Final Order 1

Order Details: Notice of Motion
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MHCC010122382019 Presented on : 27/11/2019
Registered on : 27/11/2019
Decided on : 06/01/2022
Duration : Y M D
02 01 09
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by S. U. Hake)
NOTICE OF MOTION NO.4476 OF 2019
IN
COMMERCIAL SUIT NO.914 OF 2021
(SUIT NO.1337 OF 2019)
Mrs. Milagres Anand Castelino aka as
Milagres Maria Ignes Castelino
Age: 67 years; Occupation: Business,
partner of Larissa International and
resident of Mumbai residing at 248/10,
Bosco Mansion, David Baretto Road,
Wadala West, Mumbai 400 031. ..Plaintiff
Versus
Mr.Kumar Pribhdas Jaising
Age 57 years. Partner of Larissa International
and resident of Mumbai residing at Flat
No.4A, 3rd Floor, Bentax building,
Tulsiwadi Lane, Tulsiwadi Tardeo,
Mumbai 400 034. ..Defendant
_______________________________________________________
Ld. Advocate Manoj Agiwal for plaintiff.
Ld. Advocate Preeti Shah for defendant.
______________________________________________________
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ORAL ORDER
(06/01/2022)
This Notice of Motion is taken out by plaintiff praying
to make a complaint as per Sec. 340 of Cr.P.C. against defendant
to Judicial Magistrate for an offence punishable u/s. 199 of I.P.C.
Avernments in Notice of Motion may be summarized as under:
2. Suit is filed for dissolution of the partnership firm.
Plaintiff has taken out Notice of Motion No.961/2019 praying for
an appointment of Court Receiver, attachment before Judgment
and for other reliefs. In said Notice of Motion, defendant filed his
reply affidavit, contending therein that to the knowledge of
plaintiff, he has no assets or properties in his name. After
taking out search of emails of plaintiff's late husband, plaintiff
came to know that defendant is holding movable and immovable
properties. Plaintiff found one statement of assets of defendant.
Said statement was prepared to support defendant and his wife
for travelling to United State of America. The reply affidavit filed
by defendant was brought to the notice of Court by plaintiff's
advocate. This Court by order dated 03/05/2019, directed
defendant to file latest income tax returns alongwith affidavit.
Defendant filed surrejoinder dated 29/05/2019 in Notice of
Motion No. 961/2019 and also enclosed income tax returns for
the financial year 201819. In said income tax returns, defendant
has declared his gross income as Rs.3,72,842/. That gross
income includes an amount of Rs. 1,61,332/ as income from
business and an amount of Rs.2,11,510/ as income from interest.
Out of the said interest amount, an amount of Rs.1,96,647/ was
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the interest earned on fixed deposits and an amount of
Rs.14,211/ was the interest from Savings Account. Plaintiff sent
letter dated 17/07/2019 to Manager HDFC bank, Vaibhav
Apartment and asked details about the fixed deposits standing in
the names of defendant and his wife. However, bank denied to
disclose details of those fixed deposits. Defendant was holding
fixed deposits in his name. But, he has made false statement on
oath that he has no assets or properties to his name. By making
false statements on oath, defendant committed an offence
punishable u/s. 199 of I.P.C.
By making all these submissions, plaintiff prayed to
make a complaint before the Jurisdictional Magistrate against
defendant for an offence punishable u/s. 199 of I.P.C.
Defendant's reply
3. Defendant by filing reply affidavit, specifically denied
all the avernments made in the Notice of Motion. It is submitted
that plaintiff is making deliberately false statements on oath.
4. During the course of hearing, defendant filed further
additional affidavit dated 26/10/2021 and 01/12/2021. In the
affidavit dated 26/10/2021, defendant contends that in April
2019 and March2020, he borrowed some money from his son
and daughter. Thereafter, he has returned those amounts to his
son and daughter. Plaintiff is claiming that defendant was
holding fixed deposits in his name in the financial year 20182019
i.e. during the period from 08/04/2018 to 31/03/2019. For that
purpose, plaintiff is relying upon the income tax returns of the
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defendant for the assessment year 20192020. Therefore,
avernments made in the affidavit dated 26/10/2021 regarding
receipt of amount from his son & daughter in April 2019 & March
2020 would not be relevant.
