Bombay High Court
Sandeep Gopal Raheja vs Sonali Nimish Arora And 2 Others on 5 August, 2016
Bench: A.S. Oka
1 appl-900.15.doc
pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L.) NO.900 OF 2015
Sandeep Gopal Raheja
Adult, of Mumbai,
Indian Inhabitant, residing at
Raheja Bay, Mount Mary,
Bandra (West),
Mumbai - 400 050 ... Appellant
(Orig. Defendant No.1)
Versus
1. Sonali Nimish Arora,
Adult, of Mumbai, Indian Inhabitant,
residing at D.C. House, Plot No.4,
J.V.P.D.Scheme, Vile Parle (West),
Mumbai - 400 049 ... Respondent No.1
(Orig. Plaintiff)
2. Sabita Rajesh Narang,
Adult, of Mumbai, Indian Inhabitant,
residing at Narang House, 40, Pali Hill,
Zig Zag Road, Bandra (West),
Mumbai - 400 050 ... Respondent No.2
(Orig. Defendant No.3)
3. Durga Sandeep Raheja
Adult, Mumbai, Indian Inhabitant,
residing at Raheja Bay, Mount Mary,
Bandra (West),
Mumbai - 400 050 ... Respondent No.3
(Orig. Defendant No.2)
Mr. D.J. Khambatta, Senior Counsel a/w Mr. Karl Tamboly a/w Mr.
Vivek Vashi, Ms. Alya Khan and Ms. Aditi Bhansali I/by Vivek A. Vashi
for the Appellant.
Mr. Rohit Kapadia, Senior Counsel a/w Mrs. Teresa Daulat, Ms. Suvarna
A. and Ms. Rutika Motwani for the Respondent No.1.
Dr. Birendra Saraf I/by Loshika Bhulchandani for the Respondent No.3.
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CORAM : A.S. OKA & P.D.NAIK, JJ.
DATE ON WHICH SUBMISSIONS WERE HEARD : 20.04.2016
DATE ON WHICH JUDGMENT IS PRONOUNCED : 05.08.2016
JUDGMENT (PER A.S. OKA, J.):-
1 By order dated 3rd February, 2016 this Appeal was ordered
to be disposed of finally at the stage of admission. The present Appeal is
preferred by the first defendant for challenging the order dated 15 th
October, 2015 passed by the learned Single Judge in Suit No.103 of
2015. On 12th February, 2015, preliminary issues were framed in Suit
No.103 of 2015 filed by the first respondent - original plaintiff. The
preliminary issues read thus :-
"1. Whether the Suit is maintainable by virtue of Order XX
Rule 9(1) of the Code of Civil Procedure, 1908, if Suit
No.2363 of 2012 has abated?
2. If the answer to issue (a) is in the affirmative, then :
(i) Whether the Plaintiff proves that the Suit is within
limitation, as per the Limitation Act, 1963?
(ii) Whether the Suit is barred by the provisions of the
Benami Transaction (Prohibition) Act, 1988?"
2 Suit No.2362 of 2012 was filed by one Mr. Gopal L. Raheja
in September, 2012. The present Appellant who is the son of said Gopal
is the first Defendant in the said suit. The first Respondent herein is the
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younger daughter of Gopal. The second Respondent is the elder
daughter of Gopal and the third Respondent is the Appellant's wife. A
Notice of Motion was taken out being Notice of Motion No.2261 of
2012 by the said Gopal for claiming interim reliefs. The Appellant filed
a reply to the Notice of Motion addressed a plea that the suit was
barred by the provisions of Limitation Act, 1963 and the Benami
Transactions (Prohibition) Act, 1988. By an order dated 27 th February,
2012 the learned Single Judge framed preliminary issues based on the
plea of bar of limitation and bar of the provisions of the Benami
Transactions (Prohibition) Act, 1988 (for short "the Benami
Transactions Act"). The said two preliminary issues were fixed for
recording of evidence. Gopal - original plaintiff filed affidavit in lieu of
examination-in-chief. The said affidavit was filed on 6 th March, 2014 but
the said Gopal died on 18 th March, 2014 before recording of his cross-
examination.
3 The first Respondent filed Suit No.103 of 2015 (the suit
subject matter of the present Appeal) for administration of the estate of
Gopal. Notice of Motion No.133 of 2015 was taken out by the first
Respondent in the said suit for interim relief. On 2 nd February, 2015 a
reply was filed by the Appellant raising a plea of bar of limitation as
well as bar of the suit under the Benami Transactions Act. On 27 th
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February, 2015, preliminary issues were framed by the learned Single
Judge which are reproduced in the first paragraph above. On 15 th April,
2015 the first Respondent made a statement that she was not desirous
of leading any evidence on the said preliminary issues. After the death
of Gopal the first Respondent got herself transposed as a plaintiff in Suit
No.2363 of 2012. She also filed her affidavit in lieu of examination in
chief for the purposes of hearing of preliminary issues.
4. In Suit No.2363 of 2012, a declaration was claimed that
family arrangement set out in the plaint is valid, subsisting and binding
on the parties thereto. A prayer was made directing the defendants in
the said suit to specifically perform the said family arrangement.
