Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 4872/22 in S.C.Suit No. 2884/19. 1 Order.
MHCC010140292022
Presented on : 26-12-2022
Registered on : 26-12-2022
Decided on : 09-01-2024
Duration : 1 years, 0 months, 14 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4872 OF 2022
IN
SHORT CAUSE SUIT NO. 2884 OF 2019
Mr. Bharathan Suresh Babu )...Plaintiff
Versus
Mahesh Mehta )...Defendant
Shri Venkat Rao alongwith Shri Akash Gaonkar, Advocate for the
defendant.
None for the plaintiff.
CORAM : HIS HONOUR JUDGE SHRI S.D.KULKARNI.
(COURT ROOM NO.66).
DATE : 9th JANUARY, 2024.
ORDER
1. The defendant has taken out the notice of motion for
rejection of plaint under Order 7 Rule 11 r/w Section 151 of the CPC as
well as Order 14 Rule 2 of the CPC on the ground that suit is barred by
the Law of Limitation.
2. It is alleged by the defendant that plaint does not disclose
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N/m No. 4872/22 in S.C.Suit No. 2884/19. 2 Order.
any cause of action against the defendant as defendant is noway
concerned to Hope Graphics. There is no relationship or connection
between defendant and Hope Graphics. Further contention of the
defendant that suit of the plaintiff is based on two invoices mentioned
in the plaint of November, 2013 and December, 2013. The contention of
the plaintiff that payment was required to be made within 60 days from
the date of invoice, by the defendant, but plaintiff did not receive any
payment towards these invoices after January, 2014. Suit is filed in the
year 2019, therefore barred by Law of Limitation and deserves to be
dismissed. Thus, by way of this notice of motion defendant prayed for
rejection of plaint.
3. The plaintiff failed to file reply to the notice of motion
though sufficient chances given to him.
4. I have gone through the plaint, written statement filed by
the defendant. Notice of motion is filed by the defendant under Order
14 Rule 2 of the CPC for rejection of plaint as suit is barred by Law of
Limitation. I have gone through the entire plaint, therein it is
specifically mentioned that since January, 2014 plaintiff has not
received any amount from the defendant. The suit of the plaintiff is
based on the two invoices dated 27/11/2013 and 03/12/2013. The
contention of the plaintiff that final payment of the material is to be
made within 60 days. The plaintiff did not receive any amount after
January, 2014 is itself clear from para no.7 of the plaint. As per Article
15 of the Limitation Act, for the limitation for the price of goods sold
and delivered to be paid after the expiry of the fixed period of credit the
limitation period is three years and period begins to run when the credit
expires. So it means after the delivery of goods and after the expiry of
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N/m No. 4872/22 in S.C.Suit No. 2884/19. 3 Order.
60 days plaintiff has to file suit within three years. The plaintiff in para
no.12 of the plaint clearly stated that he has done followups with the
defendant for almost three years for payment but defendant ignored.
The suit is based on two invoices only of the year November and
December, 2013.
5. It is a matter of record that the point of limitation is a
mixed question of law and fact. But in case at hand, there is nothing
filed on record by the plaintiff to show that he has filed a suit within
limitation. Plaintiff only issued notice firstly in the month of October,
2015, then in the month of May, 2018 and lastly in February, 2019. But
issuing notice does not extend the limitation period. So on going
through the entire plaint, copy of invoice, account statement, therein
also the last transaction between the parties is mentioned of
03/12/2013. Therefore, in my opinion, suit is not filed within
limitation, more particularly within three years as per Article 15 of
Limitation Act. Therefore, plaint deserves to be rejected. Considering
this, I pass following order :
- ORDER -
1. Prayer clause (a) and (b) of Notice of Motion No. 4872/2022 is
made absolute.
2. The Short Cause Suit No. 2884/2019 is disposed off as the plaint
is barred by Law of Limitation.
(S.D.KULKARNI)
Judge,
City Civil Court,
(Court Room No.66)
Date : 09/01/2024. Mumbai.
1. Dictated online on : 09/01/2024.
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N/m No. 4872/22 in S.C.Suit No. 2884/19. 4 Order.
2. Placed for correction on : 15/01/2024.
3. Checked on : 18/01/2024.
4. Correction carried on : 18/01/2024.
5. Signed on : 18/01/2024.
6. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/01/2024. 3.52 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri S.D.Kulkarni.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 09/01/2024.
Judgment/Order signed by P.O. on 18/01/2024.
Judgment/Order uploaded on 18/01/2024.
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