IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.730 OF 2017 IN COMMERCIAL SUIT NO.283 OF 2017 Solar Creations Pvt. Ltd. & Ors. .. Applicants In the matter between Aero Club .. Plaintiff Vs.

Solar Creations Pvt. Ltd. & Ors. .. Defendants ---

Mr.Pratik Sakseria a/w Mr.Prantik Mujumdar, Ms.Ankita Sovani and Mr.Rahul Theckedath i/by M/s.R.V.J. Associates for the applicants/

defendant nos.1 to 3.

Mr.Shailesh Shah, Senior Advocate a/w Mr.Mandeep Vinaik, Mr.Ajay Sharma, Mr.Anchit Ojha, Ms.Poonam Rao, Ms.Geeta Mohanty and Mr.Vinayak Palande i/by Mr.Chaitanya Jadhav for the plaintiff.

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CORAM : R.D. DHANUKA, J. DATE : 3rd September 2019 P.C.:

. By this notice of motion, the applicants (defendant nos.1 to 3) prayed for dismissal of the suit as not maintainable under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure, 1908 being barred by law and in the alternative prayer clause (b) to frame a preliminary issue under Section 9A of the Civil Procedure Code, 1908 as regards jurisdiction of this Court to try, entertain and dispose of the present suit. 2. By an order dated 21st November 2017 passed by this Court, this Court took cognizance of this notice of motion filed by the defendant nos.1 to 3 and framed a preliminary issue under Section 9A of the Code of Civil Procedure, 1908 i.e. “Whether this Court has jurisdiction to try, entertain and dispose of this suit ?” In paragraph 6 of the said order, this Court made it clear that the defendants have also raised an issue of maintainability of the suit under Order VII Rule 11 of the Code of Civil Procedure, 1908. This Court directed that the plaintiff would be at liberty to file affidavit-in-reply to the plea of jurisdiction raised by the defendants as well as the plea raised under Order VII Rule 11 of the Code of Civil Procedure, 1908.

3. Since this Court has already framed an issue of jurisdiction under Section 9A of the Code of Civil Procedure, 1908, in my view, issue raised under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure, 1908 in prayer clause (a) of the notice of motion would arise depending upon the outcome of the issue of jurisdiction framed by this Court by an order dated 21st November 2017.

4. Mr.Shah, learned senior counsel for the plaintiff in the said suit states that his client has no objection if the applicants (defendant nos.1 to 3) are granted liberty to file separate notice of motion inter alia praying for dismissal of the suit under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure, 1908 being barred by law if the applicants do not succeed on the issue of jurisdiction. Statement is accepted.

5. Mr.Sakseria, learned counsel for the applicants (defendant nos.1 to 3) states that in view of the statement made by the learned senior counsel for the plaintiff, this notice of motion may be disposed of with liberty to file separate notice of motion under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure, 1908 depending upon outcome of the issue of jurisdiction framed by this Court by an order dated 21st November 2017. Statement is accepted.

6. It is made clear that if the applicants fail on the issue of jurisdiction, they would be at liberty to file a fresh notice of motion under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure, 1908 for rejection of plaint on the ground that the suit is barred by law and for no cause of action. Notice of motion is accordingly disposed of on aforesaid terms. No order as to costs.

R.D. DHANUKA, J.