IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 2863 OF 2008 OF MOTION NO. 2863 OF 2008 OF MOTION NO. 2863 OF 2008 IN IN IN APPEAL APPEAL APPEAL NO. 330 OF 2008 NO. 330 OF 2008 NO. 330 OF 2008 IN IN IN COMPANY COMPANY COMPANY PETITION NO. 683 OF 2007 PETITION NO. 683 OF 2007 PETITION NO. 683 OF 2007 M/s. M.K.M. Enterprises ] .. Appellant (Org.Petitioner) Versus Totalfinaelf India Limited. ] .. Respondents (Org.Respondents) Mr. P.S. Dani with Mr. Sahil Mahajan i/b M/s. Meharia & Co. for the appellant. Mr. Milind Sathe, senior counsel with Ashish Kamath i/b M/s. Apex Law Partners for the respondents. CORAM: S.B. MHASE & R.V. MORE, JJ. DATED: 16TH SEPTEMBER, 2008 P.C. : 1. Heard both sides. 2. This Notice of Motion has been taken out under Order XLI, Rule 27 of the Civil Procedure Code, for production of certain documents which have been annexed to the Notice of Motion. The other side has objected to the same. Clause (a) and (b) under Rule 27 of Order XLI are not applicable. However, clause (aa) requires that the party seeking production of additional evidence : 2 : should establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when decree appealed against was passed. 3. We have gone through the Affidavit in support of the Notice of Motion. No case has been made out under clause (aa) of Order XLI, Rule 27 and there are no averments to that effect also. An attempt has been made in paragraph 7 of the Affidavit to aver that evidence would be necessary for the Hon’ble Court to pronounce the judgment on the issue involved in the dispute between the parties and the said documents would be necessary to secure the ends of justice. 4. What we find is that the appeal has been filed against the order passed by a single Judge of this Court rejecting the Company Petition bearing No.683 of 2007. The single Judge has found that the Petition involves disputed questions of facts and the grievance made in the Petition cannot be adjudicated in the proceedings and therefore, has observed that the petitioner, if advised, is free to pursue such other remedy as may be permissible in law which may be considered on its own merits in accordance with law and has thus disposed of : 3 : the Company Petition. 5. When it is found that the Petition involves disputed question of facts then in those circumstances, the matter is not improved as a result of production of certain documents and further under clause (b), after hearing the parties if the court feels that certain documents are necessary to be taken on record, then the court may allow such documents in the interest of justice. However, this court is not of the opinion that for adjudication, any documents at this stage are necessary. 6. The Notice of Motion, accordingly, stands rejected. Sd/- Sd/- [R.V. [R.V. [R.V. MORE, J.] MORE, J.] MORE, J.] [S.B. [S.B. [S.B. MHASE, J.] MHASE, J.] MHASE, J.]