=1= IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.113 NO.113 NO.113 OF 2008 OF 2008 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF OF OF MOTION NO.1538 OF 2007 MOTION NO.1538 OF 2007 MOTION NO.1538 OF 2007 IN IN IN SUIT SUIT SUIT NO.1186 NO.1186 NO.1186 OF 2007 OF 2007 OF 2007 Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s Bharat Shantilal Shah and anr. ...Respondents WITH WITH WITH APPEAL APPEAL APPEAL NO.114 OF 2008 NO.114 OF 2008 NO.114 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.1974 OF 2007 OF MOTION NO.1974 OF 2007 OF MOTION NO.1974 OF 2007 IN IN IN SUIT SUIT SUIT NO.1316 OF 2007 NO.1316 OF 2007 NO.1316 OF 2007 Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s Solo Real Estate Pvt.Ltd. ...Respondents WITH WITH WITH APPEAL APPEAL APPEAL NO.115 OF 2008 NO.115 OF 2008 NO.115 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.1973 OF 2007 OF MOTION NO.1973 OF 2007 OF MOTION NO.1973 OF 2007 =2= IN IN IN SUIT SUIT SUIT NO.1314 OF 2007 NO.1314 OF 2007 NO.1314 OF 2007 Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s Bina Bharat Shah and ors. ...Respondents WITH WITH WITH APPEAL APPEAL APPEAL NO.116 OF 2008 NO.116 OF 2008 NO.116 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.1977 OF 2007 OF MOTION NO.1977 OF 2007 OF MOTION NO.1977 OF 2007 IN IN IN SUIT SUIT SUIT NO.1317 OF 2007 NO.1317 OF 2007 NO.1317 OF 2007 Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s Rashesh B. Shah and anr. ...Respondents WITH WITH WITH APPEAL APPEAL APPEAL NO.117 OF 2008 NO.117 OF 2008 NO.117 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.1976 OF 2007 OF MOTION NO.1976 OF 2007 OF MOTION NO.1976 OF 2007 IN IN IN SUIT SUIT SUIT NO.1318 OF 2007 NO.1318 OF 2007 NO.1318 OF 2007 Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s =3= Rajiv B. Shah ...Respondent WITH WITH WITH APPEAL APPEAL APPEAL NO.118 OF 2008 NO.118 OF 2008 NO.118 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.1982 OF 2007 OF MOTION NO.1982 OF 2007 OF MOTION NO.1982 OF 2007 IN IN IN SUIT SUIT SUIT NO.1689 OF 2007 NO.1689 OF 2007 NO.1689 OF 2007 Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s Reshma R. Mehta and anr. ...Respondents WITH WITH WITH APPEAL APPEAL APPEAL NO.119 OF 2008 NO.119 OF 2008 NO.119 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.1980 OF 2007 OF MOTION NO.1980 OF 2007 OF MOTION NO.1980 OF 2007 IN IN IN SUIT SUIT SUIT NO.1740 OF 2007 NO.1740 OF 2007 NO.1740 OF 2007 Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s Jothawat Construction Pvt.Ltd. ...Respondents WITH WITH WITH APPEAL APPEAL APPEAL NO.120 OF 2008 NO.120 OF 2008 NO.120 OF 2008 IN IN IN =4= NOTICE NOTICE NOTICE OF MOTION NO.1979 OF 2007 OF MOTION NO.1979 OF 2007 OF MOTION NO.1979 OF 2007 IN IN IN SUIT SUIT SUIT NO.1741 OF 2007 NO.1741 OF 2007 NO.1741 OF 2007 Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s Reshma Rashesh Diamonds Pvt.Ltd. ...Respondents WITH WITH WITH APPEAL APPEAL APPEAL NO.121 OF 2008 NO.121 OF 2008 NO.121 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.1981 OF 2007 OF MOTION NO.1981 OF 2007 OF MOTION NO.1981 OF 2007 IN IN IN SUIT SUIT SUIT NO.1724 OF 2007 NO.1724 OF 2007 NO.1724 OF 2007 Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s Vishal Rajeev Diamonds Pvt.Ltd. ...Respondents WITH WITH WITH APPEAL APPEAL APPEAL NO.122 OF 2008 NO.122 OF 2008 NO.122 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.2123 OF 2007 OF MOTION NO.2123 OF 2007 OF MOTION NO.2123 OF 2007 IN IN IN SUIT SUIT SUIT NO.1725 OF 2007 NO.1725 OF 2007 NO.1725 OF 2007 Royal Palms (India) Pvt.Ltd. and ors. ...Appellants =5= v/s Banyan Properties Pvt.Ltd. ...Respondents WITH WITH WITH APPEAL APPEAL APPEAL NO.123 OF 2008 NO.123 OF 2008 NO.123 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.1553 OF 2007 OF MOTION NO.1553 OF 2007 OF MOTION NO.1553 OF 2007 IN IN IN SUIT SUIT SUIT NO.1194 OF 2007 NO.1194 OF 2007 NO.1194 OF 2007 Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s Anoop Vrajlal Mehta ...Respondent WITH WITH WITH APPEAL APPEAL APPEAL NO.124 OF 2008 NO.124 OF 2008 NO.124 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.1978 OF 2007 OF MOTION NO.1978 OF 2007 OF MOTION NO.1978 OF 2007 IN IN IN SUIT SUIT SUIT NO.1259 OF 2007 NO.1259 OF 2007 NO.1259 OF 2007 Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s