Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1852/18 in Suit No. 2993/14. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1852 OF 2018
(CNR NO. MHCC010059802018)
IN
S. C. SUIT NO. 2993 OF 2014
Forbes & Company Limited ...Plaintiffs
Versus
Gokul Traders ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 9th OCTOBER, 2019.
Ms. Smita Sawant, Advocate for Plaintiffs.
Mr. Shashank Thatte, Advocate for Defendants.
ORDER
This is a motion taken out by defendant to dismiss the suit
on the point of maintainability.
2. Perused reply filed by plaintiff.
3. Ld. Advocate Shashank Thatte for defendant submits that
in title of the suit it is mentioned by plaintiff that defendant Gokul
Traders is a private concern and Mr. P.M.Laddha is the Proprietor.
However, it is a partnership concern, another partner of said firm is not
joined as a party alongwith defendant, therefore, he submits that in
view of Order 7 Rule 11 of the CPC, present suit is not tenable before
this Court.
-- 1 of 4 --
N/m No. 1852/18 in Suit No. 2993/14. 2 Order.
4. Ld. Advocate Thatte for defendant added that Chamber
Summons No. 193/2019 is taken out by plaintiff to rectify the mistake.
In one reply to notice of plaintiff, defendant has signed on the reply in
the capacity of partner. If present suit is dismissed, plaintiff will be out
of the claim being beyond the period of limitation. Hence, it is
requested to dismiss the suit.
5. Ld. Advocate Smita Sawant for the plaintiff submits that
the present motion is beyond the purview of Order 7 Rule 11 of CPC.
Plaintiff has issued various notices and upon inspection in July 2018,
plaintiff received information about defendant being a partnership firm.
However, after service of notice to defendant, some part payment was
disbursed by the defendant. It is concluded that defendant is intending
to use all tactics to delay the hearing and recovery proceeding.
6. It is to note that plaintiff has issued a notice on
21/06/2018 and two reminders in July 2018 for inspection of
documents of defendant firm. Thereafter, defendant has provided
inspection in respect of defendant being a partnership firm.
7. It is to note that plaintiff has issued a notice prior to
submission of present suit on 16/05/2012. It was replied by defendant
on 12/10/2012. In said reply, defendant has not mentioned about
defendant is a partnership firm.
8. Even in Notice of Motion No. 1911/2015 wherein
defendant has challenged territorial jurisdiction of this Court, it is not
whispered by the defendant that defendant is a partnership firm. In
view of various grounds enumerated under Order 7 Rule 11 of CPC in
-- 2 of 4 --
N/m No. 1852/18 in Suit No. 2993/14. 3 Order.
respect of rejection of plaint, present motion is devoid of merit. It
prima facie indicate that in absence of improper information plaintiff
has preferred the suit, there was no any intentional flaw kept by the
plaintiff which may cause prejudice to defendant.
9. It appears to be bonafide mistake. The part payment given
by the defendant to the plaintiff is not disputed by the defendant. It is
amazing to note that defendant appeared in the proceeding before four
years, however no detail written statement is yet filed by defendant. It
also appear that by preferring different notice of motions, defendant is
intending to protract the trial. The present motion is devoid of merit,
resultantly, it deserves to be dismissed. Hence the order :
ORDER
1. Notice of Motion No. 1852/2018 stands dismissed.
2. Separate order is passed in Chamber Summons
No. 193/2019.
3. N/m No. 1852/18 stands disposed off.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 09/10/2019. Mumbai.
1. Dictated on : 09/10/2019.
2. Transcribed on : 11/10/2019.
3. Signed on : 11/10/2019.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
-- 3 of 4 --
N/m No. 1852/18 in Suit No. 2993/14. 4 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
14/10/2019. 1.31 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 09/10/2019.
Judgment/Order signed by P.O. on 11/10/2019.
Judgment/Order uploaded on 14/10/2019.
-- 4 of 4 --