Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2088/18 SUIT 2970/2015 1
CNR NO.MHCC010067952018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.2088 of 2018
IN
SUIT NO.2970 of 2015
Mrs.Sailaxmi Panjeti .. Plaintiff
Versus
Mr.Ganesham Naidu ...Defendant
Shri. Mooman Jafrey advocate for the Plaintiff.
Shri.Deepak Pandey advocate for Defendant.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Judge
CR No. : 32
Dated : 1st November 2018
ORDER
1. Defendant taken out this motion for rejection of plaint under
Order VII Rule 11(a) & (d) of the Code of Civil Procedure.
2. The power of attorney is undated and unsealed therefore, prima
facie bogus document. According to plaintiff cause of action arose on
14/04/2015 when plaintiff sent a legal notice to the defendants
demanding repayment of loan amount which plaintiff had
transferred in two installment firstly on 15/12/2003 and secondly on
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NM 2088/18 SUIT 2970/2015 2
02/02/2004. But the suit is filed in the year 2015 therefore, claim of
the plaintiff is hopelessly time barred, hence, motion be made absolute
in terms of prayer clause.
3. Plaintiff filed the reply. There are email correspondence
between the plaintiff and defendant thereby plaintiff has reminded the
defendant about the payment and refund of the amount paid. The
copies of the emails are 11/02/2014, 25/06/2014 and 09/2/2014
reply of the defendant through email seeking time to refund . The
power of attorney dated 02/12/2014 is perfectly and validly executed
at the State of New Jercy before the Notary public Krina S Patel and put
his signature and seal on the power of attorney. Defendant had
originally acknowledged before the expiry of limitation period which
gives fresh cause of action, therefore, suit is not barred by limitation,
hence, motion be dismissed with costs.
4. Heard Ld.advocate Shri. Mooman Jafrey for the Plaintiff and
Shri.Deepak Pandey for Defendant.
5. At the stage of deciding application under Order VII Rule 11
court has actually required to see a disclosure of material facts. The
court cannot go beyond the four corners of the plaint and documents if
any, annexed therewith. Correctness of falsity of cause of action
projected in suit cannot be gone into and plaint cannot be rejected on
an enquiry whether the allegations are true in fact. Prior to the filing of
the suit plaintiff had issued a legal notice to the defendant on
14/04/2015 that notice is replied by defendant on 11/05/2015.
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NM 2088/18 SUIT 2970/2015 3
6. I have perused the plaint and annexures with the plaint carefully.
From the perusal of averments in the plaint, it clearly indicates the
cause of action for filing the suit in the year 2015. Though the plaintiff
has transferred the money in the name of defendant to his bank account
No.0601050118659 in the Bank of HDFC Bank Branch at Fort, Mumbai
499 991 by way of transfer of US dollars in 2 installments in December
2003 and February 2004. Thereafter, there was a email
correspondence between the parties, therefore, cause of action was
continues. Moreover, plea of limitation is a mixed question of law and
fact, therefore, plaint cannot be rejected only on the contention of
defendant that though the amount was transferred in the year 2003
2004 but suit is filed in the year 2015.
7. In view of above discussion, there is no merit in the contention
taken out by defendant in the motion, hence, I proceed to pass
following order.
ORDER
Notice of Motion No.2088 of 2018 is dismissed with costs
Dated : 01/11/2018 (Pushpa N. Rao)
Ad hoc Judge
City Civil & Sessions Court
Greater Mumbai
Direct typed on computer on : 01/11/2018
Signed by HHJ on : 01/11/2018
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NM 2088/18 SUIT 2970/2015 4
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
02/11/2018 at ( 5.00p.m) Mrs. J.V.Pawar
Name of the Judge (With Court room No.) HHJ Smt.Pushpa N Rao
C.R.No.32
Date of Pronouncement of
JUDGMENT/ORDER
01/11/2018
JUDGMENT/ORDER signed by
P.O.on
01/11/2018
JUDGMENT/ ORDER uploaded on 02/11/2018
.
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