Order 2

Order Details: Notice of Motion
Pdf Text: NM 1741/2018 SUIT NO.2031/2017 1
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1741 of 2018
IN
SUIT NO.2031 of 2017
(CNR NO. MHCC010057222018)
Hasmukh J Mehta .. .. Plaintiff
Versus
India Government Mint & Anr. ...Defendants
Shri. S.K. Jain, Advocate for plaintiff.
Shri. Prasad Rao, Advocate for Defendants.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Judge
CR No. : 32
Dated :2nd May, 2019
ORDER
Defendant taken out this Notice of Motion for
(a) framing of preliminary issues u/s.9A of Code of Civil Procedure, in
terms of this court having no jurisdiction.
(b) to frame further preliminary issue in the light of there being explicit
clause no. 34.3 in respect of jurisdiction which states that courts of the
place from the notification of acceptance has been issued alone shall
have jurisdiction to decide any dispute arising out of or in respect of the
contract.
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(c) Suit be dismissed for want of compliance of statutory notice u/sec.
80 of Code of Civil Procedure.
(d) Pending the hearing and final disposal of this Notice of Motion,
further proceeding in the suit be stayed.
2. Plaintiffs have failed to comply with provisions of Section
80 of CPC therefore suit is liable to be dismissed. Plaintiff is
purportedly raising the dispute under the contract contains an
arbitration clause no.33.2 by virtue of which the subject matter of
purported dispute is required to be referred to arbitration as per the
terms of contract. The explicit clause no.34.3 of the contract
specifically provides that the courts of the place from whom the
notification of acceptance has been issued shall alone have the
jurisdiction to decide any dispute arising out of or in respect of the
contract. Plaintiff has wrongly filed the suit before this court.
3. In view of the above facts and circumstances the points in issue
pertaining to the jurisdiction are necessary to be decided as a
preliminary issue, hence defendant prays that Notice of Motion be made
absolute in terms of prayer clause.
4. Plaintiff filed reply on Notice of Motion. Section 9 (A) of
the C.P.C. has been removed by notification dtd. 27.08.2018 by
Government of Maharashtra, therefore prayer (a) and (b) now becomes
infructuous. Plaintiff has specifically pleaded in para 10 of the plaint
that this court has jurisdiction. Further without prejudice, when issues
are framed an issue of jurisdiction could be one of the issues if it
insisted by defendant. Neither of the defendant are Central Government
or State Government, therefore there is no requirement of law to give
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notice u/sec.80 of C.P.C. Defendants are the companies corporate
bodies registered under the Companies Act, therefore do not call
u/sec.80 of C.P.C. whereby notice is required to be given. In view of
the matter the Notice of Motion taken out by defendant is only
misconceived and untenable hence liable to be dismissed with costs.
5. Heard Ld. Adv. Shri. S.K. Jain for plaintiff and Ld. Adv.
Shri. Prasad Rao for Defendants.
6. Section 9 A – Defendant has raised the issue of jurisdiction.
Section 9 A of the C.P.C. has been deleted by virtue of promulgation of
C.P.C. (Maharashtra Amendment) ordinance, 2018 on 27.08.2018. The
said ordinance deleted Section 9 A with clarification
If preliminary issue u/sec. 9 A is pending on the date of
promulgation, such issue will be decided along with all other issues at
the time of final disposal of the suit.
7. Plaintiff has instituted a suit without issuing notice u/sec.
80 of C.P.C. The embergo u/sec. 80 of C.P.C. would be available only
Central Government, State Government or to a public officer in respect
of any act purporting to be done by such public officer in his official
capacity.
8. As defendant already taken out another Notice of Motion
No.3744 of 2018 for to refer the matter to the Arbitration u/s 8(1) of
the Arbitration and Conciliation Act,1996 and that motion has been
made absolute.
9. In view of above discussion I pass the following order.
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ORDER
Notice of Motion No.1741 of 2018 stands disposed of.
Date : 02.05.2019 (Pushpa N. Rao)
Ad hoc Judge
Bombay City Civil Court
Greater Mumbai
Dictation Direct typed on computer : 02.05.2019
Signed by HHJ on : 02.05.2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT / ORDER.”
UPLOAD DATE AND TIME : 02.05.2019 at 5.40 pm
NAME OF THE STOP GAP STENOGRAPHER : Mrs. P. S. Mahale
Name of the Judge HHJ Smt.Pushpa N Rao
C.R.No.32
Date of pronouncement of Judgment/
Order
02.05.2019
Judgment/Order signed by P.O. on 02.05.2019
Judgment/Order uploaded on 02.05.2019
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