Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010082222019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION No.3005 OF 2019
IN
SUMMARY SUIT NO.399 OF 2019
Ms. Smita Ambalal Patel
A Senior Citizen, aged 63 years
Occupation-Business, having her
Address at 147, Mahatma Gandhi Road,
Temple Bar Building, Second Floor,
Opp. Kala Ghoda, Fort, Mumbai-400 001. .... Plaintiff
V/s.
Mr. Mangesh Manubhai Chokshi
Adult, Occupation- Business,
having his address at (I) 39,
Sanskar Bharti Society, Near
Ankur Bus Stand, Narangpura,
Ahmedabad-380013 and
(ii) Mangesh Manubhai Chokshi
2217, Manek Chowk, Chokshi Bazar
Ahmedabad 380001. .... Defendant.
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH.
JUDGE CITY CIVIL COURT
(C.R. NO.59).
DATE : 30/04/2021
-- 1 of 5 --
2 N/M No. 3005 of 2019
in Suit No. 399 of 2019
Appearance
Plaintiff in person.
Adv. Mr. Vijay Nene for the defendant.
ORDER
This is a notice of motion taken out by the defendant for
rejection of plant as being barred by law and for non-disclosure of cause
of action under Order VII Rule 11 of the Code of Civil Procedure.
2. The plaintiff has filed reply to the notice of motion.
3. Perused the notice of motion and reply of the plaintiff.
Heard plaintiff in person and advocate for the defendant at the length.
4. The defendant has raised objection to the maintainability of
the suit under Order VII Rule 11 of the Code of Civil Procedure.
According to the defendant the plaint does not disclose cause of action.
The suit claim is under valued. The territorial jurisdiction of this court is
barred and lastly, this suit is not maintainable as summary suit.
5. The basic parameter for deciding application and Order VII
Rule 11 of the Code of Civil Procedure is the plain reading of the plaint.
The present suit is for recovery of amount given to the defendant vide
RTGS on 17.02.2016. The defendant has issued five cheques for the
repayment of the same. It is pleaded by the plaintiff in the plaint in
various paragraphs that inspite of requests made by her and issuance of
notice, the defendant has failed to pay the said amount. Therefore, she
is constrained to file this suit. It is held that the plaint from its contents
in various paragraph discloses very much about the cause of action to
file the suit. It is also held that as the case is based on giving of money
-- 2 of 5 --
3 N/M No. 3005 of 2019
in Suit No. 399 of 2019
through RTGS that is bank transfer and cheques were issued against the
same. The Summary suit is maintainable for the said cause of action.
6. The next objection raised by the defendant is regarding non
maintainability of the suit on the ground of non payment of requisite
Court fees. According to the defendant, this plaint is liable to be
rejected as the suit claim is under valued. On perusal of the plaint as
well as endorsement of the Board Department regarding the payment
of Court fees, it appears that plaintiff has properly valued the suit on
the suit claim of Rs.38,43,800/- and paid total Court fees of
Rs.60,230/-. It appears that plaintiff has paid Court Fees on the
principal amount of Rs.25,00,000/- as well as on interest claimed i.e.
Rs.13,43,800/- . Therefore, it is held that plaintiff has made proper
valuation of the suit claim and paid proper court fees.
7. The last objection of the defendant is regarding territorial
jurisdiction of the Court. According to the defendant, as he resides at
Ahmedabad the cause of action has arose in Ahmedabad. Hence, the
Court at Bombay do not have jurisdiction to adjudicate the suit. It
appears from the plaint as well as documents filed by the plaintiff that
she has transferred the amount through RTGS from her account of
Standard Chartered Bank , Santacruz Branch, Mumbai. The amount is
held to be paid from Mumbai to the defendant. Hence, it is held that the
cause of action to file this suit has arose at Mumbai and this Court at
Mumbai has jurisdiction to adjudicate this suit.
8. In these background, it is held that the plaint discloses the
cause of action. The suit claim is properly valued and sufficient court
-- 3 of 5 --
4 N/M No. 3005 of 2019
in Suit No. 399 of 2019
fees has been sufficiently paid by the plaintiff. It is further held that this
court has territorial jurisdiction to adjudicate this suit. Therefore, this
suit is maintainable in its present form and not barred under Order VII
Rule 11 of the Code of Civil Procedure. The plaint is not liable to be
rejected. In consequence,the Notice of Motion deserves to be dismissed.
Hence, the order. :
ORDER
1. The Notice of Motion No.3005 of 2019 is dismissed.
2. The Notice of Motion No. 3005 of 2019 is disposed off.
(S.G.Shaikh)
Judge,
Date : 30.04.2021 City Civil Court, Gr.Mumbai.
(Court Room No.59)
Dictated on : 30.04.2021
Typed on : 30.04.2021
Signed on : 30.04.2021
-- 4 of 5 --
5 N/M No. 3005 of 2019
in Suit No. 399 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
30.04.2021 02.00 p.m. ( M.P Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.59)
Date of Pronouncement of
JUDGMENT/ORDER
30.04.2021
JUDGMENT/ORDER signed by
P.O.on
30.04.2021
JUDGMENT/ORDER uploaded on 30.04.2021
-- 5 of 5 --