1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.69 OF 2009 IN NOTICE OF MOTION NO.2359 OF 2008 IN SUIT NO.1383 OF 2008 Bharat Petroleum Corporation Ltd. ...Appellant/ (orig.Plaintiff) vs. 1.Goolistan Peter Coelho & ors. ...Respondents/ (orig.Defendants) --- Mr.Aspi Chinoy, Sr. Advocate i/b. M/s.Udwadia & Udeshi, for Appellant. Mr.K.A.Sampat i/b. M/s.K.A.Sampat & Co., for Respondents 1 to 3. Mr.Iqbal Chagla, Sr.Advocate with Ms.Hemlata Jain & Ameya Nabar i/b. M/s.Hariani & Co., for Respondent 4. 2 CORAM: D.K.DESHMUKH & R.S.MOHITE, JJ. DATED: 24th June,2009. P.C.:- 1. Admit. By consent of parties, heard finally. 2. Plaintiff by this appeal challenges the order passed by the learned Single Judge of this Court dated 22.7.2008 dismissing the Notice of Motion no.2359 of 2008 taken out by the plaintiff. 3. We have heard the learned Counsel appearing for both the sides. It is clear from the record that one of the objections raised by the defendants was that the suit itself is barred by law of limitation. The learned Single Judge has considered that question and has recorded a prima facie finding that the suit is barred by law of limitation. No doubt the learned Single Judge has considered the other aspects of the matter also and has held that the plaintiff has no 3 prima facie case. The submission of the appellant is that the approach adopted by the learned Single Judge is contrary to the provisions of Section 9A of the Civil Procedure Code. He relies on the judgment of the Division Bench of this Court in the case Royal Palms(India) Pvt.Ltd. And ors. vs. Bharat Shantilal Shah and anr., in the Appeal no.113 of 2008 decided on 13.1.2009 to which one of us is party, wherein the Division Bench has held that when at the time of hearing of application for interim relief in a Civil Suit an objection to the jurisdiction of the Court to entertain the suit is raised by the defendant, in view of the provisions of Section 9A of the Civil Procedure Code it becomes duty of the Court to frame preliminary issue as to the jurisdiction of the Court to try the suit, decide that issue and thereafter, proceed to consider the notice of motion depending on the decision of preliminary issue. It is obvious from the record that the learned Single Judge has not followed this procedure and without framing any preliminary issue decided the notice of motion. In the judgment, the Division Bench has also relied on another judgment 4 of the Division Bench of this Court in the case Smith Kline Beechan Cons Vs. Hindustan Lever, 2003 Vol (105)2 Bom.L.R. 547: 2002(1) All MR 1043 wherein it has been held that an objection to the jurisdiction of the Court to entertain the suit because of bar by limitation, is the objection related to the jurisdiction of the Court referred to in Section 9A of C.P.C. 4. In our opinion, therefore, the following order would meet the ends of justice:- (i) The order dated 22.7.2008 is set aside. Notice of motion no.2359 of 2008 is remitted back to the learned Single Judge for de novo hearing and disposal in accordance with law. (ii) We frame the following preliminary issue:- Whether the defendants prove that the suit as framed and filed is barred by law of limitation ? 5 (iii) The learned Single Judge is requested to try this issue as preliminary issue and depending on the decision on preliminary issue, proceed with the hearing of notice of motion and pass further appropriate order in the matter. (D.K.DESHMUKH, J.) (R.S.MOHITE, J.)