Interim Order 6

Order Details: Notice of Motion
Pdf Text: NM No.101083 / 2023
Ashok - Rajesh
Order (Exh.7) 1 of 8
City Civil and Sessions Court, Mazgaon Greater Mumbai
Court Room No. 31 – Commercial Court
MHCC010030292023
Notice of Motion Filed : 14.03.2023
Arguments Over : 05.03.2025
Decided on : 05.03.2025
Duration : 01 Y, 11 M, 19 D
Exhibit No. 7
Notice of Motion No. 101083 / 2023
from
Commercial Suit No. 100134 / 2019
Plaintiffs 1 M/s. Ashok Commercial Enterprises
2 Ramesh Uttamchand Ramchandani
VERSUS
Defendant : Rajesh Jugraj Madhani
Appearances
Plaintiffs
: Adv. Rasesh Shah
Defendant
: Adv. Sadaf Maldar
Adv. Hardik Desai
CORAM : H. H. JUDGE SHRI S. B. BHANSALI
COURT ROOM NO.31.
DATE : 05.03.2025
************************************************************
ORDER
1) Defendant filed this Notice of Motion for rejection of the Plaint on
the ground that, the Suit filed by the plaintiff is barred by law of
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Order (Exh.7) 2 of 8
limitation under Order 7 Rule 11 (d) of the Code of Civil Procedure,
1908 (in short, CPC).
2) Plaintiff vide Reply (Exh.9) resisted the Notice of Motion mainly on
two grounds :
i. The earlier Notice of Motion No. 100840 / 2020 filed by the
defendant was for rejection of the Plaint under Order 7 Rule
11 of CPC and for non-compliance of the provisions of Sec.
12A of the Commercial Courts Act, 2015 (in short, CC Act).
ii. The Hon’ble High Court while deciding Writ Petition No.
10573 /2022 has already held that, the Suit cannot be
dismissed on the issue of limitation, as triable issue does exist
and therefore claimed dismissal of the Notice of Motion with
cost.
3) I have perused written notes of arguments (Exh.13 & 14) filed by
learned Advocates for the parties and entire record. Heard Learned
Advocates appearing for the parties. Following points arise for
consideration and I have recorded my findings thereon for the reasons
stated hereunder:
Points
Findings
1 Is defendant entitled for reliefs
sought?.............................................. In the Negative
2 What Order? …………………………. As per final order.
R E A S O N S
Reasons as to Point No. 1 & No. 2 :
4) Learned Advocate for the defendant invited attention of this Court
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towards Order Dt. 10.03.2021 passed in Notice of Motion No. 840 /
2020 in the Suit and submits that, while dismissing the said Notice of
Motion, the Court did not give findings on the issue of limitation and
therefore bar under Section 11 of CPC may not be attracted for dealing
and deciding the present / subsequent Notice of Motion.
5) Learned Advocate for the defendant took me through the
averments made in the Plaint and documents filed with the Plaint and
submits that, the Suit is barred by limitation, as the transaction as
alleged in the Plaint is of the year 2015 and the Suit is filed on
09.09.2019, much after the period of 3 years prescribed for filing the
Suit on the basis of invoices of the year 2015. Lastly, Learned Advocate
submits that, there is no triable issue and therefore, the Plaint may be
rejected.
6) Per contra, Learned Advocate for the plaintiff submitted that, once
the issue with respect to limitation was decided at an earlier point of
time by this Court in Notice of Motion No. 840 / 2020 and attained
finality, the same issue cannot be re-agitated at later stage in the same
proceeding and on the sole count, the Notice of Motion is liable to be
rejected.
7) Learned Advocate for plaintiff further submitted that, the Hon’ble
High Court while deciding the Writ Petition No. 10573 / 2022 has
specifically dealt with the issue of limitation and observed that, the
triable issue does exist on the point of limitation. Learned Advocate in
support of his contentions places reliance on following three decisions
of the Hon’ble Superior Courts :
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i.
Shakti Bhog Food Industries Ltd. Vs. Central Bank of India &
Anr., (2020) 17 SCC 260;
ii.
Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust &
Ors., (2006) 5 SCC 658;
iii.
Popat and Kotecha Property Vs. State Bank of India Staff
Association, (2005) 7 SCC 510,
and submits that the issue of limitation is a mixed question of law and
fact and the same cannot be decided summarily as it requires a fact-
finding inquiry which can be done during the course of the trial.
Learned Advocate further submits that, the Suit is well within
limitation, as both the Bills of Exchange are on demand and the demand
was made by Notice Dt. 28.06.2019 and on failure of the defendant to
comply the said Notice, filed the Suit on 09.09.2019. Lastly, Learned
Advocate submits that the Notice of Motion has no merit and the same
deserves to be dismissed with exemplary costs.
8) Indeed, Order 7 Rule 11 CPC gives ample power to the Court to
reject the Plaint, if from the averments in the plaint, it is evident that
the suit is barred by any law including the law of limitation.
