1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. WRIT PETITION No. 1602 OF 2009 Managing Director, Head Office at Khamgaon ....vrs... Kamalkishor Jaikumar Agrawal - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - -------------- - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - ---------------- - - - - - - - - - - - - - - - - - - - CORAM : Smt. VASANTI A. NAIK, J. DATE : 22 nd APRIL, 2009 Heard Shri S.P. Deshpande, the learned Counsel for the petitioner. By the instant petition, the petitioner impugns two orders passed by the 4th Joint Civil Judge, Junior Division, Achalpur on 13.01.2009, one rejecting the application filed by the petitioner for framing of preliminary issue of limitation, and deciding it prior to the settlement of the other issues and second, for deletion of issue no.4. The learned Counsel for the petitioner submitted that the trial Court was not justified in rejecting both the applications. According to the learned Counsel for the petitioner, there was nothing on record to show that the respondent had sought for the exclusion of time which was utilized in prosecuting the proceedings before the Consumer Court and therefore, it was necessary for the Trial 2 Court to allow the application filed by the petitioner for deciding the issue of limitation as a preliminary issue. The learned Counsel for the petitioner submitted that the said preliminary issue was not a mixed issue of law and facts and hence did not require detail evidence. The learned Counsel for the petitioner further submitted that the Court has also erred in rejecting the application for deleting the issue no.4. In regard to his submissions on the order dated 3.1.2009 rejecting the application for framing preliminary issue on limitation, the petitioner relied on the judgment reported at 2005 [3] Mh.L.J. 1009. I have considered the submissions made on behalf of the petitioner and also perused the impugned orders. The impugned orders are just and proper and do not suffer from any error whatsoever, much less a jurisdictional error. The trial Court had rightly held that the respondent was seeking exclusion of the time spent before the Consumer Forum and the respondent had also based the cause of action on the acknowledgment of the petitioner. The Court observed that these questions required detailed evidence to be adduced and hence it was necessary and in the interest of justice to avoid unnecessary tendering of evidence on two occasions, as also wastage of time. The Court observed that the issues were already framed in the matter and it was 3 therefore, necessary to permit the parties to lead evidence on all the issues, including the issue regarding the jurisdiction or limitation. The Court found that the issue of limitation, as involved in this case, could not have been disposed of as issue of law only. The observations made by the Court are just and proper. The judgment reported at 2005 [3] Mh.L.J. 1009 does not support the case of the petitioner and infact is some what helpful to the case of the respondent. Similarly, the other order passed by the trial Court, rejecting the application filed by the petitioner for deletion of issue no.4 was also rightly rejected, as there was a clear dispute regarding the legality of the lien on the F.D.R. receipts and the Court had therefore framed the issue – Whether the guardian of minor could create lien of FDR’s of minor as security for the loan of a third person ? The court rightly held that it was the duty of the court to see whether the transaction regarding which, the dispute was pending before it, was legal or not. In the result, the Writ Petition fails and is dismissed, with no order as to costs. JUDGE Rgd