Order 2

Order Details: Notice of Motion
Pdf Text: NM No. 102150 / 2021
Scope – Enmas
Order (Exh.4)
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City Civil and Sessions Court, Mazgaon Greater Mumbai
Court Room No. 31 – Commercial Court
(Additional District Judge : Vijay S. Hingne, LL. M.)
MHCC010070492021
Notice of Motion Filed : 08.09.2021
Reply by plaintiff : 15.02.2024
Arguments closed : 13.08.2024
Decided on : 13.08.2024
Duration : 02 Y, 11 M, 05 D
Exhibit No.4
Commercial Suit No. 100684 / 2021
Notice of Motion No. 102150 / 2021
Plaintiff : Scope T & M Pvt. Ltd.
VERSUS
Defendant : Enmas GB Power Systems Projects Ltd.
Appearances
Plaintiff
: Adv. Shri S. P. Kashid
Defendant
: Adv. Shri Ninad Bhabal
Notice of Motion for referring the dispute for Arbitration.
****************************************************
ORDER
(Pronounced on this 13th Day of August, 2024)
Defendant has preferred Notice of Motion, seeking
direction to refer the Suit for Arbitration.
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2) Scope T & M Pvt. Ltd., Mumbai, Maharashtra,
(hereinafter,
plaintiff) is in business of electricity related
hardware and software.
Enmas GB Power Systems Projects Ltd., Teynampet,
Chennai, (hereinafter,
Defendant) is in business of supply of
testing and measuring instruments.
3) On 29.05.2014 and 04.06.2014, defendant placed
Purchase Order worth . 23,55,043/- and . 20,15,000/-	₹ ₹
respectively, for purchase of various instruments. Defendant
amended said order from time to time.
On 13.11.2014, through XPS Transport Carrier, plaintiff
delivered said goods to defendant.
Defendant made part-payment of . 16,50,000/- and	₹
.7,50,000/-.	₹
As per accounts of plaintiff, defendant is under liability
of . 7,76,385/-.	₹
Hence, on 25.01.2018, plaintiff preferred present
Commercial Suit No. 100684 / 2021, for recovery of .	₹
7,76,385/- with interest @ 18 % p.a.
Notice of Motion No. 102150 / 2021 (Exh. 4, Dt. 08.09.2021) :
4) According to defendant, Purchase Order was having
Clause No. 19, which mandates that, the parties are to settle their
dispute by way of arbitration. However, plaintiff has annexed
incomplete Purchase Order. Hence, Suit needs to be referred for
arbitration.
Reply of plaintiff (Exh. 8, Dt. 15.02.2024) :
5) Notice of Motion being false, be dismissed with costs.
Points for determination :
6) Heard Adv. Shri Ninad Bhabal for defendant.
After plaintiff filed reply on 15.02.2024, this Court vide
Order Dt. 01.04.2024, 30.04.2024 and 24.06.2024 had directed
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plaintiff to take appropriate steps. However, plaintiff did not
appeared for arguments. Today also, plaintiff is absent and there
is no application for adjournment from plaintiff. Sufficient time
and opportunities were available to plaintiff to argue the Notice
of Motion. However, he failed. Hence, in absence of the plaintiff,
the Notice of Motion is being adjudicated on face of record.
Points for determination, findings and reasons are as
follows :
Points
Findings
1 Is defendant entitled for relief
sought ?........................................... As per final order.
2 What Order? ……………………... As per final order.
REASONS
Reasons as to Point No. 1 & No. 2 :
7) At Page No. 21 and No. 22 of the Plaint, plaintiff has
annexed Purchase Orders Dt. 29.05.2014 and 04.06.2014. Each
Purchase Order is
single page document.
These Purchase Orders nowhere mentions about
Arbitration Clause.
8) It is case of defendant that, Purchase Order consist of
numerous pages. However plaintiff has deliberately annexed
incomplete Purchase Order.
With Notice of Motion, defendant has also filed copy of
Purchase Order Dt. 29.05.2014. It runs from page No. 2 to No. 21
Similarly, copy of Purchase Order Dt. 04.06.2014 runs
from page No. 22 to page No. 41.
