Order 1

Order Details: Notice of Motion
Pdf Text: : 1 : Notice of Motion No.1210 of 2018
CNR No.MHCC010038712018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1210 OF 2018
IN
S.C.SUIT NO.2613 OF 2017
Shri Hari Earthmovers Pvt. Ltd. .. Plaintiff
Versus
Authograph Cars (I) Pvt. Ltd. And Ors. .. Defendants/
Applicant
Ld. Advocate Pawan Pandey for plaintiff.
Ld. Advocate S.B.Rao for defendants.
CORAM : HIS HONOUR JUDGE
SHRI ANAND L. YAWALKAR
(COURT ROOM NO. 31)
DATED : 03.09.2018
: ORDER :
This Notice of Motion is taken out by defendant for dismissing
the plaint under Order VII Rule 11 of CPC and releasing the amount of
Rs. 5,19,040/ deposited by the defendant before the Hon'ble High
Court.
2. Defendant submitted that plaintiff had filed the Company
Petition before the Hon'ble High Court for recovery of Rs. 17,60,166/
along with interest. In this it was alleged that the defendants were
unable to pay the debt. The defendants raised the defence to the issue
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which could not adjudicated by the court and hence plaintiff was
directed to file civil suit on 04.08.2017. As per the defendant there is no
cause of action as the notice was sent under Company Act. Though the
civil suit is filed on the directions of Hon'ble High Court the
maintainability of the civil suit has to be decided as per the Civil
Procedure Code. Further, it was alleged that the transactions pertained
to 13.12.2010. As per the plaintiff cause of action arose after issue of
notice on 12.07.2015 and thus, due to this the claim is time barred.
Similarly, as per the directions of the High Court dated 04.08.2017 the
suit was to be filed within 6 weeks. It is filed on 29.11.2017 and not on
or before 15.09.2017. Thus, it is barred by limitation. Also on this
ground the plaint is liable to be rejected.
3. Plaintiff appeared and submitted that the Company Petition
was filed before the Hon'ble High Court. They also admitted that in its
order dated 04.08.2017 the High Court expressly relegated the plaintiff
to adopt remedy for recovery of the amount and 6 weeks time was
granted to take the steps accordingly. They submitted that the suit was
lodged on 08.09.2017 and submitted that the suit is within limitation.
4. Heard both the parties. Perused the material on record.
5. Upon considering the hearing it is apparent that earlier
Company Petition No. 1221/2015 was filed before the Hon'ble High
Court for recovery of amount from the defendant. As per the plaintiff
defendant was not the dealer of Skoda Car still he is accepted the
amount of Rs. 17,56,000/ as a booking amount in 2005 and thereafter
failed to deliver the car to the plaintiff. In 2010 he agreed refund the
amount and issued cheque, which was dishonoured. Defendant was
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convicted by the trial court punishable u/s. 138 of NI Act on
21.03.2013. In the Company Petition before the Hon'ble High Court it
was argued by the plaintiff that the defendant is insolvent. The
contention was opposed by the defendant and it was submitted by them
that they are solvent to pay the debt of the petitioner.
6. Upon considering the hearing this recovery of suit was filed
by the plaintiff against the defendant. Plaintiff had relied upon the bank
statement, email exchanges between the plaintiff and defendant,
judgment and order passed by M.M. 14th Court, Girgaon, Mumbai dated
21.10.2013 and other documents regarding the Auto loan. Thus,
considering these documents it is apparent that there is cause of action
for the plaintiff to recover the amount and it cannot be said that notice
issued by the plaintiff dated 04.08.2017 is regarding the Company
Petition and cause of action cannot be gathered or ascertained from the
said notice. As a Civil Court, this court is competent to entertain the suit
for recovery of amount. Also sight cannot be loss from the fact that the
earlier Company Petition was filed and petitioner were given liberty to
adopt remedy to file the suit for recovery of amount. In view of the
same order defendant also deposited Rs. 5,19,040/ before the High
Court and hence, defendant is estopped from the raising the ground of
cause of action.
7. It is admitted that the suit was to be filed within 6 weeks from
04.08.2017. As rightly pointed by the defendant the suit was to be filed
on or before 15.09.2017. The suit was lodged before the City Civil Court
on 08.09.2017 and it is well within limitation. It is settled position in
law that the limitation stops running when the suit is filed before the
court. While counting the limitation the court always considers the date
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of lodging and not the date of registration. Because registration may
take time and it is the duty of the concerned department to register the
suit presented. Thus, observing this suit is filed well within limitation.
Thus, contention of the defendant that the suit is filed on 29.11.2017
cannot be accepted. Hence, considering this the court is of the opinion
that there is cause of action and is also within limitation. Thus, the
court is of the opinion that the suit is not barred under Order VII Rule
11 of CPC. Accordingly, I pass the following order.
: ORDER :
Notice of Motion No.1210 of 2018 is hereby rejected.
Anand.L.Yawalkar
Judge,
City Civil & Sessions Court,
Date: 03.09.2018 Gr. Mumbai
Dictated on : 03.09.2018
Transcribed on : 03.09.2018
Signed on : 03.09.2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
On 04.09.2018 at 11.52 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 03.09.2018
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JUDGMENT/ORDER
JUDGMENT/ORDER signed by P.O. on 03.09.2018
JUDGMENT/ORDER uploaded on 04.09.2018
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