5. Defendant has filed additional affidavit on
01/12/2021. In said additional affidavit, it is contended that he is
having savings account in HDFC bank in the joint name alongwith
his wife Sunita Jaising. All the fixed deposits in HDFC Bank are
in the joint names with his wife. Both the partners of partnership
firm were having fixed deposits of worth Rs.69 lacs each in joint
names in United Bank of India, Overseas branch. Said account
was availing over draft facilities. After repaying the outstanding
over draft amount alongwith interest, bank gave each partner an
amount of Rs.18,92,654.44/. He has deposited said amount in
his HDFC Savings account on 12/01/2018. Defendant further
submits that he used to receive an amount of Rs.1,04,749/
quarterly as an interest from the United Bank of India on fixed
deposits.
6. Defendant has also filed documents on record to
show that all the fixed deposits were made in joint account with
his wife.
Rejoinder of plaintiff
7. Plaintiff filed rejoinder to the defendant's affidavit
dated 26/10/2021. It is submitted that the amount received from
the son and daughter of the defendant are not relevant to the
present controversy as those transactions are not related to the
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financial year 201819. Plaintiff has further filed reply to the
documents filed on behalf of defendant. In reply, it is submitted
that defendant was holding fixed deposits of Rs.2 lacs since the
year 2004. Defendant was holding fixed deposits of Rs.18.50 lacs
in the year 2017. It is submitted that defendant was holding an
amount of Rs.37,42,654/ in his account, but, in the year 2017
2018, he paid said amount to his children and got back said
amount in the joint account. It is further submitted that
defendant was holding an amount of Rs.13,08,530/ as on
31/03/2018 as per statement of Chartered Accountant.
8. Having regard to the prayer made by plaintiff,
following points arise for determination, findings thereon for the
reasons to follow are as under:
Sr.No. Points Findings
1. Whether it is expedient in the
interest of justice to make an
inquiry regarding the allegations
made in the Notice of Motion?
No
2. What order? Notice of Motion is
dismissed.
REASONS
Point No.1
9. Ld. Counsel appearing for plaintiff made following
submissions:
Plaintiff's submissions
(a) Parties are partners in the partnership firm. Suit is
filed for dissolution of the partnership firm. Plaintiff has taken
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out Notice of Motion bearing No.961/2019 praying for an
appointment of Court Receiver, attachment of property and other
reliefs. In the said Notice of Motion, defendant filed reply affidavit
and made a statement on oath that he has no assets or properties
in his name.
(b) Plaintiff came across one email wherein she found
details of the movable and immovable assets of defendant. On
going through the said email, plaintiff came to know that
defendant is holding movable and immovable assets and he has
made a false statement on oath that he has no assets or properties
in his name.
(c) It is further submitted that on the request of plaintiff,
Court has directed defendant to file latest income tax returns.
Defendant has filed income tax returns for the assessment year
20192020. Income tax returns filed on record shows that
defendant received interest of Rs.2,11,510/ during said
assessment year. Out of which, he has received interest amount
of Rs.14,211/ from Savings Account and interest amount of
Rs.1,96,647/ from fixed deposits.
(d) On perusal of statement attached with email and
income tax returns filed on record, it is clear that defendant made
a false statement in reply affidavit regarding his assets.
Defendant has committed an offence punishable u/s. 199 of I.P.C.
(e) At this stage, Court is not required to make detail
inquiry into allegations made by complainant. Court has to see
whether it is expedient in the interest of justice to make an
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inquiry into the offence alleged to be committed by defendant.
Plaintiff relied upon following judicial pronouncements:
(a) A.Hiriyanna Gowda and Ors Vs. State of Karnataka and
Ors. MANU/KA/0366/1998
(b)Pritish Vs State of Maharashtra and Ors. MANU/SC /0740 /
2001
(c) Ashok Kumar Aggarwal Versus Union of India & Ors.
Criminal Appeal No.1842 of 2013 decided on 22/11/2013.
11. Ld. Counsel for defendant submits that defendant has
not made any false statement on oath. The amount shown in the
income tax returns, is the amount received by defendant from his
children. She further submits that defendant is not holding fixed
deposits in his individual name, but, those fixed deposits are in
the joint names of defendant and his wife.
12. Considered the submissions on behalf of both the
sides. In case of A. Hiriyanna Gowda (cited supra), Hon'ble
Karnataka High Court held,"It has unfortunately become common
place for the pleadings to be taken very lightly and for nothing but
false and incorrect statements to be made in the course of judicial
proceedings, for fabricated documents to be produced and even in
cases where this comes to the light of the Court the party seems to
get away because the Courts do not take necessary counteraction.
The disastrous result of such leniency or indulgence is that it sends
out wrong signals. It creates almost a licence for litigants and their
lawyers to indulge in such seriuous malpractices because of the
confidence that no action will result. To my mind, therefore, the
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fact that the petitioner has pressed in this application requires to be
commmeded because it is a matter of propriety and it is very
necessary at least in a few flaring cases that an example be made of
persons who are indulging in such malpractices which undermine
the very administration of justice dispensation system and the
working of the Courts. This will at least have a deterrent effect on
others".
