Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.1920/2018 in Sum. Suit No.867/2017
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1920 OF 2018
CNR NO.: MHCC010063422018
IN
SUMMARY SUIT NO. 867 OF 2017
M/s. Raghuveer Urban Construction
Company Pvt. Ltd. & Ors. ….Applicant/Defendants
IN THE MATTER BETWEEN
Mangal Prajeevan Rajgor ...Plaintiff
V/s.
M/s. Raghuveer Urban Construction
Company Pvt. Ltd. & others ...Defendants
Appearances:
Advocate Ms. Vimala K. Gupta for the plaintiff.
Advocate Kamble for defendants.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 2nd APRIL, 2019.
ORAL ORDER
1. Defendant has stated that plaintiff agreed to carry out finishing
work of the fire escape staircase of the defendant No.1's building
situated at Worli, Mumbai 400 018 and accordingly, plaintiff and
defendant No.1 recorded their association, in accordance with the terms
and conditions stated in the work order dated 14th August 2012.
Defendant has stated that plaintiff failed to complete the work
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stipulated under the Work order and raised extremely high bills quoting
wrong measurements and said bills are disputed by defendant No.1.
Defendant has further stated that he informed the plaintiff that the
plaintiff cannot file Civil Suit as plaintiff agreed for arbitration for
settlement of disputes and differences under the Work Order.
Defendant has further stated that as per clause 34 of the Work Order all
disputes and differences arising between the parties were required to be
resolved by Arbitration. Defendant has stated that as per Section 8 of
the Arbitration and Conciliation Act, 1996, he has complied and
therefore, matter be referred for arbitration.
2. Plaintiff has filed reply and stated that Notice of Motion is filed
only to delay the hearing of the suit. Plaintiff has admitted that they
and defendant entered into Contract for finishing of fire escape stair
case as per the Work Order produced in the case. Plaintiff has denied
that they failed to complete the work stipulated under the Work Order.
Plaintiff has further stated that defendants company booked plaintiff's
R.A. Bill No.3 and paid TDS but intentionally failed to pay service tax
which also the plaintiff is liable to pay. Plaintiff has further stated that
defendants without payment to R.A. Bill No.3 falsely shown to Income
Tax Department clearance of payment to R.A. Bill No.3. Plaintiff has
stated that defendant has first time alleged about quantum of bill,
incomplete work after receiving Notice of plaintiff. Plaintiff has stated
that there is no bonafide issued about jurisdiction of this Court and
prayed for rejection of Notice of Motion.
3. It is pertinent to see that plaintiff has admitted that he started
the work as per the Work Order executed between the parties which is
produced by plaintiff at Exh.A with the Plaint. It is clearly stated in
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clause 34 of such work order in terms and conditions that, “any dispute
or difference that arises between the Client and the Contractor in respect of
rights, duties or liabilities of the parties, which cannot be resolved by
mutual discussions, may be referred to Arbitration”. It is further stated
that “the Arbitration Tribunal shall be constituted and Arbitration
conducted in accordance with the procedures laid in “The Arbitration and
Concilliation Act 1996” of India.” Hence, it clearly appears that in case
of dispute, the dispute has to be referred to the Arbitration. In the case
in hand defendant has raised dispute about his liability to pay Bill and
duty of plaintiff regarding the work to be done by plaintiff. Therefore,
it appears that the present dispute has to be refereed to Arbitration as
per the terms and conditions stated in the work order.
4. Ld. Counsel for the defendant argued that there is no dispute for
referring it to the Arbitrator. Ld. Counsel for the plaintiff cited the
judgment in case of M/s. Jindal Aromatics vs. M/s. South Coast
Spices Exports Pvt. Ltd. reported in AIR 2004 Delhi 8 in Suit No.1411
of 1996 decided on 26.05.2003, it appears in the cited case it is held
that in para No.7 that, “when the defendant has failed to appear or take
any steps for entering appearance as required and moving the Court for
condonation of delay in entering appearance, even after the dismissal of
the application under S.34 of the Arbitration Act, 1940. In these
circumstances, there is no alternative, but to proceed in accordance with
the provision of O.XXXVII, C.P.C., Rule 2, subrule (3)”. But in the case in
hand, defendant has appeared within 10 days as per roznama dated
08.02.2018. Therefore, facts of the cited case and in hand are different.
Therefore, in the case in hand as defendant has appeared within 10
days, therefore, plaintiff is not entitled directly for decree.
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5. Ld. Counsel for the defendant cited judgment of the Hon'ble
Apex Court in case of Hindustan Petroleum Corpn. Ltd. vs. Pinkcity
Midway Petroleums in Civil Appeal No. 5156 of 2003 (Arising out of
SLP ( C) No.21154 of 2002) decided on : 23.07.2003, in which it is
held that, “refusal to refer the dispute to arbitration would amount to
failure of justice as also causing irreparable injury to the appellant”. In
the case in hand also there is specific clause No.34 in the Work Order
accepted by plaintiff and defendant to refer dispute to Arbitration.
Therefore, this case law is squarely to the case in hand. It appears after
defendant has taken out Summons for Judgment. Defendant has filed
the present application to refer the matter for arbitration as per work
order executed between the parties. Hence, it will be proper to refer the
dispute for arbitration. Hence, following order :
ORDER
1. Notice of Motion No.1920/2018 is allowed in terms of prayer
clause (a).
2. Dispute in Summary Suit No.867/2017 be referred to arbitrator as
contemplated under Clause 34 of the work order executed between
the parties annexed with the plaint dated 14th August 2012 .
3. Both the parties are directed to suggest the name of the arbitrator.
4. Notice of Motion No.1920/2018 stands disposed of.
(S.P. AGARWAL)
Judge,
Date: 02.04.2019. City Civil Court,
Gr. Bombay.
Dictated on : 02.04.2019
Transcribed on : 02.04.2019
Signed on : 02.04.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
03.04.2019 At 5:03 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. S.P. Agarwal
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
02.04.2019
Judgment/Order signed by P.O. on 02.04.2019
Judgment/Order uploaded on 03.04.2019
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