Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1.. NM NO. 2699/2019
MHCC010074292019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2699 OF 2019
IN
SUIT NO. 6361 OF 2004.
(HIGH COURT SUIT NO.534 OF 2004)
Shree Precoated Steels Ltd., …Plaintiff
Versus
China Merchants Bank and Others. … Defendants.
Advocates
Sushant Yadav for the plaintiff.
Megharanjani Chandu for defendant no.1.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2) I
DATED : 27th November 2021.
ORAL ORDER
Heard advocate for both parties on notice of motion moved on
behalf of defendant no.1 for striking off affidavit of evidence dated
20.07.2016 and additional affidavit of evidence dated 14.06.2017 of
PW-1 (Harish Gulabchand Taparia) on the ground that plaintiff
company was incorporated as R.V.S. Steels & Allied Industrial Ltd.,
(RVSAIL) and Certificate of Incorporation was issued in its favour on
18.03.1985. On 24.10.1985, RVSAIL changed its name to Shree
Precoated Steels Ltd., (the plaintiff) and received Certificate of
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ORDER ..2.. NM NO. 2699/2019
Commencement of Business and 06.01.1986. Plaintiff instituted the suit
on 05.02.2004. On 17.09.2007, one new entity called Ajmera Reality
Pvt. Ltd., (ARPL) was incorporated. On 05.05.2008, name of plaintiff
company is changed to Ajmera Reality & Infra India Ltd., (ARIIL). On
22.07.2008, ARPL changed its name to Ajmera Precoated Steels Pvt
Ltd. (APSPL) and fresh Certificate of Incorporation is issued. All rights
and liabilities of ARIIL stood transfer to APSPL by order dated
21.03.2009 passed by the Hon'ble Bombay High Court in Company
Petition No. 63/2009 and Company Petition No. 64/2009. On
17.04.2009, name of APSPL was changed to Shree Precoated Steels
Ltd. Hence name of APSPL now is the same as what was the name of
the plaintiff company at the time of filing of the suit. This resulted in
utter confusion and plaintiff is seeking to take advantage of the same.
2. Contention of advocate for defendant no.1 is that plaintiff
company was incorporated in the year 1985 but the rights of the
plaintiff company transferred to APSPL which was incorporated in the
year 2007. Above facts came to light in the year 2016 when plaintiff
witness filed affidavit of evidence on 20.07.2016. Hence defendant
no.1 had taken out Notice of Motion No. 2957/2017 for rejection of the
plaint on the ground that plaintiff company was no longer in existence.
In para no.15 of reply to said notice of motion, plaintiff averred that
though name of the plaintiff company was again changed from APSL to
Shree Precoated Steels Ltd., the date of incorporation remains the same
which is 17.09.2007 and this is the plaintiff company in which all the
litigations pertaining to steel division were transferred.
3. Thus according to advocate for defendant no.1, the plaintiff
company cannot give evidence. Hence affidavit and additional affidavit
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ORDER ..3.. NM NO. 2699/2019
of evidence filed by PW-1 (Harish Gulabchand Taparia) is liable to be
struck off. Though it is not mentioned in the affidavit in support of
notice of motion but during the hearing, advocate for defendant no.1
orally submitted that PW-1 has no personal knowledge about the case.
Hence he prayed for allowing the notice of motion as prayed.
4. In support of contentions, advocate for defendant no.1 relied on
the Judgment of the Hon'ble Bombay High Court in Suit No.3598/1996
decided on 07.04.2014. I have gone through the Judgment relied on by
advocate for defendant no.1. It appears that the contents of some of the
paragraphs of affidavit of evidence filed by defendant to the suit and
plaintiff to the counterclaim in the said suit was in the nature of
submissions, arguments and not in the nature of evidence as per the
provisions of Order 18, Rule of 4 of the C.P.C. Hence the Hon'ble High
Court excluded the said portion from affidavit of evidence of the
witness. However it is not the same contentions of advocate for
defendant no.1 in the present case. Hence the Judgment relied on by
advocate for defendant no.1 is not helpful to support his contentions in
support of notice of motion.
