Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010010042018 Presented on 18/01/2018
Registered on 18/01/2018
Decided on 08/01/2026
Duration 7Y : 11M : 21D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
NOTICE OF MOTION NO. 245 OF 2018
IN
SUMMONS FOR JUDGMENT NO.462 OF 2014
IN
SUMMARY SUIT NO. 1324 OF 2013
Chandrakant Hansraj Pasad ]
Hansraj Dhanji Pasad the Karta of ] Deleted
Hansraj Dhanji Pasad (HUF) ]
Proprietor of M/s. Hansraj Dhanji ]
& Sons having his office at 66/68 ]
Dontad Street, (Damar Gally), ]
Masjid Bunder, Mumbai – 400 009 ]...Plaintiff
V/s.
Nanglamal Sugar Complex, ]
A company incorporated under the ]
Companies Act, 1956, having its ]
Registered office at 6th Floor, Kirti Mahal, ]
19, Rajendra Place, New Delhi-110 008 ]...Defendants
Appearance :-
Ld. advocate Mr. Kamlesh Mali for plaintiff.
Ld. advocate Mr. R.P. Shirole for defendants.
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SUM SU No.1324/2013
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 08/01/2026
O R D E R
01. This notice of motion is taken out by defendant to refer
matter to the arbitration in view of arbitration clause in contract.
02. This notice of motion has taken out by defendants on
18/12/2017. Ld. counsel for plaintiff has filed reply on affidavit and
resisted it and prayed for dismissal of notice of motion. The defendant
has filed rejoinder to reply and denied contents therein.
03. It is submitted on behalf of defendants that plaintiff has
filed suit for recovery of an amount against them. It is further submitted
that it is the contention of plaintiff that defendants have placed
purchase orders and accordingly plaintiff has supplied goods to the
defendants. It is further submitted that the plaintiff has filed suit on the
basis of purchases order and contract dated 05/09/2006 and other
contracts at Exh. A1to A3 annexed to the plaint. The plaintiff has filed
invoices at Exh. C (page No. 19 and 20) annexed to the plaint without
producing the said contract and purchase order. Further, said contracts
has arbitration clause that all matters to be referred to FICCI, New
Delhi. The defendant has filed original contract and true copies of
purchase orders on record vide list Exh. 10 to substantiate its
contention. Therefore in view Section 8 of Arbitration and Conciliation
Act, 1996, it is necessary to refer matter to the Arbitrator i.e. FICCI,
New Delhi for arbitration. It is further submitted that defendants have
filed reply to summons for judgment taken out by plaintiff and even
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therein they have raised objection with respect to the jurisdiction of this
Court on the count of arbitration clause. The defendant has raised said
objection at first instance. It is further submitted that the plaintiff has
deliberately suppressed said fact. The defendant has complied statutory
requirements of Section 8(1) and 8(2) of the Arbitration and
Conciliation Act, 1996. The defendant relied on ratio laid down in Vidya
Drolia vs. Durga Trading Corporation, (2021) 2 SCC 1, the Hon'ble
Apex Court has held that, '
the Courts must enforce arbitration
agreements unless it is mainfestly clear that the dispute is not
arbitrable'. In Garden Finance Ltd. vs. Prakash Industries Ltd., AIR 2002
Bom. 8, wherein Hon'ble Bombay High Court has held that, '
application
must precede submission on merits and must be accompanied by the
arbitration agreement'. The defendant has not filed his written
statement and therefore, present notice of motion is within time and
therefore, ratio laid on in Sukanya Holdings Pvt. Ltd. vs. Jayesh H.
Pandya, (2003) 5 SCC 531 and Ashish Gupta vs. IBS Co. Ltd. & Anr.,
2005 (85) DRJ 395 are not applicable to the facts of present case. It is
further submitted that in Madhu Sudan Sharma vs. Omaxe Ltd., 2023
SCC OnLine Del 7136, wherein Hon'ble Delhi High Court has observed
that, '
the law concerning the need to refer disputes to arbitration under
the Arbitration and Conciliation Act, as incorporated by Section 8(1), is
crystal clear and leaves no scope for any ambiguity.' It is further
submitted that defendant has not admitted in writing on 27/05/2009
(Exh. A annexed to plaint) as contended by the plaintiff not it is
novation of contract. It was merely commercial arrangement towards
performance. The defendant has not waived arbitration rights. It is
further submitted that therefore, summary suit No. 1324/2013 may be
referred to the arbitration. Hence, notice of motion may be allowed.
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04. On the other hand, it is argued on behalf of the plaintiff
that notice of motion taken out by defendants is not maintainable on
the ground of limitation. It is further submitted that the defendant has
admitted the claim of the plaintiff in writing dated 27/28-05/20009
(Exh. A annexed to plaint) and agreed to pay the same to the plaintiff in
monthly installments together with interest accrued thereon. Therefore,
defendant is estopped by law of promissory estoppel from contending
anything contrary to said admission. Further, matter has been settled
between the parties and it be seen from Exh. A to the plaint. The
defendant has filed reply to the summons for judgment and falsely
raised contention that matter needs to be referred to arbitration.
Further, present notice of motion is taken out in the year 2017 i.e. near
about after one year of filing leave to defend the suit. Further,
defendants ought to have filed an application u/s.8(1) of Arbitration
and Conciliation Act alongwith his first statement. Even, defendant has
not complied requirements of Section 8 of Arbitration and Conciliation
Act. The defendant has waived right to invoke arbitration clause. The
plaintiff has relied on ratio laid down in Garden Finance Limited vs.
