SHYAM MADAN MOHAN RUIA & ORS. versus MESSER HOLDINGS LIMITED & ORS.

Citation: [2019] 15 S.C.R. 396 · Decided: 13-12-2019 · Supreme Court of India · Bench: R. BANUMATHI, A.S. BOPANNA · Disposal: Disposed off

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 15 S.C.R.
SHYAM MADAN MOHAN RUIA & ORS.
v.
MESSER HOLDINGS LIMITED & ORS.
(Civil Appeal No. 9429 of 2019)
DECEMBER 13, 2019
[R. BANUMATHI AND A. S. BOPANNA, JJ.]
Code of Civil Procedure (Maharashtra Amendment) Act,
2018 – s.9A – Several rounds of litigation between the parties –
In Suit No.III, Settlement Agreement was entered into under which
75,001 shares of respondent No.2 were transferred to the
appellant(s) by respondent no.3 – Respondent no.1 filed Suit No.IV
to cancel the said Agreement, inter alia praying for declaration of
respondent no.1’s ownership of 75,001 shares of respondent no.2
– Appellants filed affidavit u/s.9A, CPC (Maharashtra Amendment)
Act, raising preliminary issue of limitation by contending that the
suit prayers claiming ownership over the 75,001 shares of
respondent no.2 is barred by limitation as the Settlement Agreement
between the  appellants was entered on 05.12.02 while Suit No.IV
was filed by respondent no.1 in 2008 – Single Judge allowed the
petition filed by the appellants –Division Bench in appeal by the
respondent no.1, set aside the order – Held: In view of the
interpretation given to s.9A by the three Judges Bench in Nusli
Veville Wadia vs. Ivory Properties & Ors. reported as (2019) 13
SCALE 620 inter alia holding that no issue can be decided only
under the guise that it has been framed u/s.9A and was pending
consideration on the date of commencement of the 2018 Act, the
question of limitation will have to be considered along with other
issues that would arise for adjudication in Suit No.IV – In view of
the said judgment, the decision rendered by the Single Judge and
the Division Bench on the issue of limitation by considering that
as preliminary issue would become nullity and the matter would
have to proceed afresh – Suit No.IV to proceed afresh from the
stage of framing of the issues being uninfluenced by any of the
views expressed by the Single Judge and the Division Bench –
Question of limitation be determined along with other issues arising
for consideration – No opinion expressed on the merits of the
matter – Single Judge requested to proceed with the Suit No.IV
   [2019] 15 S.C.R. 396
396
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expeditiously and dispose the same preferably within 18 months –
Code of Civil Procedure (Maharashtra Amendment) Act, 1977.
Disposing of the matters, the Court
HELD: 1.1  Though, various contentions have been raised
on the merits of the matter, in view of the change in the law and
deletion of Section 9A of the Code (in its application to the State
of Maharashtra) and the judgment of the Supreme Court in Nusli
Veville Wadia v. Ivory Properties & Ors. (2019) 13 SCALE 620, it
is not necessary to consider the merits of the contentions. The
State of Maharashtra inserted Section 9A to the Code of Civil
Procedure vide Code of Civil Procedure (Maharashtra
Amendment) Act, 1977. Section 9A provided that where an
application has been made for granting or setting aside an order
granting interim relief in a suit, if either of the party challenged
the jurisdiction of the Court to entertain the suit, the Court
would have to decide the preliminary issue of jurisdiction before
deciding the aforesaid application. The amended Section 9A
came to be repealed by CPC Maharashtra (Amendment)
Ordinance 2018 with effect from 27.06.2018 and Section 9A of
the Code (in its application to the State of Maharashtra) was
deleted by Section 3 of the Ordinance. The above Ordinance was
replaced by the Code of Civil Procedure (Maharashtra
Amendment) Act, 2018 on 29.10.2018. It was provided that the
preliminary issues framed under Section 9A shall be treated as
an issue under Order XIV CPC and be decided by the courts
with other issues as the court may deem fit.  On 15.12.2018,
the State of Maharashtra enacted the Code of Civil Procedure
(Maharashtra Amendment) Act, 2018 which provided for a saving
clause.  Section 2 of the Amendment Act provided that if the
court has ordered to decide an issue as a preliminary issue
before the date of deletion of Section 9A, it shall be decided by
the court as a preliminary issue. After repeal of Section 9A,
because of divergent views, in Foreshore Cooperative Housing
Society Limited v. Praveen D. Desai (Dead) Through Legal
Representatives and Others (2015) 6 SCC 412 and Kamalakar
Eknath Salunkhe v. Baburav Vishnu Javalkar and Ors. (2015) 7
SCC 321, Section 9A as it stood came up for consideration before
the three Judges B

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