Final Order 1

Order Details: Notice of Motion
Pdf Text: Order on Notice of Motion
No. 4024 of 2019. 1
MHCC010110942019
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.4024 of 2019
IN
S. C. SUIT NO.7739 of 2004.
1. Rackitt & Colemn Ltd. ...Defendant No.1/
Applicant.
In the matter of :-
1. Administrator of the Special Undertaking
of the Unit Trust of India & Anr. ..Plaintiffs.
V/s.
1. Rackitt & Colemn Ltd.and Ors. ..Defendant.
Appearances :-
Adv. Subhash Bane for plaintiff.
Adv. Sanket Mungale for defendant No.1.
Coram : Shri.U. C. Deshmukh.
C.R. No.: 59.
Date : 14/02/2024.
-- 1 of 5 --
Order on Notice of Motion
No. 4024 of 2019. 2
ORAL ORDER
This Notice of Motion is moved by the defendant No. 1 to
permit it to lead additional evidence and for that to produce the
documents on record.
2. It is contention of defendant No1 that it has already filed
affidavit of evidence of witness namely Manoj Singh Bisht on 17th
February, 2017 at Exh. 53 and also filed documents along with list at
Exh. 54. Thereafter, it moved an application at Exh. 56 seeking
permission to lead secondary evidence which was disposed on
15.12.2017. Thereafter, it filed affidavit of same witness in lieu of
examination-in-chief at Exh. 53 -A. However, it could not file the Power
of Attorney executed in favour of the witness when aforesaid earlier
evidence is adduced. Hence, this Notice of Motion.
3. The plaintiff in reply contends that defendant No.1 ought
to have file each and every documents when it tendered written
statement on record. This Notice of Motion is moved after 11 year and 8
months to produce alleged Power of Attorney and i.e. too after two
years of his earlier evidence is adduced. It is further contention of the
plaintiff that in spite of defendant No.1 has filed affidavit of evidence at
Exh.53-A failed to produce alleged Power of Attorney. Thus, the Notice
to Motion is taken to prolong the matter. It is also against the provision
of law. Hence, prayed to reject same.
4. It is submission of the Ld advocate for the defendant No. 1
that he could not tender Power of Attorney when defendant No. 1
tendered evidence. It was happened due to over sight and inadvertantly.
He placed reliance of decision upon the Hon’ble High Court in Mohanraj
-- 2 of 5 --
Order on Notice of Motion
No. 4024 of 2019. 3
Rupchand Jain & Ors. V/s. Kewatcahnd Hastimal Jain & Ors., 2007(3)
Bom C.R.737 and prayed to allow the Notice of Motion.
5. On the contrary, Ld. advocate for the plaintiff argued that
no document is annexed to the Notice of Motion to fortify the
contention of defendant No.1. The court has granted the liberty to
defendant No.1 to argue on documents. However, defendant No.1 failed
to argue. Hence, this Notice of Motion taken after huge delay, and
therefore, it is liable to be rejected.
6. In Mohanraj (supra) the Hon’ble High Court has observed
that the provision of Order XVIII Rule 4 of the Code of Civil Procedure,
1908 (In short ‘Code’) are procedural in nature. The pedantic approach
should not be adopted while enforcing such procedural law. Particularly
when the petitioner will have ample opportunity to meet documents in
evidence and cross examination of witness. In the light of the
observation of Hon’ble High Court in Mohanraj (supra), it has to see
whether defendant No.1 can be permitted to file copy of Power of
Attorney as it prays. It is a part of the record that defendant No.1 had
filed affidavit of evidence twice at Exh. 53 and Exh. 53-A, even though,
he failed to lead evidence in respect of Power of Attorney. It is
contention of the defendant No.1 that his advocate inquired in respect
of the authority given to the witness in month of January 2019, and
thereafter, the witness found that he is already authorized to depose
vide Power of Attorney dated 27th July, 2016. Therefore, there is delay.
7. On the other hand, it is submission of the plaintiff that
defendant No.1 has purposely delayed the matter and it has not
annexed alleged Power of Attorney to the Notice of Motion.
-- 3 of 5 --
Order on Notice of Motion
No. 4024 of 2019. 4
8. It is pertinent to note that after affidavit of evidence is filed
on record, the matter was kept for hearing on documents and further
examination-in-chief, or witness of defendant No1. It means the cross
examination is yet to begin. In such circumstance, if defendant No.1 is
permitted to file copy of Power of Attorney while examining the witness
further in examination-in-chief no prejudice will be caused to other
side. However, it is significant to note that the failure of the defendant
No.1 to file power of attorney alongwith his affidavit in evidence
delayed the trial. Therefore, the Notice of Motion ensue the cost. In the
result following order is passed :
ORDER
1. Notice of Motion No. 4024 of 2019 is allowed subject to
cost of Rs.10,000/- (Rs. Ten Thousand Only) payable to the
plaintiff on before next date.
2. On payment of aforesaid cost defendant No.1 is permitted
to file the copy of the Power of Attorney on record along with list
of documents and it is permitted to file additional affidavit to the
extent of Power of Attorney.
3. Accordingly, Notice of Motion No. 4024 of 2019 is
disposed off.
(Dictated and Pronounced in Open Court).
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:14.02.2024 Greater Bombay (CR 59).
Declared on : 14.02.2024
Dictated on : 14.02.2024
Transcribed on : 23.02.2024
Checked on : 23.02.2024.
Signed on :
-- 4 of 5 --
Order on Notice of Motion
No. 4024 of 2019. 5
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
04.03.2024 at 12.50 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 14.02.2024
Order signed by P.O. on 27.02.2024
order uploaded on 04.03.2024
-- 5 of 5 --