certified :
Copy Section on
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NM No.3238/2019 in S.C Suit No.7292/2002. 7 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16-09-2023 5.00 p.m. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.63).
Date of Pronouncement of Judgment/Order 15-09-2023
Judgment/Order signed by P.O. on 16-09-2023
Judgment/Order uploaded on 16-09-2023
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