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TMI Blog1981 (3) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... said settlement. 2. On Oct., 5, 1977, the plaintiff and the 1st defendant recorded a separate agreement of hire purchase in respect of a out of the said looms with the consideration fixed at Rs. 1,20,000/- under a stipulation that the same should be discharged by payment of monthly installments of Rs. 2500/- with interest at 18 percent on the unpaid amount. The monthly installments were to be paid be or before the 10th day of every month. And it was to commence from Nov., 10 1977. The agreement contains several other clauses which are normally incorporated in a hire purchase agreement. Under D. 5, the plaintiff that had a right to terminate the agreement will, or without notice and to relate and resume the possession of the looms, if there is a default of payment for 3 installments, and further it gave a right to the plaintiff even to construct or erect a brick wall in the slide where the looms were installed right from the beginning in such a manner so that the said a looms could be aspirated from the other looms belonging to the 1st defendant. The agreement also contained several other clauses, the consideration of which need not detain us in this proceeding. 3. On the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also asking for the appointment of Receiver with further stipulation that either of the parties may be permitted to function the looms as an agent of the Receiver. The suit came to be file on Feb., 5, 1979. 5. A notice of motion was taken out by the plaintiff for claiming interim relief on the lines suggested earlier. It is important to note that no ad interim relief was granted, but the learned Judge felt the necessity of issuing notice to the other side and question was deferred till then, except appointment of Receiver and the incidental relief, though the more prominent relief of injunction was not granted. 6. After the service of the notice, both the defendants put in their affidavits and resisted the said notice on all counts. It was inter alia contended that no cause of action accrued in favour of the plaintiff for initiating the said proceeding. A point of substantial importance which is also of primary significance was canvassed on behalf of the defendants in terms that the City Civil Court has no jurisdiction and also the suit as framed is not maintainable in view of the insufficiency of the Court fee stamp. It was also submitted that on merits, no prima facie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he had pecuniary jurisdiction to entertain suit, and be also fit that in substance, the suit was not one for possession. He also negatived the court-fee of Rs. 30/- was insufficient as essentially it was a suit for recovery of possession and the value of the property on the showing of the plaintiff himself was worth Rs.1,20,200/- and the further contention is that even on the basis of the stipulations in the agreement vis-a-vis the quantum of damages and the amounts payable to the plaintiff, it would still exceed the pecuniary jurisdiction of the said court. On merits, the learned Judge held that in view of the agreement coupled with the fact that no installment has been paid by the defendants, a prima facie case has been made out by the plaintiff that the plaintiff had a legal right covered under the agreement vis-a-vis the property in question as the property in goods had never been transferred to the defendants and there was an obvious injury to the said legal rights in as much as the defendants were utilising the said looms and earning profits adverse to the interest of the plaintiff. As regards the balance of convenience, the learned Judge fell that it tilted in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a suit for recovery of possession of the property, the value of which on the ascertainment of the plaintiff himself is to the time of Rs. 1,20,000/- then obviously it would fall beyond the pecuniary jurisdiction of the City Civil Court, and therefore, apart from lack of jurisdiction in the City Civil Court, it would also follow that a suit has been filed on the wrong forum when it ought to have been filed in this Court. In addition to this reference to the property and its value vis-a-vis the claim for possession. It was further contended that there is an apparent garb created by the plaintiff to cover up the real nature of the transaction and also to save the court-fees and also to justify filing of a suit on the wrong forum and if this garb is torn out, then it would be clear that apart from the question of possession, there is no question of rendering of the accounts and further there is no question of the quantum of damages remaining unascertained, as according to the learned Counsel , different clauses in the agreement take care of these features in no uncertain terms on the basis of which the total sum of which could be payable to the plaintiff to the 1st defendant would nev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff to the defendant No. 1 is also denied. As regard the question of jurisdiction and the so called procedural lapse committed by the learned trial judge , Mr. Jaisinghani the learned counsel submits that it squarely fails under the provisions contained in S. 9A of the Civil P.C. 10. I have already indicated the skeleton of the contentions raised on behalf of both the sides , even on merits. However, this proceeding can be disposed of on a short premise without expressing any opinion on the merits or any aspect, though I may hasten to add that the aspects sought to be propagated by both the sides are not such which can be disposed of almost in a summary manner and the same requires a deeper investigation and probe on the anvil of ratio of the various judicial pronouncements which are sought to be cited in this proceeding . 11. Section 9A of the code, which is the product of the amendment by the ode of Civil Procedure ( Maharashtra Amendment ) Act, 1970 under Maharashtra Act No . XXV of 1970 when the said section has been inserted , consists of two parts. The first sub-clause envisages that if in a hearing of a application for granting or setting aside an order granting any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to grant an interim relief. Such a motion can be made even at the inception , and need not be necessarily at a later stage . However, the same can be even at the time of granting of the interim relief, and it can be made equally at the time of setting aside such an interim relief, if already granted .Once such an application or motion is initiated by one of the parties , then the necessary obligation ipso facto devolves on the court with the resultant consequence that the question of interim relief has got to be shelved in the background, though temporarily , and to bring on the fore front the main motion about the jurisdiction . The Court is further enjoined to proceed to hear such an application or a motion and determine the same. For that purpose, it is prescribed that the same should be treated as a preliminary issue in the suit , and it is further prescribed that this has to be done before the granting of the said interim relief or if any relief is so granted , then before setting it aside. The application of interim relief is said to be heard and disposed of expeditiously and a further qualification is cast that in view of the objection to the jurisdiction, the matter need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act