Bombay High Court
Fabtech Technologies International ... vs Vispi Rusi Jokhi on 19 January, 2024
Author: Abhay Ahuja
Bench: Abhay Ahuja
24-COMSS-55-2012.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL SUMMARY SUIT NO.55 OF 2012
FABTECH TECHNOLOGIES INTERNATIONAL )
PRIVATE LIMITED )...PLAINTIFF
V/s.
VISPI RUSI JOKHI )...DEFENDANT
Mr.Nitesh Acharya a/w. Mr.Fayzan Khan, Mr.Yogesh Samant,
Ms.Shobana Shaikh, Mr.Akash M. i/by Mr.Altaf Khan, Advocate for the
Plaintiff.
Mr.Devendra Andewar i/by Mr.Nilesh Patil, Advocate for the Defendant.
CORAM : ABHAY AHUJA, J.
DATE : 19th JANUARY 2024 P.C. :
1. Pursuant to order dated 14th December 2023, when the matter is called out today, Mr.Andewar, learned Counsel for the Defendant, seeks to tender across the bar admission and denial of documents by the Defendant. A copy of the same has already been furnished to the learned Counsel for the Plaintiff.
2. Mr.Amjad Adam Arbani, Plaintiff's witness no.1 is present in Court and is administered oath by the learned Associate. avk 1/12 ::: Uploaded on - 23/01/2024 ::: Downloaded on - 11/02/2024 11:50:33 :::
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3. The Defendant has admitted following pages of the documents at Serial No.9 :
i) Page No.45 to 61 of Exhibit I ii) Page No.68 to 73 of Exhibit I iii) Page No.92 and 126 of Exhibit I iv) Page No.150 to 158 of Exhibit I
4. Mr.Andewar appearing for the Defendant would submit that although the documents at Serial no.9 are certified copies of the records, however, only the documents which have been signed by the Defendant have been admitted. Serial No.9 consists of certified copies of record and proceedings of Anticipatory Bail Application No.263 of 2012 filed by the Defendant before the Sessions Court duly certified by the Registrar, City Civil and Sessions Court, Bombay. Accordingly, the documents at pages 45 to 61 at Serial No.9 are marked as Exhibit P- 1/1, pages 68 to 73 at Serial No.9 are marked as Exhibit P-1/2, pages 92 to 126 at Serial No.9 are marked as Exhibit P-1/3 and pages 150 to 158 at Serial No.9 are marked as Exhibit P-1/4 viz.
Serial No. Exhibit
Pages 45 to 61 at Serial No.9 P-1/1
Pages 68 to 73 at Serial No.9 P-1/2
Pages 92 to 126 at Serial No.9 P-1/3
Pages 150 to 158 at Serial No.9 P-1/4
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5. With respect to the other documents at Serial No.9, which have not been admitted, the learned Counsel would submit that since they are not originals nor signed by the Defendant, the same be marked subject to the proof of the existence of the original as well as proof of truth of their contents. Accordingly, the documents from pages 1 to 44 at Serial No.9 are marked as Exhibit P-1/5, documents from pages 62 to 67 at Serial No.9 are marked as Exhibit P-1/6, documents from pages 74 to 91 at Serial No.9 are marked as Exhibit P-1/7 and documents from pages 127 to 149 at Serial No.9 are marked as Exhibit P-1/8, subject to the proof of the existence of the original as well as proof of truth of their contents viz.
Serial No. Exhibit
Pages 1 to 44 at Serial No.9 P-1/5
Pages 62 to 67 at Serial No.9 P-1/6
Pages 74 to 91 at Serial No.9 P-1/7
Pages 127 to 149 at Serial No.9 P-1/8
6. With respect to documents at Serial No.1, Mr.Andewar for the Defendant submits that the said document has not been admitted in as much as it is not the original extract of the minutes of the meeting of the Plaintiff and therefore the existence as well as contents of the same has not been admitted. Mr.Acharya for the Plaintiff submits that the avk 3/12 ::: Uploaded on - 23/01/2024 ::: Downloaded on - 11/02/2024 11:50:33 ::: 24-COMSS-55-2012.doc document at Serial No.1 is an original certified copy of the resolution passed by the Board of Directors of the Plaintiff at its meeting on 18 th February 2022 and the same can be marked subject to the proof of the existence of the original and proof of truth of the contents. Accordingly, the document at Serial No.1 is marked as Exhibit P-1/9 subject to the proof of the existence of the original and proof of truth of the contents viz.
