Limitation is a preliminary issue in Maharashtra

By Vivek Vashi and Shreya Ramesh, Bharucha & Partners
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The Supreme Court in a recent batch of matters impugning the constitutional validity of section 9A, a Maharashtra amendment to the Code of Civil Procedure, 1908 (CPC), held that section 9A is a complete departure from order XIV rule 2 of the CPC and ought not to be interfered with, and upheld the decisions of Bombay High Court in a catena of matters where issues of limitation had been framed under section 9A.

Vivek Vashi
Vivek Vashi

The special leave petitioners had challenged the constitutional validity of section 9A and contended that the term “jurisdiction” was restricted to its classical interpretation, namely, pecuniary, territorial and subject matter jurisdiction. They further argued that section 9A was inconsistent with order XIV rule 2 of the CPC, which provides for issues of law to be determined as preliminary issues. Given that limitation is a mixed question of law and fact, it was contended that it could never be determined as a preliminary issue, whether under order XIV rule 2 or section 9A.

Ferani Hotels, which led the group in support of section 9A, argued that the section is: (a) mandatory; (b) a self-contained code; and (c) at variance with and a complete departure from order XIV rule 2, given the distinction between “shall” in section 9A and “may” in order XIV rule 2. Further, it was argued that limitation was settled as being an issue of jurisdiction in a series of Supreme Court deci-sions, and that “jurisdiction” ought to be given the widest connotation and must necessarily draw colour from its context.

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Vivek Vashi is the mainstay of the litigation team at Bharucha & Partners, where Shreya Ramesh is an associate. Vivek Vashi represents and acts for Ferani Hotels.

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