Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4781/2019 ..1.. Commercial Suit No.16/2019
CNR No.MHCC010130432019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.4781 OF 2019
IN
COMMERCIAL SUIT NO.16 OF 2019
Mr. Dattaram Vishwanath Keshkamat .. Applicant
In the matter between
Mr. Dattaram Vishwanath Keshkamat .. Plaintiff
Versus
Hexxa Geo Systems Integrators Private Ltd. .. Defendants
Mr. Sandeep Kothari, advocate for plaintiff
Mr. Rahul Karnik, advocate for defendants
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 27th January, 2020
ORAL ORDER
Notice of motion is taken out by the plaintiff for grant of leave to
refer and rely upon the documents annexed to present notice of motion,
to take the copies of same on record and to take on record “Statement
of Truth” filed on behalf of the plaintiff. Further he prayed for
condonation of delay if any caused in filing of 'Statement of Truth'.
2. It is the contention of plaintiff that defendant in their written
statement malafidely and with an ulterior motive falsely stated that the
invoices were never sent to them. They also set up false and fraudulent
defence by raising dispute which never existed. Therefore, to meet said
defence it is necessary to adduce certain more documents. Further,
there were certain documents in respect of which craved leave to
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refer and rely upon in the plaint. However, those documents were not
available at the time of filing plaint. Now, those documents are
available with the plaintiff and he wish to adduce the same in support
of his case. It is further contended that after filing of the case he had
carried out thorough search of his office and factory premises and had
to go through all records and thereafter, he could get certain documents
relating to present suit. Plaintiff had also asked his Chartered
Accountant to carry out search in his place and had received certain
documents pertaining to present suit which were not there in his
possession at the time of filing of present suit.
3. It is further contended that due to oversight and inadvertence
the statement of truth which is to be annexed to the plaint was not
annexed to the same. Therefore, for compliance and in order to avoid
complications he wishes to file the same on record. Accordingly, he
made prayers in above terms.
4. Defendants filed their reply and opposed the notice of motion.
It is contended that notice of motion is not maintainable and filed only
to delay the present proceeding. Plaintiff has not explained any
sufficient cause for condoning delay in filing of statement of truth and
documents. Plaintiff ought to have filed all pertinent documents at the
inception and not by way of additional documents. In light of these
contentions, defendants have prayed for dismissal of present notice of
motion.
5. Perused notice of motion, affidavit in support of it, reply of
defendants, plaint and its annexures and list of documents wished to be
produced. Heard respective counsel for parties.
6. It is necessary to refer relevant portion of Order XI of C.P.C. I
would like to mention that for the purposes of commercial dispute
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under Commercial Courts Act, 2015, Order XI of Code of Civil
Procedure has been substituted. As per Order XI applicable to the
commercial dispute plaintiff shall file a list of all documents and
photocopies of all documents, in its power, possession, control or
custody, pertaining to the suit, along with the plaint, including – (a)
documents referred to and relied on by the plaintiff in plaint, (b)
documents relating to any matter in question in the proceedings, in the
power, possession, control or custody of the plaintiff, as on the date of
filing the plaint, irrespective of whether the same is in support of or
adverse to the plaintiff's case.
7. Thus, it is clear that photocopies of all documents which are in
power, possession, control or custody of the plaintiff which are referred
to and relied by him/her in plaint are required to be produced along
with statement of pleading i.e. plaint. In present case plaintiff has in
para 11 of the plaint contended about delivery challan and transport
receipt in respect of dispatch and delivery of goods, such other relevant
communication, both written and verbal including by email, whatsapp,
SMS between the parties, books of account, bank statement and Form
403 of Gujarat VAT. Plaintiff has also filed list of documents along with
copy of documents. Now, plaintiff wants to produce copy of delivery
challans, copy of goods consignment, Form of Declaration of defendants
under Central Sales Tax Act and email communications of different
dates. Plaintiff has come with case that certain documents were not
available with him at the time of filing of plaint and after search now he
found the same and some of the documents were found by his
Chartered Accountant, certainly, if those documents were not available
with the plaintiff at the time of filing plaint then he ought to have
sought leave of the court at the time of filing plaint to produce those
documents but he has not obtained any leave in that regard. May it be
so, at present only pleadings of parties have been completed. When
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plaintiff has referred and relied those documents then it cannot be said
that defendant got surprised by seeking production of those documents
by the plaintiff. Plaintiff has not suppressed about the documents which
he referred and relied in the plaint and now, wants to file the same on
record as same were not available at the time of filing of suit. So far as
other documents are concerned plaintiff wants to file those documents
in answer to case set up by the defendants. In view of above facts, I am
of the view that no prejudice would be caused to the defendants if
production of documents is allowed. Therefore, in the interest of justice
and fair trial I am inclined to allow production of documents as sought
by the plaintiff.
8. Plaintiff has also sought leave of the Court to take statement of
truth on his behalf on record. It is to be noted that as per Explanation to
sub rule 3 of Rule 1 of Order XI of CPC applicable to commercial
disputes a declaration on oath under said sub rule shall be contained in
the statement of truth as set out in the Appendix. For compliance of said
provision plaintiff wants to place on record statement of truth. At
present only pleadings of the parties are completed and suit is not at
advance stage. There is only irregularity committed by plaintiff by not
filing statement of truth as provided in the said provision. Therefore, to
remove said irregularity, in the interest of justice and to advance
substantial justice I am inclined to allow plaintiff to place on record
statement of truth.
9. In the facts of matter present notice of motion deserves to be
allowed by imposing certain costs. Hence, pass following order:
ORDER
1. Notice of Motion No.4781 of 2019 is allowed and made absolute
in terms of prayer clauses (a) to (c) subject to payment of costs of
Rs.1000/ (Rupees one thousand only) to the defendants within period
of one week from the date of this order.
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Plaintiff is at liberty to deposit the costs payable to the
defendants in the Court.
2. After payment of costs, documents and statement of truth filed
by the plaintiff be taken on record.
3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 27.01.2020 Gr. Bombay
Typed on : 27.01.2020
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29.01.2020
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
27.01.2020
JUDGMENT/ORDER signed by P.O.
on
28.01.2020
JUDGMENT/ORDER uploaded on 29.01.2020
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