Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Suit No. 1734-19
...Order in NM No. 896-20
MHCC010023982020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 896 OF 2020
IN
SUIT NO. 1734 OF 2019
ICICI Prudential Life Insurance Co. Ltd. ]….Plaintiff
V/s.
Ms./Mrs. Neha Nirmal Jain ]....Defendant.
Appearances :
Learned Adv. Nitin Kamble for the plaintiff.
Learned Adv. Ruchita Patel for defendant.
CORAM : HER HONOUR JUDGE
SMT. A. V. KASTURE
(C.R.NO.59)
DATE : 03rd JANUARY, 2025
ORDER
1. This is the notice of motion taken out by the defendants for
(i) dismissal of the suit under Order 7 Rule 11 of Code of Civil
Procedure, 1908 (for sake of brevity, hereinafter, “CPC”) as the plaint
does not disclose the cause of action and it is barred by law of limitation
(ii) to return the suit under Order 7 Rule 10 of CPC for presentation
before appropriate Court (iii) the matter be adjudicated on preliminary
issues, ‘jurisdiction’ and ‘limitation’.
2. According to the defendant, the plaintiff have filed the
present suit for recovery of Rs. 19,80,000/- from her. She was
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appointed as a insurance agent by the plaintiff in the year 2008 at
Bikaner Branch to solicitate various types of its insurance policies and
insurance products. The Insurance Adviser agreement was executed at
Bikaner branch and other formalities were completed at Bikaner
branch. Hence, it is pertinent to decide the issue of jurisdiction as this
Court has no jurisdiction to try the present suit.
3. The plaintiff also submits that the present suit is not filed
within the period of limitation as the plaintiff issued notice to her on
13.05.2016 for recovery of Rs. 18,44,692.32/- on account of refund of
commission due to cancellation of policy though the plaintiff received
complaint on 18.03.2013. Therefore, the defendant prayed to dismiss
the suit as the plaint does not disclose cause of action and is barred by
law of limitation and to return the plaint for presentation before
appropriate Court
4. The plaintiff filed its reply to the notice of motion.
According to the plaintiff, the notice of motion filed by the defendants is
frivolous, vexatious and deserves to be dismissed. It is nothing but
delaying tactics adopted by the defendant for delaying the trial. If the
document No.2 filed along with the plaint is seen, there is a column of
dispute and jurisdiction. From the said document only it can be
gathered that the Courts in Mumbai only have exclusive jurisdiction as
both the parties are irrevocably submitted themselves to the jurisdiction
of the same. The said document has not been denied by the defendant
which contains her signature. Therefore, it is crystal clear that this
Court has jurisdiction to try and entertain the suit.
5. It is further submitted by the plaintiff (in respect of the
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limitation) that the suit is well within limitation. There are plethora of
judgments of our Hon’ble High Court as well as Hon’ble Apex Court
holding that the question of limitation is mixed question of facts and
law which requires the test of trial and no suit can be barred by law of
limitation. Therefore, the plaintiff prayed to dismiss/reject the notice of
motion with costs.
6. Perused the notice of motion, reply filed on it by the
plaintiff and written notes of arguments filed by the defendant along
with authorities of Hon’ble High Court and Apex Court.
7. According to the defendant, this Court has no jurisdiction
to try the present suit as the transaction took place at Bikaner branch.
This fact has been denied by the plaintiff as according to the plaintiff in
“terms and condition” of agreement there is column of dispute and
jurisdiction where both the parties have agreed to submit them before
the Court within the jurisdiction of Mumbai. This fact has not been
denied by the defendant. Perusal of the said document shows that it
bears the signature of defendant in which in para 16.2, the jurisdiction
of Court in Mumbai is admitted/accepted by both the parties. Hence, in
view of the said document, this Court has jurisdiction to try the present
suit and as such at this stage the suit cannot be rejected/dismissed for
want of jurisdiction under Order 7 Rule 11 of CPC.
8. According to the defendant, the plaintiff has not filed the
present suit within limitation. According to the defendant, though the
plaintiff has given notice to her on 13.05.2016, the plaintiff received
complaint on 18.03.2013, therefore, the cause of action arose on
18.03.2013. Therefore, the suit is barred by limitation. According to the
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plaintiff, the question of limitation is mixed question of law and fact
therefore, the trial is necessary for deciding the said issue. Perusal of the
plaint shows that though the plaintiff has received the complaint on
18.03.2013 through Email, the plaintiff had conducted detail
investigation about the said complaint. After completion of
investigation, according to the plaintiff, it came to know about the fraud
and cheating made by the defendant. Therefore, at this stage, it cannot
be said that the cause of action was arose on 18.03.2013 or otherwise,
therefore, the plaint cannot be rejected on this ground also.
9. The defendant further prayed for return of plaint to file it
before appropriate Court. However, as stated above this Court has
jurisdiction to try and entertain the suit. Hence, the said prayer also
cannot be accepted. Hence, I pass the following order.
Order
1. The Notice of Motion No. 896 of 2020 in Suit No. 1734 of 2019 is
hereby rejected and disposed of accordingly.
(A. V. Kasture)
Judge,
City Civil Court,
Date: 03.01.2025 Gr. Bombay.
Dictated on : 03.01.2025
Transcribed on : 04.01.2025
Signed on : 04.01.2025
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04.01.2025 At 4.50 P.M. Mrs. Poonam Y. Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ SMT. A. V. KASTURE
(C.R.NO.59)
Date of pronouncement of Judgment/
Order
03.01.2025
Judgment/Order signed by P.O. on 04.01.2025
Judgment/Order uploaded on 04.01.2025
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