Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 N/M No.1237-2018 in
Suit No.2567-2015
MHCC010039492018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.1237 OF 2018
IN
SUIT NO.2567 OF 2015
Lurgi Indian International Service ]
Pvt. Ltd., a limited company ]
registered under Indian Companies ]
Act, 1956, having registered address ]
at A-24/10, Mohan Co-operative ]
Industrial Estate, Mathura Road, ]
New Delhi- 110 044. ] … Applicant.
(Original Defendant)
IN THE MATTER BETWEEN
Deepak Prakashmal Chandan ]
Age 32 years, of Mumbai, Proprietor ]
of M/s. Ranflex Metals, Indian ]
Inhabitant, having office at 380/388, ]
Majestic Mansion, S. V. P. Road, ]
Opera House, Mumbai- 400 004. ] … Plaintiff.
Versus
Lurgi Indian International Service ]
Pvt. Ltd., a limited company ]
registered under Indian Companies ]
Act, 1956, having registered address ]
at A-24/10, Mohan Co-operative ]
Industrial Estate, Mathura Road, ]
New Delhi- 110 044. ] … Defendant.
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Appearances :-
Learned advocate Kunal Torne h/f. Adv. Jagdish Nagar for plaintiff.
Learned advocate Aditya Mapara i/b. Dhruve Liladhar and Co. for
defendant.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 19.04.2025
O R D E R
The defendant has taken out present notice of motion for
claiming the reliefs inter alia;
(a) To reject the plaint under the provisions of Order VII Rule 11
and/or dismissed under the provisions of Section 151 of the Code of
Civil Procedure, 1908 and/or otherwise being non maintainable or
untenable;
(b) In the alternative, this Court be pleased to dismiss the suit under
Section 151 of the Civil Procedure Code, 1908 and/or otherwise being
non maintainable or untenable;
(c) To stay the proceedings during pending the hearing and final
disposal of the present notice of motion on such terms and conditions as
this Court may deem fit and proper;
(d) To grant ad-interim reliefs in terms of prayer clause (c) above.
(e) To provide costs of the notice of motion.
(f) To grant such other and further reliefs as this court may deem fit.
2. In affidavit in support, it is contended that the plaintiff does
not disclose the cause of action and the suit is barred by limitation and
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is not maintainable for want of jurisdiction. The plaintiff has filed the
suit for seeking an order and decree of this Court that the defendant is
liable to pay the plaintiff an alleged sum of Rs.93,40,003.80 (Rupees
Ninety Three Lakhs Forty Thousand and Three, and Eighty Paise) along
with interest, at the rate of 24% or such other rate as this Court would
deem fit and for other prayers as set out in the plaint. However, prima
facie, the suit does not disclose any facts, details, explanations,
justification or documentation that give rise to, or support the aforesaid
extortionate claim, and therefore the same deserves to dismissed in
limine. It is further contended that this Court has no jurisdiction to
entertain the suit, from a bare reading of the various paragraphs of the
plaint itself, it is clear that the plaintiff has not disclosed any material
facts that would give rise to a cause of action against the defendant. The
plaintiff has in various paragraphs of the plaint, alleged that it sold and
supplied certain S.S. goods to the defendant, and that a balance
outstanding of Rs.93,40,003.80/- (Rupees Ninety Three Lakhs Forty
Thousand and Three, and Eighty Paise) is allegedly due and payable by
the defendant to the plaintiff in lieu of the same.
3. It is further contended that the plaintiff has not provided
any details, explanation, account and/or justification whatsoever, to
substantiate and/or support the abovementioned claim. The plaintiff
has not disclosed the reference numbers or dates of the purported
orders and/or invoices on the basis of which it has arrived at the alleged
figure of Rs.93,40,003.80/-. The plaintiff has further not disclosed the
terms contained in the purported orders and/or invoices it has relied
upon, including the description of the goods supplied, the quantity of
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Suit No.2567-2015
goods supplied, the time frame during which said goods were supplied,
jurisdiction applicable etc. Furthermore, the plaintiff has not attached
any documents to the plaint which may suggest the basis for the alleged
claim. Thus, it is evident that, the plaintiff has not disclosed a single
material fact in the plaint which would give rise to a plausible cause of
action.
4. It is also submitted that the mere statement that certain
goods were allegedly supplied to the defendant, and that a claim of
Rs.93,40,003.80/- exists as of 31.03.2015 is not a sufficient disclosure
of material facts in terms of Order VI Rule 2 of the Code of Civil
Procedure. It is trite law that a plaint must contain material facts which
give rise to a cause of action, and a plaint that does not disclose the
same, is liable to be rejected at the outset, under Order VII Rule 11 of
the Code of Civil Procedure. I submit that the aforesaid plaint ex facie
does not disclose any material facts, as required under Order VI Rule 2
of the Code of Civil Procedure, to give rise to a cause of action, and
therefore the Plaint deserves to be rejected in accordance with Order VII
Rule 11 of the Code of Civil Procedure.
