Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 103525 / 2023
Ramesh - Pyromaster
Order (Exh.19) 1 of 4
City Civil and Sessions Court, Mazgaon, Greater Mumbai
Court Room No. 31 – Commercial Court
(Additional District Judge : Vijay S. Hingne, LL. M.)
MHCC010101942023
Notice of Motion Filed :
05.09.2023
Arguments closed :
07.02.2024
Decided on :
07.02.2024
Duration : 05 M, 03 Days
Exhibit No.19
Notice of Motion No. 103525 / 2023
from
Commercial Suit No. 100280 / 2021
Plaintiff : Ramesh Dajaram Choudhary
VERSUS
Defendant : M/s. Pyromaster Furnace Pvt. Ltd.
Appearances
Plaintiff
: Adv. Shri Arun Rajput
Defendant
: Adv. Shri S. R. Mourya
Notice of Motion for rejection of plaint.
************************************************************************
ORDER
(Pronounced on this 7th Day of February, 2024)
Defendant has filed present Notice of Motion for
rejection of Plaint or dismissal of Suit under Order 7 Rule 11 of
Code of Civil Procedure.
-- 1 of 4 --
NM No. 103525 / 2023
Ramesh - Pyromaster
Order (Exh.19) 2 of 4
Case of plaintiff :
2) Ramesh Dajaram Choudhary (hereinafter,
Plaintiff) is
partner of Micro Steel Corporation, Mumbai, Maharashtra. It
deals in Stainless Steel and other industrial raw materials.
M/s. Pyromaster Furnace Pvt. Ltd., Chennai, Tamilnadu
(hereinafter,
Defendant) is Private Limited Company.
3) In pursuance of orders placed by defendant from
25.02.2012 onward, plaintiff has sold, supplied and delivered
goods to defendant. However, defendant neglected the payment.
Hence, plaintiff preferred present Commercial Suit No. 100280 /
2021 for recovery of .	₹ 3,99,878/- with interest @ 18 % p. a.
Notice of Motion No. 103525 / 2023 (Exh. 19, Dt. 05.09.2023) :
4) Defendant preferred present Notice of Motion,
challenging maintainability of Suit, on following grounds :
i. Plaintiff partnership firm is not registered firm. Hence,
it cannot file any Suit.
ii. Being unregistered firm, Suit is hit by Sec. 69 of Indian
Partnership Act.
iii. Alleged transactions are from year 2012. Hence, Suit is
barred by limitation.
iv. There is no cause of action.
5) Perusal shows that, after defendant filed the Notice of
Motion on 05.09.2023, plaintiff was present on next dates i.e. on
05.10.2023 and on 07.12.2023. However, he did not filed reply to
the Notice of Motion. Today also, plaintiff side is absent. There is
no application for adjournment from plaintiff.
6) Considering the age of the Suit and Notice of Motion,
Notice of Motion is subjected for adjudication.
Points for determination :
7) Heard Learned Counsel Shri S. R. Mourya for
-- 2 of 4 --
NM No. 103525 / 2023
Ramesh - Pyromaster
Order (Exh.19) 3 of 4
defendant. Perused Record. Points for determination, findings and
reasons are as follows :
Points
Findings
1. Is Plaint liable to be rejected for
want of territorial jurisdiction?... In the Negative
2. What Order?................................ As Final Order.
R E A S O N S
Reasons as to Point No. 1 & No. 2 :
8) Whether plaintiff partnership firm is registered or not,
can be ascertained, only after plaintiff adduces his evidence and
defendant conducts the cross-examination of witness of plaintiff.
Thereafter, it is settled principle of law that, limitation is mixed
question of law and evidence.
Hence, both these aspects can be adjudicated, only if
plaintiff adduced his evidence and defendant conducts cross-
examination. It is not possible to come to any conclusion
regarding maintainability or non-maintainability of the Suit, in
absence of evidence. Therefore, present Notice of Motion cannot
be considered, at this stage.
9) Perusal shows that, plaintiff has already filed his
evidence-affidavit on 15.04.2023 and has got his documents
marked at Exh. 12 to Exh. 18. It means, since that date, Suit is
pending for cross-examination of plaintiff’s witness Ramesh
Chaudhary, at the hands of defendant. Considering right of cross-
examination available with defendant and further considering
aforesaid discussion, the Notice of Motion needs to be dismissed.
Hence, Points are so answered and Notice of Motion is disposed
off, by following Order :
ORDER
1. Notice of Motion No. 103525 of 2023, is dismissed.
2. Defendant shall conduct cross-examination of plaintiff’s
witness on next date.
-- 3 of 4 --
NM No. 103525 / 2023
Ramesh - Pyromaster
Order (Exh.19) 4 of 4
3. Considering age of the Suit, parties to expedite.
4. Proceeding of Notice of Motion No. 103525 of 2023 is
closed.
5. Parties be informed that, they are having right to
challenge this Order.
6. Order dictated and pronounced in Open Court.
7. Record of Notice of Motion shall be part and parcel of
Commercial Suit No. 100280 / 2021.
Mumbai
Dated : 07.02.2024 (Vijay S. Hingne)
Additional District Judge,
Court Room No.31 – Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
Visit ecourts.gov.in for updates or download mobile app “eCourts Services” from Android or iOS
-- 4 of 4 --