13. In case of Pritish (cited supra), Hon'ble Apex Court
held, "Reading of the subsection makes it clear that the hub of this
provision is formation of an opinion by the court(before which
proceedings were to be held) that it is expedient in the interest of
justice that an inquiry should be made into an offence which
appears to have been committed. In order to form such opinion the
court is empowered to hold a preliminary inquiry. It is not
peremptory that preliminary inquiry should be held. Even without
such preliminary inquiry the court can form such an opinion when
it appears to the court that an offence has been committed in
relation to a proceeding in that court. It is important to notice that
even when the court forms such an opinion it is not mandatory that
the court should make a complaint. This subsection has conferred a
power on the court to do so. It does not mean that the court should,
as a matter of course, make a complaint. But once the court decides
to do so, then the court should make a finding to the effect that on
the fact situation it is expedient in the interest of justice that the
office should further be probed into. If the court finds it necessary to
conduct a preliminary inquiry to reach preliminary inquiry should
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not vitiate a finding reached by the court regarding its opinion. It
should again be remembered that the preliminary inquiry
contemplated in the subsection is not for finding whether any
particular person is guilty or not. Far from that, the purpose of
preliminary inquiry, even if the court opts to conduct it, is only to
decide whether it is expedient in the interest of justice to inquire into
the offence which appears to have been committed."
14. In case of Ashok Kumar Aggarwal (cited supra),
Hon'ble Apex Court held, " In view of the above, law on the issue
can be summarized that in order to initiate prosecution for perjury,
the court must prima facie reach a conclusion after holding
preliminary inquiry that there has been a deliberate and conscious
effort to misguide the court and interfere in the administration of
justice. More so, it has to be seen whether such a prosecution is
necessary in the interest of justice."
15. Plaintiff claims that defendant has made false
statement on oath in reply affidavit of Notice of Motion
No.961/2019 that he has no assets or properties in his name. To
counter this reply affidavit, plaintiff mainly relied upon the email
dated 21/08/2018 forwarded to plaintiff's advocate by plaintiff's
husband. One Chartered Accountant statement is attached to said
email. However, on perusal of said statement, it is manifestly
clear that said statement is not the individual statement of assets
of defendant, but, the statement contains information regarding
financial condition of defendant and his wife. The statement is
not with respect of assets held by defendant alone.
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16. Plaintiff heavily relied upon the income tax returns of
the financial year 20192020 and contends that defendant was
holding fixed deposits in his name and he has received interest
amount from those fixed deposits. Defendant has filed on record
details of the fixed deposits held by him alongwith his wife. All
these fixed deposits appear to be held by defendant jointly with
his wife Sunita Kumar Jaising.
17. Plaintiff claims that defendant has made a false
statement on oath that he does not have assets or properties in his
name and said statement is contrary to income tax returns of
defendant for the financial year 20182019. The documents filed
on behalf of defendant shows that he is holding fixed deposits
alongwith his wife and those fixed deposits are not standing in his
name alone. Plaintiff in her Notice of Motion No.961/2019
claimed that she owes an amount of Rs.1,07,21,405/ from
defendant and for that purpose, she prayed for attachment of
properties held by defendant. It is also contended in the said
Notice of Motion that defendant is going to alienate the properties
held by him and in response to those avernments made in the said
Notice of Motion, defendant has made a statement that he has no
assets or properties in his name. Notice of Motion No.961/2019 is
dismissed by the court on the ground that plaintiff has not been
able to bring on record circumstances to show that defendant is
about to leave jurisdiction of the court or is about to dispose of
whole or any part of his property during pendency of the suit. It
is well settled that Court has to see whether it is expedient in the
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interest of justice to proceed in accordance with Section 340 of
Cr.P.C. Considering all the aforesaid facts and circumstances on
record, this is not a fit case which is required to be proceeded in
accordance with Section 340 of Cr.P.C. Point No.1 is answered
accordingly. In the result, following order:
ORDER
1. N/M No.4476/2019 is dismissed.
2. No order as to costs.
3. N/M No.4476/2019 is disposed of accordingly.
06/01/2022 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 06/01/2022
Transcribed on : 07/01/2022
Signed on : 12/01/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
12/01/2022 at 03.45 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
06/01/2022
Judgment and order signed by P.O. 12/01/2022
Judgment/order uploaded on 12/01/2022
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