1 app1159-10 vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.1159 OF 2010 IN NOTICE OF MOTION NO.1357 OF 2009 IN SUIT NO.876 OF 2009 Nilkanth Enterprise ....Appellant (Ori.Plaintiff) V/s. Bombay Textile Research Association & Ors. ....Respondents WITH APPEAL (LODGING) NO.850 OF 2010 IN NOTICE OF MOTION NO.1357 OF 2009 IN SUIT NO.876 OF 2009 Bombay Textile Research Association & Ors. ....Appellant (Ori.Deft.1) V/s. Nilkanth Enterprise ....Respondents (Ori.Plaintiffs) Mr.S.U. Kamdar, Senior Counsel with Ms.Leena Desai and Mr.Samit Shukla i/b Naik Paranjpe & Co. for the Appellant in Appeal No.1159 of 2010 and Respondent No.1 in Appeal No.850 of 2010. Mr.D.D. Madon, Senior Counsel with Ms.Sushma Nagaraj i/b Bharucha & Partners for the Appellant in Appeal (Lodging) No.850 of 2010). 2 app1159-10 CORAM : MOHIT S. SHAH, C.J. AND S.J. VAZIFDAR, J. MONDAY, 10TH JANUARY 2011 P.C. :- 1. This is an appeal against the order dated 22.11.2010 of the learned single Judge disposing of the Notice of Motion No.1357 of 2009 in Suit No.876 of 2009, which is filed by the appellant for specific performance of the suit agreement. 2. By consent of the learned counsel for the parties, we set- aside the order dated 22.11.2010 and remit the matter back to the learned single Judge for hearing Notice of Motion No.1357 of 2009 afresh. It is clarified that we have not gone into the merits of the controversy between the parties. At the request of the respondent/defendant, it is also clarified that the plea of the respondent/defendant under Section 9-A of the C.P.C. also be permitted to be raised. 3. In view of the above, we also dispose of Appeal (Lodging) No.850 of 2010 which was directed against the ad-interim order dated 30.6.2009 passed by the learned single Judge in the said Notice of Motion. In view of the fact that we are remitting the Notice of Motion back to the learned single Judge for hearing afresh, we see no reason to keep Appeal (Lodging) 850 of 2010 pending and dispose it of with the clarification that this order has also been passed in order to enable the learned single Judge to hear and decide the Notice of Motion afresh uninfluenced by the previous orders. 4. It is clarified that all the contentions are kept open including the contention that the injunction if granted must be subject to terms and conditions. 3 app1159-10 5. It is further clarified that we have not gone into the merits of the appeals. The ad-interim stay dated 11.1.2010 shall continue till the hearing and final disposal of the Notice of Motion. CHIEF JUSTICE S.J. VAZIFDAR, J.