1 wp1534-11 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 1534 OF 2011 Indira B. Shetty Through her Cosnstituted attorney Anand Narayan Shetty .. Petitioner Versus Mrs. Fiona Francis James ... Respondents Mr. M. C. Shah a/w Mr. Ajay Rao for the petitioner Mr. M. S. Bhandari i/by Mr. johnson John for Respondent no.2 None for respondent no.1 CORAM : R. Y. GANOO, J. DATED : 10rd October, 2011 P.C. 1. By order dated 30th March, 2011, this Court had directed that notice be issued to the respondents for final disposal of the matter. Today the matter was called out. Nobody appears on behalf of respondent no.1 though served. Mr. Bhandar appears on behalf of respondent no.2 2. The Petitioner had filed a Suit against respondent nos. 1 and 2 bearing Special Civil Suit No. 641 of 2007 in the Court of Civil Judge, Senior Division, Thane. In the said suit, respondent no.1 filed an application below Exh. 19 under Section 9-A of the Code of Civil Procedure, challenging the jurisdiction of the learned Civil Judge, Senior Division, Thane. That 2 wp1534-11 application was decided by the learned Civil Judge Senior Division Thane by order dated 21st January, 2009 and the plaint was ordered to be rejected for want of jurisdiction. The suit was also dismissed. This order dated 21st January, 2009 is challenged in this petition. 3. As the petition was taken up for final hearing as per the notice, the learned advocate appearing on behalf of the petitioner submits that the petitioner would like to withdraw the suit against original defendant No. 2 i.e. present respondent no.2.-Citizen Co-operative Bank Ltd. Since the request is made, there is no difficulty in allowing the petitioner to withdraw the suit as against respondent no.2. The petitioner will have to move the Court of learned Civil Judge, Senior Division, Thane before whom the aforesaid Special Civil Suit No. 641 of 2007 is pending for carrying out necessary amendment in the plaint. 4. After having perused the order dated 21st January, 2009, it is noticed that the impugned order came to be passed on account of presence of respondent no.2 in the aforesaid suit as also in view of the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Now, that respondent no.2, i.e. original defendant no.2 will not be a party to the suit. The application complexion of Exh. 19 filed under Section 9A of the Code has changed. Hence, on that ground, the order dated 21st January, 2009 will have to be set aside and the said application below Exh. 19 in Spl. Civil Suit No. 641 of 2007 will have to be 3 wp1534-11 restored to the file of the learned 4th Civil Judge, Senior Division, Thane, for hearing afresh in accordance with provisions of law, after carrying out the amendment in the main Suit so as to delete Respondent no.2 i.e. present no.2 and make consequential amendment. Hence this petition is disposed of by passing the following order: i. The statement made by the learned advocate for the petitioner wanting to withdraw the suit as against respondent no.2 i.e. original defendant no.2 is accepted. ii. The petitioner shall make appropriate application before the learned 4th Civil Judge, Senior Division, Thane for deletion of defendant no.2 from the cause title as also for consequential amendment, including the prayer clauses, if any, on or before 14th November, 2011. iii. Application below Exh. 19 in Spl. Civil Suit No. 641 of 2007 is restored to the file of learned the learned 4th Civil Judge, Senior Division, Thane. After the amendment is carried out as per clause - ii above, the learned Judge, shall decide the application in accordance with law, after hearing the petitioner and respondent no.1 and without going into the past and getting influenced by the impugned order dated 21th June, 2009. iv. This Court has not expressed any view on merits of the application below Exh. 19. 4 wp1534-11 v. If the amendment is not carried out on or before 21st November, 2011 the Suit be dismissed without further reference to the Court. vi. Learned advocate for the petitioner informed that pursuant to the order dated 27th July, 2011, the petitioner had deposited the amount of Rs.10 lakhs in the office of this Court, subject to result of this petition. Now that this petition is disposed of, the Prothonotary and Senior Master of the High Court, Bombay with whom this amount of Rs.10 lakhs was deposited is directed to repay the said amount of Rs.10 lakhs without security or guaranty. If the amount is already invested in Fixed Deposit, the Prothonotary & Senior Master shall redeem the said Fixed Deposit and repay the Petitioner, the principal amount of Rs.10 lakhs with interest accrued thereon, if any, without security or guarantee. vii.There shall be no order as to costs. (R. Y. GANOO, J.)