Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 916/2020 in Comm. Suit No. 137/19. 1 Order.
MHCC010024862020
Presented on : 28-02-2020
Registered on : 28-02-2020
Decided on : 09-02-2021
Duration : 0 years, 11 months, 10 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 916 OF 2020
IN
COMMERCIAL SUIT NO. 137 OF 2019
Space Age Plastic Industries ...Plaintiff
Versus
Bionext Pharma Pvt. Ltd. ...Defendant
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 9th FEBRUARY, 2021.
Mr. Abhishek Tripathi, Advocate for Plaintiff.
Mr. Harshavardhan Khambete, Advocate for Defendant.
ORDER
This is a motion taken out by defendant to reject the plaint
under Order 7 Rule 11 of the CPC. Perused the reply submitted by the
plaintiff.
2. On perusal of motion, it is contended by the defendant that
there is no cause of action, there is no territorial jurisdiction and
plaintiff is failed to comply mandatory provisions of Order 6 Rule 15-A
sub-rule (4) and (5) of the CPC.
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N/m No. 916/2020 in Comm. Suit No. 137/19. 2 Order.
3. Learned Adv. Khambete for the defendant submits that
plaint is silent in respect of cause of action. In absence of cause of
action, suit is not tenable before this Court. It is added that everything
came to be occurred within the jurisdiction of Navi Mumbai, therefore,
this Court do not vest the jurisdiction. It is requested to peruse
notification of the Government of Maharashtra dated 03/07/2019
issued by the L & J Department, whereby, pecuniary value of the
commercial suit is Rs.50,00,000/-. According to defendant, the
mandatory statement of truth is not filed by the plaintiff. In short, it is
requested to reject the plaint.
4. Learned Adv. Tripathi for plaintiff submits that there are
various e-mail sent by the plaintiff. The account extract came to be
shown to the defendant, despite repeated assurances defendant is failed
to repay the amount. Even in pre-institutional mediation defendant was
appeared but he failed to repay the amount. It is requested to peruse
the reply of defendant by e-mail dated 15/11/2018 whereby he prayed
for time. There are various grounds to prefer this suit.
5. It is requested by learned advocate for plaintiff to peruse
affidavit in the form of truth at page no.42 of the plaint and statement
of account vide page no.40. It is requested to reject the motion.
REASONS
6. On perusal of plaint, the word ‘cause of action’ is not used
by the plaintiff. However, various grounds to prefer this suit came to be
mentioned by the plaintiff. It is categorically mentioned that in view of
various invoices, the material came to be supplied by the plaintiff. It is
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N/m No. 916/2020 in Comm. Suit No. 137/19. 3 Order.
specifically mentioned that there was a communication by e-mail
between the parties in respect of outstanding amount. In para 7 of the
plaint it is mentioned that various cheques came to be given by the
defendant. However, all cheques got dishonoured. In written statement
defendant has admitted that the cheques were given by the defendant.
However, according to defendant, said cheques were given for the
security purpose.
7. In written statement defendant has disputed the accuracy
of account statement. However, nothing can be commented about
account statement and exact amount of dues. It require a full-fledge
trial.
8. ‘The words “cause of action” are sometimes used in a
restricted sense and sometimes in a wider sense. In the restricted sense
it mean the circumstances forming the infringement of the right or the
immediate occasion for the action. In the wider sense it mean the
necessary conditions for the maintenance of the suit, including not only
the infraction of the right, but the infraction coupled with the right
itself.’
9. As discussed above, plaint in total require to read to draw
the conclusion about existence of cause of action. It means, the whole
bundle of material facts which it is necessary for the plaintiff to prove in
order to entitle him to succeed in the suit.
10. A cause of action is something more than a ground or unity
of title. It not only includes the facts necessary to support the plaintiff’s
title, but also the facts which entitle him to relief against a particular
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N/m No. 916/2020 in Comm. Suit No. 137/19. 4 Order.
defendant.
11. Considering recent position, present suit can be rightly
titled as a commercial suit as it is valued the principal amount of
Rs.4,22,502/- and alongwith its interest at the rate of 18% it is
Rs.5,68,264/-. The notification of L & J Department dated 03/07/2019
is not applicable at present stage. Plaintiff has annexed statement of
truth and account statement vide page no.40 and 42. In short, there is
no substance in motion. Hence, the order :
- ORDER -
1. Notice of Motion No. 916/2020 stands dismissed.
2. Issues are framed, parties may insist to expedite hearing.
3. N/m No. 916/2020 is disposed off.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 09/02/2021. Mumbai.
1. Dictated on : 09/02/2021.
2. Transcribed on : 10/02/2021.
3. Signed on : 10/02/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 916/2020 in Comm. Suit No. 137/19. 5 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10/02/2021. 5.26 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 09/02/2021.
Judgment/Order signed by P.O. on 10/02/2021.
Judgment/Order uploaded on 10/02/2021.
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