(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 2363 OF 2010 M/s. Etho Polymers And Chemicals Private Limited, A Company registered under the provisions of the Indian Companies Act, 1956, Having their registered Office at S.No. 328/2B, Hirapur Road, Chalisgaon - 424 101, through Amit Shashikant Desai (Director), Age : 43 years, Occupation : Business, R/o. 8-B, Mandar Apartment, Hanuman Cross Road No.2, Vile Parle (East), .. Petitioner Mumbai - 400 057. (Original defendant) versus M/s. Samant Bors (Reg.), A firm of Partnership registered under the provisions of the Indian Partnership Act, Having their business established at "G" Floor, Shop No.2, Senapati Bapat Marg, Dadar, West, Mumbai 400 028, Through its partner, Mr. Tushar Nishikant Samant, Age : Major, Occupation : Business, R/o. A/52, Maimoon Apartment, Kashinath Dhuru Road, .. Respondent Prabhadevi, Mumbai 400 025. (Original plaintiff) (2) ....................... Mr. V.D. Hon, Advocate, for the petitioner. Mr. Arun Rakh, Advocate, holding for Mr. G.V. Wani, Advocate, for the respondent. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 3RD MARCH 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. Hon, appearing for the petitioner, and Adv. Mr. Rakh, holding for Adv. Mr. Wani, for the respodent. 2. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 3. The petitioner has challenged the order dated 4-2-2010, passed by learned 4th Joint Civil Judge (Senior Division), Jalgaon, below Exhibit 154 in Special Civil Suit No. 76/2001. 4. While cross examining the petitioner / defendant, an application at Exhibit 154 has been moved urging that because (3) of questions put in cross examination, it has become apparent that perusal of earlier balance sheets from 1996-97 onwards till 1999-2000 is necessary. 5. According to Adv. Mr. Hon, appearing for the petitioner / defendant, suit only pertains to the year 1998-99 and that balance sheet is already produced. He further invites attention to various provisions of Rules framed under the Companies Act, to show that such balance sheets are required to be preserved only for a period of 8 years and as the application has been moved on 28-10-2009, the said period for balance sheets, as sought, was already over. No finding has been recorded on defence of the petitioner that those balance sheets are already destroyed. 6. Adv. Mr. Rakh, holding for Adv. Mr. Wani, for the respondent, has urged that the application itself demonstrates that effective cross examination was not possible without having those balance sheets on record. 7. Perusal of the impugned order reveals that only because application at Exhibit 154 is supported by affidavit and finding reached by the trial court that those documents are in custody of the present petitioner, a direction to produce the same (4) has been issued. The defence of the present petitioner about their destruction or its validity has not been gone into. Not only this, no finding, as to how further cross examination was not possible in the absence thereof, is recorded. 8. In the result, the petition is allowed. (i) The impugned order dated 4-2-2010, passed by learned 4th Joint Civil Judge (Senior Division), Jalgaon, below Exhibit 154 in Special Civil Suit No. 76/2001, is quashed and set aside. (ii) The respondent / plaintiff is permitted to file additional affidavit if required to show how further effective cross examination was not possible in the absence of those documents. After receipt of such affidavit, the trial court shall re-consider entire controversy and pass appropriate orders in accordance with law. (iii) If the respondent / plaintiff finds that it is not necessary to move such application at present stage of proceedings, liberty to him to move it after bringing on record material to show that further effective cross examination is not possible in the absence of these documents. (5) 9. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp2363