Order 1

Order Details: Order below exhibit
Pdf Text: Comm. Suit No. 3/21. 1 Order below Exh.6.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
ORDER BELOW EXHIBIT 6
IN
COMMERCIAL SUIT NO. 3 OF 2021
Jayvanti Jawahar Mamaniya ...Plaintiff
Versus
Arth Enterprises HUF & Anr. ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 6th SEPTEMBER, 2021.
Ms. Sonal Darbar, Advocate for the plaintiff.
Ms. Miloni Gala, Advocate for the defendants.
ORDER
1. This application is filed by the plaintiff for converting /
transferring the present commercial suit into the summary suit under
Order XXXVII of the CPC. Perused the application, affidavit in reply
(Exh.6A) and the suit proceeding. Heard learned counsel Sonal Darbar
for the plaintiff and learned counsel Ms. Miloni Gala for the defendants.
2. It is contention of the plaintiff that she had filed the suit
under Order XXXVII Rule 2 of the Civil Procedure Code (for short 'the
CPC'). However, due to objection of the department, the plaintiff was
compelled to file the suit as commercial suit. Now, the plaintiff wants
to get the suit registered as a 'summary suit'.
3. The defendants raised objection in Exh.6A that suit
summons as per Order XXXVII of the CPC is not issued. The defendants
have filed written statement (Exh.4) and issues are framed at Exh.5.
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Comm. Suit No. 3/21. 2 Order below Exh.6.
The application should have been moved earlier and it is liable to be
rejected.
4. Learned counsel Sonal Darbar for the plaintiff reiterated
contents in the application and submitted that the plaintiff was
compelled to get the suit registered as a 'commercial suit' by the
department of the court and she has already pointed out this aspect by
way of para 11 in the plaint. She relied upon observations of my
learned brother Judges in orders in Notice of Motion No. 501/2020 in
Commercial Suit No. 174/2019 and Commercial Suit No. 115/2019
passed on 04/01/2021 and 04/03/2020 respectively. By placing
reliance on both these orders, she submitted that the plaintiff has
dominus litis. She submitted that the suit be converted from the
commercial suit to summary suit. She prayed that application may be
allowed.
5. Learned counsel Ms. Miloni Gala advanced submission in
consonance with contents in reply affidavit. She further submitted that
the defendants have taken defence of unauthorized moneylending
transaction and it is to be decided by way of trial in the suit.
6. On perusal of the record, it appears that the suit is
originally registered as a commercial suit and there is no reference of
Order XXXVII of the CPC in the plaint. Title clause of the plaint reflects
filing of the suit as a commercial suit. So, there is no scope to conclude
that the plaintiff had presented the suit as a summary suit. In addition
to it, written statement of the defendants has come on record and the
matter reached the stage of evidence recording. Now, summary
procedure cannot be followed by ignoring developments in the matter
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Comm. Suit No. 3/21. 3 Order below Exh.6.
and also by nullifying the effect of written statement placed on record.
Considering all these aspects, there is no scope to entertain the
application. Hence, I pass the following order :
ORDER
Application Exh.6 is rejected.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 06/09/2021. Mumbai.
1. Dictated online on : 06/09/2021.
2. Signed on : 07/09/2021.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
07/09/2021. 4.44 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 06/09/2021.
Judgment/Order signed by P.O. on 07/09/2021.
Judgment/Order uploaded on 07/09/2021.
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