IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4191 OF 2008 IN SUMMARY SUIT NO.413 OF 1989 State Bank of India .. Plaintiffs Versus M/s.Prahaladrai Vishwanath .. Defendants Ms. Manisha Pant i/by Bhave & Co for the plaintiffs. Ms. Sunita Poddar for the defendants. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 11th December 2008. : 11th December 2008. : 11th December 2008. P.C.: . Heard the learned counsel appearing for the plaintiff in support of notice of motion and the learned counsel appearing for the defendants who has opposed the notice of motion. 2. The plaintiffs have filed the suit for recovery of sum of Rs.08,01,038.48/- together with interest on the principal amount. The case of the plaintiffs is that discounting facilities were granted to a company Shree Sajjan Mills Limited. The case of the plaintiffs is that from time to time, the defendants purchased from the said company cloth manufactured by the said company. 2 The said company drew on the defendants bills of exchange payable to the plaintiffs. According to the plaintiffs the said bills of exchange were accepted by the defendants. The said bills of exchange were duly discounted by the plaintiffs by crediting the full value of the said bills of exchange to the credit of the account of the said company. The case of the plaintiffs is that defendants failed and neglected to pay amounts due and payable under the said bills of exchange. Therefore, the present suit has been filed. The defendants have contested the suit by filing written statement. The defendants have denied their liability to pay the amount. 3. The plaintiffs filed an affidavit in lieu of examination in chief of Mr.Naresh Vatwani. Further examination in chief of the said witness was recorded in the Court. The prayer in this notice of motion is for allowing the plaintiffs to recall the said witness and to further examine him in support of the case of the plaintiffs. A permission is also sought to allow the plaintiffs to lead further evidence in support of their case. 4. The submission of the leaned counsel appearing 3 for the plaintiffs is that during the course of recording of examination in chief of the said witness, none of the documents produced by the plaintiffs has been marked as an exhibit. The case of the plaintiffs made out in support of notice of motion is that certain vital documents which were already produced on record were not marked as exhibits due to error and oversight on the part of the earlier advocate on record. It is, therefore, prayed that an opportunity be granted by recalling the said witness for recording further examination-in-chief. 5. The learned counsel appearing for the defendant opposes the prayers. She submitted that not only that affidavit in lieu of examination in chief of the said witness Mr.Naresh Vatwani was filed on record but recording of further examination in chief was allowed by this Court as reflected from the deposition recorded on 24th January 2008. She submitted that the witness was not in a position to prove any of the documents. She submitted that the entire blame was sought to be shifted by the plaintiffs on their earlier advocate. She submitted that she may be permitted to file a detailed reply to the notice of motion. 4 6. I have considered the submissions. Alongwtih the affidavit in lieu of examination in chief of Mr.Naresh Vatwani, the plaintiffs filed 22 bills of exchange and six other documents. Out of the said documents only one document at serial no.24 was admitted by the defendants and the said document has been marked as an exhibit. Perusal of the affidavit in lieu of examination in chief and further examination in chief of the said witness recorded before the Court shows that no effort was made by the said witness to prove the execution and/or contents of the original documents. It is true that the said witnesses of the plaintiffs had an opportunity to depose before the Court as regards the execution and proof of the said documents. Perusal of the affidavit in lieu of examination in chief of the said witness shows that there is no formal proof of execution of the documents produced by the plaintiffs. Perusal of the further examination in chief recorded by this Court of the said witness shows that there were no specific questions asked to the witness as regards the signatures on the documents. After the evidence of the said witness was recorded and the case was closed for arguments, the plaintiffs have changed their advocate and thereafter the present notice of motion has been taken out. The original documents were tendered 5 alongwith the affidavit in lieu of the evidence of the said witness. In my view, one more opportunity deserves to be granted to the plaintiffs to adduce the evidence for proving the said documents. It is true that as none of the said documents were exhibited, the defendants have not adduced any evidence. The defendants can be compensated by ordering payment of costs. The defendants will have to be permitted to adduce evidence in support of their case. It is obvious that the defendants will be entitled to cross-examine the witness of the plaintiffs. 7. Prayer clause (b) is for recalling the said witness Mr.Naresh Vatwani for recording further evidence. Prayer clause (c) is very vague. The plaintiffs have not disclosed the names of the witnesses which they propose to examine. Such a vague prayer cannot be granted. 8. Considering the facts and circumstances of the case, the costs will have to be quantified at Rs.15,000/-. 9. Hence, I pass the following order: 6 (i) Notice of Motion No.4191 of 2008 is made absolute in terms of prayer clause (b). The plaintiffs are directed to pay costs of Rs.15,000/- to the defendants. Costs shall be either paid to the defendants or be deposited in this Court on or before 08th January 2009. Payment of costs will be a condition precedent. (ii) Suit is fixed on 12th January 2009 for recording of further examination in chief of the witness Mr.Naresh Vatwani. The plaintiffs will ensure that the said witness remains present in this Court on the next date. (iii) After the evidence of Mr.Naresh Vatwani is recorded, it will be open for the defendants to adduce their evidence, if any. (A.S.Oka,J)