Devaunshi Anoop Mehta ...Respondent WITH WITH WITH APPEAL APPEAL APPEAL NO.125 OF 2008 NO.125 OF 2008 NO.125 OF 2008 =6= IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.1975 OF 2007 OF MOTION NO.1975 OF 2007 OF MOTION NO.1975 OF 2007 IN IN IN SUIT SUIT SUIT NO.1258 OF 2007 NO.1258 OF 2007 NO.1258 OF 2007 Royal Palms (INdia) Pvt.Ltd. and ors. ...Appellants v/s Dia Anoop Mehta ...Respondent WITH WITH WITH APPEAL APPEAL APPEAL NO.126 OF 2008 NO.126 OF 2008 NO.126 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.2124 OF 2007 OF MOTION NO.2124 OF 2007 OF MOTION NO.2124 OF 2007 IN IN IN SUIT SUIT SUIT NO.1199 OF 2007 NO.1199 OF 2007 NO.1199 OF 2007 Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s Master Mohit Anoop Mehta ...Respondent WITH WITH WITH APPEAL APPEAL APPEAL NO.127 OF 2008 NO.127 OF 2008 NO.127 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.2125 OF 2007 OF MOTION NO.2125 OF 2007 OF MOTION NO.2125 OF 2007 IN IN IN SUIT SUIT SUIT NO.1269 OF 2007 NO.1269 OF 2007 NO.1269 OF 2007 =7= Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s Anoop Vrajlal Mehta ...Respondent WITH WITH WITH APPEAL APPEAL APPEAL NO.128 OF 2008 NO.128 OF 2008 NO.128 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.2126 OF 2007 OF MOTION NO.2126 OF 2007 OF MOTION NO.2126 OF 2007 IN IN IN SUIT SUIT SUIT NO.1638 OF 2007 NO.1638 OF 2007 NO.1638 OF 2007 Royal Palms (INdia) Pvt.Ltd. and ors. ...Appellants v/s Desai Trade Credits Pvt.Ltd. ...Respondents WITH WITH WITH APPEAL APPEAL APPEAL NO.129 OF 2008 NO.129 OF 2008 NO.129 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.2128 OF 2007 OF MOTION NO.2128 OF 2007 OF MOTION NO.2128 OF 2007 IN IN IN SUIT SUIT SUIT NO.1637 OF 2007 NO.1637 OF 2007 NO.1637 OF 2007 Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s Desai Home Finance Pvt.Ltd. ...Respondents WITH WITH WITH =8= APPEAL APPEAL APPEAL NO.130 OF 2008 NO.130 OF 2008 NO.130 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.2127 OF 2007 OF MOTION NO.2127 OF 2007 OF MOTION NO.2127 OF 2007 IN IN IN SUIT SUIT SUIT NO.1688 OF 2007 NO.1688 OF 2007 NO.1688 OF 2007 Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s Desai Equipment Finance Pvt.Ltd. ...Respondents WITH WITH WITH APPEAL APPEAL APPEAL NO.131 OF 2008 NO.131 OF 2008 NO.131 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.2842 OF 2007 OF MOTION NO.2842 OF 2007 OF MOTION NO.2842 OF 2007 IN IN IN SUIT SUIT SUIT NO.1268 OF 2007 NO.1268 OF 2007 NO.1268 OF 2007 Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s Desai Built-in Finance Pvt.Ltd. ...Respondents WITH WITH WITH APPEAL APPEAL APPEAL NO.132 OF 2008 NO.132 OF 2008 NO.132 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.2843 OF 2007 OF MOTION NO.2843 OF 2007 OF MOTION NO.2843 OF 2007 IN IN IN SUIT SUIT SUIT NO.1267 OF 2007 NO.1267 OF 2007 NO.1267 OF 2007 =9= Royal Palms (India) Pvt.Ltd. and ors. ...Appellants v/s Desai Auto Credits Pvt.Ltd. ...Respondents Mr I.M. Chagla, Sr.Counsel with Mr F. D’Vitre, Sr. Counsel, Mr Naval Agarwal, Mr Pesi Modi with Ms Dimple Shah and Mr Firdaus i/b M/s Mulla and Mulla and Craigie Blunt and Caroe for Appellants. Mr Vaibhav Krishna i/b M/s Juris Consillis for Respondents in Appeal No.113 of 2008. Mr Aspi Chinoy, Sr. Counsel i/b Mr Vaibhav Krishna and Ms Laxmi Modekar for Respondent in Appeal No.125 of 2008. CORAM CORAM CORAM : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. DATE DATE DATE : 13TH JANUARY 2009 13TH JANUARY 2009 13TH JANUARY 2009 ORAL JUDGMENT (PER D.K. DESHMUKH J.) :- 1. These appeals are preferred against the common order dated 30th October 2007 passed by the learned Single Judge of this Court in notices of motion taken out in different suits. Since these appeals are against the common order as the questions of fact and law involved are substantially the same, these appeals can be conveniently disposed off by a common order. =10= 2. For convenience, in this order, we will be referring to the parties by their nomenclatures as Shah Group and Mehta Group. These appeals have been filed by the defendants in civil suits, the defendants in all the suits are the same. The suits, 20 in number, are filed for specific performance of each of the agreement entered into by the respective plaintiffs and the defendants and for other