1 fa1874 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1874 OF 2010 Vijay C. Foria ...Appellant vs. Krishnappa K. Karkera & Ors. ...Respondents Mr.R.S.Apte, Sr.Counsel i/b Mr.Girish Paryani for the appellant Mr.A.K.Moily for the respondent Nos.3 and 4 CORAM : A.S.OKA,J. DATE : MAY 5, 2011 P.C.: 1 Heard learned senior counsel for the appellant and the learned counsel for the 3rd and 4th respondents. On 5th January 2010, notice for final disposal was issued when the Advocate for 1st and 2nd respondent waived service of notice. The 5th respondent may not be a necessary party so far as this appeal is concerned. 2 The office noting shows that private notice has been served to the 5th respondent. 3 The appellant is the original plaintiff. The appellant filed a suit for specific performance of the agreement for sale dated 8th June 2004 executed by the 1st and 2nd respondents in respect of the suit flat. In the suit there are certain reliefs claimed against the 3rd respondent which is a bank and the 4th respondent who is the authorised officer of the 3ard respondent-bank. 4 An application under section 9-A of the Code of Civil Procedure,1908 was filed by the 3rd and 4th respondents raising objection to the jurisdiction of the 2 fa1874 Court by contending that the suit was barred by the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the said Act). The said contention was raised as various reliefs were claimed against the 3 rd and 4 th respondents which according to the 3 rd and 4 th respondents had effect of preventing the said respondents from taking action under the said Act of 2002. 5 The issue of jurisdiction has been answered by the trial Court against the appellant. The trial Court relied upon the registered lien dated 2 nd April 2004 created in favour of the 3 rd respondent-bank over the suit flat and the fact that the documents of title in respect of the suit flat were in the custody of the 3 rd respondent. The learned counsel for the 3 rd respectful has filed an affidavit of Shri Dayanand Poojary, the authorised signatory of the 3 rd respondent. In the said affidavit, it is stated that the loan account of the 1 st respondent stands closed as all dues has been cleared by the 1 st respondent. The certificate dated 25 th August 2009 issued by the 3 rd respondent has been annexed in which it is stated that the loan account has been closed. The learned counsel for the 3 rd respondent on instructions states that the original documents deposited with the 3 rd respondents have been returned to the 1 st respondent. In the affidavit in fact a prayer is made for deleting the names of the 3 rd and 4 th respondents. 3 fa1874 6 In view of the statements made in the affidavit, the learned senior counsel for the appellant states that the appellant will make an application before the trial Court for amendment of the plaint for the purposes of deleting the names of the 3 rd and 4 th respondents (3 rd and 4 th defendants) and also for consequential amendment of the prayer clauses in the plaint. He states that amendment will be carried out for deleting all the reliefs which are prayed for against the 3 rd and 4 th respondents. Statements made by the learned senior counsel for the appellant are accepted. As the claim of the 3 rd respondent-bank has been already settled and as the appellant has agreed to delete the names of the 3rd and 4 th respondents, issue of jurisdiction will not survive and only on that ground, the impugned Judgment and decree will have to be set aside. 7 Hence, I pass the following order : i) The statements made in the affidavit dated 18 th January 2011 of Dayanand Poojary, the authorised signatory of respondent no.3 dated 18 th January 2011 are accepted. Statements made by the learned senior counsel for the appellant which are recorded above are accepted. In view of the statements, impugned Judgment and decree is quashed and set aside and the suit is restored to the file of the trial Court. ii)Application for amendment of the plaint shall be filed by the appellant with the trial Court within a period of eight 4 fa1874 weeks from the date on which writ of this order is received by the trial Court. The trial Court will decide the same expeditiously. iii)All contentions of the appellant, 1 st, 2 nd and 5 th respondents on merits of the suit are kept open. iv)The statement made by the learned counsel for the 3 rd respondent on instructions that the original documents of title in respect of the suit flat have been returned to the 1 st respondent is also accepted. v) Appeal is partly allowed on above terms. vi)Hearing of the suit is expedited. JUDGE