Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.68 OF 2018
CNR NO.MHCCO10101802018
IN
S.C. SUIT NO.975 OF 2017
Shri Madanlal Kedarnath Gupta ..Plaintiff
Versus
1. Shri Rajendra Ochhavlal Shah and ors ..Defendants
Ld. advocate Mr.Vinay Bhate I/b adv. Dalvi for the plaintiff
Ld. advocate Joshi for defendant nos.1 and 2
Ld. advocte Sohoni for defendant no.4
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 18/10/2019
ORAL ORDER
1. This notice of motion is tendered by the defendant
No.1 interalia for rejecting the plaint.
2. It is the contention of defendant no.1 that the present
suit has been filed by the plaintiff for declaration that
the registered agreement for sale dated 21/02/2015
entered between plaintiff and defendants and
registered leave and license agreement dated
03/08/2015 be declared to be lawfully terminated.
The plaintiff further seeks relief of declaration of
right, title and interest in the suit premises. It is
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further the contention of defendant no.1 that suit
filed by the plaintiff is liable to be rejected under the
provisions of Order VII Rule 11(a) of the Code of
Civil Procedure, 1908. The above mentioned reliefs
are vague and self contradictory in nature and prior
to the signing of the aforementioned agreements, the
defendants had entered into a Memorandum of
Understanding dated 10/11/2014 with the plaintiff
in respect of the suit premises after paying an
amount of Rs.7 lacs to the plaintiff as token amount.
The same is recorded in clause (6) of Memorandum
of Understanding. The plaintiff has not sought any
declaration in respect of the Memorandum of
Understanding and has admitted the contents
thereof. In this circumstances, the present suit is
vague and ought to be dismissed for failure to make
out a cause of action. The plaintiff in para. 7 of the
plaint contented sum of Rs.3 lacs is lying as security
deposit. He prayed for allowing the notice of motion.
3. The plaintiff has filed reply to the said notice of
motion contending that the notice of motion taken
out by defendant no.1 is false and frivolous. He
would submit that no ground is made out for
allowing the notice of motion.
4. The avernments in the N.M. show that the contention
of defendant no.1 is that avernments in the plaint are
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vague and self contradictory. The plaint avernments
cannot take place of the proof. If the contentions are
self contradictory and vague, then at the time of trial
the suit will fail. At this juncture, it cannot be said
that the vague and self contradictory relief can be the
grounds for rejection of the plaint. Merely the
plaintiff has not sought declaration of Memorandum
of Understanding, does not mean that the reasonable
grounds for rejection of the plaint are made out. The
rejection of the plaint is covered by Order VII Rule 11
of the Code of Civil Procedure. None of the grounds
under Order VII Rule 11 are pointed out for rejection
of plaint. The contention isthat the plaint avernments
does not disclose the cause of action. On perusal of
the plaint avernments it is apparent that plaintiff has
set out the sequence of events for the reliefs claimed
by him. The bundle of facts which plaintiff has
pointed out for the relief claimed by him constitute
cause of action, therefore it cannot be said that plaint
does not show any cause of action. In view of this,
the notice of motion needs no consideration. Hence,
it is expedient to pass following order:
ORDER
1.Notice of Motion no. 68/2018 is rejected.
2.Costs in the cause.
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3. Notice of Motion is disposed of accordingly.
18/10/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 18/10/2019
Transcribed on : 05/11/2019
Signed on : 08/11/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
8/11/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
18/10/2019
Judgment and order signed by P.O. 08/11/2019
Judgment/order uploaded on 08/11/2019
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