Suresh G. Kumar v. M/S. Metro Development Corporation. And ANR.

1/2 27.NMS-607-2014.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.607 OF 2014 IN SUIT NO.2509 OF 2008 Suresh G. Kumar ....Applicant/Plaintiff Vs.

M/s. Metro Development Corpn. & Anr.

....Defendants ---- Mr. Sanjay Jain a/w. Ms. Sarika Mehra i/b. L. J. Law for applicant/plaintiff. Mr. V.S. Kapse for defendant no.1.

Mr. Mayur Khandeparkar a/w. Mr. Harsh Behany i/b. Maniar Srivastava and Associates for defendant no.2.

---- CORAM : K.R.SHRIRAM, J.

DATE : 20th JULY, 2017 P.C.:

This notice of motion has been taken out by plaintiff by virtue of the amendment to the plaint.

Defendant no.2 has filed an affidavit in reply stating that the preliminary issue under Section 9A that the suit is barred by limitation be framed. I asked the counsel for defendant no.2 to make out a case why such an issue has to be framed because it should not be mechanical process that any defendant will make a statement that preliminary issue under Section 9A has to framed and the court mechanically frames the issues. The counsel, therefore, briefly argued the matter and took the Court through the plaint as well as the affidavit in reply. Gauri Gaekwad

2/2 27.NMS-607-2014.doc Earlier plaintiff had taken out a notice of motion which came to be dismissed and that order was carried in appeal. The Appeal Court by an order dated 18th June, 2010 upheld the dismissal of the notice of motion.

The present notice of motion has been taken out only in view of the amendment because the prayer sought in the plaint earlier was only seeking declaration whereas the amendment was to seek a prayer for specific performance as well.

Having heard the counsel, I see no reason why this notice of motion should be entertained particularly, because no new case has been made out.

Notice of motion accordingly stands dismissed. It is, however, clarified that the issue of limitation is kept open to be decided at the trial of the suit.

Mr. Khandeparkar, counsel for defendant no.2 seeks two weeks time to file additional written statement. Time granted. Suit be listed for issues on 22nd August, 2017. (K.R. SHRIRAM, J.) Gauri Gaekwad