Various other reliefs were claimed in the said suit. It is pointed out by
the Appellant that in Suit No.2363 of 2012 reliefs were claimed in
respect of the shares described as Class-II shares and Class-III shares. It
was claimed by Gopal in the said suit that Class-II shares were
transferred from his sole name to the joint names of himself and the
present Appellant in the year 2001 and Class-III shares were transferred
in the names of the Appellant, the third Respondent and/or their
children and/or their holding companies. The contention raised by
Gopal is that the said shares exclusively belong to him and the same
were held by the Appellant, the third Respondent and/or their children
for him in fiduciary capacity.
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5 The preliminary issues framed in Suit No.103 of 2015 came
up for hearing on 15th February, 2015. The learned Senior Counsel
appearing for the first Respondent made a statement during the course
of hearing that in the Suit No.103 of 2015, the first Respondent has
claimed administration of assets that were the property of said Gopal
excluding those that Gopal in his suit said were held in trust. The
learned Single Judge by the impugned order dated 15 th October, 2015
in Suit No.103 of 2015 held that no preliminary issues arise in the said
suit and those framed on 12th February, 2015 were ordered to be
deleted.
6 The learned Senior Counsel appearing for the Appellant
relied upon the decision of the Apex Court in the case of Forehore Co-
operative Housing Society Limited Vs. Praveen D. Desai & Ors.1. He
submitted that once a preliminary issue of jurisdiction is raised by way
of reply to the application for interim relief, as per Section 9-A of Civil
Procedure Code,1908 (for short "the said Code"), there is no choice but
to frame the issue and decide it. He submitted that the Apex Court has
held that Section 9-A of the said Code is mandatory. He submitted that
the Apex Court for the purposes of Section 9-A, expanded the meaning
of the term jurisdiction by holding that the term jurisdiction cannot be
confined to its conventional narrow meaning and essentially jurisdiction
1 (2015) 6 SCC 412
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is an authority to decide a given case. He submitted that only on the
basis of certain statements made across the Bar by the original Plaintiff,
the learned Judge could not have declined to decide the preliminary
issues which were already framed under Section 9-A.
7 The learned Senior Counsel appearing for the first
Respondent relied upon the decision of a Division Bench of this Court
dated 19th July, 2012 in Appeal No.817 of 2010 (Ferani Hotels Private
Limited Vs. Nusli Neville Wadia and others). He submitted that if the
issue of jurisdiction did not arise at all, the learned Single Judge could
have always held that the issue of jurisdiction did not arise. He
submitted that the trial Court can always consider and decide whether
an objection to the jurisdiction is bonafide or whether it is wholly
frivolous. Inviting our attention to the findings recorded by the learned
Single Judge, he urged that the learned Judge was justified in
exercising the power of deleting the issues which are already framed.
He would urge that no interference is called for.
8 We have given careful consideration to the submissions.
Notice of Motion No.133 of 2015 was taken out in the concerned Suit
(Suit No.103 of 2015) by the Plaintiff. The prayer in the said Notice of
Motion is for appointment of Court Receiver and other interim reliefs.
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In the reply of the Appellant to the Notice of Motion, specific
contentions regarding bar of limitation and bar under the provisions of
the Benami Transactions Act have been raised. On 12 th February, 2015
preliminary issues which we have quoted above were framed. Section 9-
A reads thus:
"9-A. 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 granting any interim relief, whether by way of
stay, injunction, appointment of a receiver or otherwise,
made in any suit, an objection to the jurisdiction of the
Court to entertain such a 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 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.
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(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."
Firstly, the point is whether the issues raised were the questions of
jurisdiction. The said issue was dealt with by the Apex Court in the case
of Foreshore Co-operative Housing Society wherein a contention of the
Appellant before the Apex Court as noted in paragraph 21 was that the
issue of bar of limitation will not be an issue of jurisdiction
contemplated by Section 9-A of the said Code. In the said decision, the
Apex Court considered the scope of Section 9-A of the said Code. In
paragraph 44 the Apex Court held thus :-
"44. From the reading of the aims and object of the Bill
whereby Section 9-A was inserted, the term
"jurisdiction" is used in a wider sense and is not
restricted to the conventional definition either
pecuniary jurisdiction or territorial jurisdiction as
submitted by Mr. Nariman, learned Senior Counsel
appearing for the appellant."
(emphasis added)
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9 In paragraph 45, the Apex Court held that the term
jurisdiction under Section 9-A cannot be confined to its conventional
and narrow meaning as it will be contrary to the well settled
interpretation. The Apex Court relied upon Halsbury's Laws of England.
In paragraph 47 the Apex Court held thus :-
"47. It is well settled that essentially jurisdiction is an
authority to decide a given case one way or the
other. Further, even though no party has raised
objection with regard to jurisdiction of the court, the
court has power to determine its own jurisdiction. In
other words, in a case where the court has no
jurisdiction it cannot confer upon it by consent or
waiver of the parties."
10 The Apex Court referred to its earlier decisions on the
question. The Apex Court rejected the contention that the bar of
limitation will not be within the purview of the objection of jurisdiction
contemplated under Sub-Section (1) of Section 9-A.