ancillary reliefs. It is the claim of the plaintiffs that they are in possession of the suit property and an order for protection of that possession is also sought. The plaintiffs in these suits belong to the Shah Group and Mehta Group. The defendant No.1 is owner of the land admeasuring about 240 acres at Andheri, Mumbai. The defendants in all the suits are common. The property falls in no development zone wherein only certain restricted / controlled and limited development is permissible under the Development Control Regulations for Greater Mumbai 1991. The defendants entered into an agreement in the year 1993 with the plaintiffs for conveying plot admeasuring 2.5 acres each. Thus, 20 plots admeasuring 2.5 acres each are the subject matter of the suits. In these suits, notices of motion were taken out for interim relief restraining the defendants from disturbing possession of the plaintiffs of the suit property as also restraining them from creating third party rights and also =11= restraining them from carrying out any construction. In those notices of motion, ad-interim order was made granting status-quo in favour of the plaintiffs. Thereafter, all the notices of motion were finally heard and by order dated 30th October 2007, all notices of motion are disposed off and interim relief in terms of prayer clause (b) of notices of motion has been granted i.e. restraining the defendants from carrying out any construction on the suit plots, creating any third party rights on the suit plots and also restraining them from making any application to the authorities for sanction of any building plan for construction of buildings on the suit plots. In these appeals, interim order has been passed permitting the appellants - defendants to carry on construction on a part of the property subject to certain conditions. 3. Perusal of the order passed by the learned Single Judge which is impugned in these appeals shows that one of the grounds raised by the defendants opposing the notices of motion was that the suits are barred by the law of limitation. According to the defendants, the agreements were terminated by the defendants by letter dated 29th January 2003, in any case, the agreements were terminated on 17th January 2004 and therefore, suits instituted on 18th April 2007 have not been filed within the period of limitation. =12= The learned Single Judge, though objection to the jurisdiction of the Court to entertain the suits was raised, ignoring the provisions of section 9A(1) of C.P.C. without framing preliminary issue, has proceeded to make the interim order. We find that the procedure adopted by the learned Single Judge is contrary to the provisions of section 9A of C.P.C. Section 9A of C.P.C. reads as under :- "9A. Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue - (1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an order of injunction, appointment of a receiver or otherwise, made in granting an interim relief, whether by way of stay, in any suit, an objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction =13= as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit. (2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction." . Perusal of provisions of section 9A of C.P.C. quoted above makes it clear that whenever there is an application for grant of temporary injunction or appointment of Receiver is sought before any Court and an objection to the jurisdiction of the Court to entertain the suit in which the application for such interim relief has been made by any of the parties, then it becomes the duty of the Court to first frame the preliminary issue as to the jurisdiction of the Court to entertain the suit and decide that issue and thereafter take up for consideration the application for interim relief. The scope and ambit of the provisions of section 9A of the C.P.C. has been considered by the =14= Supreme Court in its judgment in the case of Tayabbhai Bagasarwalla and anr. v/s Hind Rubber Industries Pvt.Ltd., reported in AIR 1997 SC 1240 and after quoting the provisions of section 9A of C.P.C., the Supreme Court in paragraph 16 has observed thus :- "16. According to this section, if an objection is raised to the jurisdiction of the Court at the hearing of an application for grant of, or for vacating, interim