Order 4

Order Details: Notice of Motion
Pdf Text: NM No. 2089 / 2025
Canara Vs. Phoenix
Order 1 of 4
MHCC010045402025
City Civil and Sessions Court, Mazgaon Greater Mumbai
Court Room No. 31 – Commercial Court
Notice of Motion No. 2089 / 2025
in
Commercial Suit No. 274 / 2021
M/s. Phoenix Travels … Applicant
(Original Defendant)
IN THE MATTER BETWEEN
Canara Bank … Plaintiff
Vs.
M/s. Phoenix Travels … Defendant
Appearances :
Defendant : Adv. Satish Nikhar
Plaintiff : Adv. Rahul Gupta
Adv. Fatima Lakdawala
CORAM : PRASAD P. KULKARNI
COURT ROOM NO.31.
DATE : 04.12.2025
***************************************************************
ORDER
(Delivered on this 4th day of December, 2025)
1. Defendant moved this Notice of Motion with a prayer to
refund of court fees due to order of rejection of Counter Claim passed
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Canara Vs. Phoenix
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by the then Presiding Officer on 30.03.2022. Notice of Motion is
supported by an affidavit. Despite of service, plaintiff not filed reply to
Notice of Motion. Heard Advocate for defendant and perused the
Judgment in case of Dr (Col.) Subhash Chandra Talwar Vs. T.
Choithram & Sons & Ors. in Petition(s) for Special Leave to Appeal (c)
No(s) 18102/2013 Dt. 01.12.2014 as relied on by plaintiff.
2. I have gone through Record and Proceeding. On 30.03.2022,
the then Presiding Officer had rejected the Counter Claim under Order
VII Rule 11(a) and (b) of the Code of Civil Procedure 1908 (CPC, for
short). It was observed that there was no reference of valuation, court
fees, cause of action and jurisdiction in the Counter Claim. It was also
observed that court fees was not paid while filing Counter Claim. So,
non payment of court fees was one of the reason Counter Claim was
rejected.
3. Review Petition preferred by defendant vide no. 117/2022
was turned down on 06.01.2025 by the then Presiding Officer. In that
order as well, the then Presiding Officer reiterated that, court fees was
not paid. Vide this Notice of Motion, defendant is claiming refund of
court fees of Rs.16,300/-. Once the Counter Claim is rejected for the
above mentioned reasons and when Review Petition is turned down,
there is no reason for this Court to ponder over issue of refund of so
called court fees.
4. In case of Subhash Chandra (supra), there was an order of
return of plaint under Order VII Rule 10 of CPC, so the order of refund
of court fees was passed. However, here is no such case. Order of
rejection of plaint or Counter Claim is a deemed decree within the
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meaning of Section 2(2) of the CPC. Such a deemed decree or order
rejecting Counter Claim is appellable. However, defendant has not
preferred appeal against said order. Hence, I find no merit in this Notice
of Motion. Grounds are not satisfactory. Hence, Notice of Motion is
dismissed.
ORDER
1. Notice of Motion No. 2089 of 2025 is dismissed.
2. Order is dictated and pronounced in Open Court.
3. Record of Notice of Motion No. 2089/2025 shall form part of
Commercial Suit No. 274/2021.
Mumbai
Dated : 04.12.2025
(Prasad P. Kulkarni)
Judge, City Civil & Sessions Court,
Court Room No.31 - Commercial Court,
Mazgaon, Greater Mumbai
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
04.12.2025 5.30 p.m. Prachi Y. Potdar
Stenographer - Grade I
Name of the Judge HHJ Shri. Prasad. P. Kulkarni
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
04.12.2025
Judgment/order signed by P.O on 04.12.2025
Judgment/order uploaded on 04.12.2025
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