Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1888 of 2019 in Suit 15642014 1
Date : 09.07.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1888 OF 2019
IN
SUIT NO. 1564 OF 2014
(HIGH COURT SUIT NO. 3680 OF 2002)
(CNR.NO.MHCC01005290 2014)
M/s. Rushabh Sealink Pvt. Ltd. ...Plaintiff
Vs.
Vedanta Limited & Anr. ...Defendants
Appearance :
Mr. Ashish Verma, Ld. Advocate for plaintiff present.
Mr. Vipul Shukla, Ld. Advocate for defendant no.1 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 32
Dated : 09th July, 2019.
ORDER
1. The defendant no. 1 fled instant Notice of Motion as per Section 8
of Arbitration and Conciliation Act, 1956. It is contended by the
defendant no. 1 that the dispute between the parties referable to the
Arbitrator as contract between the parties containing Arbitration clause.
The defendant in support of this submission relied on this Judgment
and order dated 17.03.2014 in WP No. 21076/2010 passed by the
High Court of Kerala at Ernakulam, M/s. Sundaram Finance Limited
& Anr. V/s. T. Thankam.
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2. Per contra plaintiff opposed the Notice of Motion by filing say. It
is contended by the plaintiff that as per Section 8 of Arbitration and
Conciliation Act, 1956, the defendant ought to have raised aforesaid
dispute on the ground of first date of his appearance. The defendant
did not file such application and waited till expiry of limitation period
for filing written statement. The conduct of the defendant itself shows
that the defendant wanted to delay the matter. The plaintiff in support
of his submission relied upon this Supreme Court Judgment dated
08.11.2017, Anil Mahindra & Anr. V/s. Surender Kumar Makkar &
Anr.
3. Heard both the sides. Perused application and reply. The
plaintiffs have filed instant suit for recovery of an amount of Rs.
7,19,859/ against defendants. The aforesaid liability is arisen out of
contract dated 27.08.2011. The summons were duly served to the
defendant on or before 03.02.2015. The defendant appeared in the
Court and informed about the change in the name of defendant no. 1
Company. In view of that the plaintiff moved Chamber Summons for
change of name of the defendant no. 1.
4. As per Section 8 of Arbitration and Conciliation Act, 1996, party
to the Arbitration Agreement has to apply not later than the date of
submitting his first statement of the substance of dispute. Admittedly,
on 03.02.2015 when the defendant no. 1 appeared in the Court, he did
not file his first statement on the substance of dispute. The defendant
submitted that he has filed copy of letter dated 02.02.2015 which was
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NM 1888 of 2019 in Suit 15642014 3
addressed by him to the plaintiff. But such letter is not placed on the
record, even if it is placed on the record, in my view, the aforesaid letter
does not constitute first statement of the substance of dispute.
5. In view of the Judgment of Hon'ble Apex Court in case of
Sukanya Holdings (P) Ltd. V/s. Jayesh H. Pandya and Anr. 2003(5)
SCC 531, it has been held that the matter is not required to be referred
to the arbitration if no application is made before the Judicial Authority
seeking such reference. Application under Section 8 of the act is
mandatory which has to be filed before first statement on the substance
of the dispute is filed. The Hon'ble Apex Court even in the case of
Greaves Cotton Limited V/s. United Machinery and Appliances
(2017) 2 SCC 268 has held that merely moving an application seeking
further time to file the written statement would not amount to making
first statement on the substance of the dispute. In the present case,
defendant contended that by a letter dated 02.02.2015, he has raised
contention about the arbitration clause. Thus, by applying ratio of
aforesaid Judgment, in my view, such letter although not filed on record
and given directly to the party before appearance in the Court wold not
constituted as first statement on the substance of the dispute.
6. In view of the above discussion, in my view, the defendant after
lapse of four years took out the motion invoking Arbitration Clause. It
shows his conduct that, he wanted to protract the matter. Thus, in my
view, the Notice of Motion needs to be rejected. Thus, I proceed to pass
following order.
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NM 1888 of 2019 in Suit 15642014 4
ORDER
1. The Notice of Motion no. 1888 of 2019 is hereby rejected with
cost.
2. Plaintiff to file Evidence of Affidavit on next date.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 09.07.2019 Greater Mumbai
Dictated on :09.07.2019
Transcribed on :09.07.2019
Draft submitted on :10.07.2019
Checked on :11.07.2019
Signed on :11.07.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11/07/2019 at 4.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
Shri A.H.LADDHAD
(C.R. No.32)
Date of Pronouncement of
JUDGMENT/ ORDER
09/07/2019
JUDGMENT/ORDER signed by
P.O. on
11/07/2019
JUDGMENT/ORDER uploaded on 11/07/2019
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