Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.4149-18 in Suit no. 1437-18
MHCC010138342018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4149 OF 2018
CNR NO.MHCC010138342018
IN
SUIT NO. 1437 OF 2018
Miss Preeti Parthviraj Mehta & Anr. ...Plaintiffs
V/s
1. M/s.Point Developers Pvt.Ltd.
Through its Director/Builder/Developers/ & Ors. ...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI KISHORE M. JAISWAL
(COURT ROOM NO.01)
DATE :12th DAY OF OCTOBER, 2021
Adv.R.C.Mishra for the plaintiffs.
Adv.Karan Singh for the defendants
ORAL ORDER
This notice of motion is taken out by the defendants no.
2 and 3 under the provisions of Order 7 Rule 11 of the CPC for
rejection of the plaint. This notice of motion is supported by an
affidavit of Mr.Jatin Mehta defendant no.2 and Power of Attorney
holder of defendant no.3 Ms. Yosha Jatin Mehta. This notice of
motion is strongly opposed by filing reply on affidavit being executed
by plaintiff Preeti Mheta. I have heard learned advocate Shri
R.C.Mishra for the plaintiffs and learned advocate Shri Karan Singh
for the defendants.
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2. On perusal of this application, it is submitted that the
plaintiff has deliberately impleaded defendants no.2 and 3 as a party
with malafide intention and oblique motive to create pressure and for
causing unnecessary harassment. As such it is submitted that no suit
can be filed against the directors as the civil liability is of private
limited company. On that ground only the rejection of plaint is
claimed for. The learned advocate for the defendant has placed
reliance on the case Space Enterprises Vs. Srivivasa Enterprises
Limited Judgment of Hon'ble High Court of Delhi decided on
April 1st 1998, wherein it was held in para no. 7: “ However, there
are further two points which are required to be considered on merits.
One relates to whether the plaintiff could file a suit for recovery of
the amount under Order 37, Civil Procedure Code against defendant
no.2 or not ? The fact that defendant no.2 was or is the Managing
Director of defendant no.1 may or may not be material in an ordinary
suit, for in an ordinary suit the Court may be required to remove the
corporate veil to catch hold of the real culprit.” He has further placed
reliance on the case Ranbir Kumar Gugneja Vs. Continental
Engines Ltd. Judgment of Hon'ble High Court of Delhi decided on
December 24th 2010, wherein para no. 6 it is held that : “ It is an
admitted case of the parties that the plaintiff was appointed by
defendants no. 1 to 4 which are four companies. Defendant no.5,
who was a Director of these companies is not personally liable to
make any payment to the plaintiff and there was no privity of
contract between him and the plaintiff. Defendant no.5 is, therefore,
neither a necessary nor a proper party to the suit. His name is,
therefore, struck of the array of defendants. The issues is decided
accordingly.” By placing reliance on the aforesaid rulings, learned
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advocate for the defendants strenuously urged before me that
defendants no.2 and 3 has made as a party when infact they are not
directors of the said company.
3. It is pertinent to note here that while deciding
application under Order 7 Rule 11 of the CPC, this Court only has to
go through the averments of the plaint and the documents relied on
by the plaintiff. Further, it is trite law that the defence taken either in
reply or written statement cannot be considered at the stage of Order
7 Rule 11 of the CPC. Therefore, I have gone through the contents of
the plaint. The relief claimed in the plaint is in the nature of
perpetual injunction. For consideration of rejection of plaint only
factors as mentioned in Order 7 Rule 11 (a) to (f) has to be
considered. The cause of action has been pleaded against the present
applicants /defendants. The present suit is not barred by any specific
law. It is specifically pleaded in the plaint, about the alleged act of
negligence on part of defendants no.2 and 3 regarding the parking
space in the basement. So when there is specific pleadings against
the defendants no.2 and 3 and specific allegations against them, the
ruling cited supra in Ranbir Kumar Gugneja Vs Continental
Engines Ltd. will not be applicable as in the said case itself there was
contract between company and the plaintiff but in the present case
considering the contents of the plaint and specifically para no.(a) to
(g) of para no.13 of the plaint it discloses the specific cause of action
against the defendants. Thus it cannot be said that defendants are
made party only by virtue of their positions as directors.
4. I have also gone through the ruling of Space
Enterprises Vs. Srivivasa Enterprises Limited cited supra. In the
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case cited supra, it was regarding recovery of an amount in a
summary suit. In the present case plaintiff is not claiming any
recovery of amount but the reliefs claimed in the suit are very
specific regarding the numbering or the possession of the two car
parking space on the basement. Therefore the facts of the case cited
supra and the facts of the present case are altogether different and
said ruling is not applicable to the present case and therefore cannot
be considered. Apart from this, no other specific grounds are
mentioned to reject the plaint. Hence, I pass the following order.
ORDER
Notice of motion no. 4149/18 stands dismissed.
No order as to costs.
Case to proceed further
(Kishore M. Jaiswal)
Judge, City Civil & Sessions
Date:.12.10.2021 Court, Gr.Mumbai (C.R.No.01)
Dictated on :12.10.2021
Transcribed on :13.10.2021
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE:20.10.2021 NAME OF STENOGRAPHER(G I)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Kishore M. Jaiswal.
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 12.10.2021
JUDGMENT/ORDER signed by P.O. on 14.10.2021
JUDGEMENT/ORDER uploaded on 20.10.2021
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