1 NMS-44-S-160-05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO.44 OF 2009 IN SUIT NO.160 OF 2005. Girish Chimanlal Parikh ..Plaintiff. vs. Siddharth Ramanlal Parik & Ors. ..Defendants. .... Mr. Arif Bookwala, Senior Counsel, i/b. M/s. Ranjit & Co., for Plaintiff. Mr. Zal T. Andhyarujina, a/w. Ms. Jyoti Ghag, i/b. Thakore Jariwalla & Assoc., for Defendant No.1. Ms. Priya Thakur, i/b. M/s. Malvi Ranchoddas & co., for Defendant No.4 .... CORAM : S.J. KATHAWALLA, J. DATE : 2ND FEBRUARY 2011. P.C. : By this Suit the Plaintiff has sought a declaration that the Agreement dated 21st May 1984 executed between the Plaintiff, Defendant No.1 and Defendant No.4 (Exhibit D to the Plaint) is valid, subsisting and binding. The Plaintiff has also prayed for an order and decree against Defendant No. 1 to specifically perform the Agreement dated 21st May, 1984 and in the alternative for damages. 2 NMS-44-S-160-05 2. In the above Suit the Plaintiff has filed the present Notice of Motion under the provisions of Order XI Rule 21 read with Order XXXIX Rule 11 and Section 151 of the Civil Procedure Code, 1908 and has prayed that the above Suit filed by the Plaintiff be dismissed for want of prosecution in view of the Plaintiffs failure and neglect in obeying and complying with the order dated 13th June, 2006 passed by this court to give inspection of documents in Chamber Summons No.1190 of 2005. 3. The relevant facts in the matter are as set out hereunder :- 4. On 13th September, 2005, the Defendant No.1 took out Chamber Summons No.1190 of 2005 (first Chamber Summons) seeking an order and direction against the Plaintiff to give inspection and photocopies of the documents listed in Schedule 1 thereto and also to furnish details and particulars of the items listed in Schedule 2 thereto. When the first Chamber Summons was taken up for hearing, the Advocate for the Defendant No.1 informed the Court that Defendant No.1 will be satisfied if inspection is given of the documents referred to and relied upon in Paragraphs 8 and 9 of the Plaint with liberty to the Defendant No.1 to take out appropriate 3 NMS-44-S-160-05 proceedings in so far as the balance documents are concerned, and for further and better particulars. Since the Advocate for the Plaintiff also agreed to give inspection of documents referred to and relied upon in paragraphs 8 and 9 of the Plaint, this Court [Coram : S.C. Dharmadhikari, J.] by its order dated 13th June 2006 disposed of the first Chamber Summons. Paragraphs 5 and 6 of the said order are relevant and reproduced hereunder : “5. In my view, in the light of above statements and the agreement between parties to grant inspection of documents which are mentioned in paragraphs 8 and 9 of the Plaint on 26th June 2006 at 5.30 p.m. in the plaintiff’s attorney’s office, no directions are necessary in this Chamber Summons. It is disposed of reserving all liberties as aforesaid. 6. It is needless to observe that as far as bank statements which are enlisted at item no.(i) and (ii) of Schedule – I, the same are not being relied upon by the plaintiff but he relies upon books of accounts and is ready and agreeable to grant inspection thereof so also furnish photocopies to first defendant. In the light of this statement, the plaintiff shall grant inspection of books of accounts as well.” 5. Thereafter the Defendant No.1 took out another Chamber Summons No.1391 of 2006 on 9th October 2006 (second Chamber Summons) inter alia seeking the same reliefs as sought in the first Chamber Summons No.1190 of 2005. In the Affidavit in 4 NMS-44-S-160-05 Support of the second Chamber Summons, it was alleged by the Defendant No.1 that the Plaintiff had failed to give inspection as ordered by this Court vide its order dated 13th June 2006 in the first Chamber Summons and the Defendant No.1 is entitled to take out the said second Chamber Summons in view of the liberty granted in Paragraph 4 of the said order. 6. The said second Chamber Summons was disposed of by an order of this Court [Coram : V M Kanade, J.] dated 15th September 2009. From the said order it appears that the Defendant No.1 submitted before this Court at the time of arguing the second Chamber Summons that the original documents in respect of Partnership Deed of C. V. Parikh & Company dated 8th July 1970 and the original Deed of Dissolution of C. V. Parikh & Company dated 31st July 1976 were not shown to the Defendant No.1 and only photocopies have been given by the Plaintiff. In response the Learned Counsel appearing on behalf of the Plaintiff submitted that the Plaintiff is not having original copies of the Partnership Deed and the Deed of Dissolution and therefore photostat copies were given. It was further submitted that the extract from the office of the Registrar of the Partnership Firm has been given by the Plaintiff to the Defendants. So far as the Books of Accounts and Income Tax 