1 wp-7067-11.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7067 OF 2011 Mr. R.Esakkimuthu .. Petitioner Versus Mr. Kishanchand S. Gupta .. Respondent Mr. E.R.Naik with Ms Namrata Jain for the Petitioner Mr. Maravoor Wamorkar i/b Maravoor Wamorkar & Co. for the Respondent CORAM : R. M. SAVANT, J. DATED : 19th December, 2011 P.C. 1 The above petition takes exception to the Order dated 20-6-2011 passed by the Learned 4th Civil Judge Senior Division, Kalyan, by which Order the Application Exhibit 15 in Special Civil Suit No.308 of 2010, filed by the Petitioner under Section 9A of the Civil Procedure Code came to be rejected. 2 The suit in question being Special Civil Suit No.308 of 2010 has been filed by the Respondent herein for specific performance of the agreement for Sale of the flat in question. The said suit is based on the receipt dated 9-4-2006. In the said suit an application for temporary injunction came to be filed by the Respondent/Plaintiff which came to be allowed by the Order dated 28-4-2011 and the Petitioner herein is restrained from creating third party rights in respect of the flat in 2 wp-7067-11.sxw question. 3 After the said order dated 28-4-2011 granting temporary injunction came to be passed, the Petitioner thereafter filed an Application Exhibit 15 invoking Section 9A of the Civil Procedure Code contending that the suit filed on the basis of the receipt dated 9-4-2006 is barred by limitation, as the limitation prescribed is a period of three years. The Trial Court has rejected the said application on the ground that no specific period has been prescribed for the purpose of the contract and the reliance placed by the Petitioner in Affidavit of agent which was purportedly involved in the transaction of the sale of the flat, could not be relied upon. The Trial Court held that since the suit has been filed after the issuance of the notice by the Plaintiff dated 20-8-2009 which has been denied by the Defendant. The suit as filed was within limitation. The Trial Court has further held that the issue involved is a mixed question of law and fact and the suit could not be dismissed on the said ground at that stage. 4 Having considered the reasons mentioned by the Trial Court in the impugned Order, no case for interference in the Writ Jurisdiction of this Court is made out. The Writ Petition is accordingly dismissed. ( R. M. SAVANT, J. )