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2019 DIGILAW 346 (KAR)

Babulal S/o Misrimal v. Manikchand S/o Misrimal

2019-02-04

G.NARENDAR

body2019
ORDER : 1. Single Writ Petition is preferred by the petitioners calling in question two separate interlocutory applications I.A. Nos. 5 and 6 of 2017. 2. I.A. No. 5/2017 is preferred by the defendant Nos. 1 and 2 under Order 11 Rule 12 and 14 and Order 16 Rule 6 and 14 read with Section 94 and 151 of the CPC for summoning the documents from the Bank. 3. I.A. No. 6/2017 is preferred by the Plaintiffs under Order 11 Rule 14 for direction to the 1st Defendant to produce the documents detailed therein. Both the interlocutory applications have been independently appreciated and separate orders have been passed by the Trial Court. Hence, the orders impugned vide Annexures-G and H are independently appreciated for the purpose of disposal of these Writ Petitions. Facts pertaining to I.A. No. 5/2017: 4. The petitioners are before this Court being aggrieved by the order passed by the Trial Court on I.A. No. 5/2017 and I.A. No. 6/2017 in O.S. No. 9138/2006 on the file of the XXII Addl. City Civil and Sessions Judge, Bengaluru and impugned vide Annexures-G and H to the Writ Petitions. I.A. No. 5/2017 is preferred by defendant Nos. 1 and 2 who are the respondent Nos. 1 and 2 herein. 5. I.A. No. 5/2017 came to be preferred invoking the provisions of Order 11 Rule 12 and 14 and order 16 Rule 6 and 14 read with Sections 94 and 151 of CPC and Section 66 of the Indian Evidence Act and therein prayed for a direction to the Karnataka Bank Limited, Mudigere, Chickamagalur District to produce the documents as per resolution No. CPCC MRS/22840/2016-17 dated 28.10.2016. In support of the application, it was contended by the applicants that the copy of the same were produced on 03.04.2017, but the same was objected to by the plaintiffs' counsel on the ground that they are mere copies. That the applicants are not in possession of the said documents, as the same are under custody of M/s. Karnataka Bank, Mudigere. It was also contended that in the alternative, the Bank may be directed to certify the said documents. It is further contended that the documents are more than two decade old and are unregistered documents. That the documents summoned have been relied upon by the plaintiffs invoking provisions of Section 194(A). It was also contended that in the alternative, the Bank may be directed to certify the said documents. It is further contended that the documents are more than two decade old and are unregistered documents. That the documents summoned have been relied upon by the plaintiffs invoking provisions of Section 194(A). It was further contended that the said documents are crucial for advancing the case of the defendants and to corroborate the defence. That the said documents have been utilised by the plaintiffs to secure advantages and tax benefits to secure certain advantages and obtain tax benefits on account of the arrangement made by late Misrimal, who is the father of the 1st plaintiff and 1st defendant. 6. That despite the said fact, the plaintiff has now adopted a contrary stand in the pending proceedings. The said applications have been resisted by the plaintiffs, on the premise that the requirements of Order 11 Rule 1 have not been met and the applicants have not stated as to what are the documents which are in the possession of the defendants and without detailing the document and the persons in whose custody the document is allegedly with application of the above nature cannot be maintained. It is the case of the applicant- defendants that Ex.P8 - the birth certificate of Seema Kumari is dated 01.02.1980 and the consent letter dated 08.01.1993 are both got up documents for the purposes of the case and that a false plea and non-existence case of the Bank being in custody of the documents is propounded only to confuse the Court. It was also objected that the Bank is not competent to certify the copies of the document. It was contended that the 1st Plaintiff was never signed the alleged document nor made a statement that dual alleged was never executed by the late Misrimal and the creation of the "Will" is evident from the evidence on record. 7. On the above pleadings, the Court formulated the following points for consideration and disposal of I.A. No. 5/2017 and was pleased to answer the point in the affirmative. “Whether sufficient grounds have been made out to summon the documents from the Karnataka Bank, as sought for in the above IA?” 8. 7. On the above pleadings, the Court formulated the following points for consideration and disposal of I.A. No. 5/2017 and was pleased to answer the point in the affirmative. “Whether sufficient grounds have been made out to summon the documents from the Karnataka Bank, as sought for in the above IA?” 8. While so allowing the application, the Trial Court has been pleased to hold that by summoning the document, no prejudice will be caused to the plaintiffs and it would only enable the Court to fully adjudicate the lis between the parties. It is also reasoned that mere production of the document would not amount to proof of the same and further observed that the genuineness of the document or whether it is a concoction or issues which cannot be adjudicated at the stage of disposal of the interlocutory application and proceeded to reject the objections and further, the bankers namely M/s. Karnataka Bank, Mudigere was summoned to produce the following documents: 1. Copy of the Will dated 22.10.1979 executed by late Sri. M. Misrimal. 