5 NMS-44-S-160-05 records relating to the payments referred to in Paragraph 9 of the Plaint are concerned the Learned Counsel for the Plaintiff submitted that inspection of the said Books of Accounts and Income Tax records in respect of the said two transactions referred to in Paragraph 9 will be given within 2 weeks from the date of the order. The Chamber Summons was therefore disposed of. 7. Pending the hearing and final disposal of the second Chamber Summons dated 9th October 2006, the Defendant No.1 on 6th January 2009 filed the above Notice of Motion praying for dismissal of the Suit for want of prosecution on the ground that the Plaintiff had not complied with the order dated 13th June 2006 passed in the first Chamber Summons. 8. The Learned Counsel appearing for the Defendant No.1 has submitted that the Plaintiff failed to give inspection of the documents/particulars set out in Paragraphs 8 and 9 of the Plaint as ordered by this Court in the first Chamber Summons. He submitted that the fact that the Plaintiff at the time of hearing of the second Chamber Summons agreed before Justice Kanade to give inspection of the Books of Accounts and the Income Tax records in respect of the two transactions referred to in Paragraph 9 of the Plaint goes to show that admittedly the Defendant No.1 had not complied with the 6 NMS-44-S-160-05 order passed by this Court in the first Chamber Summons. He therefore submitted that Defendant No.1 is entitled to the reliefs sought in the Notice of Motion namely dismissal of the Suit for non compliance of the order passed in the first Chamber Summons. 9. Mr. Arif Bookwalla, Senior Advocate appearing for the Plaintiff pointed out that the order passed by this Court dated 13th June, 2006 [Coram : S. C. Dharmadhikari, J.] in the first Chamber Summons was fully complied with by the Plaintiff but wrongly refuted by the Defendant No.1. In support of his contention Mr. Bookwalla took me through the letter annexed by the Defendant No.1 himself to his second Chamber Summons which is addressed by his own Attorneys to the Attorney of the Plaintiff (Annexure ‘C’ to the second Chamber Summons), wherein it is inter alia recorded as follows : “2…… This is to further record that inspection of the following documents was granted namely : (a) Photocopies :- …….. …….. ……… (iv). Income Tax Returns for the Assessment Year 1996-1997 (2 Pages) ……. …….. 7 NMS-44-S-160-05 (viii). Handwritten accounts of C. V. Parikh & Co. (5 Pages) …….. ……… ……… 4. Thereafter our Ms. Chandra Sonpal once again visited your office on 27th June, 2006 ………..when inspection of only 2 Pages from the Book of Account of the firm C. V. Parikh & Co. and the Books of Account of Shri Girish Parikh was permitted to be taken. Photocopies of those 2 Pages were also furnished.” 10. Mr. Bookwalla therefore submitted that on the Defendant No.1’s own showing the Plaintiff had offered inspection of the aforestated documents after the order was passed on the first Chamber Summons. However, the Plaintiff only with a view to put an end to the controversy pertaining to inspection, once again agreed to give inspection of the same documents at the time of the hearing of the second Chamber Summons. Mr. Bookwalla further submitted that the Plaintiff has in clear terms set out in his Affidavit in Reply to the present Notice of Motion that pursuant to the order passed by Justice Kanade on 15th September 2009 “the Plaintiff once again agreed to give inspection of the Books of Accounts and Income Tax records in respect to 2 transactions of Rs.37,500/- and Rs.1,68,000/- referred to and mentioned in Paragraph 9 of the Plaint ……..” Mr. Bookwalla also drew my attention to the following portion in 8 NMS-44-S-160-05 Paragraph 8 of the Affidavit in Reply of the Plaintiff in the present Notice of Motion pertaining to the inspection of documents taken by the Defendant No.1 on 13th January 2010 i.e. pursuant to the order of Justice Kanade dated 15th September 2009 in the second Chamber Summons. “8……… The representative of Defendant No.1’s Advocates was shown the books of accounts of C. B. Parekh and Co. and also of the Plaintiff relating to the said two transactions/entries as mentioned in para 9 of the Plaint. As far as the income tax records is concerned, although copy of the said record was already furnished to the defendant No.1 at the time of earlier inspection, same was once again offered to the Defendant No. 1’s Advocates but since copy of the same was already available with the Defendant No.1, same was not taken and instead extract of the books of account of C. B. Parekh and Co. and of the Plaintiff relating to the said two transactions/entries was handed over to the Defendant No.1’s Advocates and the inspection was complete. I say that the defendant No.1 by his Advocates’ letter dated 16th January 2010, while admitting the inspection, falsely recorded that the inspection