Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2609-19 in S.C. Suit no. 2098-15 Date : 17.09.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2609 OF 2019
IN
S.C. SUIT NO. 2098 OF 2015
(CNR NO.MHCC01-007164-2019)
Keystone Realtors Private Limited .. Applicant/
Original Def.
No.2
In the matter of
Ornate Housing Pvt. Ltd. .. Plaintiff.
Versus
The Abhyuday Nagar Sahakari
Gruhanirman Sansthancha Sangh Ltd. & Ors. .. Defendants
Appearances :-
Ld. Adv. Nikhil Rajeshirke for plaintiff.
Ld. Adv. Ms. Shachi Udeshi, Aryan for defendant no.2 .
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 3
Date : 17.09.2021
ORDER
1. The defendant no. 2 filed instant Notice of Motion for
recalling of order dated 12.07.2018, by which this Court ordered
to consider the preliminary issue of jurisdiction to be considered
with the main issue. The defendant further seeking to decide
preliminary issue of jurisdiction.
2. The Notice of Motion is opposed by the plaintiff by filing say.
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NM 2609-19 in S.C. Suit no. 2098-15 Date : 17.09.2019
Heard both the sides. Perused Notice of Motion and reply. It is not
in dispute that my Predecessor vide, order dated 25.11.2016
framed preliminary issue of jurisdiction. However, subsequently in
view of ordinance dated 29.10.2018 Section 9(a) of C.P.C. was
deleted. Therefore, my Predecessor vide, its order dated
12.07.2018 passed the order that the issue of jurisdiction shall be
considered with the main suit.
3. Ld. Advocate for the defendant no. 2 pointed out, subsequent
ordinance dated 15.12.2018 by which Section 3 of C.P.C. was
amended as under :
"(1) Where consideration of a preliminary issue framed
under section 9(a) is pending on the date of commencement
of the Code of Civil Procedure Act, 2018. The said issue shall
be decided and disposed of by the Court under Section 9(a),
as if the said section 9(a) has not been deleted.
4. Thus, Ld. Advocate for the defendant no. 2 argued that in
view of the aforesaid amendment the issue of jurisdiction needs to
be decided as if Section 9(a) is not deleted from the Code of Civil
Procedure and therefore, order dated 12.07.2018 needs to be
recalled in the interest of justice.
5. Ld. Advocate for the plaintiff pointed out that in view of
Section 9(a) of C.P.C., there is no interim application pending
either for stay, injunction, appointment of receiver or otherwise.
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NM 2609-19 in S.C. Suit no. 2098-15 Date : 17.09.2019
Therefore, there is no question of framing of preliminary issue. I
have perused Section 9(a) of C.P.C. from opening word of Section
is read as where
at the hearing of application relating to interim
relief in suit, objection to jurisdiction is taken, such issue to be
decided by the Court as preliminary issue". Admittedly, there is no
application for interim relief either for stay, injunction,
appointment of receiver or otherwise is pending in the matter.
Therefore, I find substance in the contention of the plaintiff. Such
issue can not be framed. Therefore, I am of the view that there is
no question of recalling of order dated 12.07.2018. The aforesaid
issue of jurisdiction shall be decided with main issue. Thus, in
view of that, I find no substance in the Notice of Motion and same
needs to be rejected. Thus, I proceed to pass the following order :
ORDER
1. Notice of Motion No. 2609 of 2019 is hereby rejected.
2. Parties to bear their own cost.
3. Notice of Motion No. 2609 of 2019 stands disposed of
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 17.09.2021 Greater Bombay.
Dictated on : 17.09.2021
Typed on : 17.09.2021
Draft Submitted on : 17.09.2021
Checked on : 18.09.2021
Signed on : 13.10.2021
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NM 2609-19 in S.C. Suit no. 2098-15 Date : 17.09.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
13/10/2021 at 3.00 p.m (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
17/09/2021
JUDGMENT/ORDER signed by P.O.
on
13/10/2021
JUDGMENT/ORDER uploaded on 13/10/2021
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