Order 7

Order Details: Other
Pdf Text: 20
26.09.2024 Court Room No.31 - Commercial Court, Mumbai
Coram : Shri V. S. Hingne, Additional District Judge,
Sr. No.5
Commercial
Suit No.
100079/2019
Executive Trading Vs Maruti Steel Fab and 2 Ors.
Adv. Arvind Giriraj present for plaintiff.
Defendant representative Gaganjyot Singh present.
His counsel absent.
Both submitted that, their Written arguments be
considered as oral arguments on both pending
applications.
Accordingly, pending application at Exh.45 and Exh.46
are taken for Orders.
Through application at Exh.45, defendant prayed for
Rejection of Plaint under Order 7 Rule 11 on following
ground-
-Suit is imaginary.
-There is not agreement or contract between parties.
-Suit lacks cause of action.
-Plaintiff has not filed purchase Orders.
-Defendant had received material from M/s. Topworth and
Tubes Pvt. Ltd., Pune.
-Suit is bad for non joinder of Topworth and Tubes.
-Defendant had not received legal notice.
-Transaction is not of Commercial Nature.
Through application at Exh.46, defendant prayed for
discarding the evidence affidavit of witnesses of plaintiff
on following grounds-
-Plaintiff has introduced entirely new facts in evidence
affidavit.
-Those facts were not pleaded in plaint.
-Thereby plaintiff is deposing beyond pleadings.
Plaintiff, through Reply at Exh.47 and Exh.48 has
opposed both application at Exh.45 and Exh.46.
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26.09.2024
Sr. No.5
Commercial
Suit No.
100079/2019
Perusal shows that, on 21.01.2021, my Ld. Predececure
already framed issues regarding, privity of contract, non
joinder of parties, supply of goods, etc. Therafter plaintiff
has filed evidence affidavit of witness - PW1 Pankaj
Surekha (Exh.28). Thereby, Suit is pending for cross-
examination of PW1 Pankaj at the hands of defendant.
As issues are already framed, then, in given facts and
circustances, deciding the controversy, merely on face of
application and without giving an opportunity to plaintiff
to lead evidence, would be improper.
All the objections which are raised by defendant, through
aforesaid applications at Exh.45 and Exh.46, can be
raised by defendant, during cross-examination of plaintiff
witness. It is only thereafter, controversy could be
adjudicated on merit. Considering aforesaid right
available with defendant, application are disposed off by
following Order-
ORDER
1. Application at Exh.45 is rejected.
2. Application at Exh.46 is rejected.
Suit is of 2019. Parties to expedite.
Suit adjourned to 08.10.2024 for evidence.
Judge
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