Interim Order 8

Order Details: COPY OF ORDER
Pdf Text: Amar Maurya vs. M/s. Misfire Apparels Pvt. Ltd.
CNR No.: DLSH01-005411-2024
CS (Comm.) No. 492/2024
03.02.2025
Present : Mr. Ram Kumar Soni, Ld. Counsel for the plaintiff.
Mr. Rakesh Bhalla, Ld. Counsel for the defendant.
O R D E R
1. Ld. Counsel for the defendant premised the
application under Order 7 Rule 11 CPC on five
grounds, as under:
(a) The suit is barred by limitation;
(b) This Court does not have
territorial jurisdiction to try the suit;
(c) The plaintiff has not filed
e-way
bills;
(d) Certificate under Section 65B of
‘
The Indian Evidence Act, 1872’ is
not in accordance with Section 63A of
‘
The Bharatiya Sakshya Adhiniyam,
2023’; and
(e) There is non-compliance of
Section 12A of ‘
The Commercial
Courts Act, 2015’.
2. In order to substantiate his contentions, Ld.
Counsel for the defendant submitted that according
to the plaintiff, the last transaction had taken place
on 26.11.2019 and the suit was instituted on
08.05.2024 beyond statutory period of three years
and therefore, the suit is barred by limitation. He
contended that the defendant is carrying its business
in Bawana, New Delhi and no part of cause of
action arisen within territorial jurisdiction of this
Court. He contended that the plaintiff has not filed
e-way bills to demonstrate dispatch, transportation
and delivery of the goods.
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3. Ld. Counsel for the defendant further
contended that the plaintiff has not filed requisite
certificate under Section 63A of ‘
The Bharatiya
Sakshya Adhiniyam, 2023’. He contended that the
plaintiff has not complied provision of Section 12A of
‘
The Commercial Courts Act, 2015’ as the defendant
did not receive any notice of ‘
Pre-Institution
Mediation’. Finally, Ld. Counsel for the defendant
contended that the defendant had not placed any order
upon the plaintiff and the plaintiff has not supplied
any material to the defendant and therefore, the suit is
without any cause of action.
4. To counter the challenge set-up by the
defendant, Ld. Counsel for the plaintiff relied upon
judgment in
Re:
Cognizance for Extension of
Limitation, Suo Motu Writ Petition (C) No. 3/2020
decided on 10.01.2022 to contend that period from
15.03.2020 till 28.02.2022 should be excluded for
computation of limitation. As regards territorial
jurisdiction, he referred para No. 13 of the plaint to
contend that the plaintiff is carrying his business
within territorial jurisdiction of this Court where the
defendant had approached him and placed order for
supply of the goods and consequently, the goods were
supplied to him. Regarding other contentions, he
contended that the plaintiff has filed ‘
Non-Starter
Report’ to the effect that the plaintiff applied for ‘
Pre-
Institution Mediation’. Insofaras infirmity in
certificate under Section 65B of ‘
The Indian Evidence
Act, 1872’, he contended that such defect can be
rectified any stage of the proceedings.
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5. The case of the plaintiff is that the defendant
approached him in his office and placed order for
supply of material and thereafter, he supplied material
worth Rs. 1,38,081/- and Rs. 4,06,397/-,
vide Invoices
dated 10.07.2019 and 05.08.2019 respectively. The
defendant made payment of Rs. 50,000/- on
19.10.2019 and Rs. 60,000/- on 26.11.2019. Hon’ble
Supreme Court of India in
Re:
Cognizance for
Extension of Limitation (
supra) excluded the period
from 15.03.2020 to 28.02.2022 for computation of
limitation. Therefore, the issue whether the defendant
made payment of Rs. 60,000/- on 26.11.2019 and the
suit instituted on 08.05.2024 is within period of
limitation is essentially a question of facts.
Apparently, it does not appear that the suit is barred
by limitation. However, this question will be decided
after taking evidence of the parties.
6. As regards issue of territorial jurisdiction, the
facts whether the defendant had approached the
plaintiff, whether the plaintiff had supplied the goods
from his office, whether the defendant made part
payments, as stated above, and whether any part of
cause of action arisen within territorial jurisdiction of
this Court are primarily questions of facts and which
can only be gone into after trial.
7. As regards compliance of Section 12A of ‘
The
Commercial Courts Act, 2015’, the plaintiff placed
‘
Non-Starter Report’ demonstrating that the plaintiff
filed application for ‘
Pre-Institution Mediation’ on
19.09.2023 and thereafter, the case was returned on
account of non-appearance of the defendant.
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8. The defect in certificate under Section 65B of
‘
The Indian Evidence Act, 1872’ is a curable defect
and such defect cannot entail rejection of the plaint.
Effect of non-filing of
e-way bills and
acknowledgement of delivery of the goods, if
proved, can only be considered at the final stage.
Accordingly, the application under Order 7 Rule 11
CPC filed by the defendant seeking rejection of the
plaint is dismissed.
9. On the pleadings, following issues are framed:
(i) Whether the suit is barred by
limitation?
(OPD)
(ii) Whether this Court does not have
territorial jurisdiction to try the
present suit?
(OPD)
(iii) Whether the plaintiff is entitled to
a decree for recovery of Rs 4,34,478/-,
as prayed?
(OPP)
(iv) Whether the plaintiff is entitled to
interest @ 18% per annum w.e.f.
10.07.2019 till realization?
(OPP)
(v) Relief.
The plaintiff and the defendant shall file list of
witnesses within one week from today. The plaintiff
and the defendant shall also file affidavits of the
witnesses within one week from today with advance
copy to Ld. Counsel for the opposite party. Steps be
taken for summoning of the witnesses / record. To
come up for PE on 11.02.2025.
Sanjay Sharma-II
DJ (Commercial Court)-03
Shahdara, KKD, Delhi
NK 03.02.2025
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