Bombay High Court
Grentex And Company Pvt. Ltd vs Brintons Carpets Asia Pvt. Ltd. And Anr on 3 April, 2019
Author: K.R.Shriram
Bench: K.R.Shriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY AND ORIGINAL CIVIL JURISDICTION
COMMERCIAL SUIT NO.88 OF 2017
Greentex & Company Pvt Ltd ..Plaintiff
Vs.
Brintons Carpets Asia Pvt Ltd. & Anr ..Defendants
WITH
COMMERCIAL SUIT NO.316 OF 2016
Mr. J. P. Sen, Senior Advocate a/w Mr. Kunal Vaishnav, Mr. Manish Varma
and Ms Surbhi Soni I/b Mr. Rahul Karnik for Plaintiff in COMS/88/2017
and for Defendant in COMS/316 of 2016
Mr. Shyam Kapadia a/w Mr. Durgaprasad Poojari and Mr. Shekhar Wig I/b
Prompt Legal for Defendants and for Plaintiff in COMS/316/2016
CORAM : K.R.SHRIRAM, J.
DATE : 3rd APRIL 2019 P.C.:
COMMERCIAL SUIT NO.88 OF 2017 Name : Ravikant Kapur Age : 66 years Occupation : Service Address (R) : C/o G.R.Wooler, Mili Compound, LBS Marg, Ghatkopar (W) Mumbai 400 086 On S.A. Further examination in chief by Mr.Sen I say that I have affirmed two affidavits in lieu of examination in chief dated 20th March 2019 and 27th March 2019, respectively and identify my signature.
P.C. 1 The same are taken on record and marked as Exhibit P-1/1 and Meera Jadhav ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2019 22:32:44 ::: 2/8 coms-88-17(20).doc Exhibit P-1/1(a) respectively.
2 Plaintiff has filed a compilation of 120 documents through P.W.-1. Serial numbers below relate to the index of the compilation of documents.
Serial No.1 - Exhibit P-1/2 Serial No.2- Exhibit P-1/3 Serial No.3 - Exhibit P-1/4 Serial No.4 - "X-1" for identification. Original of this document is at Serial No.120 and marked separately.
Serial No.5 - Exhibits P-1/5 Serial Nos.6 to 18:-
Mr. Kapadia states that there is no certificate as required under Section 65B of the Indian Evidence Act. Mr. Sen states that there are averments to that effect in paragraph 6 and paragraph 113 of the affidavit in lieu of examination in chief of P.W-1. Having considered these two paragraphs, Mr. Sen in fairness states that some more averments are required and undertakes to file a complete certificate as required under Section 65B, within one week from today. In view of this undertaking, Mr. Kapadia states that these documents can be marked subject to proof of truth of its contents. Therefore, these documents are received in evidence and marked as Exhibit P-1/6 to Exhibit P-1/18 subject to proof of truth of its contents and subject to Meera Jadhav ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2019 22:32:44 ::: 3/8 coms-88-17(20).doc filing proper certificate under Section 65B. Serial Nos.19 to 20 - Exhibit P-1/19 to Exhibit P-1/20 Serial Nos.21 to 47:-
Mr. Kapadia raised the same objections as raised in Serial Nos.6 to 18. Mr. Kapadia states that the existence of documents at Serial Nos.23.2, 23.3, 23.4, 25, 29, 32, 33, 40, 40.1, 40.2, 41, 42, 43, 44, 45, 46 and 47, is admitted. Mr. Kapadia also states that the contents of documents at Serial Nos.30, 39, 46 and 47 are also admitted. Therefore, these documents are received in evidence subject to proof of truth of its contents (except in case of document where contents have been admitted) and marked as Exhibit-P-1/21 to Exhibit-P- 1/47 respectively, subject to filing of proper certificate under Section 65B.
Serial Nos.48 and 49 - Exhibit P-1/48 and Exhibit P-1/49 Serial Nos.50 to 78:-
Mr. Kapadia raised the same objections as raised in Serial Nos.6 to 18. Mr. Kapadia however, states that the existence and contents of documents at Serial Nos.50, 52, 53, 54, 55, 56, 57.1, 57.2, 59, 60, 61, 62, 64.1, 65.3, 67, 76 and 77, are admitted. Mr. Kapadia states that documents at Serial Nos.50.1, 50.2, 56.1, 56.2, 56.10, 63, 64, 65, 65.1, 68, 69, 70, 71, 73, 75 and 78, existence is admitted but contents are denied. Mr. Kapadia states that existence and contents of Meera Jadhav ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2019 22:32:44 ::: 4/8 coms-88-17(20).doc documents at Serial Nos.50.3, 51, 56.3 to 56.9, 56.11, 57, 58, 66, 72, 74 are denied. Mr. Kapadia also states that document at Serial No.65.2 is not marked as document at Serial No.64 is the same as Serial No.65.2. Therefore, these documents are received in evidence and marked as Exhibit P-1/50 to Exhibit P-1/78 subject to proof of truth of its contents and subject to filing proper certificate under Section 65B.
