Bombay High Court
Inorbit Malls (India) Pvt. Ltd.And Anr vs Kolte-Patil Developers Ltd & Ors on 26 June, 2019
Author: K.R. Shriram
Bench: K.R.Shriram
1/4 comip-25-09(8).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY AND ORIGINAL CIVIL JURISDICTION
COMMERCIAL IP SUIT NO.25 OF 2009
Inorbit Malls (India) Pvt Ltd. & Anr ..Plaintiffs
Vs.
Kolte-Patil Developers Ltd. & Ors ..Defendants
Ms. Kathleen Lobo a/w Ms. Shobhana Narayan I/b Khaitan and Co. for
Plaintiffs
Mr. Shailendra Kanetkar for Defendant
CORAM : K.R.SHRIRAM, J.
DATE : 26th JUNE 2019 P.C.:
1 At the outset, Ms Lobo states that in the order dated 6 th June 2019 plaintiffs counsels name is worngly shown as "Ms Shabhana Narayan"
whereas it should be "Ms Shobhana Narayan". Rest of the order remains unaltered. Order to be corrected accordingly.
2 Ms. Lobo undertakes to file list of witnesses and serve a copy upon defendants within one week from today. Ms Lobo also states that plaintiff had initially filed affidavit of one Mahesh Iyer affirmed on 21 st Jun 2014, copy of which has been served on defendants. Ms Lobo states that Mahesh Iyer is no more in plaintiffs' employment and the affidavit of Mahesh Iyer will not be relied upon by plaintiffs. Mr. Kanetkar reserves his right to use the contents of the said affidavit to cross-examine plaintiffs' present witness. Mr. Kanetkar states that plaintiff had, before affidavit of Mahesh Iyer was filed, had filed evidence of one M. N. Hariharan. Mr. Meera Jadhav ::: Uploaded on - 28/06/2019 ::: Downloaded on - 28/06/2019 22:22:27 ::: 2/4 comip-25-09(8).doc Kanetkar states that defendant will use that affidavit also to cross-examine plaintiffs' present witness. Mr. Kanetkar is justified.
Name : Shrenik H Bhansali (PW-1) Age : 46 years Occupation : Service Address : Flat 402/H wing, Sumer Nagar, Building No.2
Opp- Kona Kendra, S.V.Road, Borivali (W) Mumbai-92 On S.A. Further examination-in-chief by Ms Lobo for plaintiffs.
I say that I have affirmed an affidavit dated 19 th August 2015 and identify my signature.
P.C.: The affidavit is taken on record and marked Exhibit P-1. 3 Plaintiffs have filed two compilations of documents, first one is of 13 documents and the second one is of 6 documents. Ms Lobo tenders copies of two letters one dated 14th June 2019 and other is dated 24th June 2019, calling upon defendants to give their statement of admission and denial. Inspection of documents was given on 10 th June 2019. As provided under Order XII Rule 2, a party has to revert within 7 days of service of notice to admit or deny any document. Under Order XII Rule 2(a) the document is deemed to be admitted except as against a person under a disability. Admittedly, defendants advocates have not even replied to the Meera Jadhav ::: Uploaded on - 28/06/2019 ::: Downloaded on - 28/06/2019 22:22:27 ::: 3/4 comip-25-09(8).doc notices dated 14th June 2019 and 24th June 2019. Seven days from 14th June 2019 expired on 21st June 2019. Therefore, existence of all the documents relied upon by plaintiffs of which inspection has been given, are deemed to be admitted. Therefore, all 19 documents are taken on record and marked as Exhibits P-2 to P-20 respectively. The contents, of course, are subject to proof of truth thereof.
4 Ms Aparna Devkar, an Advocate practicing in this Court, 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 plaintiffs and 50% by defendants and the same will be costs in the suit.
5 The Commissioner to endeavor to complete recording of evidence of PW-1 by 31st July 2019. The Commissioner to fix minimum two/three dates per session for cross examination of PW-1. 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 plaintiffs or the witness do not remain present, the Meera Jadhav ::: Uploaded on - 28/06/2019 ::: Downloaded on - 28/06/2019 22:22:27 ::: 4/4 comip-25-09(8).doc Commissioner should close the evidence of PW-1 as not made available for cross and if defendants 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.
(K.R. SHRIRAM, J.) Meera Jadhav ::: Uploaded on - 28/06/2019 ::: Downloaded on - 28/06/2019 22:22:27 :::