Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1131-20 in Suit 1211-17
MHCC010031672020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO. 1131 OF 2020
IN
S. C. SUIT NO.1211 OF 2017
Mrs. Julia Vincent Rego ]
Aged: 61 years, Occ: Housewife, ]
R/a. C/o. 701, B-Wing, Sai Nidi CHS ]
Ltd., Opp. Karnataka High School, ]
Ghatia Village, Chembur, ]
Mumbai-400 071. ].. Plaintiff
Versus
1. Mr. Domnic Sabastian Coelho ]
Aged: 61 years, Occ: Pastor ]
Gururaj Complex, A-Wing, ]
Flat No.104, Aptewadi, Shirgaon, ]
Badlapur (West), Tal-Ambernath, ]
Dist-Thane. ]
2. Mrs. Theresa Domnic Coelho ]
Aged: 51 years, Occ: Evangelist, ]
A-Wing, Flat No.104, Aptewadi, ]
Shirgaon, Badlapur (West), ]
Tal-Ambernath, Dist-Thane. ] .. Defendants.
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Appearance :-
Ld. Adv. Khartmol for plaintiff.
Ld. Adv. Gajbhiye for defendants.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 12/02/2024
ORDER
The defendants have taken out the present notice of
motion seeking rejection of plaint under Order VII Rule 11 (d) of the
Code of Civil Procedure (for short ‘CPC’).
2. It is the contention of the defendants that the plaintiff has
filed false and frivolous suit against the defendants. The suit filed by the
plaintiff is in respect of the recovery of money. It is further contention of
the defendants that as per the pleadings, the plaintiff has allegedly
given money to the defendants in the year 2011. The plaintiff ought to
have filed the suit for recovery of money within three years from the
date of the amount given.
3. It is further contention of the defendants that the plaintiff
has relied on one alleged handwritten letter dated 05.07.2015 which
allegedly has been written by the defendant No.2. It is also contended
that the alleged letter is vague document and the same was created by
the plaintiff only to bring her suit within the period of limitation only. It
is further contended that the alleged receipt has been issued by the
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defendant No.2 after the period of limitation, therefore, the suit is not
maintainable as the same is barred by limitation. Hence, they pray to
reject the plaint.
4. The motion is opposed by the plaintiff on the ground that
the present suit has been filed by the plaintiff, in respect of the suit
premises which was purchased in the name of defendant No.1, out of
the amount received from the plaintiff, with the commitment to
purchase the suit property in the name of the plaintiff only. But the
defendants have not disclosed to the plaintiff that they have purchased
the shop in the name of the defendant No.1. It is the submission of the
plaintiff that when the plaintiff visited the residence of the defendants
and asked for the possession of the suit premises and balance amount of
Rs.4,00,000/-, the defendants have given her only Rs.10,000/- by
stating her as rent amount of the said shop. When the plaintiff verified
the documents of the shop, she came to know that the defendants have
not purchased the said shop in her name. When the plaintiff insisted for
the possession of the shop, the defendant No.2 promised to return the
said amount to the plaintiff and she issued promise letter in that
respect.
5. It is further submitted that the plaintiff was deprived from
the enjoyment of the immovable property as both the defendants have
caused wrongful gain to themselves and wrongful loss to the plaintiff.
6. It is also submitted that in the first week of the November
2016, when the plaintiff visited residence of both the defendants and
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asked for the possession of the shop and balance amount, they refused
to give the same and threatened the plaintiff. Therefore, she
immediately went to the police station for lodging FIR, but the police
authority has not taken any action against the defendants and due to
which the plaintiff has issued notice to the defendants.
7. Perused the notice of motion, say and plaint. Heard both
sides.
8. In the case of
Ramisetty Venkatanna and Another Vs.
Nasyam Jamal Saheb and others 2023 SCC OnLine SC 521 (cited by
defendants), the defendant had filed an application for rejection of
plaint contending that the suit was barred by limitation as the same was
instituted 61 years after the execution of the partition deed dated
11.03.1953 and that by clever drafting the plaintiffs have tried to bring
the suit within the law of limitation. But the application of the
defendant was rejected by the Court below. While allowing the appeal,
the Hon’ble Apex Court has observed as follows;
“
There cannot be any dispute with respect to the proposition of
law laid down by this Court that while deciding the application
under Order VII Rule XI, mainly the averments in the plaint only
are required to be considered and not the averments in the
written statement. However, on considering the averments in the
plaint as they are, we are of the opinion that the plaint is ought to
have been rejected being vexatious, illusory cause of action and
barred by limitation and it is a clear case of clever drafting”.
