Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2482-19 in L.C. Suit no. 450-09
1 Date : 09.09.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2482 OF 2019
IN
L.C. SUIT NO. 450 OF 2009
(CNR NO.MHCC01006779 2019
Industrial Bhavan (Worli) Ltd. .. Plaintiff
Versus
Sushil Kanubhai Shah & Ors. .. Defendants
Appearances :
Adv.Ashok Wanwani for plaintiff present.
Adv.Chetan Yadav for defendant no.1 to 4 present
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 09.09.2019
1. The applicant original defendant no. 3 has filed instant
Notice of Motion for rejection of plaint under Order 7 Rule 11(d)
of Code of Civil Procedure, on the ground that there is no cause of
action arose in favour of the plaintiff to file present suit, grievance
of the plaintiff is entertainable before Company Law Board and
this Court has no jurisdiction to try and entertain the present suit.
2. It is contended by the defendant that the present suit has
filed by One Dileep Nevatia allegedly in the name of Plaintiff
Company. The said Dileep Nevatia is not a Director of the Plaintiff
Company nor ever was the Director of the Plaintiff Company. On
perusal of the plaint as a whole he challenged the removal of
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NM 2482-19 in L.C. Suit no. 450-09
2 Date : 09.09.2019
Dileep Nevatia, Sunita Nevatia and Karan Nevatia and also
challenged the form no. 32 filed before the Registrar of the
Company in respect of intimation of their removal. Therefore, the
plaint did not disclose any cause of action against defendants. If at
all the Dileep Nevatia, Sunita Nevatia and Karan Nevatia are
aggrieved by the Resolution of the Plaintiff Company or by their
removal as directors, then they should have challenged the same in
their personal capacity before Company Law Board.
3. It is further submitted that the plaintiff had claimed relief of
permanent injunction restraining the defendants from claiming the
Directorship of the Plaintiff Company. The defendant no. 1 to 4
are no more Directors of the Plaintiff Company and this Court has
no jurisdiction to decide the issue as to who is the directors of the
Plaintiff Company. The aforesaid issue is triable Company Law
Board. Therefore, in view of the Order 7 Rule 11(d) of Code of
Civil Procedure, the plaint needs to be rejected.
4. The Notice of Motion is opposed by the plaintiff through its
authorised director Mr. Dileep Nevatia. It is contended by the
plaintiff that as per Order 7 Rule 11 of Code of Civil Procedure, the
only consideration for rejection of the plaint is the plaint as a
whole and Written Statement could not formed basis of the
rejection of the plaint. In support of the aforesaid submission, the
plaintiff relied upon Judgment of Hon’ble Supreme Court
reported in AIR 2015 Supreme Court 2485 in Case of P.V.Guru
Raj Reddy & Ors. V/s. V.P. Neeradha Reddy & Ors.
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NM 2482-19 in L.C. Suit no. 450-09
3 Date : 09.09.2019
5. It is contended by the plaintiff that on perusal of contents of
Para 22 to 32, there are specific averments made disclosing cause
of action. Therefore, it could not be said that the plaint does not
disclose any cause of action. Hence, the plaintiff prayed for
dismissal of the present Notice of Motion with explanatory cost.
6. I have heard both the sides. Perused Notice of Motion, reply
as well as pleadings in the plaint. It is well settled law that it is the
averment in the plaint that has to be read as a whole to find out
whether it discloses cause of action or whether the suit is barred
under any law. At the stage of exercise of power under Order 7
Rule 11, the defence of the defendants in the Written Statement or
in the application for rejection of plaint is wholly immaterial. It is
only if the averment in the plaint, primafacie do not disclose the
cause of action or on reading thereof, the suit appears to be
barred under any law, the plaint can be rejected.
7. It is contended by the plaintiff that defendant no. 1 to 3
through series of transaction inducted Metropolis Healthcare
Limited in the premises of the plaintiff without prior permission of
the Board of Directors and without any resolution being passed by
the plaintiff. The defendant no. 1 and 2 have formed new
Company which was already closed by the plaintiff and obtained
bogus loan liability by mortgaging plaintiff’s property. The
defendants have cheated Plaintiff Company therefore, the claim
against them still subsist and the defendant no. 1 to 3 could not be
exonerated by merely giving resignation of the Plaintiff Company.
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NM 2482-19 in L.C. Suit no. 450-09
4 Date : 09.09.2019
Thus, on perusal of the aforesaid averment in the plaint, in my
view, the cause of action against the defendants are still served.
Hence, in my view, the Notice of Motion after a period of ten years
of the filing of the suit is nothing but an exercise of protracting and
delaying the present suit. Thus, in my view, the present Notice of
Motion needs to be dismissed with cost of Rs. 10,000/ to be
payable by the defendant no. 3 to the plaintiff. Thus, I proceed to
pass the following order.
ORDER
1. The Notice of Motion No. 2482 of 2019 is hereby dismissed
with cost of Rs. 10,000/ to be payable by the defendant no.
3 to the plaintiff within 15 days from the date of order.
2. Notice of Motion No. 2482 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 09.09.2019 Greater Mumbai
Dictated on : 09.09.2019
Typed on : 09.09.2019
Draft Submitted on : 09.09.2019
Checked on : 09.09.2019
Signed on : 11.09.2019
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NM 2482-19 in L.C. Suit no. 450-09
5 Date : 09.09.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
11/09/2019 at 3.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
09/09/2019
JUDGMENT/ORDER signed by P.O.
on
11/09/2019
JUDGMENT/ORDER uploaded on 11/09/2019
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