Date: 26-04-2019
Business: Adv. Benita Kapadia for Plaintiff present.
Adv. Nandini Chittal for Defendant present.
Registered NM No.1586/19 filed by Defendant t.o.r.
Adj for NM reply and hearing to 03.05.2019.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 03-05-2019
Date: 03-05-2019
Business: Adv. Binali Dave for Plaintiff present.
Adv. Nandini Chittal for Defendant present.
K.B.
L.O.
Adv for Plaintiff filed reply to NM.
Copy given to other side.
Adj for NM hearing to 17.07.2019.
Next Purpose: NM FOR HEARING
Next Hearing Date: 17-07-2019
Date: 17-07-2019
Business: Record is not received from copying section.
Adv. Bhadang for Plaintiff present.
Adv. Nandini Chittal for defendant present.
Adv for Plaintiff sought adjournment.
Adjournment is granted.
Adj for NM hearing to 01.08.2019.
Next Purpose: NM FOR HEARING
Next Hearing Date: 01-08-2019
Date: 01-08-2019
Business: Adv. Menita Kapadia for Plaintiff present.
Adv. Nandini Chittal for defendant present.
At the request of Adv for defendant, adj for NM hearing to 28.08.2019.
Next Purpose: NM FOR HEARING
Next Hearing Date: 28-08-2019
Date: 28-08-2019
Business: Matter adjd to 16/09/2019 for NM Hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 16-09-2019
Date: 16-09-2019
Business: None for plaintiff.
Adv. Ms.Nandini Chittal for defendant present.
Adv.Ms. Kapadia for plaintiff present.
Heard adv. For plaintiff on NM no 1586/19
Adv. For defendant wants to take appropriate steps on the point of delay condonation.
Matter is adj on 23-09-2019 for taking steps.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 23-09-2019
Date: 23-09-2019
Business: Adv. Binali Dave for plaintiff present.
Adv. Nandini Chittal for defendant present.
Exh. 4 -Application for con-donation of delay filed by applicant / defendant. Copy is given to plaintiff.
O- Plaintiff has to file their say on application.
Adjd for reply.
Matter is adjd for reply to 30.09.2019
Next Purpose: REPLY
Next Hearing Date: 30-09-2019
Date: 30-09-2019
Business: Adv. Binali Dave for Plaintiff present.
Adv. Nandini Chittal for defendant present.
Say filed by plaintiff to application Ex-4. t.o.r.
Copy given to other side.
KB
LO
Already heard both sides on NM No.1586 of 2019.
Heard advocate for both sides on application Exh.4
COMMON ORDER PASSED BELOW NOTICE OF MOTION NO.1586 OF 2019 AND EXHIBIT 4
Notice of motion is taken out by defendant to recall order dated 2nd August, 2018 and to fix the date for hearing on preliminary issue framed under section 9A of CPC. Defendant has also filed application vide Exh.4 for condoning delay caused in filing above referred notice of motion.
It is contended that delay of 90 days has been caused in taking out notice of motion and prayed to condone said delay.
Plaintiff opposed the said application on the count that delay caused is due to gross negligence on the part of applicant/ defendant. Plaintiff has also opposed notice of motion on the count that no case is made out to recall the order dated 02.08.2018.
It is pertinent to note that preliminary issue was framed by my learned predecessor on 03.04.2014. Thereafter, matter was adjourned from time to time for hearing on preliminary issue. Said issue was decided by my learned Predecessor on 31.10.2015 and held that this Court has jurisdiction to entertain and try the present suit. Said order was challenged by the defendant before Hon\''ble High Court in CRA No.22 of 2016 and as per order dated 22.01.2016, impugned order dated 31.10.2015 was set aside by Hon\''ble High Court with consent of parties and directed this Court to decide preliminary issue of jurisdiction after considering material on record as also after considering pleas taken by the defendant in affidavit and further, directed this court to give reasons about the applicability of otherwise of the decision of the Hon\''ble Apex Court in the case of Mansukhlal Dhanraj Jain. Thereafter, matter was again adjourned for hearing on preliminary issue. My learned predecessor vide order dated 02.08.2018 passed order considering the recent amendment in section 9A of CPC, ordered that, preliminary issue as framed in the suit shall be deemed to be issue framed under Order 14 of CPC and shall be decided along with other issues.
It is pertinent to note that present notice of motion is taken out after coming into force Maharashtra Act No.LXXII of 2018 on 15.12.2018. Said amendment provides that Where consideration of preliminary issue framed under section 9A is pending on the date of commencement of Code of Civil Procedure (Maharashtra Amendment) Act, 2018, the said issue shall be decided and disposed off by the Court under section 9A, as if said section 9A has not been deleted. In view of this legal position it is clear that on the date of coming into force i.e. 27.06.2018 of amendment deleting section 9A of CPC preliminary issue relating to jurisdiction was pending for decision by this Court. Therefore, in view of amendment as pointed above it is necessary to decide preliminary issue under section 9A of CPC. It is mandate of law. In the facts of matter delay caused in preferring present notice of motion is condoned. Hence pass following order
ORDER
1. Application Exh.4 is allowed.
2. Notice of Motion No.1586 of 2019 is allowed and made absolute in terms of prayer clauses (a) and (b).
3. Accordingly, application and notice of motion stands disposed off.
Matter is posted and adjourned for preliminary issue to 02.11.2019 at 11.00 a.m.
Nature Of Disposal: ALLOWED
Disposal Date: 30-09-2019