5. Advocate for the plaintiff submitted that authorized
representative of the plaintiff company has filed affidavit of evidence
and he has conversant with facts of the case from the record available
with the plaintiff. All the facts stated in the present notice of motion
have already been adjudicated in notice of motion no. 2957/2017 filed
by defendant no.1 and said notice of motion is dismissed on
23.08.2018. Defendant no.1 had filed Review Petition No.10/2019
against the order dated 23.08.2018 and said review petition is also
rejected on 27.03.2019. After any company demerges, its Certificate of
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Incorporation number (CIN Numbers) changes as two companies
merged into one and therefore it is not possible to have two CIN
Numbers. Defendant no.1 never disputed or denied documents of the
plaintiff. Present notice of motion is mischievous, baseless and malafide.
Hence prayed for dismissal of notice of motion.
6. Plaintiff strongly opposed the notice of motion by filing reply.
Perused the Notice of Motion, reply of the plaintiff and pleadings of the
parties.
7. Relevant facts of the case for decision of present notice of
motion are that the suit is for recovery of amount under Letter of
Credit. Defendant no.1 opposed the claim of plaintiff by filing written
statements. Issues are framed. Plaintiff filed affidavit of evidence dated
20.07.2016 and additional affidavit of evidence dated 14.06.2017 of
PW-1 (Harish Gulabchand Taparia) and case was fixed for cross
examination.
8. Facts stated in the notice of motion are not in dispute. However
defendant no.1 had already taken out Notice of Motion No.2957/2017
for rejection of the plaint on the same grounds. After hearing, this Court
dismissed said notice of motion on 23.08.2018 on its merits. Defendant
no.1 had filed Review Petition No.10/2019 against the order dated
23.08.2018 and said review petition is also rejected on 27.03.2019.
Said order dated 27.03.2019 is not challenged by defendant no.1. Issues
raised by defendant no.1 in the present notice of motion are already
adjudicated by this Court. Further defendant no.1 stated in affidavit in
support of present notice of motion that name of APSPL now is the
same as what was the name of the plaintiff company at the time of
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filing of the suit. Thus cause of action arose to file the present suit does
not comes to an end. Defendant no.1 agitating the same issues again
and again before this Court by way of Notice of Motion No. 2957/2017,
Review Petition No.10/2019 and now by present notice of motion.
9. Further this Court has framed issues on 04.11.2015. From
perusal of roznama dated 04.11.2015, it appears that suit already
proceeded as undefended against defendant no.2 to 4. Defendant no.1
vide his written statement dated 31.08.2004 opposed the suit only on
the ground of territorial jurisdiction. In view of this, the Court framed
following issues:-
(i) Whether this Court has territorial jurisdiction over the subject
matter ?
(ii) Whether the plaintiff is entitled for reliefs claimed ?
(iii) What order and decree ?
10. In view of issue no.1, defendant no.1 can prove at the trial that
this Court has no jurisdiction over the subject matter of the suit in view
of the controversy raised by defendant no.1. Thus there appears no
reasonable grounds for filing present notice motion. Though defendant
no.1 mentioned in affidavit in support of notice of motion that
defendant no.1 had filed Notice of Motion No. 2957/2017 but he had
not mentioned about dismissal of said notice of motion. Similarly
defendant no.1 suppressed the fact that he had filed Review Petition
No.10/2019 against the order in Notice of Motion No. 2957/2017 and
said review petition is also dismissed. Thus it appears that defendant
no.1, who is the only contesting defendant, trying to prolong the matter
anyhow. Hence under the facts and circumstances, notice of motion is
liable to be dismissed with costs.
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ORDER ..6.. NM NO. 2699/2019
ORDER
1. Notice of motion no. 2699/2019 is dismissed with costs of
Rs.10,000/- out of which Rs.5,000/- is to be paid to the plaintiff and
Rs.5,000/- is to be deposited with District Legal Services Authority
before next date.
2. Notice of motion no. 2699/2019 is disposed of.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 27.11.2021
Typed on : 27.11.2021
HHJ signed on : 27.11.2021
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ORDER ..7.. NM NO. 2699/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 27.11.2021, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
27.11.2021
JUDGMENT/ORDER signed by P.O.
on
27.11.2021
JUDGMENT/ORDER uploaded on 27.11.2021
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