Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.122/20 in Sum.Suit 69/19
MHCC010003092020
IN THE CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 122 OF 2020
IN
SUMMARY SUIT NO. 69 OF 2019
Bhumi Impex
A Proprietory concern through its
Proprietor Shri Ameet Ukchandji
Shah an adult, aged about 38 years,
Indian inhabitant of Mumbai having its
Address at 192, Minara Mansion, Shop
No. 6, Sant Sena Maharaj Marg, 2nd
Kumbharwada Lane, Mumbai - 400004. ...Plaintiff
VERSUS
1. Modern Machinery Manufacturing Co.,
A Partnership Firm, having its address at
Plot No. I-31, Phase - 4, GIDC, V. U. Nagar,
Anand - 388121, Gujarat.
2. Dashrath N. Patel
3. Rati N. Patel
4. Hasmukh N. Patel
All partners of Modern Machinery
Manufacturing Co.
All adults age not known, Indian
inhabitants of Gujarat having their
addresses at c/o. Modern Machinery
Manufacturing Co.Plot No. I-31, Phase - 4,
GIDC, V. U. Nagar, Anand - 388121, Gujarat. ... Defendants
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Appearances:-
Ld. Advocate Mr. Maulik K. Tanna for the plaintiff.
Ld.Advocate Mr. Vikrant Shetty i/b M/s. Tauras Legal for the Defendants
CORAM : HIS HONOUR AD-HOC JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 18th FEBRUARY, 2021
O R D E R
1. Vide this Notice of Motion, the defendants requested to
reject the plaint under Order 7 Rule 11 or to return the plaint
under Order 7 Rule 10 of the Code of Civil Procedure. The plaintiff
resisted the notice of motion.
2. Heard Ld. Advocates on behalf of both the parties.
3. The defendants contended that, the suit is barred by
limitation. It is also argued that, the suit falls within the scope of
commercial dispute and ought to have been filed under the
Commercial Courts Act. However, the plaintiff failed and neglected
to file the suit as commercial suit and neglected to follow
mandatory mediation procedure under the said Act. Further, the
plaintiff had filed a complaint before the Maharashtra Micro and
Small Enterprises Facilitation Council, for recovery; but the same
has been rejected. Resultantly, the present suit is barred by res-
judicata Therefore, the Ld. Advocate for the defendants requested
to reject the plaint under Order 7 Rule 11 of the Code of Civil
Procedure, or return the plaint under Order 7 Rule 10 of the Code
of Civil Procedure, to be filed as commercial suit.
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4. The Ld. Advocate on behalf of the plaintiff argued that,
the application under Order 7 Rule 11 is not maintainable as it is
for the defendants to make out a case for leave to defend the
summary suit at the stage of hearing of summons for judgment. In
this matter, summons for judgment is yet pending. Therefore,
notice of motion is premature attempt to avoid hearing of the
summons for judgment. The last part payment was made by the
defendants on 01.08.2015 and present suit, as filed on 31.07.2018,
is within limitation. The claim being for less than rupees one crore,
there is no question to apply the Commercial Courts Act. As such,
it is not mandatory to follow the procedure of mediation. The
rejection of complaint of plaintiff by the Maharashtra Micro and
Small Enterprises Facilitation Council does not bar the present suit
by res-judicata. Therefore, it is requested to reject the notice
motion.
5. The grounds raised by the defendants are limitation,
res-judicata and bar under the Commercial Courts Act. So far as
the contention regarding the Commercial Courts Act, is concerned,
it is true that the present suit is for recovery of amount involving a
dispute arising out of agreement for sale of the goods. Sec. 21 of
the Commercial Courts Act, prescribes as
“Act to have overriding effect- Save as otherwise provided,
the provisions of this Act shall have effect, notwithstanding
anything inconsistent therewith contained in any other law
for the time being in force or in any instrument having effect
by virtue of any law for the time being in force other than
this Act”.
6. Thus, the provisions of the Commercial Courts Act,
have to be primarily given effect. However, the same rule is subject
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to exception that may be provided by the Act itself. Opening of the
Sec. 21 is “ Save as otherwise provided......................” The terms
‘Save as otherwise provided’ clearly indicate that there may be
departure from following the provisions of the Commercial Courts
Act. Materially, there has been no specific provision excluding the
application of Order 37 of the Code of Civil Procedure. On the
other hand, the schedule under the Commercial Courts Act, vide
Order 13-A, which prescribes the procedure for summary judgment,
in Rule 1(3) specifies “Notwithstanding anything to the contrary
an application for summary judgment shall not be made in a suit in
respect of any commercial dispute that is originally filed as a
summary suit under Order 37”. Thus, as per the said provision
whereever any suit is originally filed under Order 37 of the CPC,
the application under 13-A for summary judgment cannot be filed.
It is implicit that the suits filed under Order 37 are saved by this
provision. The object of Order 37 is expeditious disposal of the
suits of the specified nature mentioned in Rule 1(2). True that the
object of the Commercial Courts Act, is also to provide speedy
disposal of high value commercial dispute. However, the procedure
prescribed for the suit under Commercial Courts Act, is different
and filing of written statement is a mandatory stage to be followed.