It means, each Purchase Order is
20 pages document.
9) Defendant pleaded in Para No. 6 of the Notice of Motion
as follows :
6. ….. It is submitted that Plaintiff has intentionally
suppressed the fact by not annexing the complete
purchase order and also by not disclosing the said fact
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to the court. Plaintiff has misleads the court on the point
of jurisdiction. …..
10) While replying to said allegation, plaintiff pleaded in
Para No. 9 (Reply to Notice of Motion), as follows :
9. With reference to para 6 of the said affidavit under
reply, I am not at all aware that the defendants have
filed any copies of purchase order as falsely alleged. I
deny that the plaintiffs have suppressed any fact or that
the plaintiffs have at any time mislead the court on the
point of jurisdiction as alleged. I deny that the plaintiffs
have filed this suit with ulterior motive or that they
suppressed the terms and conditions of the purchase
order or that the plaintiffs have made false allegations in
the plaint or that they at any time violated any terms and
conditions of the contract as falsely alleged.
Through above pleading, though plaintiff is denying the claim of
defendant that, plaintiff has annexed incomplete Purchase Order.
However, nowhere plaintiff is positively asserting that, Purchase
Order of defendant was single page document and hence, plaintiff
has annexed single page Purchase Order at page No. 21 and No.
22 of the Plaint.
11) Plaintiff is coming with simple and evasive denial.
Hence, said denial cannot be considered. Therefore, it is held that,
Purchase Orders are not single page documents but they are multi
page documents as claimed by defendant in Notice of Motion.
Hence, copies of Purchase Orders, filed by defendant
are relied upon.
12) Perusal of both Purchase Orders shows that, they consist
of Clause No. 19, as follows :
Article 19 – Disputes and Arbitration
19.1 In the event of any dispute (s) or difference arising
between the PARTIES hereto relating to the
CONTRACT which cannot be settled through mutual
negotiations, such dispute shall be referred to
Arbitration. The Arbitration and Conciliation Act, 1996,
shall govern such arbitration. The arbitration shall be
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conducted in Chennai, Tamil Nadu.
19.2 The arbitration shall be conducted by a panel of
three arbitrators. Each PARTY shall nominate its
representative to the panel and the third nominee
acceptable to both PARTIES shall be appointed as per
the Arbitration and Conciliation Act, 1996. In the event
of disagreement of the nominees, the arbitrators shall be
appointed in accordance with the provisions of the
Arbitration and Conciliation Act, 1996.
19.3 The award passed under the Arbitration shall be
final and binding on the PARTIES.
19.4 Performance under the CONTRACT shall be
continued during the arbitration proceedings unless the
matter is such that the performance cannot be possibly
continued until the decision of arbitrators is obtained.
No payment due or payable by the PURCHASER shall
be withheld on arbitration proceedings unless it is the
subject matter of arbitration.
As, at this stage, copies of Purchase Orders, filed by defendant
are relied upon. Hence, its aforesaid Clause No. 19 is held to be
binding on both plaintiff and defendant. As parties have agreed to
settle dispute by way of arbitration, then, as per their agreement,
parties will have to opt for arbitration. Therefore, the Points are
so answered and Notice of Motion is disposed off, by following
Order :
ORDER
1. Notice of Motion No. 102150 of 2021, is allowed.
2. Parties are directed to comply Clause No. 19 of the
Purchase Orders dated 29.05.2014 and 04.06.2014
,
pertaining to Arbitration.
3. Pending that, the Suit shall remain in the Court, on
Dormant File.
4. After Arbitration is over, parties will be at liberty to
approach the Court to make their submissions.
5. Parties be informed about their right to challenge this
Order and period of limitation for it.
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6. Proceeding of Notice of Motion No. 102150 / 2021 is
closed.
7. Order pronounced in Open Court.
8. Record of Notice of Motion shall be part and parcel of
Commercial Suit No. 100684 / 2021.
Mumbai
Dated : 13.08.2024 (Vijay S. Hingne)
Additional District Judge,
Court Room No.31 – Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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