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9. In view of the aforesaid legal proposition, I have to
consider averments mentioned in the plaint only while deciding the
present motion. The case of the plaintiff is based on the story that the
defendants have obtained the money from the plaintiff for purchase of
the shop in the name of the plaintiff as the defendants were her nearest
relatives since last 20 years. It appears from the averments that the
defendants advised the plaintiff to sale out her flat at Borivali and to
purchase a flat and a shop at Badlapur nearest location to the
defendants.
10. It is further the case of the plaintiff that as per the advice of
the defendants, she has sold out her flat for an amount of
Rs.65,00,000/- and she has given Rs.9,00,000/- to the defendants for
purchasing one shop in the name of the plaintiff at Badlapur. It is
further pleaded that after some period both the defendants stated to the
plaintiff that they had purchased a shop at Badlapur for Rs.5,00,000/-
in the name of the plaintiff and they convinced her to go to her native
place at Goa.
11. It is further the pleading of the plaintiff that on 05.07.2015,
she has visited the place of the defendants and asked for the possession
of the shop and also to return the remaining amount but the defendants
have given her Rs.10,000/- by pretending that the said amount was
received towards the rent of the shop. When the plaintiff insisted the
defendants to show the documents of the registration of the shop, the
defendant No.1 handed over the photo copy of the registered document
in respect of the shop and the plaintiff was shocked by noticed that the
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said shop was purchased in the name of the defendant No.1 for the
consideration amount of Rs. 3,82,500/-.
12. Thereafter, the plaintiff insisted the defendants to hand
over the possession of the shop and return the balance amount. At that
time the defendant No.2 gave written assurance to the plaintiff that
they will return the sale value of the shop as per the prevailing market
rate within the period of one year. But in the first week of November
2016, when the plaintiff visited the place of the defendants, the
defendants refused to give the possession of the shop and balance
amount to the plaintiff.
13. It appears from the plaint that the present suit is not the
simpliciter suit for recovery of any hand loan amount or any friendly
loan. The amount was given to the defendants in the year 2011, only
for the purpose of purchase of the shop in the name of the plaintiff only.
The plaintiff came to know for the first time in the year 2015 that the
defendant No.1 has purchased the shop in his name from which the
amount was given to him by the plaintiff. Thus, on 05.07.2015 only the
plaintiff has inspected the documents in respect of the said shop. It
further appears that on 05.07.2015, the cause of action arose and on
the same day the defendant No.2 has issued written assurance to return
the plaintiff sale amount of the shop as per the market rate within one
year. It is also seen that when the defendant has not returned money to
the plaintiff till November 2016, the plaintiff has filed the present suit.
14. It is well settled that issue about limitation is mixed
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question of facts and law which definitely requires evidence. Prima
facie, the averments made in the plaint clearly indicates that the cause
of action arose when for the first time the plaintiff came to know about
the act of the defendant No.1 and thus within the period of three years
from the 05.07.2015, the plaintiff has filed the suit.
15. Thus, considering the facts mentioned in the plaint, I have
an opinion with due respect that, the facts mentioned in the aforesaid
case law is not squarely applicable to the present case and only on the
issue of the limitation, plaint cannot be rejected. Hence, I do not find
any substance in the present notice of motion and the same needs to be
dismissed. In the result, I proceed to pass following order:-
ORDER
1. Notice of Motion No.1131 of 2020 is hereby dismissed.
2. No order as to costs.
3. Notice of Motion No.1131 of 2020 is disposed of accordingly.
(Smt. Anita B. Sharma,)
Judge,
City Civil Court, Greater Bombay
Dated : 12/02/2024 C.R. No.03
Dictated on : 12/02/2024
Typed on : 12/02/2024
Signed on : 12/02/2024
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“Certified to be true and correct copy of the original signed order”.
13/02/2024
at about 2.50 p.m.
(Dastagir Babalal Mulla)
Stenographer Grade-I (Gazetted)
Court Room No.03, Gr. Bombay
Name of the Hon'ble Judge : Smt. Anita B. Sharma,
Judge, Bombay City Civil Court &
Addl. Sessions Judge,
Court Room No.03, Gr. Bombay
Date of pronouncement of
Order
: 12/02/2024
Order signed by Hon'ble Judge
on
: 12/02/2024
Order uploaded on : 13/02/2024
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