2. Copy of the Codicil Will dated 31.03.1980 executed by late Sri. M. Misrimal. 3. Consent letter dated 08.01.1993 by Susheela and Nirmal Kumar in favour of Gopi Devi. Facts pertaining to I.A. No. 6/2017: 9. The application has been preferred by the plaintiffs under Order 11 Rule 14 of CPC praying for a direction to the 1st defendant to produce documents detailed therein and that the same are required for further cross-examination of the 1st defendant. It is asserted by the applicant that the documents are in the custody of the 1st defendant that it ought to be inferred so as the 1st defendant has produced a few statement of accounts audited by the Chartered Accountant, but has omitted to produce before the Court all the audited statement of accounts and that the books of accounts are necessary to verify and cross check the audited statements. That the said documents are required to demonstrate the fact that the funds generated by the firm have been utilised for the purpose of acquiring properties and this fact is borne out by the amount debited as against the names of the persons in whose names the properties were purchased. That the said documents are required to demonstrate the fact that the funds generated by the firm have been utilised for the purpose of acquiring properties and this fact is borne out by the amount debited as against the names of the persons in whose names the properties were purchased. In response, the defendant Nos.1 and 2 filed a memo stating that the firm namely M/s. M. Misrimal and Company stood dissolved in the year 2001 and the 2nd plaintiff has taken her share pursuant to the dissolution and that she has acknowledged the same as being in full and final satisfaction of all her claims against the dissolved firm. But the 1st plaintiff had loaned sum amount to the firm and the same was disbursed under cheque bearing No. 506981. That similarly, another amount of Rs. 15,790 has detailed in Ex.D230 represents the amount paid to Seema Kumar under Cheque brg. No. 506982. The above payments are reflected in the bank account and in the returns filed before the Income Tax Authorities. It was further contended that the entity M. Misrimal, Bengaluru said to have commenced the business in the year 1999 and is a proprietary concerned of the 1st defendant that the rights, assets and liabilities of the said entity are not the subject matter of the instant lis and hence the plaintiff has no locus standi to summon the books of accounts and audited statements, bank statements etc. That all the documents in the possession of the 1st defendant have been tendered before the Court and are part of the Court records and if any further documents are found or traced, the same would also be tendered before the Court. 10. On the above pleadings, the Trial Court framed the following points for consideration and was pleased to answer in the negative. “1. Whether sufficient grounds have been made out to allow the I.A. No. 6/2017 filed under Order 11 Rule 14 of CPC? 2. What order?” 11. While so rejecting the application, the Trial Court was pleased to hold that an application under Order 11 Rule 14 of CPC must comply with to two conditions: (a) The document should be in the possession of the person against whom the direction is sought. (b) The document and its contents must pertain to the controversy/issue arising in the suit. 12. (b) The document and its contents must pertain to the controversy/issue arising in the suit. 12. Thereafter, the Trial Court was pleased to hold that the applicants have not made out a case to demonstrate the relevancy of the documents sought to be summoned for the purpose of adjudicating the issues formulated and pending adjudication. That the Trial Court has also borne in mind the direction issued by this Court to expedite the disposal of the suit. The Trial Court has also considered the rulings relied upon by the applicant and concluded that the same of no avail to the applicants and was pleased to reject the interlocutory application. 13. The learned counsel for the petitioners would vehemently contended that the Court erred in allowing the application by the respondents while rejecting the application preferred by the plaintiffs and while considering and allowing the similar request by the defendant Nos. 1 and 2, he would contend that the documents purportedly summoned under I.A. No. 6/2017 are necessary to demonstrate the factum of flow of funds for the purchase of properties in the names of individuals. With regard to I.A. No. 5/2017, he contend that the Trial Court erred in allowing the application and thereby enabling the parties to take advantage of fake and concocted documents and one such instance is the permitting of summoning of the document namely the Will, the legatee under which was not even born when the Will was executed. 