Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 501/2020 in Comm. Suit No. 174/19. 1 Order.
MHCC010013012020
Presented on : 31-01-2020
Registered on : 31-01-2020
Decided on : 04-01-2021
Duration : 0 years, 11 months, 4 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 501 OF 2020
IN
COMMERCIAL SUIT NO. 174 OF 2019
M/s. Resitex, a registered Partnership Firm,
through its Partner, Mr. Siddhant Seksaria ...Plaintiff
Versus
RPM Abrasive Manufacture,
a registered Partnership Firm,
through its Managing Partner, Mr. Manish Kachrola ...Defendant
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 4th JANUARY, 2021.
Mr. Akshay Pai, Advocate for Plaintiff.
(No service of summons to defendant.)
ORDER
This is a motion preferred by plaintiff to treat this suit as
‘Summary Suit’ with request to dispose off the suit by adopting
procedure in view of Order 37. Ld. Adv. Akshay Pai for plaintiff
requested to transfer the suit to the Court, assigned with summary suits.
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N/m No. 501/2020 in Comm. Suit No. 174/19. 2 Order.
2. It is requested to peruse tabulation of invoices, wherein,
gross amount of Rs.19,65,089/- (Rupees Nineteen Lakhs Sixty-five
Thousand Eighty-nine Only) in total was due towards defendant. In
view of tabulation on page no.5 and 6, defendant has made the part
payment and due amount is Rs.10,72,481/- (Rupees Ten Lakhs Seventy-
two Thousand Four Hundred Eighty-one Only). It is precisely
mentioned by the plaintiff that this is a summary suit and it require to
be tried in view of procedure established under Order 37 of the CPC.
3. Adv. Pai for plaintiff added that in title of the suit, covering
page of the suit and on V/P at page no.11, it is specifically mentioned
that procedure under Order 37 of the CPC require to be adopted.
However, considering averment and new legislation of commercial suit,
it appears to be misunderstanding of the registry to denominate the suit
as a commercial suit. It is requested to transfer the suit to the Court,
assigned for summary suits.
4. In view of aforesaid submission, I have perused nature of
transaction between plaintiff and defendant. Considering both tables
on page no.3 and 6 of the plaint, it is alleged that amount of
Rs.10,72,481/- (Rupees Ten Lakhs Seventy-two Thousand Four
Hundred Eighty-one Only) is due towards defendant. Plaintiff is
manufacturer of RIFD (Resin Impregnated Fiberglass Discs). In view of
various invoices, defendant has made part payment to the plaintiff.
Therefore, it appears to be the transaction based on written contract
between the parties. For sake of convenience, Order 37 Rule 2 is
reproduced as follows :
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N/m No. 501/2020 in Comm. Suit No. 174/19. 3 Order.
“Order XXXVII –
Rule (1) –---------
Rule (2) Subject to the provisions of sub-rule (1),
the Order applies to the following classes of suits,
namely -
(a) suits upon bills of exchange, hundies and
promissory notes;
(b) suits in which the plaintiff seeks only to
recover a debt or liquidated demand in
money payable by the defendant, with or
without interest rising,-
(i) on a written contract, or
(ii) on an enactment, where the sum
sought to be recovered is a fixed
sum of money or in the nature of
a debt other than a penalty; or
(iii) on a guarantee, where the claim
against the principal is in respect
of a debt or liquidated demand
only.”
5. It is to note that present dispute is beyond the scope of
‘Commercial Dispute’. Perused definition of ‘Commercial Dispute’
under Section 2(c) of The Commercial Courts, Commercial Division and
Commercial Appellate Division of High Courts Act, 2015.
6. On perusal of roznama dated 03/01/2020, it is submission
on behalf of plaintiff that suit require to register as ‘Summary Suit’.
Admittedly, the plaintiff being dominus litus, he is master of the suit.
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N/m No. 501/2020 in Comm. Suit No. 174/19. 4 Order.
Therefore, plaintiff may choose the forum in view of allegations in the
plaint.
7. In view of The Commercial Courts, Commercial Division
and Commercial Appellate Division of High Courts Act, 2015, there is
amendment in Order XIII, titled as Order XIII-A. It is necessary to
reproduce Rule 2.
“2.
Stage for application for summary judgment. -
An applicant may apply for summary judgment at
any time after summons has been served on the
defendant:
Provided that, no application for summary
judgment may be made by such applicant after the
Court has framed the issues in respect of the suit.”
8. In view of amendment in Order 13(4) of the CPC, the
procedure is established, wherein, prior to framing of issues, plaintiff is
at liberty to file application to transfer the suit at any stage for summary
judgment. Relevant provision is reproduced as follows :
“4.
Procedure : - (1) An application for summary
judgment to a Court shall, in addition to any other
matters the applicant may deem relevant, include
the matters set forth in sub-rules (
a) to (
f)
mentioned hereunder:
(a) the application must contain a statement that it
is an application for summary judgment made
under this Order;
(b) the application must precisely disclose all
material facts and identify the point of law, if any;”
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N/m No. 501/2020 in Comm. Suit No. 174/19. 5 Order.
9. In view of Subhashini Malik V/s. S.K.Gandhi (2016 SCC
OnLine Delhi 5058), para no.74 to 76 are in respect of plaintiff as
dominus litus, he can choose remedy alongwith forum. Considering
aforesaid discussion and factual aspect of present case, it require to
adopt the procedure in view of Order 37 of the CPC. It is to note that
till date, there is no service of summons to defendant. Hence the order :
- ORDER -
1. Notice of Motion No. 501/2020 is allowed in view of prayer
clause (a).
2. Suit be transferred to Summary Court through registry.
(Registry to allot present suit to any court which deals with
summary suits.)
3. It be register as Summary Suit.
4. N/m No. 501/2020 is disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 04/01/2021. Mumbai.
1. Dictated on : 04/01/2021.
2. Transcribed on : 05/01/2021.
3. Signed on : 06/01/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 501/2020 in Comm. Suit No. 174/19. 6 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
07/01/2021. 2.32 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 04/01/2021.
Judgment/Order signed by P.O. on 06/01/2021.
Judgment/Order uploaded on 07/01/2021.
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