Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 288 of 2020 in
SU 1897 of 2019 1 Date : 05.03.2026
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
NOTICE OF MOTION NO. 288 OF 2020
(CNR NO.MHCC01-000672-2020)
IN
S.C. SUIT NO. 1897 OF 2019
Om Shivam Co-op. Housing Society Ltd. ] …. Plaintiffs
Versus
The Sub Registrar of Assurances, Mumbai
City – 3 & Ors.
] …. Defendants
CORAM : HIS HONOUR JUDGE
PRAKASH A. SABLE
C.R.NO. : 08.
DATE : 05.03.2026
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1) Ld. Adv. J. N. Jain for plaintiff.
2) Ld. Adv. Amit Kapse for for defendant No.1/State.
3) Ld. Adv. Anita Patil for defendant No.2.
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ORAL ORDER
(DICTATED IN OPEN COURT)
1. The defendant No. 2 has taken out this notice of motion under
Order VII Rule 11 of the Code of Civil Procedure, 1908, praying for
rejection of the plaint on the ground that the suit is barred by
limitation.
2. The plaintiff opposed the notice of motion by filing his affidavit
on reply.
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NM 288 of 2020 in
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3. The learned counsel for the defendant submits that the plaintiff
has filed the present suit seeking to declare an agreement dated 14th
August 2000 which is registered on 28th August 2008 as illegal, null and
void. It is pointed out that the plaintiff was aware of the agreement and
existence since 2004 but filed suit in 2019 without any cause of action
which clearly shows that the suit is beyond the prescribed period under
the limitation Act, 1963. It is argued that the plaint discloses no facts
that would extend or save limitation and plaint deserves to be rejected
under Order VII Rule 11 of Code of Civil Procedure.
4. Per contra, learned counsel for the plaintiff, however, contends
that the plaint discloses cause of action and that certain subsequent
events have given rise to a fresh right to sue. It is submitted that in the
present case although the agreement in question was executed in the
year 2000, it was registered only in 2008. The plaintiff has further
averred that, pursuant to a notice dated 20th December 2018 issued by
one Harjit Singh Gandhi, it came to light that an Administrator had
been appointed under an order dated 16th April 2016, passed in exercise
of powers under Section 79(1) of the Maharashtra Cooperative Societies
Act. It is further submitted that the question of limitation is not a pure
question of law but involves factual determination, which cannot be
decided at the threshold.
5. I have considered the pleadings and submissions. Order VII Rule
11(d) CPC empowers the court to reject a plaint where the suit appears
from the statements in the plaint to be barred by law. The test is
whether, on a meaningful reading of the plaint alone, without reference
to the written statement or evidence, the suit is ex facie barred.
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NM 288 of 2020 in
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6. In the present case, the plaint specifically pleaded about the cause
of action. It is pertinent to note that although the agreement in question
was executed in 2000, it was registered only in 2008. The plaintiff has
averred that, an Administrator had been appointed under an order
dated 16th April 2016 passed under Section 79(1) of the Maharashtra
Cooperative Societies Act. The Administrator was empowered to issue
No Objection Certificates for amalgamation and change of user in
respect of Rooms No. 1 and 2, and to issue share certificates for Room
No. 3.
7. The plaintiff further pleaded that this order is under challenge
before the appropriate forum, and that issuance of such NOCs and share
certificates would prejudice the rights of the society. Consequently, the
present suit was filed on 24th September 2018. The plaint also refers to
acknowledgments and communications which, if proved, may extend
the period of limitation. These averments cannot be brushed aside at
this stage.
8. It is well settled that rejection of a plaint under Order VII Rule 11
CPC is permissible only where the plaint itself demonstrates that the
suit is barred by limitation. Equally, the issue of limitation is often a
mixed question of law and fact, requiring evidence, and cannot
ordinarily be decided summarily. Applying these principles, I find that
the plaint, as drafted, does not conclusively establish that the suit is
barred by limitation. On the contrary, it discloses facts which, if proved,
may bring the suit within limitation. Accordingly, the application under
Order VII Rule 11 CPC cannot be allowed at this stage. The application
is rejected. Hence, I pass the following order :
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NM 288 of 2020 in
SU 1897 of 2019 4 Date : 05.03.2026
ORDER
1. Notice of Motion No. 288 of 2020 is rejected.
2. Accordingly Notice of Motion No. 288 of 2020 is
disposed off.
Date : 05.03.2026
Place : Mumbai.
(PRAKASH A. SABLE),
Judge,
City Civil & Sessions Court,
Greater Mumbai.
Dictated and typed on : 05.03.2026.
Signed on : 07.03.2026.
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NM 288 of 2020 in
SU 1897 of 2019 5 Date : 05.03.2026
"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER"
DATE : 07.03.2026 AT 11.00 AM. Ms. Varsha V. Sawant
STENOGRAPHER GRADE-I
UPLOAD DATE NAME OF STENOGRAPHER
Name of the Judge (with Court No.) : SHRI PRAKASH A. SABLE
C.R.NO.08.
Date of pronouncement of
judgment/order
: 05.03.2026
Judgment/order signed by the P.O. on : 07.03.2026
Judgment/order uploaded on : 07.03.2026
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