Order 1

Order Details: Order below exhibit
Pdf Text: 1 OBE 30 IN CS 19-2020
MHCC010099832019
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI.
(Court Room No.32)
ORDER BELOW EXHIBIT -30
IN
COMMERCIAL SUIT No.19 OF 2020
M/s. Esteem Industries Pvt. Ltd. ...Plaintiff
VERSUS
M/s. Sunani Enterprises ...Defendant
Tejashree S. Gawde, learned advocate for plaintiff.
Samiksha Mayekar, learned advocate for defendant.
CORAM : H.H. JUDGE SHRI SANJIV PRABHAKAR PINGLE,
COURT ROOM NO.32,
(Delivered on 27/02/2025)
ORDER BELOW EXHIBIT -30
1. The present application for withdrawal of the suit is filed
by plaintiff with liberty to file fresh suit on the same cause of action.
The reasons for withdrawal is that there in formal defect in a Suit. Also
some of averments and documents which are very important and crucial
to prove the case of the plaintiff were not in-corporated in the plaint.
Therefore, the present application has been taken out for removing
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those defects and incorporating necessary averments to prove the claim
of the suit by filing new suit. Hence, prayed to allow the application.
2. Vide reply at Exhibit-30 defendant strongly resisted the
application for withdrawal with liberty to file fresh suit on the same
cause of action. Firstly on the count that what was the formal defect has
not been expressly mentioned. Secondly, the previous advocate has
been blamed for the defect in the present suit. The said ground cannot
be accepted for reasons application is filed at belated stage after 4 years
of filing of the suit. At present the matter is fixed for evidence. Plaintiff
adduced the evidence of star witness. At the time of cross-examination
of the plaintiff's star-witness, the cross-examination was conducted on
behalf of defendant in consonance with the written statement filed by
the defendant. Therefore, if the liberty to file fresh suit on same cause
of action allowing withdrawal of the present suit, will cause great
prejudice to the rights of defendant.
3. It is also further pointed out that, the Notice of Motion
taken out by the plaintiff bearing No. 3867 of 2022 for production of
additional documents has been rejected by my ld. Predecessor by the
order of dated 23.01.2023. The said order was challenged before the
Hon'ble High Court. Hon'ble High Court has confirmed the said order by
order dated 07.08.2023 in Interim Application (Stamp) No.19985 of
2023. Hence, prayed to reject the application.
4. Following points arises for my determination to which I
have noted my findings with reasons thereon to each one as under :-
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3 OBE 30 IN CS 19-2020
SR.
NO
POINTS FINDINGS
1 Whether permission sought to
withdraw the present Commercial
Suit No. 19 of 2020 with liberty to file
fresh suit on the same cause of action
can be accorded ? No.
2. What order ? Application is Rejected
REASONS
5. Heard, ld. Advocate Tejashree Gawde for the plaintiff and
ld. Advocate Samiksha Mayekar for the defendant.
6. Ld. Advocate for the plaintiff relied upon the following
ratio in support of her contention to accord permission to withdraw the
suit with liberty to file fresh suit on the same cause of action
1) Chandrakant Pandurang Shingade and Others Versus Shri.
Walchand Gulabchand Bora CRA No.264 of 2014 dated 06.08.2019.
2) Aumm Innovations LLP Versus Chooyal Private Limited Writ
Petition No. 7243 of 2023 dated 03.10.2023.
7. After considering rival submission, the bone of contention
of the ld. Advocate Tejashree Gawde is that because of the fault of the
previous Advocate party cannot suffer. It is contended that after
appointing her by the plaintiff as an Advocate in the present suit, she
came across with the defect in a suit. Necessary averments was required
to be pleaded by the plaintiff in respect of lorry receipts and emails
pertains to the transaction in question. So also those documents also
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not tendered by the previous advocate. Therefore, there is formal defect
in a suit. Thus plaintiff constrain to withdraw the suit with liberty to file
fresh suit on the same cause of action. Hence, prayed to allow
application.
8. Per-contra Ld. Advocate Samiksha Mayekar strongly
objected the application for the reasons that by the back door entry,
plaintiff wants to adduced some of the additional documents. Therefore
took out Notice of Motion No.3867 of 2022. After smelling the foul play,
my ld. predecessor has rejected the said Notice of Motion which was
taken before the Hon'ble High Court. The Hon'ble High Court has
crystal clearly observed that the documents which were in electronic
form cannot said to be misplaced, plea taken about it is untainable. It
being so, the suit has been proceeded further at the stage of evidence.
