Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.359 OF 2019
(CNR NO.MHCC010009052019)
IN
S. C. SUIT NO. 658 OF 2016
Hemali Ashwin Dhame & Anr. )..Plaintiffs
V/s.
Dombivali Nagari Sahakari Bank )
Ltd. & Ors. )..Defendants
Appearances :
Ld. Adv. Rahul Thorat for plaintiff.
Ld. Adv. Vishwali Botle h/f Adv. Ashutosh Gole for Defendant No.1.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 22/02/2023.
ORDER
1 This notice of motion is taken out by the defendant No.1 for
recall of order in roznama dated 07/07/2018. As per the record, it
reveals that in the roznama dated 01/08/2017, this Court had framed
preliminary issues regarding the jurisdiction, however, in the wake of
deletion of Section 9A of Code of Civil Procedure, vide roznama dated
07/07/2018, this Court ordered to try these issues alongwith other
issues that are to be framed. It is the contention of the Ld. Counsel for
defendant No.1 that there are two notification issued in this regard and
as per the second notification, the issues framed prior to amendment and
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deletion of Section 9A from the Code of Civil Procedure are required to
be tried as if no amendment is incorporated in respect of Section 9A in
the Code of Civil Procedure, and prayed for recall of Order in roznama
dated 07/07/2018.
2 The plaintiff resisted the contention by filing reply
contending that the Court has rightly directed to try the preliminary
issue alongwith other issues as the provisions of Section 9A of the Code
of Civil Procedure came to be deleted by way of Amendment Act, 2018,
which came into force on 27/06/2018. Hence, prayed for rejection of
motion.
3 Heard rival parties at length.
4 After the deletion of Section 9A by way of amendment in
the Code of Civil Procedure there were two notifications issued,
therefore, ambiguity arose in respect of applicability of provisions. When
the matter came up before the Hon'ble Bombay High Court, in case of
Shabbir Ibrahim Mestry and Anr. Vs. Anjum Rahim Mestry and Ors.
reported in 2019 SCC Online Bom 1530 : (2020) 2 Mah LJ 342 :
(2019) 6 Bom CR 588, the Hon'ble Lordship has cleared the ambiguity
regarding the applicability of the amendment incorporated in Code of
Civil Procedure by way of Amendment Act, 2018 and observed in Para
No.10 that :
10. Thus, by the Second Amendment Act, clause (1) of
section 3 of the First Amendment Act is substituted with re
application of section 9A Civil preliminary issue of
jurisdiction is framed and pending. Therefore, net effect is
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that; where the preliminary issue is framed under section
9A, Civil Procedure Code and is pending for consideration
on the date of commencement of First Amendment Act,
2018 i.e. 27th June, 2018, the said preliminary issue shall
be decided and disposed of by the Court under section 9A,
Civil Procedure Code.
5 Considering the observation of Hon'ble Bombay High Court
in the cited Supra, I am of the view that in the instant case, as the issues
were framed in the year 2017, those are required to be decided and
disposed off as if Section 9A in the Code of Civil Procedure is not
deleted. Thus, the order dated 07/07/2018, to try these issues
alongwith other issues is not proper and deserves to be recalled. Hence,
the following order :
O R D E R
1. Notice of Motion No.359/2019 in S.C. Suit
No.658/2016, is hereby allowed.
2. Order in roznama dated 07/07/2018, stands
recalled.
3. Notice of Motion is disposed off accordingly.
(Dictated and pronounced in open Court).
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court,
Dated : 22/02/2023 C.R. No.03, Gr. Mumbai
Dictated on : 22/02/2023
Transcribed on : 23/02/2023
Signed on :
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“Certified to be true and correct copy of the original signed order”.
23/02/2023
at about 5.47 p.m.
(Ms. Sonali S. Sawant)
Stenographer (GradeIII.)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 22/02/2023
Order signed by Hon'ble Judge on : 23/02/2023
Order uploaded on : 23/02/2023
at about 5.47 p.m.
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