would enunciate that the adjudication of the preliminary issue would precede the decision of the interim application , the applicability of which would be insisted upon equally in such composite hearing or even in a composite order recorded on both counts , which principle is obviously founded on the sound premise that it is only the finding or decision on the preliminary issue of jurisdiction would govern the further jurisdiction of the Court to grant the interim relief . However , in that event it cannot be underestimated that though existing in the same proceeding , both matters would run on different tracks , though parallel to each other and further more the depth of the field of either of these two items would be distinct with clear gradation . Thus, it cannot be overlooked that the scheme of the said provision unmistakably indicates that the court is expected to determine the objection to jurisdiction as an issue in the suit which should be treated as a preliminary issue and having regard to the concept of the pleading, the issues arising therefrom and the determination of such issues on evidence and on the anvil of procedure as prescribed under the Code, it would be cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order that according to him , the provisions of S. 9A of the Code do not make it necessary for a split hearing of the motion into two distinct stages and does not prevent the court from hearing the motion on merits unless it has heard and decided the point relating to the jurisdiction and it is keeping in with this view that the learned appears to have directed both the learned counsel to address him simultaneously on the question of jurisdiction as well as on the merits of the motion . Mr. Gumaste the learned counsel for the appellants makes a grievance that even assuming that such a course is permissible , yet in the first instance no adequate opportunity was given to the parties and especially to the defendants to substantiate their contention about lack of jurisdiction with the court and secondly the learned judge has not considered all the aspects and has practically decided that issue also in the same manner in which the notice of motion was heard and decided on merits. This submission cannot be said to be without any substance. The main contention of the defendants is that there is no pecuniary jurisdiction vested in the said Court having regard to the real nature of the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to this aspect at all. In my opinion, the contentions deserve a serious consideration and having regard to the nature of the controversy, it would have been better in the fitness of things if there was a detailed discussion at least trying to meet various points raised on behalf of both the parties, particularly when as stated earlier the learned judge was earlier deciding the preliminary issue on jurisdiction and for the interim period and was not viewing the matter on the surface as could be done while granting or refusing to grant the interim application, but was required to go deeper as the decision of that issue had a capacity of finality in so far as the suit is concerned. This, however , may not be confused as the said finding is been upset on merits inasmuch as under the circumstances , it is not desirable as also not necessary to express any view and finding either way as the matter requires further investigation , and if need the appellants /defendants would be required to be given an adequate opportunity to substantiate their contentions by producing any further material . It is submitted with some justification that since the interim application was being disposed of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel submits that two important features , apart from the contention of the defendant No. 1 are not properly considered . Thus, even though the agreement pertains to an amount of Rs. 1,20,000/- , still the amount of monthly installment was fixed at Rs. 2,500 only when the looms were to be operated by the 1st defendant, which would mean that ,the entire amount under the agreement would be satisfied after several years. It was also submitted that the agreement was executed on October 15th , 1977 and the cheque for Rs. 2,500 towards the first installment was issued on the same day and the plaintiff must have realised soon thereafter that it was dishonoured and even according to the plaintiff nothing has been paid thereafter by the defendants to the plaintiff, meaning thereby that till the filing of the suit there was absolutely no payment made by the defendants . This would mean that the plaintiff must have realised long back about the intention of the defendants to dishonour the agreement and to grab the property where by the plaintiff was loser all along and under the terms of the agreement , the plaintiff was entitled to terminate the agreement immediately and also got a ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. The two items viz., the payment of cash amount and furnishing of bank guarantee will have to lifted as those would not be in consonance with the view that I am taking in this matter and especially when the entire matter is yet to be agitated afresh on all aspects including the question of jurisdiction and the merits. However the item of the undertaking already given by the appellants/defendants deserves to be retained as affording adequate protection even for the interim period and in addition thereto, in my opinion, it would be just and proper to bind down the 1st defendant to furnish solvent security to the tune of Rs. 35,000/- to the satisfaction of the Registrar, City Civil Court, Bombay, which amount is calculated on the basis that it will accrue and become due on the date of the suit under the agreement and under the stipulation of payment by installments. It is however made clear that both these conditions viz., about the undertaking and furnishing of the security shall remain in force only as an interim relief till the final disposal of the motion of the application of the 1st defendant challenging the jurisdiction of the City Civil Court and would continue to be in fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... option. The further necessary consequence would obviously be serious in the receiver getting a clear direction thereby to take charge of the property without walling for any further period. If that be so, then denying a short period of two weeks for the defendants to move this Court appears to be rather brash and certainly unjustified apart from being not quite fair. It cannot be underestimated that it is the privilege of a Court to pass an order one way or the other on merits, in accordance with law, yet a laudable principle is implicit in the system to give a fair deal to exch of the litigants who knocks the door of the Court and implicit therein is a further laudable principle that ever litigant who is aggrieved by the order litigant who is aggrieved by the order of the Court of the first instance has a legitimate right to move the higher Court ask for redress, and therefore, a reasonable opportunity should normally be given in that behalf to all the litigants, provided of course the prayer on the face of if does not appear to be frivolous or vexatious. This principle is essential to be preserved so as to instill a sense of confidence in the system of administration justice. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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