9) Pertinently, in
Popat and Kotecha Property’s case cited supra, the
Hon’ble Supreme Court held that Order 7, Rule 11(d) applies only
where the statement as made in the plaint without any doubt or dispute
shows that suit is barred by any law in force.
10) In
Shakti Bhog Food Industries’ case cited supra, the Hon’ble
Supreme Court held that Court’s duty is to scrutinize averments
contained in plaint as a whole on their face value to ascertain bar of
limitation and to take decision on the application.
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11) Following the aforesaid principles of law laid down in cited cases
supra, I have perused averments made in the Plaint and documents
annexed thereto. They unequivocally go to show that, the plaintiff No. 1
is a registered partnership Firm and plaintiff No. 2 is its partner.
Plaintiff No. 1 is in business of property and financing. The defendant is
director of one M/s. Mighty Construction Pvt. Ltd. On the request of the
defendant, plaintiffs advanced financial help of Rs.50,00,000/- through
RTGS, on 27th May, 2015. On 5th August, 2015 defendant acknowledged
the liability. The defendant simultaneously executed Bill of Exchange
Dt. 27th May, 2015 (Exh. A) against advance of Rs. 50,00,000/-. On
05.08.2015 defendant wrote a confirmation letter (Exh.B) to the
plaintiff No. 1. The defendant issued two cheques (Exh. C and Exh. D)
both Dated 30th October, 2015 for Rs. 50,00,000/- and Rs. 2,33,333/-
respectively towards principal and interest amount. However, both
cheques were dishonoured when presented to the Bank. Therefore, the
plaintiffs when contacted, the defendant requested the plaintiff to defer
the demand and issued a fresh Bill of Exchange (Exh.E) on 30th
October, 2015 waiving the Notice of dishonour and also assured that on
demand the payment would be made. As per Notice Dt. 28.06.2019
(Exh.F), for the first time a demand for liquidating the amount payable
by the defendant to the plaintiff as per aforesaid Bill of Exchange was
made to the defendant.
12) So, prima facie, on the face value of the plaint and documents, the
issue of limitation as raised by the defendant cannot be decided at the
threshold as it requires fact finding inquiry, which can only be possible
after completion of the trial. The plaintiff has rightly placed reliance
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upon
Balasaria’s case cited supra, wherein the Hon’ble Apex Court held
that the suit could not be dismissed as barred by limitation without
proper pleadings, framing of issue of limitation and taking evidence.
Question of limitation is a mixed question of law and fact and ex facie
on reading of the plaint, suit cannot be held to be barred by limitation.
13) Even assuming for a while and for the sake of argument that the
issue of limitation was raised in the earlier Notice of Motion No. 840 /
2020, filed by the defendant but not expressly considered by the Court
still a bar under Section 11 of the CPC is very well attracted for the
present Notice of Motion filed for the same relief.
14) Indeed, the Hon’ble Bombay High Court while deciding the Writ
Petition No. 10573 / 2022 vide Order Dt. 31.01.2023 in Para No. 19 has
observed as under :
19. Mr. Davar has contended that the period of limitation
would commence either from ‘due-date’ or atleast from the
date of dishonor of cheques. Mr. Jain would contend that the
Bills of Exchange were payable ‘on demand’ and such demand
was raised by Plaintiffs on June 28, 2019. In this connection
reliance is placed on judgment of this Court in Bank of India
(supra). Plaintiffs deposited the cheques and according to Mr.
Davar deposit of cheques would itself constitute ‘demand’. I
do not wish to record any findings on these contentions at
this stage as doing that may affect the mind of the City Civil
Court while deciding the issue of limitation. Suffice it to state
at this juncture that a triable issue does exist atleast on the
point of limitation. (emphasis supplied)
15) In view of specific observation by the Hon’ble High Court that a
triable issue does exist at least on the point of limitation, the present
Notice of Motion taken out by the defendant is barred by the principle
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of res judicata. Hence, filing such Notice of Motion is nothing but an
attempt to protract the trial which is completely against the objectives
of the Commercial Courts Act, 2015 and therefore, the same is liable to
be dismissed with costs. In view of aforesaid discussion, I answer Point
No.1 in the negative and to answer point no.2, I proceed to pass the
following order :
ORDER
1.
Notice of Motion No. 101083 of 2023 is dismissed with cost
of Rs. 5,000/-(Rs. Five Thousand) to be paid to the plaintiff.
2.
Defendant shall pay said cost by next date and shall file
compliance pursis to that effect, before this Court.
3.
Order dictated and pronounced in Open Court.
4.
Proceeding of Notice of Motion No. 101083 / 2023 is closed.
5.
Record of Notice of Motion No. 101083 / 2023 shall be part
of Commercial Suit No. 100134 / 2019.
Mumbai
Dated : 05.03.2025
(S. B. Bhansali)
District Judge,
Court Room No.31 - Commercial Court,
City Civil & Sessions 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
12.03.2025 12.00 noon Prachi Y. Potdar
Stenographer - Grade I
Name of the Judge HHJ Shri. S. B. Bhansali
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
05.03.2025
Judgment/order signed by P.O on 11.03.2025
Judgment/order uploaded on 12.03.2025
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