14. Learned counsel would vehemently contend the mere fact that the birth certificate of Seema Kumari which evidences the date as 01.02.1980 prima-facie falsifies the execution of the Will dated 02.10.1979 and would contend that it is impossible to conceive of a document making a bequest in favour of an unborn person and hence, he would submit that the summoning of such a document requires to be interfered with. 15. Learned counsel for the petitioners would also take exception to the summoning of the codicil dated 31.03.1980. He would contend that the Court erred in summoning a document with regard to which no evidence has been let in. 16. The focus and thrust of the learned counsel’s arguments are slanted more towards the order allowing I.A. No. 5/2017. 15. Learned counsel for the petitioners would also take exception to the summoning of the codicil dated 31.03.1980. He would contend that the Court erred in summoning a document with regard to which no evidence has been let in. 16. The focus and thrust of the learned counsel’s arguments are slanted more towards the order allowing I.A. No. 5/2017. Learned counsel for the respondent would reiterate the findings rendered by the Trial Court and would contend that the mere summoning of the documents does not amount to proof of the same or its contents and the contentions advanced by the counsel for the petitioners are more on the merits and contents of the documents and would pray for dismissal of the Writ Petitions. He would further contend that the said exercise ought to be canvassed at the time of marking of the documents. 17. In the above background, the point that falls for consideration is that: Whether the Trial Court was right in allowing I.A. No. 5/2017 while rejecting the application I.A. No. 6/2017 preferred by the petitioners? 18. There is no dispute with regard to the date of institution of the suit. The suit is of the year 2006. This Court has heard the parties at length. It is seen that I.A. No. 5/2017 was filed on 13.09.2017 and apparently I.A. No. 6/2017 which is filed subsequently as a counter blast to the application I.A. No. 5/2017. On reading I.A. No. 6/2017, more particularly paragraph 3 which is the only paragraph of any relevance. It clearly discloses that the petitioners are attempting to embark upon a fishing expedition. No details of either any transaction or period are stated, making it apparent that it is merely an attempt at fishing for information. If as claimed in the plaint, the parties did constitute a joint family, the narrative would have included specific with regard to purchase of properties or atleast the relevant period when the alleged diversion of funds to place. Neither the specifics regarding the property nor the persons or the relevant period is narrated. Thereby this Court is constrained to consider the application more counter blast and dilated tactics adopted by the petitioners. This conclusion is further supported by the averments in the written statement more particularly in paragraphs 18 and 19. Neither the specifics regarding the property nor the persons or the relevant period is narrated. Thereby this Court is constrained to consider the application more counter blast and dilated tactics adopted by the petitioners. This conclusion is further supported by the averments in the written statement more particularly in paragraphs 18 and 19. On a reading of the written statement, it is apparent that the defendants have denied the very concept of joint family status propounded by the plaintiff, the petitioners herein. 19. That being the case, the petitioners, as diligent litigants were required to act with alacrity in order to marshal material and collate them to demonstrate the case put-forth by them. The suit is of the year 2006 and despite the passage of more than ten years, the petitioners have not made any effort to collate material to demonstrate the case. 20. Further, the admitted fact is that there are two entities namely M/s. M. Misrimal and Company, Bengaluru and M/s. M. Misrimals. The fact also remains that the firm M/s. M. Misrimal and Company was dissolved in the year 2001 and the 2nd plaintiff as a partner took her share. If that be so, it implies that there was a settlement of accounts and the same would imply that the parties were aware of the transactions. It is not the case of the plaintiff that they had not checked and verified the accounts and hence they were unable to detect the diversion of the funds, as the specific defence set up by the defendants is that the properties are self acquired properties. Further, it is always open to the plaintiffs to elicit such admission in the course of cross-examination. Hence, this Court finds no error in the reasoning set out by the Trial Court to reject I.A. No. 6/2017. 21. As regards I.A. No. 5/2017, the same is vehemently attacked on the ground that the same amounts to summoning a fake document. Mere production cannot tantamount to proof of the document. The documents are summoned in support of and to corroborate the defence set up by the defendants. The sanctity of the document is always open to scrutiny by the Court and it is always open for the plaintiffs to demonstrate the falsity of the document or its contents. 22. In that view of the matter, the orders impugned do not warrant any interference. The sanctity of the document is always open to scrutiny by the Court and it is always open for the plaintiffs to demonstrate the falsity of the document or its contents. 22. In that view of the matter, the orders impugned do not warrant any interference. Accordingly, the writ petitions stand rejected.