Order 1

Order Details: Notice of Motion
Pdf Text: : 1 : Notice of Motion No.916 of 2018
CNR No.MHCC010031222018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.916 OF 2018
IN
S.C.SUIT NO.2868 OF 2016
M/s. Loyal Textile Mills Ltd. and Anr. .. Plaintiffs
Versus
M/s. Shreyas Relay Systems Ltd. .. Defendants/
Applicant
Ld. Advocate Mehra for plaintiffs.
Ld. Advocate Chheda for defendant.
CORAM : HIS HONOUR JUDGE
SHRI ANAND L. YAWALKAR
(COURT ROOM NO. 31)
DATED : 21.07.2018
: ORDER :
This Notice of Motion is taken out by defendant for return of
plaint under Order 7 Rule 10 of the Civil Procedure Code and for
rejection of plaint on the ground of limitation under Order 7 Rule 11 of
the Civil Procedure Code.
2. The defendant submitted that plaintiff approached their office
at Gandhidham for transporting of 170 cotton bales weighing 27290
Kgs. from Tankara, Gujarat to Sattur, Tamilnadu. The Consignment was
to be transported by road from Tankara to Mundra Port, Kutch District.
Thereafter, consignment was to be transported by sea to the discharge
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port at Tuticorin and further by road to Sattur. After negotiation
necessary terms and conditions were agreed at Gandhidham office of
the defendant. Defendant utilized the services of their regular
transporter M/s. Shree Ganesh Freight Carriers for road journey. They
loaded truck from Tankara on 25.11.2013. But the truck was stolen
and it was found abandoned stated at Chotila 53 K.M. from Tankara on
27.11.2013. Accordingly, FIR was lodged at Tankara police station on
28.11.2013. This fact was informed to the plaintiff. Immediately,
plaintiff wrote a letter to the defendant and requested for loss to be
compensated. Defendant replied it on 06.12.2013 to plaintiff and also
expressed diligence taken by them. As per the contention of the
defendant the agreement, execution, performance and breach took
within jurisdiction of Gandhidham district and no part of the
transaction occurred at Mumbai. Thus, the Court at Gandhidham had
jurisdiction to try and decide the suit. Hence, prayed the plaint be
returned under Order 7 Rule 10 of CPC be presented to proper court.
Further, defendant also argued that the suit is barred by law of
limitation. Information given on 27.11.2013. The limitation to file the
suit was on 26.11.2016. But the suit was filed on 28.11.2016. They
prayed reject the plaint as barred by law of limitation.
3. Plaintiff appeared and denied the contention of the defendant
regarding the jurisdiction and submitted that the incident happened at
Chotila in Rajkot district and Tankara in Morbi district. The goods were
to be loaded from Tankara situated in Morbi district. As per the
contention of the plaintiff the goods were transported from Tankara in
Morbi district to Mundra port situated in Kutch. The goods were stolen
enroute. The truck was found abandoned at place near Chotila in
Rajkot district. The plaintiff further submitted that the defendant has
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office in Mumbai and they have issued Nondelivery certificate on
04.01.2016 from their office at Mumbai. Due to this Court at Mumbai
the jurisdiction as part of cause of action has also taken place at
Mumbai. They denied that the Court at Gandhidham has jurisdiction to
entertain the suit. Reference of Nondelivery certificate is concealed by
the defendant. They further submitted that the suit was filed on
28.11.2016, as there was holidays on 26.11.2016 and 27.11.2016 due
to fourth Saturday and Sunday and due to this the suit is filed on
28.11.2016 and it is within limitation.
4. Heard respective parties. Perused the material on record.
5. Upon hearing the rival submission, it is apparent that the
agreement took place at the office at Gandhidham of the defendant. The
goods were to be transported from Tankara in Morbi district to Mundra
port. The goods were loaded in the truck from Tankara in Morbi
district. The goods were stolen enroute. Truck was found abandoned at
Chotila in Rajkot district, where the complaint was lodged. The letter
dated 28.11.2013 was addressed by the plaintiff to the defendant from
their Mumbai office. Similarly, defendant's office at Mumbai, issued
Nondelivery certificate dated 04.01.2016 to the plaintiff. According to
the defendant the issuance of certificate is incidental part, which does
not confirm jurisdiction to the court at Mumbai to try and decide the
suit.