Serial No. Exhibit
Serial No.1 P-1/9
7. With respect to the document at Serial No.2, the Defendant has not admitted the same. Mr.Andewar for the Defendant would submit that the Defendant was forced to sign that agreement and although the Defendant does not deny his signature on the document but submits that he was compelled to sign it and therefore does not admit the same. Mr.Acharya for the Plaintiff would submit that the Defendant has in his Anticipatory Bail Application himself admitted on page 10, Bullet point 1 that after negotiations and final agreement of terms and conditions between them, an agreement was signed between Fabtech Technologies International Pvt. Ltd. and Applicant on 20 th November 2010 wherein all dues payable to Fabtech were to be collected by the said Defendant, avk 4/12 ::: Uploaded on - 23/01/2024 ::: Downloaded on - 11/02/2024 11:50:34 ::: 24-COMSS-55-2012.doc who was Applicant there and in turn the responsibility and liability of RAS Exports, U.K. and Grit Overseas Pvt. Ltd., Singapore were to be assumed by Applicant and he was to absolve Fabtech (Plaintiff herein). Learned Counsel also draws the attention of this Court to paragraph
(m) at page 12 of the said Application and submits that the said paragraph clearly records that on 20th November 2020 the complainant entered into an agreement with the Applicant (Defendant herein) wherein it is admitted that the Defendant would assume responsibility for collection of all dues payable to complainant including payment of Rs.34,00,000/- by the Defendant's partnership firm and payment to be made by the Plaintiff to RAS Exports, U.K. and Grit Overseas Pvt. Ltd., Singapore. Learned Counsel for the Plaintiff, therefore, submits that the document be marked. In any event, the Defendant will get an opportunity to cross-examine the Plaintiff's witness.
8. Having heard the learned Counsel, the document at Serial No.2 is marked as Exhibit P-1/10 subject to proof of the existence and proof of the truth of the contents thereof viz.
Serial No. Exhibit
Serial No.2 P-1/10
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9. With respect to documents at Serial No.3 which are described as Original sanction letters dated 17th November 2009 and 8th February 2010 purportedly issued by Yes Bank in favour of the Plaintiff, the Defendant has not admitted the same. Mr.Andewar for the Defendant would submit that the Defendant had no knowledge of the same and therefore the same are not admitted. However, he submits that the signature appearing in the place of authorized signatory of the Plaintiff is the Defendant's signature and that the signature is admitted. Mr.Acharya for the Plaintiff would submit that the said documents consist of letter of credit to the Plaintiff and an addendum thereto and be marked as Exhibit. In any event, the Defendant will get an opportunity to cross-examine the Plaintiff's witness.
10. Having heard the learned Counsel, the said document at Serial No.3 is marked as Exhibit P-1/11 subject to proof of the existence and proof of truth of the contents thereof, except the signature of the Defendant as authorized signatory which has been admitted by the Defendant as being his viz.
Serial No. Exhibit
Serial No.3 P-1/11
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11. Serial No.4 consists of original invoices, one dated 11 th May 2010 and the second dated 28th May 2010 which pertain to sale transaction to M/s. Luminum Metaltec. Mr.Andewar for the Defendant would submit that since the invoices are not raised on the Defendant, the said documents are not admitted. Mr.Acharya for the Plaintiff draws the attention of this Court to Defendant's Anticipatory Bail Application and particularly page 56, where in paragraph (j) it has been submitted that Luminum Metaltec, the partnership firm of the Applicant (Defendant herein) bought only two consignments valued at Rs.60,00,000/-. Accordingly, learned Counsel for the Plaintiff submits that the documents at Serial No.4, the original invoices be marked as an exhibit. In any event, the Defendant will get an opportunity to cross-examine the Plaintiff's witness.
12. Having heard the learned Counsel, the documents at Serial No.4 being the original invoice dated 11 th May 2010 is marked as Exhibit P- 1/12 and the original invoice dated 28 th May 2010 is marked as Exhibit P-1/13, both marked as exhibits subject to proof of the existence as well as the proof of the truth of their respective contents viz.
Serial No. Exhibit
Original Invoice dated 11th May P-1/12
2010 at Serial No.4
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Original Invoice dated 28th May P-1/13
2010 at Serial No.4
13. The documents at Serial No.5 are described as photocopies of the Deed of Partnership of M/s. Luminum Metaltec and "Form E" filed under Indian Partnership Act, 1932 by M/s. Luminum Metaltec. Mr.Andewar for the Defendant has not admitted the same submitting that the first two pages viz. pages no.19 and 20 are typed copies not bearing the signatures of the Defendant and that the Defendant has already admitted the said form at pages 150 to 158 which have been marked as Exhibit P-1/4 which are part of Exhibit P-1/4 marked earlier.
