Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.2607 OF 2019
CNR NO.MHCCO10033922019
IN
S.C. SUIT NO.6194 OF 2006
Nishit Rajendra Jhaveri and ors ..Plaintiffs
V/s
Madhani Developers Pvt.Ltd and ors ..Defendants
Ld.Adv.Rathi for plaintiffs
Ld.Adv.Dawar for defendant no.1
Ld.Adv.D'Souza for defendant no.11
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 20/11/2019
ORAL ORDER
1. This notice of motion is filed by defendant no.1
interalia for the relief of referring the dispute to the
Arbitrator under the provisions of Section 8 of the
Arbitration and Conciliation Act, 1996(hereinafter
referred to as 'the said Act.')
2. Ld. Counsel for defendant no.1 submitted that
development agreement dated 14/02/2004 executed
between plaintiff and defendant no.1 contemplates
that in case of dispute between the parties, the
matter is required to be referred to Arbitrator. For
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the ready reference clause no.37 is reproduced as
under:
“The parties hereby agree that in the event of there
being any dispute by and between the parties hereto in
respect of interpretation of any of the terms and
conditions herein contained as also in respect of any
matter arising out of and/or touching these presents,
and/or in regard to the carrying out of this Agreement
the same shall be referred to the Arbitration of Arbitral
Tribunal in accordance with the provisions of the
Indian Arbitration and Conciliation Act 1996. The
decision of the Arbitral Tribunal shall be final and
binding. The arbitration proceedings shall be always
held in Mumbai.”
3. Ld. Counsel for the plaintiffs opposed the present
notice of motion on the count that the present notice
of motion is filed at the time of evidence. The
plaintiffs have filed the evidence and marking of
documents is done and it is for evidence. He would
submit that there are other defendants who are just
and proper parties with whom plaintiffs have no
arbitration agreement and therefore the agreement
cannot be referred to the arbitrator.
4. Defendant no.11 also opposed the notice of motion
on the premise that defendant no.11 entered into a
triparty registered agreement with the plaintiffs and
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defendant no.1 in respect of flat no.302 admeasuring
about 158 sq. meters on third floor in building
known as 'Manjushree' constructed on the said plot of
land. Defendant no.11 and other defendants were
not party to the said agreement and therefore the
present matter cannot be referred to the arbitration.
5. In support of his contention, Ld. Counsel for plaintiff
placed reliance upon the judgment of Hon'ble Apex
Court in the case of Sukanya Holdings Pvt.Ltd V/s
Jayesh H.Pandya and another, AIR 2003 Supreme
Court 2252.
6. I had considered the law laid down in the above cited
judgment. The law cannot be bifurcated for the rights
between the plaintiffs and defendant no.1 by way of
arbitration and rights of defendant no.1 and other
defendants in a civil suit and therefore the contention
of defendant no.1 for referring the matter for the
arbitration does not hold good. Even otherwise the
issues were framed and the plaintiffs have filed
affidavit of evidence. As per section 8 of the said Act,
the objection for referring the matter for arbitration
agreement has to be made before submitting the first
statement of the party taking objection in that
regard. Admittedly written statement was filed by
defendant no.1 and now the objection for defendant
no.1 in that regard does not hold good and not
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tenable. Therefore notice of motion needs no
consideration. Hence, it is expedient to pass
following order:
ORDER
1. Notice of Motion No. 2607/2019 stands
rejected.
2. Costs in the cause.
3. Application is disposed of accordingly.
20/11/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 20/11/2019
Transcribed on : 02/12/2019
Signed on : 13/12/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
13/12/19 at 12.40 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
20/11/2019
Judgment and order signed by P.O. 13/12/2019
Judgment/order uploaded on 13/12/2019
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