There is a substantial cross-examination to the star-witness of the
plaintiff PW-1 by way of cross-examination of said witness in respect of
the defect. Therefore, the present application withdrawal has been
taken out would not be maintainable with the liberty to file fresh suit
on the same cause of action.
9. After considering rival submissions, and having gone
through the ratios relied upon the plaintiff, there cannot be two
opinions or quarrel in respect of the ratios relied upon the plaintiff. So
far as the ration in the 'Aumm Innovations LLP (Supra)' is concern, it
appears that as, due mandatory procedure contemplated under Sec.12
A of the Commercial Courts Act, 2015 was not followed by taking out
'pre Suit-mediation'. It held to be a formal defect. Therefore, the suit
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appears to be allowed to be withdrawn for taking a recourse under 12 A
of the Commercial Courts Act, 2015. The liberty appears to be granted
to file fresh Suit on the same cause of action. With utmost respect, the
said ratio can be very well distinguished on the facts being prima-facie
facts are different and distinguishable.
10. So far as, ratio in the matter of
Chandrakant Pandurang
Shingade and Another (Supra) is concern, it is ruled that the prayer of a
withdrawal the suit with liberty to file fresh suit on the same cause of
action cannot be bifurcated and split-up while withdrawal if accorded.
Consequently, if the withdraw is allowed, liberty to file fresh suit
requires to be accorded. Therefore, by no stretch of imagination this
ratio would also be helpful to the stand of the plaintiff who cum-up
with the case to withdraw the suit because of formal defect which is not
at all pointed out.
11. It is rightly pointed out by the ld. Advocate Mayekar that
what is that formal defect has not been clandestinely pointed out in the
application or orally. Secondly, when the present suit is part heard,
assuming that the cross-examination of PW-1 is not completed and part
heard, even then, the suit had gone far away to allow the withdrawal,
at this stage also in the light when the Notice of Motion No. 3867 of
2022 came to be rejected. Said order of my ld. predecessor was
challenged before the Hon'ble High Court in Interim Application
(Stamp) No.19985 of 2023. The Hon'ble High Court has observed that a
plea taken about misplacing a digital evidence in untainable. Hence, the
application for withdrawal fails, as party cannot be allowed to enter
through back door entry.
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6 OBE 30 IN CS 19-2020
12. So far as, the aspect/mistake of previous Advocate is
concern, true it is that generally, it is ruled that for the mistake of
Advocate or lawyer, party cannot be punished/suffer. However, the said
stand appears to be taken to cure, not a formal defect but and inherent
defect which by no stretch of imagination it can be allowed to be cured.
It is the settled law that by the act of party and advocate, if any,
substantial right accrued to the adversary party, no such permission or
prayer of withdraw can be accorded because of inherent defect either to
plead necessary pleading or pleading in respect of any documents much
less like in present case, in respect of lorry receipts or E-mails exchange
in between the parties. Said inherent lacuna cannot be cured
subsequently, by way of a second thought, by putting a gun on the
shoulder of the previous advocate. Thus, I noted my finding to the point
No.1 and 2 and proceed to pass following order___
ORDER
1. The application at Exhibit-30 is rejected.
2. The Suit to proceed further expeditiously in view of the fact that
suit is having age more than 5 years.
3. Thus, the application is disposed of accordingly.
( SANJIV PRABHAKAR PINGLE )
JUDGE, CR NO.32,
Date : 27/02/2025. CITY CIVIL COURT, AT MAZGAON,
MUMBAI.
Dictated on : 27/02/2025
Typed on : 28/02/2025
Signed on : 01/03/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
01/03/2025 at 5.30 p.m. Mr. Mahesh S. Lugade
Name of the Judge ( With Court
Room No.)
H.H.J. Shri Sanjiv P. Pingle
(Court Room No.32)
Date of Pronouncement of
JUDGMENT/ORDER
27/02/25
JUDGMENT/ORDER signed by
P.O. on
01/03/25
JUDGMENT/ORDER uploaded on 01/03/25
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