1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1433 OF 2009 Amar Yeshwantrao Mohite ..Petitioner versus Bank of Baroda & Anr. ..Respondents Mr. Amit Borkar for the petitioner CORAM : A.S.OKA, J. DATE : 30th JULY, 2009. P.C: 1. Heard learned Counsel appearing for the petitioner. The petitioner is the original plaintiff. The petitioner filed a suit for declaration and injunction. Along with the suit, an application for temporary injunction was filed by the petitioner. The application was contested by the first respondent by filing written statement cum reply. One of the contentions raised in the reply cum written statement was that the first respondent has taken custody of the suit 2 property in exercise of powers under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. It is contended that as a remedy of filing proceeding under Section 17 of the said Act of 2002 was available to the petitioner, the jurisdiction of Civil Court has been excluded. The application for temporary injunction at Exhibit 5 was rejected by the trial Court. The petitioner preferred an appeal against the said Order. By the impugned order, the learned Principal District Judge has passed an order of remand. By setting aside the order of the trial court the learned Principal District Judge remanded the matter to the trial court for deciding the objection as to jurisdiction as a preliminary issue in terms of 9(A) of the Code of Civil Procedure, 1908. 2. The submission of the learned Counsel appearing for the petitioner is that there was no application made by the first respondent for 3 framing any preliminary issue under Section 9A of the said Code. He submitted that issue of jurisdiction has not been raised and what has been raised is the issue of maintainability of the suit, to which section 9A of the said Code will not apply. He submitted that the said contention could not have been raised in an appeal which was preferred by the petitioner in as much as before the trial court, no grievance was made by the first respondent regarding the failure of the trial court to decide the issue of jurisdiction. Last submission made by the learned Counsel appearing for the petitioner is that the petitioner is not a borrower of the first respondent. 3. I have considered the submissions. In the reply cum written statement filed by the first respondent, a contention regarding bar of jurisdiction has been specifically raised. The contention is that even the petitioner has an efficacious remedy available under Section 17 of 4 the said Act of 2002 and therefore the jurisdiction of the Civil Court is barred by necessary implication. It is true that no application was made by the first respondent invoking Section 9A of the said Code. Whether such application is made or not, Section 9A of the said code mandates the trial court to decide the objection as regards jurisdiction if such objection is raised. In the present case, the said objection was specifically raised. Whether the said objection is tenable or not is a matter which will have to be decided after framing and hearing the preliminary issue. 4. The effect of the impugned Order is that the trial court has been directed to perform its obligation under Section 9A of the Code. By the impugned Order, the final order passed at Exhibit 5 by the petitioner has been set aside. It is thus obvious that after complying with requirement of Section 9A of the said Code, the application at Exhibit 5 made by the petitioner will have to be decided in 5 accordance with law. The occasion for deciding the application on merits will arise provided the Court comes to the conclusion that it has a jurisdiction to entertain the suit. 5. The submissions made by the learned Counsel appearing for the petitioner which are referred to above are on the merits of the issue of jurisdiction. The learned Principal District Judge has rightly directed the trial court to comply with Section 9A of the said code. Therefore, the contentions which are raised by the learned Counsel for the petitioner will have to be raised before the trial Court when issue of jurisdiction is heard and decided. 6. Hence, there is no reason to interfere with the impugned Order in a revision under Article 227 of Constitution of India. The petition is rejected. All contentions of the parties on merits are expressedly kept open. (A.S.Oka, J.)