The application for summary judgment under Order 13-A of the
Commercial Courts Act, can be made at any stage after service of
summons and prior to the framing of the issues. Even, the
defendant is permitted to make an application for summary
judgment under the same order. It involves a procedure that may
consume more time. On the other hand, under the summary
procedure of Order 37 of CPC on the first service of summons the
defendant has to appear before the Court within 10 days. He must
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also give notice of such appearance to the plaintiff’s pleader. The
object is clear that the plaintiff should have knowldege of
appearance of the defendant, so that he can apply immediately for
the summons for judgment. On serving the summons for judgment
on the defendant, the defendant has to apply within 10 days for
leave to defend. Such procedure of first appearance within 10 days
and thereupon applying for leave to defend within 10 days of
service of summons for judgment, is not prescribed under the
Commercial Courts Act. On the other hand under the Commercial
Courts Act, Order 5 Rule-1 of CPC is applicable by virtue of which
summons may be issued to the defendant to appear and answer the
claim and to file the written statement within 30 days from the
date of service of summons. Thus, 30 days time is prescribed for
the appearance of the defendant, whereas in summary procedure
under Order 37 of CPC, time of only 10 days is prscribed for the
defendant to appear. As per Rule 4(2) of Order 13-A of Summary
Judgment under the Commercial Courts Act, notice of at least 30
days of the date of hearing must be given to the respondent where
hearing for summary judgment is fixed. As per sub-rule 3 of Rule
4, the respondent may within 30 days file reply disclosing the
material facts. Thus, under the same rules firstly 30 days notice
has been given and thereupon, the respondent gets time of 30 days
to file his reply. Whereas, the Order 37 regarding summary
procedure under the Civil Procedure Code presecribes only 10 days
to the defendant from the date of service of summons for judgment
to apply for leave to defend. Here, again, it is noticeable that
comparatively the summary procedure under the Commercial
Courts Act, is time consuming than the summary procedure under
Order 37 of CPC. Therefore, it appears that vide Rule 1(3) of Order
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13-A of Summary Judgment under the Commercial Courts Act, the
summary suits filed under order 37 of CPC have been saved. Thus,
as the summary suit under Order 37 of CPC has been saved the
provision vide Sec. 21 of the Commercial Courts Act, mandating
the effect of the Commercial Courts Act, is not applicable to the
present summary suit under Order 37 of the CPC.
7. Turning to the contentions regarding the bar by virtue
of the res-judicata, admittedly, the complaint filed by the plaintiff
before the Maharashtra Micro and Small Enterprises Facilitation
Council, under the povisions of Micro, Small and Medium
Enterprise Development Act, 2006 has been rejected for the reason
that the plaintiff did not upload the copies of the purchase orders.
However, the same application cannot be treated as a suit. That
apart, the rejection is on technical ground and the application was
not heard and finally decided. These two reasons are sufficient to
conclude that the principle of res-judicata is not applicable to the
present suit.
8. So far as the contention that the suit is not within
limitation is concerned, no doubt, the last invoice is dated
11.11.2014, whereas the first invoice is dated 25.11.2013, whereas
the suit is filed on 31.07.2018 that is beyond three years of
11.11.2014. However, at the same time, the plaintiff contended
that the defendant had made part payment lastly on 01.08.2015,
and the suit is filed on 31.07.2018 i.e. within three years from
01.08.2015. Now, whether the transaction between the parties was
separate to each of the invoices or whether the transaction between
the parties was a running and continuous transaction so as to keep
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the cause of action and the limitation alive, whether the part
payment made by the defendant has to be treated towards the full
due amount or towards the separate invoices; determination of all
these questions require leading of evidence. Resultantly, rejecting
the plaint terming it to be barred by limitation is not proper at this
stage.
9. It is also contended that, the suit has been filed by
proprietory concern, which is not a legal entity. Therefore, the suit
is not maintainable and liable to be rejected.
10. The defendants also relied on the decision of the
Hon’ble Delhi High Court in the case of Svapn Construction Vs. Idps
Employees Cooperative Group, wherein it is held that the petition
in the name of sole proprietorship, which is not a legal entity is not
maintainable. However, so far as the present case is concerned, it is
at a very initial stage. The plaint has been shown to be instituted
through the proprietor Ameet Shah. It has been accordingly signed
by him and verified by him. If the plaint is required to be instituted
in the name of the proprietor and not in the name of the
proprietary concern, some time should be granted to the plaintiff to
apply for carrying out requisite amendment if he deems proper.
Giving such opportunity is just and proper instead of recording any
conclusion of dismissal or rejection of the suit particularly, when
the suit is it initial stage. Therefore, this Court is not inclined to
record rejection of the plaint on the said ground at this stage.
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11. Having regards to all the reasons as recorded above,
the notice of motion is liable to be rejected. Hence, order as
follows is passed:-
ORDER
Notice of Motion No. 122 of 2020 is rejected.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 18.02.2021 City Civil Court, Mumbai
Dictated on : 18.02.2021
Transcribed on : 20.02.2021
Signed on : 26.02.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 26.02.2021 4.35 p.m.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri.D.L.Bhagwat
(C.R.NO.28)
Date of Pronouncement of
JUDGMENT /ORDER
18.02.2021
JUDGMENT /ORDER signed by P.O. on 26.02.2021
JUDGMENT /ORDER uploaded on 26.02.2021
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