relief, the Court should determine that issue in the first instance as a preliminary issue before granting or setting aside the relief already granted. An application raising objection to the jurisdiction to the Court is directed to be heard with all expedition. Sub-rule (2), however, says that the command in sub-rule (1) does not preclude the Court from granting such interim relief as it may consider necessary pending the decision on the question of jurisdiction. In our opinion, the provision merely states the obvious. It makes explicit what is implicit in law. Just because an objection to the jurisdiction is raised, the Court does not become helpless forthwith - nor does it become incompetent to grant the interim relief. It can. At the same time, it =15= should also decide the objection to jurisdiction at the earlier possible moment. This is the general principle and this is what section 9A reiterates." 4. The Supreme Court has thus held that when the Court at the time of hearing an application for temporary injunction finds that an objection to its jurisdiction to entertain the suit has been raised though it has power to make an ad-interim order if such an order is necessary to be made, it is under a duty to take up the objection raised to its jurisdiction to entertain the suit for consideration at the earliest and decide that objection finally. The question whether compliance with the provisions of section 9A is mandatory or not has also been considered by the Division Bench of this Court in its judgment in the case of Smithkline Beecham Consumer Healthcare GHBH and ors. v/s Hindustan Lever Ltd. and anr. reported in 2003 Vol.105(2) Bom.L.R. 547 and the Division Bench after referring to the provisions of section 9A and the object and reasons clause of the Maharashtra Amendment Act of 1969, which introduced section 9A in C.P.C., has held that compliance with the provisions of section 9A is mandatory. The observations of the Division Bench in paragraphs 13 and 14 are relevant which read thus :- =16= "13. There is thus ample authority justifying the Court in looking into the history of the legislation not for the purpose of construing the Act, but for the limited purpose of ascertaining the background, conditions and circumstances which led to its passing, the mischief it was intended to prevent and remedy it furnished to prevent such mischief. The statement of objects and reasons also can be legitimately used for ascertaining the object which the legislative had in mind, though not for construing the Act. The statement of objects and reasons of Maharashtra (Amendment) Act of 1969 recites - ’The effect of the judgment of the High Court in Institute Indo Portuguese v/s Borges is that the Bombay City Civil Court for the purposes of granting interim relief cannot or need not go into the question of jurisdiction. Sometimes declaratory suits are filed in the City Civil Court without a valid notice under section 80 of the Code of Civil Procedure, 1908. Relying upon another judgment of the High Court recorded on the 7th September 1961 in Appeal No.191 of 1960, it has been the practice of the City civil Court to adjourn a notice of motion for injunction in a suit =17= filed without such valid notice, which gives time to the plaintiff to give the notice. After expiry of the period of notice, the plaintiff is allowed to withdraw the suit with liberty to file a fresh one. In the intervening period, the Court grants an ad-interim injunction and continues the same. This practice of granting injunctions, without going into the question of jurisdiction even though raised, has led to grave abuse. It is therefore proposed to provide that if a question of jurisdiction is raised at the hearing of any application for granting or setting aside an order granting an interim relief the Court shall determine that question first.’ 