1 NMS2284.2011-S.211.88.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2284 OF 2011 IN SUIT NO. 211 OF 1988 Om Builders Pvt. Ltd. ...Plaintiff Vs. Anjana Chinubhai Kilahcnad & Ors. ...Defendants Mr. Hiralal Thacker, Sr. Advocate a/w. Mr.A.Y. Bookwala, Sr. Advocate a/w. Mr. Rajesh Shah a/w. Ms. Veenu Kothari a/w. Mr. Aagam Doshi i/b. Duttmenon Dunmorrsett for Plaintiff Mr. Zal Andhyarujina a/w. Mr. Vishal Kanade i/b. Desai & Diwanji for Defenandant No.1B. Ms. A.B. Kapadia i/b. D.F. & Divan for Defendant No.1C Mr. Rajeev Kumar a/w. Mr. Mayur Khandeparkar i/b. K.K. Assoc. for Defendants 1D & 1E. CORAM : SMT. ROSHAN DALVI, J. DATED : 9TH AUGUST, 2011 P.C. : 1. The Plaintiff has applied for certain directions pending the trial in this Notice of Motion. 2. The first direction concerns admissibility of certain documents. The Plaintiff relied upon 19 documents. The admissibility of documents came to be considered by this Court on 13th August 2009. The documents from serial Nos.1 to 5 were marked Exhibits P-1 to P-5. Documents from serial Nos.13 to 19 were marked Exhibits-P-6 to P-12. The other documents were not proved at the time the 2 NMS2284.2011-S.211.88.sxw admissibility was considered. The parties went to trial. 3. The copies of the documents which remained to be proved were sough to be shown in the cross examination of Defendants’ witness. The Defendants’ witness has identified those documents. Those documents are copy receipts and letters. Upon such identification on the photocopies of the documents the photocopies themselves get proved and have to be marked exhibits in evidence. Such evidence has been shown to me. The evidence is contained in question No.68 of the evidence of Defendant No.1(c). Except one document which is at item No.11 of the Plaintiff’s list of documents, the signatures of the author came to be identified in the photocopies of the documents at item Nos.6 to 10 and 12. These documents are, therefore, marked Exhibits-P-13, P-14, P-15, P-16, P-17 and P-18 respectively. 4. The Plaintiff has given notice to produce certain other documents to the Defendants. The documents were not produced. The notice to produce was also not produced. A copy of the document was, therefore, shown to the witness. The witness identified the signature on that document. That document is a letter. Copy letter without date addressed on the letterhead of Chinubhai Kilachand addressed to one Suresh running into 4 pages having been identified by Defendant No.1 (c) in the cross examination in Answer No.74 is marked Exhibit-P-19. 5. Certain receipts shown to be signed by one Chinubhai Kilachand (except one) on Revenue stamps of Rs.00.20 have been shown to the 3 NMS2284.2011-S.211.88.sxw witness. These receipts, except the unsigned receipt, have been identified to have been signed by Chinubhai Kilachand and prepared by his Secretary when the witness was present on some of the occasions. The receipts so identified by the witness are marked Exhibit-P-20 (colly). 6. There are certain other documents relied upon in the cross examination of the witness to which the Defendants have no objection for marking as admitted documents. A list of these documents has been provided by the parties. Those documents are marked Exhibit-P-21to P-30 as per the list. 7. The admissibility of the documents which were required to be considered have accordingly been considered. 8. The Plaintiff applies for expunging a portion of the evidence of Defendant No.1(c). Mr. Thakkar contends that the cross examination of Defendant No.1(c) by another Defendant cannot be read in evidence. That aspect shall have to be considered only when the entire evidence is read as a whole and appreciated. 9. There are certain documents brought on record of the suit in such cross examination. The documentary evidence shall have to follow the oral evidence of the witness and hence the admissibility or otherwise of those documents shall also be considered when the entire evidence is considered. 4 NMS2284.2011-S.211.88.sxw 10.The other reliefs applied for by the Plaintiff under prayers (b) and (f) of the Notice of Motion are to lead further evidence with regard to the damages claimed, if the specific performance is not granted in the suit upon the amendment of the plaint at an enhanced rate being a market rate of the suit property as of today. Mr. Thakkar on behalf of the Plaintiff drew my attention to paragraph 17 of the affidavit of examination-in-chief of the Plaintiff dated 10th July 2009. The Plaintiff has craved liberty to amend and enhance the claim for damages from Rs.3 crores to Rs.125 crores in the event this Court is not inclined to grant the relief of specific performance. 11.The entire evidence is led. The suit is kept on board for arguments upon the evidence. The Court cannot decide whether it will be inclined to grant or not grant the relief of specific performance as of now since arguments are not heard. Hence these reliefs cannot be granted at this stage. 12.It may be mentioned that in view of paragraph 17 of the evidence the Plaintiff has not led any evidence upon the initial relief of damages of Rs. 3 crores. Consequently, the Plaintiff has not even been cross examined to that extent. Consequently, the Defendants have not led any evidence with regard to issue No.7 which is the issue relating to damages. 13.It may be mentioned that in the suit for specific performance there would various alternatives to consider: (a) The Plaintiff may fail to prove the case for grant of specific 5 NMS2284.2011-S.211.88.sxw performance. There would then be no question of considering the relief of damages. (b) The Plaintiff may make out a case for grant of the relief of specific performance which itself may be granted. (c) The Plaintiff may make out a case of specific performance but which cannot be granted and in its alternative damages could be granted. (d) If damages are to be granted, they would be upon the market value of the suit property as on the date of the judgment. Such damages may be computed by the Commissioner for taking accounts in which case, the parties may be directed to lead evidence before the Commissioner himself. All these aspects cannot be considered at this stage. 14.However, damages are to be granted under Section 21(5) of the Specific Reliefs Act, 1963 and the proviso thereto which has been considered by this Court in the case of Godavari Sugar Mills Ltd. Vs. The Kopargaon Sahakari Sakhar Karkhana Ltd. dated 11 th February 2000 in Suit No.1636/1979 to which my attention is drawn by Mr. Thacker on behalf of the Plaintiff. 15.Such grant shall be considered in the suit itself. Hence there shall be no order in this Notice of Motion upon prayers (b) and (f). 16.Notice of Motion is disposed off accordingly. 17.The suit is adjourned to 23rd August 2011 for arguments. (SMT. ROSHAN DALVI, J.)