Prakash Industries Ltd., 2001 SCC Online Bom 351, wherein it it is held
that, '
the party who claims that the suit is pending before the Court is
the subject of an arbitration agreement, has to make an application to
the Court not later than when submitting his first statement on the
substance of the dispute for referring the parties to arbitration'. Further,
in Sukanya Holdings (P) Ltd., vs. Jayesh H. Pandya and Anr., (2003) 5
SCC 531, wherein it is held that, '
the matter is not required to be
referred to the arbitral Tribunal, if (1) the parties to the arbitration
agreement have not filed any such application for referring the dispute
to the arbitrator, (2) in a pending suit, such application is not filed
before submitting first statement on the substance of the dispute; or (3)
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such application is not accompanied by the original arbitration
agreement or duly certified copy copy thereof'. Further, in Ashish Gupta
vs. IBP Company Ltd., and Anr., 2005 (85) DRJ 395, wherein it is held
that,'
the respondent itself bypassed the remedy of arbitration for
redressal of grievances and proceeded to terminate the agreement
without giving any show cause notice'. Further, in Drive India
Enterprises Solutions Ltd., vs. Haier Telecom (India) Pvt. Ltd., 2018 AIR
(Bom) 222, it is held that, '
it is clear from foregoing discussion that
expression first statement on substance of dispute refers to submission
of party to jurisdiction of the judicial authority by offering to defend
suit and thereby waiving his right to invoke the arbitration clause, if
affidavit opposing summons for judgment and seeking leave to defend
objects to jurisdiction of Court to hear suit and indicates that the
defendant does not want Civil Court to adjudicate upon his rights or
liabilities but wants the domestic forum to decide that then mere filing
of a reply to summons for judgment does not amount to making a first
statement on the substance of dispute even if such affidavit contains
various other defence, in every other case affidavit canwell be said to be
first statement on the substance of dispute within the meaning of
section 8'. It is further submitted that defendant has not complied
requirements of Section 8 of Arbitration and Conciliation Act.
Therefore, notice of motion is not maintainable. Hence notice of motion
may be dismissed with cost.
05. Perused, notice of motion, reply, rejoinder and record of
the case. Heard both the parties. I have gone through case laws cited
above by both the parties. It is the contention of the plaintiff that he has
constructed temporary monsoon godowns in pursuant to work orders
placed by the defendant. It is the contention of the defendant that there
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is arbitration clause in said purchase order. Defendant has placed on
record purchase order contract vide list Exh. 10/1. On perusing page
No. 2 of said purchase order, it appears that, it is specifically mentioned
that, '
All dispute concerning the contract not settled mutually shall be
referred to FICCI, New Delhi for arbitration whose decision in this
regard shall be final and binding on both the parties'. Thus, admittedly
there is a arbitration clause in the purchase order contract.
06. The plaintiff has taken out summons for judgment
No.462/2014 to which defendant has filed affidavit in reply. In the said
reply in para 3 defendants have raised objection with respect to the
jurisdiction of this Court on the count of arbitration clause in contract
dated 05/09/2006. Further, it appears defendant has also raised other
defences in the reply to summons for judgment. However, it is specific
contention of the plaintiff that on 27-28/05/2009 matter was settled
between the plaintiff and the defendant and defendant agreed to pay
sum of Rs. 22,10,105/- together with interest. The plaintiff has referred
and relied on Exh. A annexed to plaint. However, it is the contentions of
the defendant that it was merely commercial arrangement towards
performance. It is pertinent to note that plaintiff had issued legal
demand notice 16/04/2012 to the defendant to which defendant
replied on 30/04/2012. On perusing said reply, it appears that the
defendant has not denied contents in legal notice. Therefore, there is no
substance in the contention of the defendant that Exh. A annexed to the
plaint is a commercial arrangement.
07. As discussed above, the defendant has filed leave to defend
the suit wherein objection is raised as to jurisdiction of this Court
alongwith other defence. Thereafter, the defendant has taken out this
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notice of motion to refer the matter to arbitration. Therefore, it cannot
be said that the defendant has waived arbitration rights. Further,
considering leave to defend the suit as first statement wherein issue of
arbitration was raised. Therefore, it cannot be said that the defendant
has belatedly taken out this notice of motion. However, I am of view
that as contended by the plaintiff that the defendant has admitted in
writing to repay the outstanding amount to the plaintiff as contended in
Exh. A annexed to the plaint. Moreover, as discussed above, defendant
has not denied contentions in demand notice. Therefore, I am of the
view that there is no dispute between the plaintiff and defendant
regarding liabilities. Therefore, question of referring dispute to the
arbitrator does not arise. Therefore, I am of view that ratio laid down in
case laws cited supra on behalf of the defendant are not helpful to them
and not applicable to the facts of present case. Even, ratio laid down in
the case laws cited supra on behalf of the plaintiff are not applicable to
the facts of this case. Therefore, I am of view that notice of motion is
not maintainable. Hence, I proceed to pass following order.
ORDER
1. Notice of Motion No. 245/2018 is hereby dismissed.
2. No order as to costs.
3. Notice of Motion No. 245/2018 is disposed off accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
C.R.No.81
Date- 08/01/2026
Dictated on : 08/01/2026
Corrected on : 09/01/2026
Finalized on : 13/01/2026
Signed on : 13/01/2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
13/01/2026 Mrs. Manisha S. Putta
Name of the Judge
(with Court Room No.)
Shri. Sangram S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
08/01/2026
JUDGMENT/ORDER signed by P. O. on 13/01/2026
JUDGMENT/ORDER uploaded on 13/01/2026
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