5. It is further contention of the defendant that the defendant
vide their Advocate's letters dated 07.10.2016 and 18.10.2016,
addressed to the advocates of the plaintiff, requested for inspection of
the originals of the documents purportedly relied upon by the plaintiff
in the plaint. However, the plaintiffs advocates neither offered
inspection of the said documents nor responded to the letters addressed
by the defendant's advocates. The notice dated 25.11.2014 alleges that
an amount of Rs.31,11,900/- is due and payable by the defendant
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which, along with interest at the rate 18% p.a. sums up to
Rs. 1,99,38,633/- (Rupees One Crore, Ninety Nine Lakhs, Thirty Eight
Thousand, Six Hundred and Thirty Three only). The said notice does
not provide any details or justification pertaining to the amount claimed
in it and moreover directly contradicts the averments made in the
plaint. The plaintiff has alleged in the said notice or even otherwise, the
amount claimed in the plaint is substantially lesser than the amount
claimed in the said notice, even though the interest claimed in the
plaint is much higher i.e. at the rate of 24% p.a. This itself demonstrates
the frivolity and vexatiousness inherent to the plaintiff’s averments in
the plaint. Therefore, the defendant prays to reject the plaint.
6. The plaintiff has opposed the present notice of motion by
filing reply on the grounds that the defendant has not approached the
Court with clean hands and suppressed several material facts and
documents, so the defendant is not entitling to any reliefs. It is
submitted that present notice of motion is deserved to be rejected
ground that same has been taken out after more than two year from the
service of the summons and event though defendant had filed written
statement on 04.02.2017 and thereafter the plaintiff has filed draft
issues before the Court. The law is very much clear once issues framed,
no relief under order VII Rule 11 can be sought. Hence, prays to dismiss
the motion.
7. Perused notice of motion, affidavit in reply and record.
Heard both the sides.
8. It is well settled principle of law that for rejection of plaint
under Order VII Rule 11 mere pleadings in the plaint can be considered.
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While deciding the said issue the defence of the defendant cannot be
taken into consideration. As per the plaint, there were transactions
between plaintiffs and defendants and the plaintiff used to receive
payment from the defendant time to time. It is also pertinent to note
that the plaintiff used to give credit to the defendant. Admittedly, the
relationship between the plaintiff and defendant as suppler and
purchaser. It appears from the plaint that as per the mutual
understanding of the parties, the payment of invoices were required to
paid on due date in default the amount will carry interest at the rate of
24% p.a. It seems from the plaint that certain amount was due/
outstanding and as per account of 31.03.2015, an amount of
Rs.93,40,0003.80/- was due and payable by the defendant to the
plaintiff alongwith interest. It clearly appears from the pleading that the
plaintiff has relied on the copies of bank statement as well as account
statement for relevant period which shows all the entries of invoices as
well as payments.
9. According to the plaintiff, notice to recover the amount was
issued on 25.11.2014 but, defendant failed to pay the amount hence,
the plaintiff has filed present suit. Already the plaintiff has mentioned
about the documents on which the plaintiff is relying to prove his claim.
According to the defendant, the plaint does not disclose any cause of
action and the claim of plaintiff is barred by limitation. In para No.9 of
the plaint the plaintiff has specifically mentioned when the cause of
action arose. So far as, the point of limitation is concerned, it is the
mixed question of law and facts which can be decided only after
adducing evidence by both the parties. Therefore, at this stage it cannot
be said that the claim of the plaintiff is barred by limitation from the
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face of the record. No offering inspection of the documents does not
mean that the plaintiff is not possessing the original documents to prove
his claim. Therefore, only on that basis it cannot be inferred that the
suit is barred by limitation and plaint does not disclose cause of action.
10. Thus, considering the facts and circumstance of the case, I
am of the view that the defendant has failed to establish their case for
rejection of plaint. Hence, I do not find any substance in the notice of
motion. In the result, following order is passed-
ORDER
1. The Notice of Motion No.1237 of 2018 is hereby dismissed.
2. No order as to Costs.
3. The Notice of Motion No.1237 of 2018 stands disposed of
accordingly.
(Smt. Anita B. Sharma)
Judge,
City Civil Court, Greater Bombay
Date : 19.04.2025 C.R. No.03
Dictation typed on :
Checked & Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
28.05.2025 at 05.00 p.m. Mrs. Vasanti Dattatray Bhosale
Name of the Judge (with Court Room no.) HHJ Smt. Anita B. Sharma
(Court Room No.03).
Date of Pronouncement of Judgment/Order 19.04.2025
Judgment/Order signed by P.O. on 28.05.2025
Judgment/Order uploaded on 28.05.2025
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