6. As per section 20 of CPC the define the jurisdiction. It is re
produce here.
“20. Other suits to be instituted where defendants reside or
cause of action arises: Subject to the limitations aforesaid,
every suit shall be instituted in a Court within the local limits
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of whose jurisdiction
(a) the defendant, or each of the defendants where
there are more than one, at the time of the commencement of
the suit, actually and voluntarily resides, or carries on
business, or personally works for gain; or
(b) any of the defendants, where there are more
than one, at the time of the commencement of the suit,
actually and voluntarily resides, or carries on business, or
personally works for gain, provided that in such case either
the leave of the Court is given, or the defendants who do not
reside, or carry on business, or personally work for gain, as
aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arise.
[Explanation] A corporation shall be deemed to carry on
business at its sole or principal office in [India] or, in respect
of any cause of action arising at any place where it has also a
subordinate office, at such place.
According to it the suit can be instituted where the defendant
resides or where he carries on business or cause of action, wholly or in
part had arise. According to the explanation provided corporation is
deemed to carry out his business from principal office in India or in
respect of cause of action arising at any place where it had subordinate
office.
7. Upon considering the scope of section and facts of the case in
hand contract was executed at Gandhidham office of the defendant. The
goods were to be loaded from Tankara in Morbi district. Theft was
committed at Chotila in Rajkot district. The plaintiff first communicated
regarding the theft by letter which was sent to his Mumbai office.
Similarly, the defendant replied from his office at Gandhidham. Non
delivery certificate was issued by the defendant on 04.01.2016 from its
office at Mumbai. Furthermore, defendant issued transaction slip on
24.11.2013. In its overleaf the defendant has mentioned that the
arbitration dispute shall be brought before the High Court at Bombay.
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Unless the carries appeal to another jurisdiction or voluntarily submits
himself thereto. Due to this it cannot be said that the court at Mumbai
does not has jurisdiction to try and decide the suit.
8. Admittedly, cause of the action is bundle facts. In the case in
hand the agreement took place at Gandhidham district. The goods were
loaded at Rajkot district. Plaintiff was informed at Mumbai. He replied
from Mumbai. The defendant issued Nondelivery certificate from its
office at Mumbai. This court does not agrees the contention of the
defendant that the issuance of this certificate is incidental part and he
does not forms the part of cause of action. Thus, considering this
observation this court is of the opinion that it had jurisdiction to try the
suit.
9. Defendant has prayed to reject the plaint as it is barred by law
of limitation and as per the cause of action arose on 27.11.2013 when
the plaintiff was informed and the suit is filed on 28.11.2016. The
contention of the plaintiff regarding there was holidays on 26.11.2016
and 27.11.2016 is not opposed by the defendant. Thus, there was
holiday on last date of limitation the filing of the suit. Due to this the
filing of the suit on first opening the date is permissible and it cannot be
said that the matter is barred by law of limitation.
10. Thus, this court is of the opinion that it has jurisdiction and
plaint is not barred by law of limitation. Considering this, accordingly I
pass the following order.
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: ORDER :
1. Notice of Motion No.916 of 2018 is hereby rejected.
2. No order as to costs.
Anand.L.Yawalkar
Judge,
City Civil & Sessions Court,
Date: 21.07.2018 Gr. Mumbai
Dictated on : 21.07.2018
Transcribed on : 23.07.2018
Signed on : 23.07.2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
On 25.07.2018 at 11.08 a.m.
UPLOAD DATE AND TIME Mrs. P.R.Vengurlekar
NAME OF STENOGRAPHER
Name of the Judge
(With Court Room No.)
H.H.J. Anand.L.Yawalkar
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
21.07.2018
JUDGMENT/ORDER signed by P.O. on 23.07.2018
JUDGMENT/ORDER uploaded on 25.07.2018
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