14. The statement of objects and reasons specifically refers to the practice followed in the City Civil Court in filing the suits against the Government without giving notice under section 80 of the C.P.C. and in continuing such interim relief, by permitting the plaintiff to withdraw the suit and file a fresh suit. The Legislature intended to stop this abuse of process and therefore provision of 9A was introduced by the Amendment Act of =18= 1969 requiring the Court to decide the issue of jurisdiction at the time of granting the interim relief or consider the application for vacating the interim relief. Section 9A casts a duty on the Court to forthwith hear the application for granting or setting aside the order granting an interim relief and determine the question of the jurisdiction of the Court wherever it is taken. The decision on the issue of jurisdiction of Court cannot be postponed or adjourned. The object underlying section 9A is to decide the question about the jurisdiction of the Court at the interlocutory stage itself to avoid hearing of issues on merits even for prima facie purpose of grant of interim reliefs. The term ’jurisdiction’ as used in section 9A will have to be construed harmoniously with section 9 of the C.P.C. Section 9 lays down that the Courts shall (subject to the provision herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The scope of section 9A will have to be considered keeping in view the provisions of section 9. In Official Trustee West Bengal and others v/s Sachindra Nath =19= Chatterjee and another, the Court observed : ’From the above discussion it is clear that before a Court can be held to have jurisdiction to decide particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties.’ Therefore, it is not sufficient that the Court has territorial or pecuniary jurisdiction or jurisdiction in relation to subject matter of the suit. If the suit is barred by any statute the Court will have no authority to hear and decide the controversy between the parties. Considering the history of the legislation, the background and the circumstances in which section 9A was enacted =20= and the object of section 9A, we are inclined to agree with the submission of Dr Tulzapurkar that the Legislature has used the word ’jurisdiction’ in a wider sense and the Court is required to consider the bar to the maintainability of the suit under section 9A of the C.P.C." . It is thus clear that non-compliance by the learned Single Judge with the provisions of section 9A will be a material irregularity which would vitiate the order. The question whether an objection that the suit is barred by the law of limitation is an objection to the jurisdiction of the Court for the purpose of section 9A of C.P.C. has been decided by the Division Bench of this Court in its judgment in the case of Foreshore CHS Ltd. v/s Shri Praveen D. Desai and ors., reported in 2008(6) All MR 600. The Division Bench has relied on the judgment of the Constitution Bench of the Supreme Court in the case of Pandurang D. Chougule v/s Maruti H. Jadhav, reported in AIR 1966 SC 153 holding that the plea of limitation is plea of law concerned with the jurisdiction of the Court. Thereafter, the Division Bench of this Court in the above referred judgment has observed thus :- "18. The moment, the issue of jurisdiction =21= is raised under section 9-A of the Code of Civil Procedure, the said issue should be decided at first, and not to be adjourned to a later date. The main reason is that if the Court comes to finding that it does not have jurisdiction vested in it in law, then no further enquiry is needed and saves a lot of valuable judicial time. In fact, section 9-A itself mandates that when an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties, the Court will have to decide the issue expeditiously and in no case to be adjourned to the hearing of the suit. 19. A Division Bench judgment of our High Court in Smith Kline Beechan Cons v/s Hindustan Lever, 2003 Vol (105) 2 Bom.L.R. 547 : 2002(1) All MR 1043 has categorically held that it is not sufficient that the Court has territorial or pecuniary jurisdiction or jurisdiction in relation to the subject matter of the suit but if the suit is barred by any statute, the Court will have no authority to hear and decide the same. The said judgment clearly holds that the use of the word ’jurisdiction’ is used in a wider sense under =22= section 9-A which would include the bar to maintainability of the suit i.e. to say any statutory bar to the maintainability of the suit. Section 3 of Limitation Act clearly mandates the Court to dismiss the suit if the same is barred by limitation. 20. To put it in other words, if the suit is barred by