Order 2

Order Details: Notice of Motion
Pdf Text: N/m No. 156/22 in Comm. Suit No. 180/19. 1 Order.
MHCC010003422022
Presented on : 12-01-2022
Registered on : 12-01-2022
Decided on : 22-04-2022
Duration : 0 years, 3 months, 10 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 156 OF 2022
IN
COMMERCIAL SUIT NO. 180 OF 2019
Life Insurance Corporation of India Ltd. ...Applicant
(Defendant no.2)
IN THE MATTER BETWEEN
Bank of Baroda ...Plaintiff
Versus
Mr. Ramsevak Upadhyay and one ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 22nd APRIL, 2022.
Shri Gaurav Jain, Advocate for defendant no.2.
Shri K.D.Shukla, Advocate for the plaintiff.
ORDER
1. This notice of motion is taken out by defendant no.2 for
rejection of the plaint under Order VII Rule 11(d) of the CPC. Perused
notice of motion and affidavit in reply. I have gone through the suit
proceeding. Heard learned counsel Shri Gaurav Jain for defendant no.2
-- 1 of 4 --
N/m No. 156/22 in Comm. Suit No. 180/19. 2 Order.
and learned counsel Shri K.D.Shukla for the plaintiff.
2. Learned counsel Shri Gaurav Jain for defendant no.2
submitted that preinstitution mediation is mandatory as per Section
12A of the Commercial Courts Act, 2015 (for short, 'the Act'). He
relied upon observations of Hon'ble Bombay High Court in the case of
Deepak Raheja V/s. Ganga Taro Vazirani (2021 SCC OnLine Bom
3124) in para 37 and 48 to reiterate the mandatory nature of pre
institution mediation. By placing reliance upon this citation, he
submitted that the plaintiff got preinstitution mediation dispensed with
from the Court, but he did not seek any urgent interim relief. The
plaintiff has not exhausted the remedy of preinstitution mediation.
Therefore, the plaint is liable to be rejected. The plaintiff is a banker
and defendant no.1 is insured. The suit is covered by definition of
'Commercial Dispute' under Section 2(c) of the Act. He prayed for
rejection of the plaint.
3. On the contrary, learned counsel Shri K.D.Shukla for the
plaintiff submitted that monetary relief is sought against defendant
no.1. No relief is sought against defendant no.2. Defendant no.2 is a
formal party. Notice of motion is not maintainable. Preinstitution
mediation is dispensed with by the order of the Court. No such order
was obtained in the case referred in the citation. Therefore, above
referred citation is not applicable to the case in hand. He prayed that
notice of motion may be dismissed.
4. In view of material on record and rival submissions, it
appears that the plaintiff got exemption from preinstitution mediation
by pressing the issue of urgent interim relief before the Court. The
-- 2 of 4 --
N/m No. 156/22 in Comm. Suit No. 180/19. 3 Order.
plaintiff has not filed any notice of motion for urgent interim relief. In
short, the plaintiff made submission about urgent interim relief before
the Court for dispensing with preinstitution mediation, but he did not
proceed to press such remedy. Therefore, the plaintiff has tried to avoid
process of preinstitution mediation without intending to avail remedy
for urgent interim relief. For this reason, the plaintiff is not justified in
proceeding ahead in the suit proceeding without going through the
process of mediation. The defendant has rightly relied upon above
referred citation. Considering the facts and circumstances of the case, it
would be appropriated to refer the parties for mediation instead of
rejecting the plaint. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 156/2022 is dismissed.
2. Commercial Suit No. 180/2019 is referred to mediation.
3. Both parties are directed to appear before the Mediator at
Mediation Centre on 04/05/2022 at 1.00 p.m. for
participating in mediation process.
4. Proceeding of N/M No. 156/2022 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.31)
Date : 22/04/2022. Mumbai.
1. Dictated online on : 22/04/2022.
2. Signed on : 22/04/2022.
3. Delivered to Certified :
Copy Section on
-- 3 of 4 --
N/m No. 156/22 in Comm. Suit No. 180/19. 4 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22/04/2022. 3.54 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 22/04/2022.
Judgment/Order signed by P.O. on 22/04/2022.
Judgment/Order uploaded on 22/04/2022.
-- 4 of 4 --