Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 3152/21 in Comm. Suit No. 375/2020. 1 Order.
MHCC010102172021
Presented on : 08-12-2021
Registered on : 08-12-2021
Decided on : 20-04-2022
Duration : 0 years, 4 months, 12 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3152 OF 2021
IN
COMMERCIAL SUIT NO. 375 OF 2020
Laxmi Interchem ...Plaintiff
Versus
Rachana Chemicals ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 20th APRIL, 2022.
Shri Ravindra Bhat, Advocate for the defendant.
Vishaki Bhatia, Advocate for the plaintiff.
ORDER
1. The defendant has taken out this notice of motion for
restraining the plaintiff from relying upon the pleadings in the plaint as
evidence and for striking out the pleadings in the plaint as per Order VI
Rule 15A(5) of the CPC for want of verification by a Statement of
Truth. Perused notice of motion and affidavit in reply. I have gone
through the suit proceeding. Heard learned counsel Shri Ravindra Bhat
for the defendant and learned counsel Vishaki Bhatia for the plaintiff.
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N/m No. 3152/21 in Comm. Suit No. 375/2020. 2 Order.
2. Learned counsel Ravindra Bhat for the defendant submitted
that Statement of Truth as per Order VI Rule 15A of the CPC is not
annexed with the plaint. Similarly, the amount of interest sought for is
not specified as contemplated under Order VII Rule 2A of the CPC. He
further submitted that the Commercial Courts Act, 2015 (for short, “the
Act”) came into force in the year 2015 and present suit is filed in the
year 2020. Period of five years has passed from the date of enactment
of the Act. The plaintiff should have complied with procedural aspect
as per the provisions of the Act. The plaintiff has also resorted to the
provisions of Section 12A of the Act before registration of the suit. The
plaintiff is the master of the proceeding. Hence, notice of motion may
be allowed.
3. On the contrary, learned counsel Vishaki Bhatia for the
plaintiff submitted that suit was filed as a 'Summary Suit' in January
2020. The plaintiff did not mention anywhere as 'Commercial Suit'.
Therefore, statement of truth is not filed. Notice of motion is taken out
by one of the partners of the defendant firm, but consent of other
partners is not taken. Notice of motion is taken out without authority.
Envelope of writ of summons is returned unserved. The defendant may
be directed to file the correct address. Interest is calculated on the basis
of invoices and it is mentioned in particulars of claim (Exh.H). The
defendant has made part payment and entire claim amount is admitted.
Notice of motion is filed to delay further progress in the suit proceeding
and it is liable to be dismissed.
4. After considering rival submissions and material on record,
it is clear that the plaintiff had presented the suit for registration as a
'Summary Suit' on 06/01/2020. There was no caption of 'Commercial
-- 2 of 4 --
N/m No. 3152/21 in Comm. Suit No. 375/2020. 3 Order.
Summary Suit' in CIS system at the relevant time and 'Commercial
Summary Suits' were not being registered. Registration of suits as
'Commercial Summary Suits' started as per letter of Hon'ble High Court
dated 02/09/2021. In short, the plaintiff had drafted the plaint by
assuming that the suit would be registered as a 'Summary Suit' and it
would be alloted to the ordinary civil court for trial. After presentation
of the suit, word 'Summary' came to be struck out and word
'Commercial' is written by using ballpen in title clause of the suit. In
short, process of registration of the present suit as a 'Commercial Suit' is
carried out without extending an opportunity to the plaintiff for
complying procedural aspects as per amendments carried out in the
CPC as per schedule to the Act. In such circumstances, it would be
unjust to strike out pleadings of the plaintiff. It is for the reason that
the plaintiff would not be in a position to seek the reliefs prayed in the
plaint after striking of the plaint and further proceeding in the suit
would result into an indirect refusal to entertain the suit proceedings.
The plaintiff has furnished details of calculation of interest in particulars
of claim and he can justify the same by adducing necessary evidence in
the course of trial. Case of the plaintiff is not hit by Order VII Rule 2A
of the CPC. For all these reasons, there is no merit in present notice of
motion and it is liable to be dismissed. Hence, I pass the following
order :
ORDER
1. Notice of Motion No. 3152/2021 is dismissed.
2. The plaintiff is directed to file Statement of Truth on or
before the next date of hearing.
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N/m No. 3152/21 in Comm. Suit No. 375/2020. 4 Order.
3. The proceeding of N/M No. 3152/21 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.31)
Date : 20/04/2022. Mumbai.
1. Dictated online on : 20/04/2022.
2. Signed on : 20/04/2022.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20/04/2022. 4.01 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 20/04/2022.
Judgment/Order signed by P.O. on 20/04/2022.
Judgment/Order uploaded on 20/04/2022.
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