Dismissed

Pravinchandra Bhatt v. M/S. Universal Builders

Bombay HC22 Nov 2005APP/291/1997

Case brief

AI extract

What is this about?

The High Court of Bombay dismissed appeals against a single judge's order refusing discovery, production of documents, and appointment of a receiver. The court held the defendant could not be compelled to produce documents in their possession elsewhere or that evidence would only be needed for a later preliminary decree.

What did the court decide?

The appeals were dismissed as they had no merit; the impugned order refusing discovery and production was affirmed.

Pravinchandra Bhatt Vs M/S. Universal Builders — Specific Performance | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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COMMON ORDER IN
 APPEAL NO. 291 of 1997
 FROM
 NOTICE OF MOTION NO. 196 OF 1995
 ALONG WITH
 CHAMBER SUMMONS NO. 1189 OF 1995

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ALONG WITH

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 APPEAL NO. 292 OF 1997
 FROM
 CHAMBER SUMMONS NO. 1189 OF 1995
 IN

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 SUIT NO. 6 OF 1995

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 Pravinchandra Bhatt .. Appellant

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 versus

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 M/s.Universal Builders .. Respondents

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 Mr.C.S. Kapadia a/w Mr.Simil Purohit i/b M/s.Kishore

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 Thakordas & Co. for the appellant.

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 Mr.P.V. Palan i/b Mr.S.M. Kazi for the respondents.

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CORAM : R.M. LODHA AND
 D.G. KARNIK, JJ

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DATED : 22nd November 2005.

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ORAL JUDGEMENT (Per D.G. Karnik, J)

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 1. These two appeals are directed against the

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 common order dated 13th January 1997 passed by the
 learned Single Judge in Notice of Motion no. 196 of
 1995 with Chamber Summons No. 1189 of 1995.

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 2. In the suit filed by the appellant for

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 recovery of money and in the alternative for
 rendition of accounts, the plaintiff took out a
 Chamber Summons for discovery, production and
 inspection of the documents set out in the list
 annexed thereto i.e. books of accounts, bank pass

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 books, slip books, agreements, vouchers etc.
 pertaining to the transactions of sale of flats and
 shops in the building known as Silver Arch. The
 plaintiff also took out a Notice of Motion for
 appointment of a receiver and in the alternative a
 direction to the defendant to deposit the books of
 accounts, bank passbooks, slip books, agreements,
 vouchers etc. i.e. the very documents mentioned in
 the Chamber Summons. By the impugned order, the
 learned Single Judge dismissed the Chamber Summons as

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 also the Notice of Motion.

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 3. In the suit, the plaintiff claimed that he
 acted as an agent of the defendant in respect of a
 certain property transaction and the defendant had
 agreed to pay him commission/brokerage in respect of
 the purchase of the property as well as in respect of
 the sale of the flats and shops which the defendant
 would construct on the said property. He claimed
 that in breach of the said agreement, the defendant
 removed him as an agent and appointed somebody else
 as an agent and thereby attempted to deprive the
 plaintiff of his brokerage. He therefore, claimed a
 certain amount of money as an estimated amount of
 brokerage that he would have received. In the
 alternative, he prayed for rendition of accounts and
 ascertaining the amount of brokerage payable.

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 4. By the Chamber Summons, as stated earlier,
 the defendant sought inspection of the agreements of
 the sale of the flats/shops, letters of allotment
 issued in respect of the flats and shops as also of
 the books of accounts pertaining to the sale and
 transfer of the flats and the bank passbooks, slip
 books and vouchers in connection with the sale or

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 transfer of the flat and shops in the concerned
 building known as Silver Arch. The principal relief
 claimed in the suit is recovery of money equivalent
 to the estimated amount of brokerage. Since the
 plaintiff had pleaded the breach of an agreement by
 the defendant, on proof of all the issues in the suit
 he would be entitled to damages equivalent to the
 amount of loss suffered by him i.e. amount of
 brokerage that he would ordinarily have received if
 the contract was not broken. The plaintiff would be
 required to prove on his own the amount of damages
 suffered by him; he cannot compel the defendant to
 aid and assist him in proving to claim by production
 of the documents. If the relevant documents in
 custody of the defendant are withheld by it the Court
 would be entitled to draw an appropriate inference
 therefrom. We are of the opinion that the defendant
 cannot be required, by an order of Court to produce
 or even give an inspection of the documents asked
 for.

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 5. It can also be inferred that agreements of
 sale in respect of the flat/shops would be in
 possession of the purchasers and not in possession of
 the defendant. Similarly, letters of allotment of

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 the flats and shops, if any, would also be in the
 possession of the purchasers and not the defendant.
 Under the Ownership Flats Act 1963 agreements of sale
 of flats are required to be registered with the
 sub-registrar. The plaintiff can therefore, duly
 obtain the certified copies of the agreements of sale
 and produce them in the Court. He can also summon
 the purchasers and get the agreements of sale
 produced. There is no question of defendant
 producing the original agreement of sale and letters
 of allotment which are not expected to be in
 possession of the defendant.

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 6. As regards the prayer for inspection and

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 production of the books of accounts, passbooks, slip
 books and vouchers etc, we notice that the plaintiff
 in the plaint has prayed not only the rendition of
 account but also foe an order or direction to the
 defendant to produce and give inspection to the
 original books of account, bank passbook, sale
 agreements, vouchers and other documents. Granting
 of the relief of inspection and production at this
 stage and before the trial would amount to granting
 of a final relief at the stage before the trial
 itself. In any event, in suit like this if the

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 alternative prayer is to be granted, the relief would
 be of a preliminary decree in the nature of rendition
 of accounts. The bank pass books, vouchers and other
 relevant documents would then be required to be
 produced before the Commissioner for taking accounts
 in the final decree proceedings. The learned Single
 Judge was therefore, right in refusing the relief of
 a production and/or direction for inspection of the
 documents.

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 7. Nothing was argued before us regarding the
 rejection of prayer for appointment of a receiver.
 It is therefore, not necessary for us to deal with
 the issue of the appointment of a receiver.

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 8. In the circumstances, we find no merit in
 the appeal which is hereby dismissed.

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 9. No costs.

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 (R.M. LODHA, J)

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 (D.G. KARNIK, J)

Pravinchandra Bhatt v. M/S. Universal Builders

Case brief

What is this about?

What did the court decide?

Pravinchandra Bhatt v. M/S. Universal Builders

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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