Final Order 1

Order Details: Other
Pdf Text: 18/07/2022
Commercial
Suit –
538/21
CORAM : H.H.J. SHRI S.U. HAKE, JUDGE, CITY CIVIL
COURT (C. R. NO. 14)
Adv. Neha Pandey for plaintiff present.
Adv. Riddhi Doshi for defendant present.
ORDER BELOW N/M NO.2303/2022
Heard both sides.
2. This N/M is taken out by defendant praying to reject
the plaint as per Order 7 Rule 11 of C.P.C.
3. Inspite of service of N/M, plaintiff failed to file reply.
Therefore, N/M proceeded without reply of plaintiff.
4. Defendant submits that there is no cause of action to
file suit against defendant. Suit is barred by Limitation
Act. Ld. Counsel for defendant relied upon the case of
Raghwendra Sharan Singh V/s. Ram Prasanna Singh
(dead) by legal representatives, (2020) 16 Supreme
Court Cases 601. In this case, Hon’ble Apex Court held
that plaint is liable to be rejected if on entire and
meaningful reading of averments of plaint, it is found to
be not disclosing a cause of action and clear right to sue
or is found to be barred by law of limitation.
5. It is well settled that for deciding present N/M,
averments made in the plaint are required to be
considered.
6. Plaintiff contends that he has purchased motor
vehicle by taking financial assistance from defendant. He
was making monthly installments to defendant. He has
also taken out insurance policy from defendant. Said
policy was valid from 27.12.2013 to 26.12.2014.
However, his motor vehicle was stolen. He gave report
for the same. On the basis of said report, crime bearing
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Contd...
Commercial
Suit –
538/21
no.98/2014 was registered at police station, R.A.K. Marg,
Mumbai. Concerned investigating officer filed the ‘A
summary report’ and said ‘A summary report’ was
accepted by Hon’ble Metropolitan Magistrate. Plaintiff
further submits that he is entitled to get value of the
motor vehicle from defendant insurance company. But,
defendant is trying to take coercive action against plaintiff
for recovery of loan amount. By making these averments,
plaintiff prayed for declaration that nothing is payable by
plaintiff to defendant. Plaintiff further prayed for
perpetual injunction restraining defendant from taking
coercive action against him for recovery of the loan
amount.
7. Plaintiff pleads that he has taken loan from
defendant. He relied upon account statement (Exh.A). As
per copy of the account statement filed on record along
with plaint (Exh.A), it is crystal clear that defendant has
not advanced loan to the plaintiff. One ‘Magma Fincorp
Ltd.’ advanced loan to the plaintiff. As per certificate of
insurance (Exh.B) annexed with plaint, defendant is an
insurance company who has insured plaintiff’s vehicle.
8. From the averments made in the plaint and
documents annexed with the plaint, it can be safely
inferred that present defendant has not advanced loan to
the plaintiff for purchasing the motor vehicle. In para
no.29 of the plaint, it is pleaded that cause of action to
file suit arose in May/August 2019 when criminal
proceedings are initiated by defendant against plaintiff.
However, plaintiff has neither pleaded particulars of said
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Contd...
Commercial
Suit –
538/21
proceeding nor filed on record copies of said proceeding.
9. As discussed above, defendant has not advanced
loan to the plaintiff. Therefore, there is no question of
taking coercive action against plaintiff for recovery of loan
amount. Plaintiff is also not entitled to get the declaration
against defendant as prayed in the plaint. Thus, plaint
does not disclose a cause of action against defendant.
Therefore, plaint is liable to be rejected as per Order 7
Rule 11 (a) of C.P.C. Considering the peculiar facts of the
case, no order regarding costs is passed. In the result,
following order.
ORDER
1. Plaint is rejected.
2. No order as to costs.
3. Decree thus follow.
4. Notice of Motion No.2303 of 2022 is disposed of
accordingly.
5. Proceedings be closed.
Judge
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