Nusli Neville Wadia vs. Ivory Properties

SLP(C) 22438/15

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ITEM NO.37 COURT NO.5 SECTION IX

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No.22438/2015

(Arising out of impugned final judgment and order dated 27/04/2015 in WP No. 3158/2015 passed by the High Court of Bombay)

JAGDISH SHYAMRAO THORVE Petitioner(s)

VERSUS

SHRI MOHAN SITARAM DRAVID AND ORS. Respondent(s)

(With appln. (s) for exemption from filing c/c of the impugned judgment and interim relief)

Date : 17/08/2015 This petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE DIPAK MISRA HON'BLE MR. JUSTICE PRAFULLA C. PANT

Mr. Harish N. Salve, Sr. Adv. (A.C.)

For Petitioner(s)

Mr. Arvind S. Avhad, AOR

For Respondent(s)

UPON hearing the counsel the Court made the following O R D E R

Heard Mr. Arvind S. Avhad, learned counsel appearing for the petitioner.

He has referred us to the impugned order passed by the High Court on 27th April, 2015, whereby the High Court has placed reliance on Foreshore Cooperative Housing Society Limited vs. Praveen D. Desai (Dead) Through Lrs. and Others (2015) 6 SCC 412 and dismissed the writ petition.

The aforesaid decision, as we perceive, interpret Section 9A of the Code of Civil Procedure, as amended by the Maharashtra Amendment Act, 1977. The two-Judge Bench, after referring to the provision and relying on certain earlier decisions, has opined thus:

"With great respect, we are of the view that the decision rendered by the Division Bench in Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar is contrary to the law settled by the Constitution Bench and three-Judge Benches of this Court, in Pandurang Dhondi Chougule v. Maruti Hari Jadhav (five-Judge Bench), followed by other Division Benches in Manick Chandra Nandy v. Debdas Nandy, NTPC Ltd. v. Siemens Atkeingesellschaft, Official Trustee v. Sachindra Nath Chatterjee, ITW Signode India Ltd. v. CCE and Kamlesh Babu v. Lajpat Rai Sharma**. The Constitution Bench decision and other decisions given by the larger Bench are binding on us. It appears that those decisions have not been brought to the notice of the Division Bench taking a contrary view."**

It is pertinent to mention here that the pronouncement in Kamalakar Eknath Salunkhe vs. Baburav Vishnu Javalkar (2015) 3 SCALE 34, was directly on the interpretation of Section 9A of the Code of Civil Procedure, whereas the decisions which have been relied upon in Foreshore Cooperative Housing Society Limited (supra) are not on Section 9A of the Maharashtra Amendment Act in the Code of Civil Procedure. Therefore, we are inclined to think that the authority in Kamalakar Eknath Salunkhe (supra) was a binding precedent on the later Bench and, therefore, it should have been referred to a larger Bench.

In view of the aforesaid, we think that a larger Bench should hear the matter.

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Mr. Harish N. Salve, learned senior counsel, is appointed as Amicus Curiae to assist the Court.

Issue notice, returnable within eight weeks.

The Registry is directed to place the papers before Hon'ble the Chief Justice of India for constituting a larger Bench.

(Chetan Kumar) Court Master

(H.S. Parasher) Court Master