Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No.2208/2018
in S.C. Suit No.2591/2017
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No.2208 of 2018
(CNR NO. MH CC01-007128-2018)
In
S.C. SUIT No.2591 OF 2017
Prabhunath Mohanlal Goyal …....Plaintif
V/s.
P.S.I. Vijay Kumar Ruchankar & Ors. ....Defendants
Appearance:-
Ms. Neelam Chedha, Advocate for the plaintif.
Mr. Akshay Wani, Advocate for the defendant Nos.5 & 6.
CORAM :- HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE :- 04th February, 2020.
ORDER
1. By this notice of motion, defendant Nos. 5 and 6
(Defendant Nos. 6 and 7 as mentioned in the suit) have prayed
to reject the plaint as not maintainable and without any cause
of action against defendant Nos. 6 and 7 being Accountant and
Branch Manger of Punjab and Maharashtra Co-operative Bank,
Carnac Bunder Branch, Mumbai (In short “PMC Bank”).
2. In support of notice of motion, afdavit is fled and it
is averred that PMC Bank is Multistate Scheduled Urban Co-
operative Bank having been conferred status of schedule bank
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in S.C. Suit No.2591/2017
by Reserve Bank of India (In short “RBI”) for its performance in
the year 2000. The Bank is governed as per the provisions of
Banking Regulations and Guidelines issued by the RBI.
3. It is further averred that one Mr. Shivaji T. Pawar is
account holder of the Bank operating account bearing
No.010100100000286 since the year 1997. On 18.11.2016,
Shri. Pawar visited the Bank with a view to deposit cash in the
account. The 93 currency notes of the denomination of
Rs.1,000/- each totaling to Rs. 93,000/- were found to be
suspicious since the colour changing thread was found to be
damaged on physical verifcation as well as counterfeit notes
detecting machine was also rejecting the suspicious notes. It is
further averred by defendant Nos. 6 and 7 that on 08.11.2016,
the Government of India has demonetized high value currency
notes through notifcation. Therefore, the notes were
impounded by following necessary procedure and the matter
was referred to concerned police station whose ofcers are
impleaded as defendant Nos.1 to 5. Defendant Nos. 6 and 7
are not concerned with investigation followed by the concerned
police station except reporting the matter as complainant. The
allegations and averments made in plaint would reveal that
primary allegations are about alleged treatment meted out to
plaintiff by person in-charge of concerned police station during
the stage of custody of plaintiff, apart from handing over
suspicious notes, defendants have not taken any part in the
investigation.
4. It is further averred that notes which were found to
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in S.C. Suit No.2591/2017
be suspicious are notifed or confrmed to be genuine based on
the investigation carried out by Nashik Printing press as per the
report submitted by the concerned police station. Thereafter,
summary report has been fled by the concerned police station
to close the complaint. Therefore, there is no cause of action
for plaintiff to make allegations as allegedly made in the plaint.
On perusal of reliefs claimed by the plaintiff, it would reveal
that the plaintiff has claimed damages as per the prayer clause
(b) of the plaint for causing injury and bodily harm due to
assault and hurt caused to the plaintiff. The defendants have
only made report after fnding the subject currency notes as
suspicious and counterfeit. Being bound by the circular issued
by RBI as well as Bank, defendants have acted as responsible
ofcers of the Bank. Therefore, it is prayed that notice of
motion may kindly be made absolute in terms of prayer clause
(a).
5. In afdavit-in-reply, plaintiff has denied entire
contentions of defendant Nos.6 and 7. The plaintiff has further
relied on the observations in the matter of “Hindustan
Unilever Limited V/s. Reckitt Benckiser (India) dated 17
July, 2014 by Hon’ble Madras High Court”, wherein it is
observed that “The plaint can not be rejected under Order-VII,
Rule-11 of Code of Civil Procedure, without trial, where the
case discloses cause of action”.
According to plaintiff, in the present case, cause of action
has been clearly stated in the plaint and where the said
averments are true or false can be decided only after evidence.
Notice of motion taken out by defendants is illegal and fled
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with malafde intention to misguide the Court. Therefore, it is
prayed that the notice of motion may kindly be dismissed with
heavy cost.
6. Learned Advocate for defendant Nos. 6 and 7
submitted that there are no allegations made against
defendant Nos. 6 and 7 in the plaint. The alleged ill treatment
meted out to plaintiff by the defendant Nos. 1 to 5 is issue,
which needs consideration for damages claimed by plaintiff.
Defendants have acted as per the legal procedure to check
currency notes as mandated by the guidelines issued by RBI.
Since, physical verifcation as well as detecting machine
reveals that 93 notes as counterfeit, the report was lodged in
the concerned police station. Therefore, there is no cause of
action arisen in order to implead defendant Nos. 6 and 7 in the
suit. Therefore, it is prayed that notice of motion may kindly be
made absolute.
On the other hand, it is submitted by learned Advocate of
plaintiff that on complaint lodged by defendant No.6, plaintiff
was arrested and therefore cause of action has arisen against
the defendants. The alleged currency notes were not verifed
by Senior Manager and complaint was fled. Therefore, it can
not be said that there is no cause of action against defendants.
Eventually, it is prayed that the notice of motion may kindly be
dismissed.
7. Order-VII, Rule-11 of Code of Civil Procedure is
extracted as under :
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in S.C. Suit No.2591/2017
Rule-11 Rejection of Plaint :- The plaint shall be
rejected in the following cases:-
a) Where it does not disclose a cause of action.
b) Where the relief claimed is undervalued, and the
plaintif, on being required by the Court to correct
the valuation within a time to be fied by the Court,
fails to do so;
c) Where the relief claimed is properly valued, but
the plaint is returned upon paper insufciently
stamped, and the plaintif, on being required by the
Court to supply the requisites stamp-paper within a
time to be fied by the Court, fails to do so;
d) Where the suit appears from the statement in
the plaint to be barred by any law;
e) Where it is not fled in duplicate.
