Final Order 1

Order Details: Order below exhibit
Pdf Text: 1 OBE13 in COM SU 49/2020
MHCC010004402020
IN THE CITY CIVIL COURT AT MUMBAI.
(COURT ROOM NO.32)
ORDER BELOW EXHIBIT 13
IN
COMMERCIAL SUIT No.49 OF 2020
Lallubhai Amichand Ltd. …PLAINTIFF
VERSUS
The Shamrao Vithal Co. Op. Bank Ltd. …DEFENDANT
Shri Sidharth Bafna i/b. Intergrum Legal, learned advocate for
plaintiff.
Shri. Vishal Tambat, learned advocate for defendant.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN
O R D E R
(Delivered on 17/02/2023)
Plaintiff has filed this pursiscumapplication under Order
23 Rule 1(3) of CPC for permission to withdraw the suit with liberty to
institute fresh suit.
2. Plaintiff contended that this suit was filed by erstwhile
attorney of plaintiff, whereunder plaintiff was not advised to issue a
notice under Section 115 of Multi State Cooperative Societies Act 2002
prior to filing of the suit. As per the said provision it is necessary for
plaintiff to first issue a notice to the Central Registrar. Therefore, there
is a technical defect in filing of this suit. This is only a technical defect
and nothing to do with the merits of the suit.
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3. Defendant has filed reply at Exh.14 and contended that
plaintiff has filed this application at belated stage of the trial. Plaintiff
has wasted the valuable time of the court and defendant for last three
years. Hence, plaintiff is liable to pay heavy cost. The provisions of
Order 23 Rule 1(3) of CPC is not applicable in the present case. Plaintiff
got knowledge that their suit shall get dismissed on merit and hence,
plaintiff is seeking withdrawal. Plaintiff has unnecessarily dragged the
defendant into frivolous litigation. Plaintiff is liable to pay sum of Rs.2
Lakh as cost of litigation + Rs.4 Lakh as compensation for harassment
and Rs.4 Lakh towards damages for spoiling image of the defendant.
4. Heard learned counsel of both the parties. The question is
whether non issuing of notice under Section 115 of the Multi State Co
operative Societies Act 2002 prior to filing of the suit; can be a formal
defect under Order 23 Rule 1(3)(a) of CPC. Hon’ble Supreme Court in
case law V. Rajendra and Anr. Vs. Annasamy Pandian : (2017) 5 SCC
63 and K.S. Bhoopati Vs. Kokila : (2000) 5 SCC 458, observed and
held that it is the duty of the court to be satisfied about the existence of
“formal defect” or “sufficient grounds” before granting permission to
withdraw the suit with liberty to file a fresh suit under the same cause
of action. Though, liberty may lie with the plaintiff in a suit to withdraw
the suit at any time after institution of suit on establishing the formal
defect or sufficient grounds, such right cannot be considered to be so
absolute as to permit to encourage abuse of process of court. The fact
that the plaintiff is entitled to abandon or withdraw the suit or part of
the claim by itself, is no license to the plaintiff to claim or to do so to
the detriment of the legitimate right of the defendant. When an
application is filed under Order 23 Rule 1(3) CPC, the court must
satisfied about the “formal defect” or “sufficient grounds”. “Formal
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defect” is a defect of form prescribed by the rules of procedure such as,
want of notice under Section 80 CPC, improper valuation of the suit.
insufficient court fee, confusion regarding identification of the suit
property, mis joinder of parties, failure to disclose a cause of action etc.,
“Formal defect” must be given a liberal meaning with connotes various
kinds of defects not affecting the merits of plea raised by either of the
parties.
5. Previously, plaintiff has filed application (Exh.10) for
withdrawing suit with liberty file fresh suit. The said application came
to be rejected on 9/11/2022 on the ground that no specific reason was
mentioned by plaintiff for withdrawal of suit with liberty to file fresh
suit.
6. In the present suit plaintiff seeks permission to withdraw
suit with liberty to file fresh suit on the ground of formal defect of want
of notice under Section 115 of the Multi State Cooperative societies
Act. Hence, plaintiff is entitled to withdraw the suit with liberty file
fresh suit. However, he has filed this application as belated stage. The
suit is pending since January 2020 and the present application is filed
on 15/02/2023. Therefore, other side is to be compensated for such
litigation. Hence, following order.
ORDER
1. Application Exh.13 is allowed as under.
2. Plaintiff is allowed to withdraw the suit with liberty to file
fresh suit subject to cost of Rs.3,000/ to be paid to
defendant.
Date : 17/02/2023.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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Dictated on : 17/02/2023.
Checked on : 17/02/2023.
Signed on : 17/02/2023.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
(Mrs. Rupali S. Bhor)
UPLOAD DATE AND TIME NAME OF Stenographer
Name of the Judge(with CR
No.)
HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 17/02/2023.
Order signed by P.O. on 17/02/2023.
Order uploaded on 17/02/2023.
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