Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 3307-19 in S.C.Suit no.799-2013
1 Date :30.01.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3307 OF 2019
IN
S.C. SUIT NO. 799 OF 2013
(CNR MHCC01 0089992019 )
Efkon India Pvt. Ltd. .. Plaintiff
Versus
Mr. Pushkar Kulkari .. Defendant
Appearances :
Adv.Harsh Meghani a/w Adv.Mona Malvade for plaintiff.
Adv.Suvarna Joshi for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 30.01.2020
ORDER
1. The plaintiff has filed instant Notice of Motion seeking
following reliefs :
a) That the plaintiff’s evidence is required to be reopened
under the provisions of Order 18 Rule 17 of Civil
Procedure Code 1908.
b) That the plaintiff is allowed to file additional relevant
documents on record.
c) That such additional documents which are necessary
and are be marked exhibits as evidence in the interest
of justice, as they are relevant documents and to meet
the ends of justice.
d) That costs of the Notice of Motion be provided for.
e) Such other and further reliefs as the nature and
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circumstances of the case may require be granted.
2. It is contended by the plaintiff that during course of final
argument, they had searched and found some important emails
dated 14.08.2012, 23.08.2012, 27.08.2012, 28.08.2012 and
29.08.2012 which demonstrates that how the defendant had pre
planned to misappropriate funds from the accounts of plaintiff
under guise of the SAR Scheme which was not approved by the
shareholders of the plaintiff company, and in collusion with other
officers of the plaintiff company. It is submitted by the plaintiff
that these emails are necessary to be taken on record and be read
in evidence in the interest of justice.
3. The Notice of Motion is opposed by the defendant by filing
say. It is submitted by the defendant that there is a huge delay in
filing instant Notice of Motion that too when the argument of both
the matters were about to conclude. The plaintiff examined PW.1
to prove its case that SAR funds were illegally received by the
defendant. The plaintiff after completion of three days of hearing
realized that they did not have any evidence to substantiate its
claim, therefore, in order to fill up the lacuna in the evidence, the
plaintiff filed instant Notice of Motion.
4. It is further submitted that the plaintiff filed instant Chamber
Summons for recalling of witnesses under Order 18 Rule 17 of
C.P.C. The said provision can not be invoked for reopening of
evidence. The plaintiff did not disclose to whom they want to
recall. Even otherwise also as per Order 18 Rule 17 parties do not
have right to apply for recalling of witness under Order 18 Rule
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17. It is the courts jurisdiction in order to clarify in the evidence,
can recall the witness. Hence, the defendant prayed for rejection
of the Notice of Motion.
5. Heard both the sides. Perused Notice of Motion and reply.
The plaintiff filed instant suit for recovery of Rs. 53,00,000/ from
defendant on the ground that he has unlawfully appropriated the
said amount. The defendant herein also filed suit no. 5153 of
2012 for recovery of his arrears of salaries and other benefits. It is
not in dispute that both the matters are at the stage of final
argument and this Court on more than three occasions heard the
advocate of plaintiff herein. During pendency of hearing, the
plaintiff filed instant Notice of Motion praying for reopening of the
evidence under Order 18 Rule 17 of C.P.C. and further prayed for
filing of additional relevant documents.
6. Ld. Advocate for the plaintiff vehemently argued that the
emails communication dated 14.08.2018 and 29.08.2018 clearly
demonstrate that how the defendant has misappropriated funds
under guise of SAR scheme inconvenience with employees of the
plaintiff. Therefore, Ld. Advocate contended that these document
are very much necessary to prove its case. Ld. Advocate in order
to substantiate its submission relied on the judgment of Hon’ble
Apex Court reported in (2011) 11 Supreme Court Cases 275 in
case of K. K. Velusamy V/s. N. Palanisamy and would contend
that under Section 151 of Code of Civil Procedure, this Court can
certainly exercise its power to reopen the evidence, as it is relevant
and necessary in the interest of justice.
