Final Order 1

Order Details: Chamber summons
Pdf Text: CS 1695-19 in S.C. Suit no. 264 of 1983
Old Suit No. 7468 of 1983
HC Suit No. 1944 of 1983
1 Date :05.12.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 1695 OF 2019
IN
S.C. SUIT NO. 264 OF 1983
OLD SUIT NO. 7468 OF 1983
H.C.SUIT NO. 1944 OF 1983
(CNR MHCC01-009551-2019)
Khandelwal Laboratories Private Limited .. Plaintiff
Versus
Rakesh Kapoor & Ors. .. Defendants
Appearances :-
Ld. Adv. Shishir Joshi a/w Adv. Mr. Vaibhav Bajpai and Mr. Swapan
Samdani i/b G.S.Manasawala for plaintiff present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 05.12.2020
ORDER
1. The defendant no. 5 preferred instant Chamber Summons
seeking following reliefs :
a) That this Hon’ble Court be pleased to mark the
documents produced by the Defendants in their
Compilation of Documents being Exh. ‘A’ to Exh. ‘AAP’
referred to in the Examination of Defendant No. 1.
b) That this Hon’ble Court be pleased to call for the records
from the file of the Hon’ble Sessions Court for Greater
Mumbai being Criminal appeal No. 317 of 2012 with the
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CS 1695-19 in S.C. Suit no. 264 of 1983
Old Suit No. 7468 of 1983
HC Suit No. 1944 of 1983
2 Date :05.12.2020
records and proceedings of Criminal Case No.
242/P/1984 from the file of the Ld. Additional Chief
Metropolitan Magistrate, 19the Court, Esplanade,
Mumbai and permit the defendant no. 5 to produce the
certified copies of the aforesaid documents forming part
of Criminal Case No. 242/P/1984 as Exhibits in support
of the defendants.
c) Such other and further reliefs as the nature and
circumstances of the case may require.
2. It is contended by the defendant no. 5 that, the plaintiff have
filed instant suit for recovery of an amount of Rs. 59,04,735/-
alongwith other consequential reliefs. The defendants filed
Written Statement opposing the present suit. After framing of
issues, the evidence was adduced before the Court Commissioner.
However, the documents from Exh. ‘A’ to Exh. ‘AAP’ were not
exhibited due to the objection taken by the other side. Hence,
defendant no. 5 filed instant Chamber Summons for exhibiting
those documents and placing certified copies of documents
forming part of Criminal Case No. 242/P/1984.
3. The plaintiff opposed instant Chamber Summons by filing his
reply. It has been contended by the plaintiff that, the present
Chamber Summons is barred by principal of res-judicata. It has
been argued that, earlier the defendant no. 1 has filed similar
application below Exh. 4, which was rejected vide, order dated
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CS 1695-19 in S.C. Suit no. 264 of 1983
Old Suit No. 7468 of 1983
HC Suit No. 1944 of 1983
3 Date :05.12.2020
13.02.2017. Hence, the same issue can not be agitated by the
present defendant no. 5.
4. It is further contended that, the documents which defendant
no. 5 wanted to exhibit are neither belonging to defendant no. 5
nor the defendant no. 5 is the author of those documents. Those
documents were collected during investigation of Criminal Case
No. 242/P/1984. Hence, the defendant no. 5 is not concerned
with those documents. It is further argued that, the record and
proceedings of Criminal Case No. 242/P/1984 were brought for
three times and sufficient opportunity was granted to the
defendants. Hence, there is no reason for calling the same once
again.
5. The plaintiff in support of his contention of preliminary
objection relied on the judgment of
Hon’ble Apex Court reported
in (2005) 1 Supreme Court Cases 787 in case of Bhanu Kumar
Jain V/s. Archana Kumar & Anr. and (2013) 14 Supreme Court
Cases 1 in case of Bagai Construction V/s. Gupta Building Material
Store. Hence, the plaintiff prayed for dismissal of Chamber
Summons.