14. It is observed that the document at Serial No.5 is identical to document at pages 150 to 158 which contain "Form E" as well as the Partnership Deed, except that, "Form E" which is part of Serial No.5 is a typed unsigned version whereas the one which has been marked as Exhibit P-1/4 (including pages 150 to 158) contains on pages 150 and 151 signatures and handwritten entries and is signed by the partners including the Defendant, signature of which Defendant has been admitted by Mr.Andewar for the Defendant. Accordingly, the said document at Serial No.5 is marked as Exhibit P-1/14 subject to proof of avk 8/12 ::: Uploaded on - 23/01/2024 ::: Downloaded on - 11/02/2024 11:50:34 ::: 24-COMSS-55-2012.doc the existence as well as the proof of the truth of its contents except Defendant's signature viz.
Serial No. Exhibit
Serial no.5 P-1/14
In any event, the Defendant will get an opportunity to cross-examine the Plaintiff's witness.
15. Serial No.6 consists of Original Affidavit dated 20 th January 2011 executed by the Defendant. The Defendant does not admit the same. Mr.Andewar for the Defendant would submit that the Defendant was forced to sign the original affidavit and although the Defendant does not deny his signature on the document but submits that he was compelled to sign it and therefore does not admit the same. Mr.Acharya for the Plaintiff would submit that this is the original affidavit signed by the Defendant and bears his signature, photograph as well as left hand thumb impression. Learned Counsel for the Plaintiff, therefore, submits that the document be marked as an exhibit. In any event, the Defendant will get an opportunity to cross-examine the Plaintiff's witness.
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16. Having heard the learned Counsel, the document at Serial No.6 is marked as Exhibit P-1/15 subject to proof of the existence and proof of truth of the contents thereof viz.
Serial No. Exhibit
Serial No.6 P-1/15
17. With respect to document at Serial No.7, the same is a computer printout of e-mail communication with regard to a transaction. Mr.Acharya seeks to furnish a certificate under Section 65B of the Indian Evidence Act, 1872 with respect to document at Serial No.7. Mr.Andewar for the Defendant has no objection if the said certificate is allowed to be furnished. Let the said certificate under Section 65B of the Indian Evidence Act be furnished by the next date, after which the marking of the said document will be considered.
18. With respect to document at Serial No.8, which is described as original certified copy of First Information Report (FIR) bearing no.9 of 2012 dated 14th January 2012 registered by Amboli Police Station as provided by Judicial Clerk of the 66th Metropolitan Magistrate's Court at Andheri, Mr.Andewar for the Defendant does not admit the said document submitting that the same is a false case against the Defendant and therefore the same cannot be admitted and if at all the avk 10/12 ::: Uploaded on - 23/01/2024 ::: Downloaded on - 11/02/2024 11:50:34 ::: 24-COMSS-55-2012.doc same is marked, the same be marked subject to the proof of its existence and subject to the proof of the truth of the contents. Mr.Acharya for the Plaintiff would submit that the said document is a certified copy of the FIR as described therein as provided by the Judicial Clerk of the 66th Metropolitan Magistrate's Court at Andheri and has been provided pursuant to an application made in that behalf and the same be marked as an Exhibit. In any event, the Defendant will get an opportunity to cross-examine the Plaintiff's witness. A perusal of the said document indicates that indeed the said document at Serial No.8 is a certified copy of the FIR dated 14 th January 2012 bearing No.9 of 2012 and has been certified as a true copy by the Judicial Clerk of the 66th Metropolitan Magistrate's Court at Andheri upon an Application made in that behalf on 4th August 2014. Accordingly, the said document at Serial No.8 is marked as Exhibit P-1/16 subject to the proof of its existence and subject to the proof of the truth of the contents viz.
Serial No. Exhibit
Serial No.8 P-1/16
19. The document at Serial No.10 is described as statement prepared showing particulars of the outstanding amount. The said document is avk 11/12 ::: Uploaded on - 23/01/2024 ::: Downloaded on - 11/02/2024 11:50:34 ::: 24-COMSS-55-2012.doc also not admitted by the Defendant. Mr.Andewar for the Defendant would submit that since it is a calculation which is false, the same cannot be admitted. Mr.Acharya for the Plaintiff submits that the same are particulars of claim filed in this Suit and the same be marked as an exhibit. In any event, the Defendant will get an opportunity to cross- examine the Plaintiff's witness.
20. Having heard the learned Counsel, let the said document at Serial No.10 be marked as Exhibit P-1 /17 subject to the proof of the truth of the claim viz.
Serial No. Exhibit
Serial No.10 P-1/17
21. List for marking of document at Serial No.7 and for the Plaintiff to furnish certificate under Section 65B of the Indian Evidence Act on 30th January 2024 at 4.00 p.m.
22. Let the Plaintiff's witness also remain present on the next date.
(ABHAY AHUJA, J.) avk 12/12 ::: Uploaded on - 23/01/2024 ::: Downloaded on - 11/02/2024 11:50:34 :::