In the present case, it is the contention of defendant
Nos. 6 and 7 that besides lodging complaint in the concerned
police station, they are not concerned with the investigation
carried out by defendant Nos. 1 to 5. Main allegation of
plaintiff against defendants are in respect of ill treatment
meted out to him by defendant Nos. 1 to 5 during investigation
of the crime. On relevant date, 93 currency notes deposited by
Shri. Pawar were found to be suspicious since colour changing
thread was found to be damaged on physical verifcation.
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Counterfeit notes detecting machine was also rejecting the
suspicious notes. Therefore, according to defendants, they
have only followed legal procedure as mandated by RBI
guidelines. The defendants have relied on master Circular
dated 20.07.2016 issued by the RBI in respect of detecting
and impounding of counterfeit notes. They have further relied
upon the instruction details issued by PMC Bank dated
31.08.2015 in respect of detection of counterfeit notes. In this
respect, it is contention of defendants that the counterfeit note
machine kept in the Bank was rejecting 93 notes deposited by
Shri. Pawar. It is alleged by plaintiff that defendant Nos. 6 and 7
and their Associates have given information to various News
Channels and Print Media regarding false case against plaintiff.
Therefore, the image of plaintiff and Shri. Pawar is damaged in
public. They suffered various physical as well as mental loss
which can not be compensated in terms of money. Whether
the procedure adopted by defendant Nos. 6 and 7 in detecting
the notes as counterfeit and whether due procedure was
followed or not are aspects to be considered at the stage of
trial. Therefore, at this stage from the averments made in the
plaint, I am of the opinion that cause of action has arisen in
favour of plaintiff as far as the allegations made against
defendant Nos. 6 and 7 and therefore plaint can not be rejected
as sought in the notice of motion.
8. Observations in the matter of “Hindustan Unilever
Limited V/s. Reckitt Benckiser (India) dated 17 July,
2014 by Hon’ble Madras High Court”, (Cited Supra) relied
by plaintiff refects that when the case discloses the cause of
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in S.C. Suit No.2591/2017
action, plaint can not be rejected without trial. As observed
earlier, the plaint discloses allegation against defendant Nos.6
and 7 in respect of procedure followed by them for detecting
counterfeit notes. Therefore, cited Judgment is applicable to
the present case.
9. Learned Advocate for defendants has cited Judgment
in the matter of T. Arivandandam V/s. T.V. Satyapal and
Ors. In (1977) 4 SCC 467.
It has been observed by Hon'ble Apex Court that :
“ The trial Court must remember that if on a
meaningful – no formal – reading of the plaint it is
manifestly veiatious and merit less in the sense of
not disclosing a clear right to sue, it should eiercise
its power under Order VII, Rule 11 C.P.C. taking care
to see that the ground mentioned therein is
fulflled. If clever drafting has created the illusion of
a cause of action, the court must nip it in the bud at
the frst hearing by eiamining the party searchingly
under Order X, C.P.C. An activist Judge is the
answer to irresponsible law suits. The trial Courts
would insist imperatively on eiamining the party at
the frst hearing so that bogus litigation can be shot
down at the earliest stage.”
In the present case, from the averments of plaint
allegations are made against defendant Nos. 6 and 7 and at
this stage they are not found vexatious and merit less.
Therefore, with due respect to the observations laid down
above it is not applicable to the present case.
10. Learned Advocate for defendants has further cited
the Judgment in the matter of Kusum Ingots & Alloys Ltd.
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in S.C. Suit No.2591/2017
V/s. Union of India & another in (2004) 6 SCC 254.
It has been observed by Hon'ble Apex Court that :
“ Cause of action implies a right to sue. The
material facts which are imperative for the suitor to
allege and prove constitute the cause of action.
Cause of action is not defned in any statute. It has,
however, been judicially interpreted inter alia to
mean every fact which would be necessary for the
plaintif to prove, if traversed, in order to support
his right to the Judgment of the Court. Negatively
put, it would mean that everything which, if not
proved, gives the defendant an immediate right to
Judgment, would be part of cause of action. Its
importance is beyond any doubt. For every action,
there has to be a cause of action, if not, the plaint
or the writ petition, as the case may be, shall be
rejected summarily. The entire bundle of facts
pleaded need not constitute a cause of action as
what is necessary to be proved before the
petitioner can obtain a decree is the material facts.
The eipression material facts is also known as
integral facts. All necessary facts must form an
integral part of the cause of action.”
In that case, the question involved was where the
seat of parliament or legislature of the State would be relevant
factor in determining the territorial jurisdiction of the High
Court to entertain Writ Petition under Article-226 of the
Constitution of India. In the present case, it is observed that
whether the procedure adopted by defendant Nos. 6 and 7 to
detect the counterfeit currency notes is proper or not will be
issue to be decided at the stage of trial and therefore at this
stage it can not be concluded that there is no cause of action
arisen against defendant Nos.6 and 7. Considering the
observations laid down in the cited case laws relied by both the
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sides and facts of the present case, I am of the opinion that
notice of motion does not need any favourable consideration.
Hence, I pass following order.
ORDER
1) Notice of Motion No. 2208/2018 is dismissed.
2) Notice of Motion No.2208/2018 stands disposed off
accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date :- 04/02/2020
Dictated on : 04.02.2020
Transcribed on : 05.02.2020
Signed on : 12.02.2020
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in S.C. Suit No.2591/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
12.02.2020 03.10 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 04.02.2020
Order signed by P.O. on 12.02.2020
Order uploaded on 12.02.2020
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