Serial Nos.79 to 81 - Exhibit P-1/79 to Exhibit P-1/81 subject to proof of truth of its contents Serial Nos.82 to 84 - Exhibit P-1/82 to Exhibit P-1/84 subject to proof of truth of its contents Serial No.85 - Exhibit P-1/85 Serial No.86 - Exhibit P-1/86 Serial Nos.87 and 88:-
Mr. Kapadia raised the same objections as raised in Serial Nos.6 to 18.
Therefore, these documents are received in evidence and marked as Exhibit P-1/87 to Exhibit P-1/88 subject to proof of truth of its contents and subject to filing proper certificate under Section 65B.
Serial No.89 - Exhibit P-1/89
Meera Jadhav
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Serial No.90:-
Mr. Kapadia raised the same objections as raised in Serial
Nos.6 to 18. Therefore, this document is received in evidence and marked as Exhibit P-1/90 subject to proof of truth of its contents and subject to filing proper certificate under Section 65B. Serial No.91 - Exhibit P-1/91 Serial Nos.92 and 93 - Exhibit P-1/92 and Exhibit P-1/93 subject to proof of truth of its contents.
Serial No.94 - Exhibit P-1/94 Serial No.95:-
Mr. Kapadia raised the same objections as raised in Serial Nos.6 to 18. Therefore, this document is received in evidence and marked as Exhibit P-1/95 subject to proof of truth of its contents and subject to filing proper certificate under Section 65B. Serial Nos.96 and 97:-
Telephone instrument was inspected by Mr. Kapadia and after inspecting the instrument, Mr. Kapadia stated that the documents can be received in evidence subject to proof of truth of its contents. Therefore, these documents are received in evidence and marked as Exhibit P-1/96 and Exhibit P-1/97.
Meera Jadhav
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Serial No.98:-
Mr. Kapadia raised the same objections as raised in Serial
Nos.6 to 18. Therefore, this document is received in evidence and marked as Exhibit P-1/98 subject to proof of truth of its contents and subject to filing proper certificate under Section 65B. Serial No.99 - Exhibit P-1/99 Serial No.100:-
Mr. Kapadia raised the same objections as raised in Serial Nos.6 to 18. Therefore, this document is received in evidence and marked as Exhibit P-1/100 subject to proof of truth of its contents and subject to filing proper certificate under Section 65B. Serial No.101:-
Mr. Kapadia objects to this document because the attachment to the email has marking without prejudice and certain contentions were discussed. Mr. Sen states that this document is relied upon only to prove that the counter party to the plaintiff was defendant no.2 and not for any admission of liability. In view of the said statement, the document is received in evidence and marked Exhibit-P-1/101, subject to proof of truth of its contents.
Serial No.102- Exhibit P-1/102 subject to proof of truth of its contents.
Serial No.103- Exhibit P-1/103
Meera Jadhav
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Serial Nos.104 to 109- Exhibit P-1/104 to Exhibit P-1/109 Serial Nos.110 to 115- Exhibit P-1/110 to Exhibit P-1/115 Serial No.116 - "X-2" for identification.
Serial No.117 - "X-3" for identification Serial No.118 - "X-4" for identification Serial No.119:-
Mr. Kapadia raised the same objections as raised in Serial Nos.6 to 18.
Therefore, this document is received in evidence and marked as Exhibit P-1/116 subject to proof of truth of its contents and subject to filing proper certificate under Section 65B. Serial No.120 - Exhibit P-1/117. This is original document marked as "X-1" at Serial No.4
3 Mr. Nishaan Shetty, an advocate practicing in this court, Mobile No.9833666830, is appointed as Commissioner to record evidence in the matter. The Commissioner to identify the documents and mark them in sequence as provided in this order and to record cross examination of the witness. The fees, administrative expenses of the Commissioner together with typing charges and venue charges, if any, to be shared equally between the parties, 50% by plaintiff and 50% by defendant and the same will be costs in the suit.
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4 The Commissioner to endeavor to complete recording of
evidence of PW-1 and cross examination of PW-1 by 30 th June 2019 . If the parties do not respond promptly within 48 hours of receiving a communication from the Commissioner suggesting the subsequent dates, the Commissioner to go ahead and fix the dates convenient to the Commissioner and the parties shall make themselves available at the time and dates fixed by the Commissioner. If plaintiff or the witness do not remain present, the Commissioner should close the evidence of PW-1 as not made available for cross and if defendant do not remain present to cross examine the witness, defendants' cross examination should be treated closed as no cross. Once the dates are fixed, the Commissioner not to grant adjournment on any ground whatsoever. 5 Stand over to 5th July 2019, for directions.
(K.R. SHRIRAM, J.) Meera Jadhav ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2019 22:32:44 :::