Order 1

Order Details: Notice of Motion
Pdf Text: NM 577-18 SUIT 9377-95 1
CNR NO.MHCC010021882018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.577 of 2018
IN
SUIT NO.109377 of 1995
M/s. Supreme Industries Ltd. .. .. Plaintiff
Versus
Maharashtra State Road Transport Corporation ...Defendant
Shri.Sachin Joshi advocate for Plaintiff.
Smt.P.M.Bhansali advocate for the Defendant.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Asstt.Judge
CR no. : 32
Dated : 16th April,2018
ORDER
1. Defendant taken out this motion for :
i) framing of additional issue of adjudicata or
ii) In the alternative suit may be dismissed as barred by principle of
resjudicata.
2. Defendant had filed Suit No.9047/94 before the C.R.No.13. In
that suit issues were framed and suit was decreed by judgment dated
08/09/2017. The issue No.1 framed in suit no.9047/94 was identical
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with the issue framed in the present suit. In view of the issue No.1 being
adjudicated, issue No.3 which is an ancillary, therefore, said issue is
barred by principle of resjudicata. Hence, it is incumbent on the part of
this court to frame the additional issue as suit being barred by principle
of res judicata? Hence, taken out this motion.
3. Plaintiff filed the reply. As per the provisions of Road Transport
Act as Secretary is proper and authorized person to sign the documents
on behalf of the corporation and not the Assistant Store Officer. As the
motion is affirmed by Asstt.Store Officer, therefore, he is not the proper
person as per Section 5 of the Road Transport Act 1950. Present suit is
for recovery of bank guarantee of Rs.74,112/ which was wrongfully
encashed by the defendant. The issues in Suit No.9047/94 and present
suit are totally different. Hence, principle of res judicata will not be
applicable. Motion be dismissed with costs.
4. Heard Ld.advocate Shri.Sachin Joshi for Plaintiff and
Smt.P.M.Bhansali advocate for the Defendant.
5. Suit No.9047/94 was filed by defendant against the present
plaintiff for recovery of the amount of Rs.7,41,120/ towards the price
of goods. Present suit is for recovery of bank guarantee of Rs.74,112/
which was wrongfully encashed by the defendant. The present plaintiff
was the defendant in suit No.9047/94. Therefore, the litigating parties
were not under the same title in the former suit. Moreover, the issue in
the matter is of wrongful encashment of bank guarantee which was not
the matter in issue in the earlier suit. Therefore, in my view, principle of
resjudicata will not be applicable in the instant matter and issue of
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NM 577-18 SUIT 9377-95 3
resjudicata is not required to be framed. Hence, proceed to pass
following order.
ORDER
Notice of Motion No.557/2018 is dismissed with costs.
Date : 16/04/2018 (Pushpa N. Rao)
Ad hoc Asst.Judge
Bombay City Civil Court
Greater Mumbai
Dictation Direct typed on computer: 16/04/2018
Signed by HHJ on : 16/04/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/04/2018 at ( 5.20p.m.) Mrs. J.V.Pawar
Name of the Judge (With Court room
No.)
HHJ Smt.Pushpa N Rao
C.R.No.32
Date of Pronouncement of
JUDGMENT/ORDER
16/04/2018
JUDGMENT/ORDER signed by
P.O.on
16/04/2018
JUDGMENT/ ORDER uploaded on 18/04/2018
.
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