Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.901 OF 2018
IN
SUIT NO.1479 OF 2015
Devang Dineshkumar Shah ...Plaintiff.
V/s.
Shri Harshadbhai R. Mehta ...Defendant.
Appearances:
Ld. Adv Ms.Debarthi for plaintiff.
Ld. Adv. Bariya for defendant.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 3rd December,2018
ORDER
By way of this notice of motion defendant prayed for return/
reject of the plaint under O.VII R.10, under O.VII R.11 of C.P.P with
further directions.
2. In supporting affidavit of Mr.Harshadbhai R. Mehta they came
with a case that, they have filed this notice of motion for
return/rejection of the plaint under O.VII R.10/11 of C.P.C. Plaintiff has
filed this suit for recovery of Rs.11,48,050.42/ with interest against
defendant. In view of the written statement filed by defendant they
have denied the case of plaintiff being false and frivolous. Defendant
submitted that, defendant is having his place of business at D126,
Bonanza Industrial Estate, Ashok Chakravarty Road, Kandivali (East),
Mumbai101 and plaintiff's place of business and registered office
MHCC01-003126-2018
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NM 901/2018 .. 2 .. Suit No.1479/2015
address is at Malad, Mumbai. Therefore, this Court has no jurisdiction
to try and adjudicate the present suit. All the transaction, issuance of
part payment, cheques and other documents, took place beyond
jurisdiction of this Court. The defendant is carrying on business beyond
jurisdiction of this Court. Therefore, this Court has no jurisdiction to
entertain and try the present suit. As such plaint liable to be returned
to the plaintiff under O.VII R.10 of C.P.C. or it be rejected under O.VII
R.11 of C.P.C. and prayed that notice of motion be made absolute.
3. After service of the notice of motion on behalf of defendant,
Devang Shah, plaintiff appeared and filed reply in affidavit and strongly
opposed the notice of motion and contended that, it is filed only to
delay the proceedings. As per their submissions invoices by which
goods were sold, supplied and delivered to defendant and for which
payment was not made, is specifically mentioned that “subject to
Mumbai Jurisdiction”. Furthermore, defendants have made part
payment of Rs. One lakh by way of cheque in or about 2015 within
jurisdiction of this Court. The cheque was realized by plaintiff and
were credited thereby. Plaintiff is carrying business within jurisdiction
of this Court. Even if defendant is carrying his business at Kandivali,
Mumbai, but the documents placed on record clearly entitles this Court
to proceed with the suit. Therefore, question of jurisdiction raised by
defendant cannot be entertained at all and prayed that, notice of
motion be dismissed with heavy costs.
4. Heard both the sides at length. Perused the documents and
record.
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NM 901/2018 .. 3 .. Suit No.1479/2015
5. No doubt it is admitted fact that plaintiff is carnying on business
at Walkeshwar, Mumbai, having its registered office. The transaction
about payment also effected at within jurisdiction of this Court. The
Registered Certificate of Sales Tax of plaintiff placed on record shown
address of plaintiff as PLA Engineering and Industries, 9 Banganga
Cross Road, Pujari, Building, 1st Floor at Malad06 from 11.05.2006.
The cheque was tendered and encashed within jurisdiction of this
Court. The invoice dt.02.01.2011 specifically mentioned “subject to
Mumbai jurisdiction”. Therefore, objection raised having transaction
beyond jurisdiction of this Court has no force. The entire transaction
took place within jurisdiction of this Court where business is carrying
out. In such circumstances, question of rejection of the plaint under
O.VII R.11 in view of subclause (a) to (f) does not arise nor plaint
needs to be returned under O.VII R.10 of C.P.C. for proper presentation
to the Court have jurisdiction. In such circumstances, notice of motion
seems to be an attempt to prolong the hearing of suit. Hence, notice of
motion needs to be rejected. In the result, it will be proper to direct
parties to bear their costs. Hence, I proceed to pass the following
order :
O R D E R
1. Notice of Motion 901/18 in suit no. 1479/15 stands
rejected.
2. Parties to bear their costs.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.: 03/12/2018 City Civil Court, Gr. MUMBAI
Dictated on : 03.12.2018
Transcribed on : 06.12.2018
Signed on :
kps/
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NM 901/2018 .. 4 .. Suit No.1479/2015
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
06.12.2018 at 4.53 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 03.12.2018
Judgment/order signed by P.O. on 06.12.2018
Judgment/order uploaded on 06.12.2018
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