Manoj Brijlal Kappor v. Khandelwal Laboratories Pvt. Ltd.

2. The Petitioner-Defendant No.5 has challenged order dated 26/04/2018 whereby learned Judge, City Civil Court, Greater Bombay, has declined leave to adduce additional evidence. In Civil Suit No.7468 of 1983.

3. The brief facts necessary to decide this petition are as under:- The Respondent No.1 -Plaintif (hereinafter referred to as ‘Plaintiff’ instituted a suit for recovery of money and possession of immovable and movable properties more specifcally described in the plaint. The case of the Plaintif -Company is that it had employed Rakesh Kapoor (Defendant No.1’ brother of the Defendant No.5, as a Chief Accounts Officer. The Plaintif alleged that from May-1982 to October-1982 the Defendant No.1 defalcated and misappropriated an amount of Rs.47,01,135/- from Plaintif-Company and purchased several immovable and movable properties from the defalcated /embezzled amount. It is averred that the Defendant No.1 converted his sole proprietorship concerns into partnership frms and transferred the said properties in the names of these partnership frms of which Defendants are the partners. The Plaintif claims that the deeds of partnership are sham, bogus and fabricated and that the transfer of these immovable and movable properties is a colourable transaction without any consideration. Based on these pleadings the Plaintif fled a suit for recovery of Rs.59,04,736- with interest @ 21% on the principal amount of Rs.47,01,135/-. The Plaintif sought declaration that the partnership deeds are void and invalid and has prayed for possession of the said properties allegedly purchased from the embezzled amount and transferred in the names of the partnership frms.

4. The Defendants contested the suit by fling written statements in which they disputed defalcation/embezzlement of the amount by Defendant No.1. The Defendants denied purchase of the properties described in the plaint were from embezzled amount and fraudulent transfer of these properties in the names of the partnership frms. They have specifcally pleaded that the said properties were purchased from the money derived from sale of the family properties.

5. Some other relevant facts are that pursuant to the FIR lodged by the Plaintif crime was registered against Defendant No.1- Rakesh Kapoor for ofences of cheating, misappropriation, etc. In the course of investigation the amount allegedly misappropriated and the properties purchased therefrom were recovered/seized. By order dated 08/03/1984, this Court appointed the Court Receiver and put the Court Receiver in charge of the money and properties recovered/seized in criminal proceedings with direction to allow the Defendants to occupy the properties on terms including payment of compensation as the Court Receiver deems ft and proper. It is on record that the Court Receiver has permitted Defendant No.5 to occupy flat No.501,502, which is one of such seized properties, on payment of compensation/ royalty.

6. It is also a fact that the trial has concluded and Defendant No.1 has been held guilty of the alleged ofence. During the pendency of the criminal appeal fled by Defenand No.1, the Plaintif and Defendant Nos.1, 2 and 7 fled consent terms wherein these Defendants consented that the Plaintif is entitled to recover Rs.59,04,735/- with interest. These Defendants also conceded that the properties described in the plaint, were purchased from the amount withdrawn from the Plaintiffs account and that the Plaintifs are entitled for possession of the said partnership properties on as is where is basis.

7. The Defendant No.5 fled a Notice of Motion with prayers to permit him to (1’ adduce evidence and (2’ not to take the consent terms on record. When the Notice of Motion was heard on 24/08/2017, learned Judge recorded that:- “ As the matter is compromised between the plaintif and defendant Nos.1, 2 and 7. Defendant No.6 has no objection. Defendant No. 3 and 4 are dead. Now the contesting defendant is No.5. Hence, suit to proceed further against defendant No.5. Matter is adjd to 06.09.2017 for Arguments.”

8. This order was challenged in Writ Petition (stamp’ No.27266 of 2017. The said writ petition was disposed of by order dated 27/09/2017 in view of the interim arrangement carried out by the parties, which has been recorded in para 4 of the order and reads thus:- “4. After the matter was argued for some time, the parties in the present proceedings have worked out an interim arrangement till fnal disposal of the suit by the City Civil Court. The interim arrangement worked out between the parties, as recorded by them and tendered across the bar reads as under: “1. Respondent No.1 will not move the Court Receiver for taking possession of flat No.501 and 502 in the building Classique along with the two garages in the said building till the disposal of the suit.

2. Respondent No.1 shall be permitted to withdraw the Fixed Deposits and Royalty invested by the Court Receiver with accrued interest which amounts have been deposited by Defendants. Respondent No.1 undertakes to bring back the aforesaid amounts to the extent ordered.

3. Respondent No.1 will not move the Court Receiver for taking possession of Unit No.417 in Creating Industrial Estate, Lower Parel till the disposal of suit.

4. The Honfble City Civil Court shall hear the Notice of Motion 2919 of 2017 in respect of prayer (a’, for leading evidence. And the hear all pending applications fled by the present Petitioner and the same shall be decided on their own merits.”

9. Accordingly, learned Judge heard the parties and by the impugned order dated 26/04/2018 declined leave to adduce evidence. This order is assailed in this petition fled under Article 227 of the Constitution of India.

10. It is pertinent to note that the suit was fled in the year 1983. The evidence was concluded while the proceedings were pending before this Court. Subsequently, in view of change in pecuniary jurisdiction, the suit was transferred to the City Civil Court. The records indicate that the Plaintif had concluded arguments in 2016. The matter was thereafter adjourned time and again at the request of the Defendants. Subsequently, at the stage of fnal hearing, the Defendants fled an application for producing and exhibiting several documents mentioned in the chart. The said application was dismissed by order dated 13/02/2017. The said order has not been assailed.

11. The Defendant No.5 has now sought leave to adduce evidence on the ground that he has traced some old documents his fatherfs fles, old passbooks and notings of his father-Defendant No.3 showing payment made to Defendant No.1 from their account. The Defendant No.5 states that the said documents are relevant to prove that the suit properties are purchased from the family income.

12. It is pertinent to note that the Defendant No.5 has neither annexed the copies of the documents nor given detailed description of the documents sought to be produced. But, in para 5 of the affidavit has sought leave “to refer to and rely upon the said documents when produced.”. Hence, it cannot be ascertained whether the documents are relevant and would assist the court in deciding the issue.

13. It is also to be noted that neither the Defendant and his father had neither cross examined the Plaintif nor stepped in the witness box to substantiate the defence, despite the admission by Defendant No.1 that his father was not employed and that the Defendant No.5 was doing part time job and earning a meager sum of money. In the facts and circumstances the Defendant No.5 has not made out valid and sufficient cause for non production of these documents, which were all along in his custody/possession and were very well available throughout the trial.