Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 4234-19 1 in Sum. Su. 438-15
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4234 OF 2019
IN
SUIT NO. 438 OF 2015
John Augustine Gomes, )
Aged about 55 years having )
his address at 135, Augustin )
House, Kirol Village, Vidya- )
Vihar West, Mumbai- 400086) … plaintiff
Versus
Mrs. Madhurika Ajit Singhal )
Aged 51 years, Occupation )
Air Hostess, having her )
address at B-7/155, Chittar- )
anjan Nagar, Rajawadi, )
Ghatkopar (East), Mumbai- )
400 077 ) … Defendant
Appearance:-
Shri. Anand Singh, Advocate for plaintiff.
Shri. Vivek Dubey, Advocate for defendant.
CORAM :- HIS HONOUR JUDGE
S.C.PATHARE.
(C.R.NO.60)
DATE :- 3rd March, 2020
ORAL ORDER
1 Defendant has taken out this Notice of Motion.
Plaintiff instituted main suit for recovery of loan amount
Rs.40,000/- which were given in June/July 2010. Said amount
was due after six months i.e. in December 2010. Thereafter, suit
is not filed within three years period. On the other hand, this
suit came to be instituted on 15/4/2015, therefore, suit is time
-- 1 of 5 --
N
M 4234-19
2
in Sum. Su. 438-15
barred.
2. In the suit plaintiff alleged that he has given loan
Rs.2 Lacs in February 2011 to defendant which was due after
six months i.e. in August 2011. Thereafter plaintiff alleged
that he promised him to make arrangement of amount in
March 2012 and accordingly handed over him cheque of Rs.
2 Lacs dated 22/2/2012. Thereafter, said cheque got
dishonoured on 24/2/2012. On 15/3/2012 he issued legal
notice asking defendant to make amount within seven days.
Notice was received to defendant on 19/3/2012. Therefore,
limitation period of alleged debt started from 19/3/2012
whereas suit is instituted on 15/4/2015, beyond the limitation
period.
3. Plaintiff has not made averments in the suit as to
how suit is maintainable under the Limitation Act. Plaintiff
suppressed material facts and filed suit without cause of
action. Therefore defendant prayed to invoke provisions of
Order 7 Rule 11 of the C.P.C. and reject the plaint.
4. On behalf of opposite party i.e. the plaintiff’s
reply dated 25/11/2019 is submitted. Plaintiff strongly
opposed the application. In the suit evidence of plaintiff is
already adduced and this application is filed belatedly. This
suit is transferred from Hon’ble High Court to this court after
removing all the objections. According to plaintiff cause of
action is clearly disclosed in the plaint.
-- 2 of 5 --
N
M 4234-19
3
in Sum. Su. 438-15
5. I have heard arguments of both the learned
counsels.
6. Admittedly suit came to be transferred to this
court from Hon’ble High Court. In Hon’ble High Court this
suit was having number as SSL 2064/2012. Thereafter,
Summons for Judgment No.257/15 was taken out in which
court granted conditional leave to defend in favour of
defendant, by directing to deposit Rs.2 Lacs in the court.
Said order is dated 6/2/2016. It is pertinent to note that after
receipt of writ of summons in respect of summary suit under
Order 37 of the CPC defendant was duty bound to raise
objections at the earliest opportunity as expected under law,
but he did not do so. Thereafter, even at the time of hearing
of summons for judgment such specific objection was not
raised to frame preliminary issue of limitation, etc. In the
suit issues are framed at Exh.7 on 1/3/2017. Evidence of
plaintiff including cross examination got completed.
Thereafter, defendant after thought filed this Notice of
Motion. Therefore, at this fag end of the suit plaint cannot
be rejected without trial, as prayed. Perusal of Notice of
Motion it shows that defendant is trying to raise mixed
questions of law and facts regarding the limitation, etc.
which need to be decided in the main suit finally.
7. As above discussed the suit is pending since long.
In view of mandate of speedy trial such application which is
filed belatedly/ afterthought cannot be considered for the
-- 3 of 5 --
N
M 4234-19
4
in Sum. Su. 438-15
reasons discussed above. At the most it would be just and
proper to frame additional issues below Issues Exh.7
regarding limitation and cause of action.
9. Considering peculiar facts, circumstances etc. of
the matter I proceed to pass the following order in the
interest of justice.
ORDER
1. Notice of Motion No. 4234 of 2019 is partly
allowed as following-
2. The issue be framed regarding limitation and
cause of action as contended below issues Exh.7,
which shall be decided alongwith the main suit.
3. The Notion of Motion stands disposed of
accordingly.
4. Both parties are at liberty to argue on said legal
issue during final arguments.
5. Both parties to co-operate for speedy disposal of
the main suit.
6. Keep matter for framing above additional issues
on next date.
(S. C. Pathare)
Ad-hoc Judge
City Civil Court,
Gr. Bombay
Date :- 03/03/2020
Dictated on : 03/03/2020
Transcribed on : 03/03/2020
Signed on : 03/03/2020
-- 4 of 5 --
N
M 4234-19
5
in Sum. Su. 438-15
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
12/03/2020 5.50 p.m. Mrs. S.A.Shekade
Name of the Judge H.H.J. S. C. Pathare
Ad-hoc Judge. (Court Room No.60)
Date of pronouncement of Order 03/03/2020
Order signed by P.O. on 03/03/2020
Order uploaded on 12/03/2020
-- 5 of 5 --