Order 1

Order Details: Order below exhibit
Pdf Text: 1 OBE 7 in Comm. Suit 703/2021
ORDER BELOW EXHIBIT 7
IN
SUMMONS FOR JUDGMENT NO. 236 OF 2019
IN
COMMERCIAL SUIT NO. 703 of 2021
Navnit Radhakishan Loya ...Plaintiff
Versus
M/s. Royal Dyers & Anr. ….Defendants
Appearance:
Adv. Mahesh Devani for Plaintiff.
Adv. S.C. Gupta for Defendants.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 17th NOVEMBER 2022
ORDER
The plaintiff has moved this application praying that the
Sales Tax Department be directed to produce all the relevant papers
and documents for the year 20152016 by which the defendants have
taken refund/set off of the amount of Rs.58,136/ under their VAT
number to decide the present matter.
2. It is submitted by the plaintiff that the Summons for
Judgment is pending for its hearing and final disposal of the Court. The
defendants have denied everything in their leave to defend. The
defendants have taken refund/set off of Rs.58,136/ from the Sales Tax
Department for the year 20152016. The plaintiff has got this
information from the Sales Tax Department. The plaintiff requested the
concerned department to furnish the certified copies, but the said
department shown their inability to give the copies. According to the
plaintiff, the production of the said documents is relevant in deciding
the matter. No prejudice will be caused to the defendants, if production
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is allowed. Hence, the plaintiff prayed that the Sales Tax Department be
directed to produce all the relevant papers and documents by which the
defendants have taken refund/set off.
3. The defendants submitted their reply at Exh.7A and
resisted the application. It is submitted that the application filed by the
plaintiff is not maintainable. It is submitted that the said bills are not
relevant to decide the present suit. Hence, the plaintiff is not entitled to
call the witness to produce the documents. Lastly, the defendants
prayed for rejection of the application.
4. The plaintiff also filed the rejoinder to the said reply of the
defendants.
5. Perused the contents of the application and say filed by the
defendants. I have also gone through the rejoinder filed by the plaintiff.
6. It is argued by Learned Senior Counsel Shri. Mahesh
Devani for the plaintiff that the defendants have taken the refund of
Rs.58,136/ from the Sales Tax Department. The said documents are
relevant in deciding the matter on merit. He submitted that at the time
of deciding the Summons for Judgment, these documents will be
helpful. He also argued that the reply filed by the defendants cannot be
considered. He also submitted that as per rule 98 of the Bombay City
Civil Court Rules, the Affidavit shall be affirmed before an officer of the
Court. As rules were framed, it has to be followed. He submitted that
the affidavit filed by the defendant, which was affirmed before Notary,
cannot be accepted. Hence, he submitted that if the documents are
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called from the Sales Tax Department, no prejudice would be caused to
the defendants. Lastly he submitted for allowing this application.
7. On the contrary, Learned Advocate Shri. S.C.Gupta for the
defendants submitted that the suit itself is not maintainable. The
documents sought by the plaintiff for production are not relevant. The
Court is not deciding the suit. He also submitted that the summons
cannot be issued to the Sales Tax Department. He further argued that
the Summons for Judgment is pending and hence he prayed for
rejection of the application.
8. After considering the submission of both the sides, it is not
in dispute that the present suit is filed by the plaintiff for the recovery of
the amount of Rs. 9,45,492/ together with interest from the
defendants. It is also an admitted fact that the Summons for Judgment
is also pending for hearing.
9. It is submitted by the plaintiff that the defendants have
taken the refund of Rs.58,136/ from the Sales Tax Department. Hence,
the plaintiff prayed that the Sales Tax Department be directed to
produce the relevant papers and documents before the Court. At the
outset, it is to be noted that in the plaint, the plaintiff nowhere pleaded
that the defendants have taken the refund of Rs.58,136/ from the Sales
Tax Department. Without making specific pleading in the plaint, the
plaintiff wants to place on record the documentary evidence i.e. papers
and documents regarding the refund from the Sales Tax Department. In
absence of specific pleading, the plaintiff cannot be permitted to seek
the permission of the court for issuing witness summons to the witness.
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10. Admittedly, the Summons for Judgment is pending for
hearing. At this stage, this Court is only deciding the Summons for
Judgment. The Court is not deciding the suit. While deciding the
Summons for Judgment, it is not permissible to call the documents from
the department. At this stage, the said bills are not relevant to decide
the Summons for Judgment because the suit of the plaintiff is based on
the foot of the account. At the time of deciding the Summons for
Judgment, the witness summons cannot be issued to the witness to
produce the documents. There is also no provision under which the
witness summons can be issued to the witness at the time of deciding
the Summons for Judgment. It is material to note that suit is not fixed
for evidence. In my view, this is not the stage to issue witness summons
for production of documents. Therefore, I am of the view that the
witness summons cannot be issued to the Sales Tax Department for
production of relevant papers and documents. Hence, I find no
substance in the application. Hence, application itself is not
maintainable at this stage. Hence, I proceed to pass the following
order :
ORDER
1) Application filed by the plaintiff below Exh.7 stands rejected.
2) Order accordingly.
Dated : 17.11.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 17.11.2022
Typed on : 17.11.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
19.11.2022 11.40 a.m. Prachi Y. Potdar
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
17.11.2022
Judgment/order signed by P.O on 18.11.2022
Judgment/order uploaded on 19.11.2022
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