11 If a contention is raised of the bar of suit at the time of
hearing of an application for interim relief based on provisions of a
statute which prevents Civil Court from entertaining a suit or which
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puts an embargo on the power of the Civil Court to entertain a suit,
Sub-Section (1) of Section 9A will be squarely applicable. In the facts of
the case, it is not urged before the Learned single Judge by the original
Plaintiff that the issues framed are not the issues of Jurisdiction covered
by Section 9A.
12 In paragraphs 62 and 63, the Apex Court held thus :-
"62. At the cost of repetition, we observe that Section 9-
A provides a self- contained scheme with a non
obstante clause which mandates the court to follow
the provision. It is a complete departure from the
provisions contained in Order 14 Rule 2 CPC.
However, it is made clear that in other cases where the
suits are governed by the provisions of Order 14 Rule 2,
it is the discretion of the court to decide the issue based
on law as preliminary issue.
63. We, therefore, after giving our anxious
consideration to the provisions of the Code of Civil
Procedure together with the amendments
introduced by the State Legislature, hold that the
provision of Section 9-A as introduced by the
Maharashtra Amendment Act is mandatory in
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nature. It is a complete departure from the provisions
of Order 14 Rule 2 CPC. Hence, the reasons given by
the High Court in the impugned orders are fully
justified. We affirm the impugned orders passed by the
High Court."
(emphasis added)
13 The Apex Court, therefore, held that Section 9-A makes a
complete departure from Rule 2 of Order XIV of the said Code in view
of the non obstante clause. However, the Apex Court observed that if
the case is governed by Rule 2 of Order XIV of the said Code, the Court
has discretion to decide an issue based on jurisdiction as a preliminary
issue. Thus, in paragraph 62, the Apex Court has made a clear
distinction between Section 9-A and Rule 2 of Order XIV. What is held
by the Apex Court is that Section 9-A is mandatory and once the issue
of jurisdiction is raised in the reply to the application for interim
injunction or for appointment of Court Receiver, the Court has no choice
but to frame the issue of jurisdiction and to decide it in accordance with
law. The Apex Court distinguished Rule 2 of Order XIV of the said Code
by observing that under the said provision, there is a discretion to
decide whether the issue based on law can be decided as a preliminary
issue. Thus, there is no discretion left to the Court as far as Section 9-A
is concerned.
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14 We have perused the affidavit in reply to the Notice of
Motion filed by the present Appellant. In paragraph 13 a specific
contention has been taken regarding the bar of limitation. In paragraph
14 a specific contention is raised that the suit is barred by the Benami
Transactions Act. Thus, the objections to the jurisdiction within
meaning of Sub-Section (1) of Section 9-A have been raised by the
Appellant. The learned Senior Counsel appearing for the original
Plaintiff relied upon certain observations made by this Court in the case
of Ferani Hotels Private Limited. The observations are to the effect that
the Court can make minimal enquiry to ascertain whether the issue of
jurisdiction as pleaded really arises. We must note here that if we
peruse the decision in the case of Foreshore Co-operative Housing
Society, the Apex Court has not left any such discretion to the Trial
Court.
15 Even assuming that the said discretion is left to the Court,
the said discretion is to be exercised at the time of framing of
preliminary issues which in the present case were framed on 12 th
February, 2015. The finding of the learned Single Judge in paragraph
No. 16 of the impugned order is that the preliminary issues which are
already framed do not arise. The learned Single Judge has relied upon
the statement of the learned Senior Counsel appearing for the Plaintiff
recorded in paragraph 7 of the impugned order.
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16 In view of mandate of Sub-Section (1) of Section 9-A and
in the light of the law laid down by the Apex Court in the case of
Foreshore Co-operative Housing Society, once an objection to the
jurisdiction of the Court is raised by Defendant at the time of hearing of
an application for interim injunction or appointment of Court Receiver,
the Court has no choice but to frame the preliminary issue on the basis
of the said objection and to decide the same in accordance with law
after giving an opportunity to the parties to adduce evidence. In the
present impugned order, the conclusion of the learned Single Judge is
that the issues do not arise. In our view, the said conclusion cannot be
upheld in the light of mandatory nature of the provision of Sub-Section
(1) of Section 9-A. In the present case the objection to jurisdiction was
specifically raised in the reply to the Notice of Motion for interim relief.
After having framed the preliminary issues, it is not open for the Court
now to say that the preliminary issues do not arise. This approach is
contrary to the Mandatory provision of Sub-Section (1) of Section 9A.
Therefore, in our view, the impugned order will have to be set aside and
a direction will have to be issued to decide the preliminary issues in
accordance with law. Accordingly, we pass the following order :-
ORDER
(i) The impugned order dated 15th October, 2015 is hereby
set aside;
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(ii) The preliminary issues framed by the learned Single
Judge shall be decided in accordance with law;
(iii) We make it clear that we have made no adjudication on
the merits of the Suit and the merits of the preliminary
issues.
( P.D.NAIK, J ) ( A.S. OKA, J )
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