6. Heard both the sides. Perused Chamber Summons, reply as
well as Written notes submitted by the parties. It is not in dispute
that, initially, the suit was filed against defendant no. 1 and other
defendants were added subsequently. Initially, the suit was
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CS 1695-19 in S.C. Suit no. 264 of 1983
Old Suit No. 7468 of 1983
HC Suit No. 1944 of 1983
4 Date :05.12.2020
contested by defendant no. 1 and Joint Written Statement was
filed. The evidence was adduce before Court Commissioner.
However, certain documents i.e. from Exh. ‘A’ to Exh. ‘AAP’ were
not exhibited and therefore, the defendant no. 1 preferred
application below Exh. 4 for exhibiting those documents.
7. It is admitted fact that the aforesaid application was
dismissed by my Predecessor vide, order dated 13.02.2017 which
is not been challenged by the defendant no. 5. On perusal of the
said application below Exh.4 and the prayer of the present
Chamber Summons, it appears to me that, both the applications
are same.
8. It has been argued by the defendant no. 5 that, the said
application was preferred by the defendant no. 1 but,
subsequently, on 24.08.2017, the defendant no. 1, 2 and 7 had
entered into the consent term with the plaintiff and therefore, he is
entitle to file the present Chamber Summons for exhibiting of
those documents due to change in circumstances.
9. I have perused the pleadings in the Chamber Summons. I do
not find the aforesaid material in the pleadings of the Chamber
Summons, except that, those documents Exh. ‘A’ to Exh. ‘AAP’ are
necessary to prove the defence of the defendant no. 5.
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CS 1695-19 in S.C. Suit no. 264 of 1983
Old Suit No. 7468 of 1983
HC Suit No. 1944 of 1983
5 Date :05.12.2020
10. The Ld. Advocate for plaintiff drawn my attention to Exh. 7,
the application filed by the defendant no. 5 seeking various
reliefs. He has pointed out from Para No. 3 that, the application
below Exh. 4 was supported by all the defendants. Hence, the
contention of the defendant no. 5 that, the aforesaid application
below Exh.4 was filed by defendant no. 1 and as he had settled the
matter with plaintiff, therefore, the defendant no. 5 has right to
file present Chamber Summons is not tenable.
11. I have perused Exh. 7, more particularly Para No. 3, wherein
the defendant no. 5 have specifically pleaded that, the said
application below Exh. 4 was supported by the other defendants.
In my view, the application below Exh. 4 was decided on merit
after hearing of both the sides. The prayer of Exh.4 and present
Chamber Summons are same. Hence, the present Chamber
Summons is barred by principal of res-judicata. I do not find any
substance in the present Chamber Summons. Hence, the same
needs to be dismissed. Thus, I proceed to pass the following
order:
ORDER
1. Chamber Summons No. 1695 of 2019 is hereby dismissed.
2. Defendant no. 5 to bear the cost of present Chamber
Summons.
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CS 1695-19 in S.C. Suit no. 264 of 1983
Old Suit No. 7468 of 1983
HC Suit No. 1944 of 1983
6 Date :05.12.2020
3. Chamber Summons No. 1695 of 2019 is disposed of
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 05.12.2020 Greater Bombay.
Dictated on : 05.12.2020
Typed on : 05.12.2020
Draft Submitted on : 05.12.2020
Checked on : 05.12.2020
Signed on : 05.12.2020
Uploaded on : 05.12.2020
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CS 1695-19 in S.C. Suit no. 264 of 1983
Old Suit No. 7468 of 1983
HC Suit No. 1944 of 1983
7 Date :05.12.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
05/12/2020 at 4.30 p.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
05/12/2020
JUDGMENT/ORDER signed by P.O.
on
05/12/2020
JUDGMENT/ORDER uploaded on 05/12/2020
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CS 1695-19 in S.C. Suit no. 264 of 1983
Old Suit No. 7468 of 1983
HC Suit No. 1944 of 1983
8 Date :05.12.2020
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