Final Order 2

Order Details: Notice of Motion
Pdf Text: MHCC010031492020
IN THE COURT OF SESSIONS FOR GR. BOMBAY
AT MUMBAI
NOTICE OF MOTION NO.1124 OF 2021
IN
COMMERCIAL SUIT NO.159 OF 2019
M/s. Alchemie Financial Services Ltd. ]..Plaintiff
V/s
Leena Nirmal Chhadva ]...Defendant
Appearances:
Ld.Adv.Bhakti Sutar for plaintiff.
Ld.Adv. Paras Veera for defendant.
CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32)
DATED : 26th March, 2021.
ORDER
The defendant by this notice of motion seeks rejection of
plaint.
2. Heard learned Advocate for the defendant and learned
Advocate for the plaintiff.
3. It is contended by the defendant that the plaintiff is
engaged in business of providing finance and investment to a large
number of customer located in Maharashtra and other States. It is
stated that the plaintiff is in business of money lending. It is stated that
relief and the issues relating therewith, falls under provisions of Section
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Order on NM No.1124-2021 .. 2..
2 (2) and (9) of The Bombay Money Lenders Act, 1946. The defendant
had prayed for rejection of plaint.
4. The notice of motion is resisted by the plaintiff. It is the
submission of the plaintiff that contentions raised by the defendant in
the notice of motion are incorrect. It is stated that notice of motion is
filed with an intent to delay in the suit. The plaintiff prayed for
rejection of Notice of Motion.
5. Order 7 Rule 11 of the Code of Civil Procedure reads as
under:
“11. Rejection of plaint The plaint shall be rejected in the following
cases:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on
being required by the Court to so correct the valuation within a time to
be fixed by the Court, fails to do so.
(c) where the relief claimed is properly valued, but the plaint is
written upon paper insufficiently stamped, and the plaintiff, on being
required by the Court to supply the requisite stamppaper within a time
to be fixed by the Court, fails to do so.
(d) where the suit appears from the statement in the plaint to be
barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9
[Provided that time fixed by the Court for the correction of the
valuation of supplying of the requisite stamppapers shall not be
extended unless the Court, for reasons to be recorded, is satisfied that
the plaintiff was prevented by any cause of an exceptional nature from
correcting the valuation or supplying the requisite stamppapers, as the
case may be, within the time fixed by the Court and that refusal to
extend such time would cause grave injustice to the plaintiff]”.
6. The ground for rejection of plaint alleeged is that the
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plaintiff is in business of money lending. The ground raised by the
plaintiff cannot be a bar to suit. The contentions raised by the
defendant in respect of alleged business of money lending by the
plaintiff is a disputed question of fact. The said question cannot be
gone into at this stage. It can be gone into at the time of trial and after
parties lead their evidence. The defendant would get an opportunity to
lead evidence to prove that the plaintiff is in business of money lending.
The plaint cannot be rejected on the ground raised in the Notice of
Motion. The Notice of Motion cannot be entertained and deserves to be
dismissed.
In the result, following order is passed.
O R D E R
The Notice of Motion No.1124/2021 is dismissed.
(SANJAY N. YADAV)
Additional Sessions Judge
Date: 26.03.2021 Gr.Bombay at Mumbai.
Dictated on : 26.03.2021
Typed on : 03.04.2021
Signed by H.H.J.on : 06.04.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
07.04.2021 at 4.05 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.N.Yadav
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
26.03.2021
Judgment/order signed by P.O. on 06.04.2021
Judgment/order uploaded on 07.04.2021
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