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8. The Ld. Advocate emphasize on para 19 of the aforesaid
judgment, wherein, the Hon’ble Apex Court held that where the
application is found to be bonafide and where the additional
evidence, oral or documentary, will assist the court to clarify the
evidence on the issue and will assist in rendering justice, and the
court is satisfied that nonproduction earlier was for valid and
sufficient reasons, the Court may exercise its discretion to recall
the witnesses or permit the fresh evidence.
9. Per contra Ld. Advocate for the defendant vehemently
argued that there is absolutely no reasons assigned why on earlier
occasion the aforesaid documents were not produced. She draw
my attention to the evidence of PW.1 herein, laid in connected suit
as PW.1, wherein he has deposed that “he has record from 2007 to
2012 which has been produced on record”.
10. It is further argued that under Order 18 Rule 17, the Court
can not reopen the evidence or call new witnesses. If the present
Notice of Motion is allowed that would amounting to filling up of
lacuna in the evidence which would cause great injustice to the
defendant.
11. I have perused the aforesaid judgment. In the aforesaid
judgment the Hon’ble Apex Court have extensively dealt with the
power of the Court under Section 151 of Code of Civil Procedure.
The Hon’ble Apex Court held that in the absence of any provision
provided for reopening of evidence or recalling of any witnesses
for further examination of crossexamination, for the purpose
other than securing clarification required by the Court inherent
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powers under Section 151 of Code of Civil Procedure subject to its
limitation, can be invoked in appropriate case to reopen the
evidence or recall the witness for further examination. If there is a
time gap between the completion of evidence and hearing of the
argument, for whatsoever reasons and if in that interregnum, a
party comes across some evidence which he could not lay his
hands on earlier, or same evidence in regard to the conduct or
action of the other party comes to an existence, the Court may in
exercise of its inherent power under Section 151 of Code of Civil
Procedure, permit the production of such evidence, if it is relevant
and necessary in the interest of justice, upon such terms as the
court may deem fit to imposed.
12. At the same time, the Hon’ble Apex Court laid down the
limitation for exercising the power under Section 151 of Code of
Civil Procedure by saying that such power is not intended to be
used routinely and merely for the asking. If so used it will defeat
the other provisions of various enactment to the Code to expedite
the trial. But where the application is found to be bonafied and
where the additional evidence, oral or documentary will assist the
court to clarify the evidence on the issue and will assist in
rendering justice, and Court is satisfied with non production
earlier was for valid and sufficient reasons the Court may
permitted fresh evidence.
13. In the given case, admittedly the plaintiff did not pray
specifically to exercise the power under Section 151 of Code of
Civil Procedure and to reopen the evidence. The application has
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been filed to invoke the power under Order 18 Rule 17 of C.P.C.
Secondly, there is absolutely no reasons assigned by the plaintiff
for non production of those emails on earlier occasion. On the
contrary, the evidence of plaintiff witness laid in suit no. 5153 of
2012 clearly demonstrate that whatever record they have, they
produce in the Court. Moreover, the aforesaid emails does not
suggest that the defendant had committed any misappropriation so
that it would be helpful to the plaintiff. In my view, even if that
would have been suggested so and if the evidence would have
been allowed, it would be amounting to filling up of lacuna in the
evidence.
14. Hence, in my view, the plaintiff failed to make out any case
to exercise the power under Section 151 of Code of Civil Procedure
by this Court and thus, Notice of Motion is required to dismissed.
Thus, I proceed to pass the following order :
ORDER
1. Notice of Motion No. 3307 of 2019 is hereby dismissed with
cost.
2. Notice of Motion No. 3307 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 30.01.2020 Greater Bombay.
Dictated on : 30.01.2020
Typed on : 30.01.2020
Draft Submitted on : 30.01.2020
Checked on : 03.02.2020
Signed on : 03.02.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
05/02/2020 at 11.30 a.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
30/01/2020
JUDGMENT/ORDER signed by P.O.
on
03/02/2020
JUDGMENT/ORDER uploaded on 05/02/2020
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