of the books of accounts and income tax records was not given. By the said letter, the defendant No.1 once again recorded that the defendant No.1 notwithstanding the said order of 15th September 2009, whereby inspection of only two items was to be given as mentioned in the said order dated 15th September 2009, once again made a false and wrongful demand for various other documents which the Defendant No. 1 was not entitled to and consequently the Defendant No.1 has alleged non-compliance of the order as falsely alleged. The Plaintiff by his 9 NMS-44-S-160-05 Advocates’ letter dated 21st January 2010 denied the false and baseless allegations.” Mr. Bookwalla submitted that the Defendant No.1 has not filed any Rejoinder to the aforesaid Reply. Mr. Bookwala has therefore submitted that in any event the grievance of the Defendant No.1 regarding non compliance of order passed in the first Chamber Summons is admittedly put to rest by the order passed in the second Chamber Summons taken out by the Defendant No.1. The question therefore of now dismissing the Suit on the alleged ground that the order passed in the first Chamber Summons is not complied with by the Plaintiff does not arise. 11. I have perused the papers and have considered the submissions made by the Advocates for the parties. The first Chamber Summons taken out by the Defendant No.1 seeking inspection of documents and particulars i.e. Chamber Summons 1190 of 2005 was disposed of by an order dated 13th June 2006 directing the Plaintiff to grant inspection of documents set out in Paragraphs 8 and 9 of the Plaint. The Defendant No.1 was also granted liberty to take out appropriate proceedings for balance documents and for further and better particulars. Pursuant to the said order dated 13th June 2006 inspection was offered by the Plaintiff and taken by the 10 NMS-44-S-160-05 Defendant No.1 but there existed a dispute between the parties as to whether complete inspection was given by the Plaintiff to the Defendant No.1. However the Defendant No.1 did not file any proceedings seeking dismissal of the Suit on the ground of non- compliance of the order dated 13th June 2006 passed in the first Chamber Summons. Instead, the Defendant No.1 on 9th October 2006 filed the second Chamber Summons once again seeking inspection of documents set out in Paragraphs 8 and 9 of the Plaint on the ground that the Plaintiff had not given inspection to the Defendant No.1 as directed in the order dated 13th June 2006 passed in the first Chamber Summons. Whilst the said second Chamber Summons was pending final disposal, the Defendant No.1 in January 2009 took out the present Notice of Motion seeking dismissal of the Suit on the ground that the Plaintiff had not complied with the order passed by this Court dated 13th June 2006 in the first Chamber Summons. In the present Notice of Motion, the Defendant No.1 did not make a whisper about the second Chamber Summons taken out by the Defendant No.1 once again seeking inspection of the same documents on the ground that the Plaintiff had not complied with the order dated 13th June 2006 passed in the first Chamber Summons. 11 NMS-44-S-160-05 12. At the hearing of the second Chamber Summons the statement of the plaintiff that they shall give inspection of the books of accounts and income tax returns in respect of two transactions referred to in paragraph no.9 of the plaint was recorded and the Chamber Summons was disposed of by an order dated 15th September 2009. The defendant no.1 pursuant to the order passed in the second Chamber Summons once again took inspection of the documents as set out in paragraph no.8 of the affidavit-in-reply of the plaintiff to which there is no rejoinder filed by the defendant no.1. Therefore, the defendant no.1 after raising the grievance in the second Chamber Summons that the plaintiff has not offered inspection of the documents as ordered in the first Chamber Summons, not only obtained an order of inspection of the same documents in the second Chamber Summon but in compliance of the order also took inspection of the said documents from the plaintiff. The defendant no.1 at the time of hearing of the second Chamber Summons on 15th September 2009 has not proceeded with the hearing of the second Chamber Summons without prejudice to the reliefs sought in the present Notice of Motion. In the circumstances, the defendant no.1 now cannot be heard to say that the suit be dismissed on the ground that the plaintiff had allegedly not complied with the order passed on the first 12 NMS-44-S-160-05 Chamber Summons. Even otherwise in view of the submissions made by Mr. Bookwalla which are recorded in Paragraphs 9 and 10 above, in my view the Defendant No.1 has not made out any case of non compliance of the order dated 13th June 2006 by the Plaintiff. The Notice of Motion therefore stands dismissed with costs. [ S.J. KATHAWALLA, J. ]