Code of Civil Procedure (Maharashtra Amendment) Act, 2018 – s.9A – Several rounds of litigation between the parties – In Suit No.III, Settlement Agreement was entered into under which 75,001 shares of respondent No.2 were transferred to the appellant(s) by respondent no.3 – Respondent no.1 filed Suit No.IV to cancel the said Agreement, inter alia praying for declaration of respondent no.1’s ownership of 75,001 shares of respondent no.2 – Appellants filed affidavit u/s.9A, CPC (Maharashtra Amendment) Act, raising preliminary issue of limitation by contending that the suit prayers claiming ownership over the 75,001 shares of respondent no.2 is barred by limitation as the Settlement Agreement between the appellants was entered on 05.12.02 while Suit No.IV was filed by respondent no.1 in 2008 – Single Judge allowed the petition filed by the appellants –Division Bench in appeal by the respondent no.1, set aside the order – Held: In view of the interpretation given to s.9A by the three Judges Bench in Nusli Veville Wadia vs. Ivory Properties & Ors. reported as (2019) 13 SCALE 620 inter alia holding that no issue can be decided only under the guise that it has been framed u/s.9A and was pending consideration on the date of commencement of the 2018 Act, the question of limitation will have to be considered along with other issues that would arise for adjudication in Suit No.IV – In view of the said judgment, the decision rendered by the Single Judge and the Division Bench on the issue of limitation by considering that as preliminary issue would become nullity and the matter would have to proceed afresh – Suit No.IV to proceed afresh from the stage of framing of the issues being uninfluenced by any of the views expressed by the Single Judge and the Division Bench – Question of limitation be determined along with other issues arising for consideration – No opinion expressed on the merits of the matter – Single Judge requested to proceed with the Suit No.IV expeditiously and dispose the same preferably within 18 months – Code of Civil Procedure (Maharashtra Amendment) Act, 1977.
Disposing of the matters, the Court
HELD: 1.1 Though, various contentions have been raised on the merits of the matter, in view of the change in the law and deletion of Section 9A of the Code (in its application to the State of Maharashtra) and the judgment of the Supreme Court in Nusli Veville Wadia v. Ivory Properties & Ors. (2019) 13 SCALE 620, it is not necessary to consider the merits of the contentions. The State of Maharashtra inserted Section 9A to the Code of Civil Procedure vide Code of Civil Procedure (Maharashtra Amendment) Act, 1977. Section 9A provided that where an application has been made for granting or setting aside an order granting interim relief in a suit, if either of the party challenged the jurisdiction of the Court to entertain the suit, the Court would have to decide the preliminary issue of jurisdiction before deciding the aforesaid application. The amended Section 9A came to be repealed by CPC Maharashtra (Amendment) Ordinance 2018 with effect from 27.06.2018 and Section 9A of the Code (in its application to the State of Maharashtra) was deleted by Section 3 of the Ordinance. The above Ordinance was replaced by the Code of Civil Procedure (Maharashtra Amendment) Act, 2018 on 29.10.2018. It was provided that the preliminary issues framed under Section 9A shall be treated as an issue under Order XIV CPC and be decided by the courts with other issues as the court may deem fit. On 15.12.2018, the State of Maharashtra enacted the Code of Civil Procedure (Maharashtra Amendment) Act, 2018 which provided for a saving clause. Section 2 of the Amendment Act provided that if the court has ordered to decide an issue as a preliminary issue before the date of deletion of Section 9A, it shall be decided by the court as a preliminary issue. After repeal of Section 9A, because of divergent views, in Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (Dead) Through Legal Representatives and Others (2015) 6 SCC 412 and Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar and Ors. (2015) 7 SCC 321, Section 9A as it stood came up for consideration before the three Judges Bench in (2019) 13 SCALE 620. In view of the said judgment passed by the Hon’ble Three Judges Bench, the question of limitation will have to be considered along with other issues that would arise for adjudication in Suit No.2410 of 2008 filed by respondent No.1. The trial in the Suit No.IV-2410 of 2008 has to be proceeded independently on its own merits. In view of the judgment by the Three Judges Bench, the decision rendered by the learned Single Judge as well as by the Division Bench on the issue of limitation by considering that as preliminary issue would become nullity and the matter would have to proceed afresh. [Paras 15-17, 19] [403-F-H; 404-A-E; 406-D-E]
1.2 Directions and observations: (i) The order dated 16.03.2017 passed by the learned Single Judge in Suit No. 2410 of 2008 and the order dated 08.08.2019 (corrected on 19.09.2019) passed by the Division Bench in Commercial Appeal No. 148 of 2017 arising out of Suit No. 2410 of 2008 are set aside. (ii) Suit No.2410 of 2008 filed by respondent No.1 shall proceed afresh from the stage of framing of the issues. The question of limitation to be determined along with other issues arising for consideration. The suit shall be proceeded without being influenced by any of the views expressed by the learned Single Judge as well as by the Division Bench of the High Court in the impugned judgment. (iii) Respondent No.1 is at liberty to request the Court to take up their pending applications and the learned Court shall consider them on their own merits. (iv) The learned Single Judge is requested to take up the Suit No.2410 of 2008 filed by respondent No.1 and proceed with the same expeditiously and dispose the same preferably within a period of 18 months. (v)It is made clear that no opinion has been expressed on the merits of the matter. [Para 20] [406-F-H; 407A-C] SPECIAL LEAVE PETITION (CIVIL) NO. 26642 OF 2019
1.3 Consequently, in view of the order passed in Civil Appeal arising out of SLP(C)No.25341 of 2019, this special leave petition is also disposed of. [Para 20] [407-D]
Nusli Veville Wadia v. Ivory Properties & Ors. (2019)
13 SCALE 620 – relied on.
Messer Holdings Ltd. v. Shyam Madanmohan Ruia & Others (2016) 11 SCC 484 : [2016] 5 SCR 1 ;
Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (Dead) Through Legal
Representatives and others (2015) 6 SCC 412 : [2015]
5 SCR 1075 ; Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar and Ors. (2015) 7 SCC 321 –
referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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