Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010075262019
CNR NO. MHCC010075262019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2738 OF 2019
IN
SUMMONS FOR JUDGMENT NO.327 OF 2018
IN
SUMMARY SUIT NO.1220 OF 2017
Balkrishna Paper Mills Ltd. , ]…Plaintiff.
V/s.
1. Manipal Technologies Ltd & Ors. ]... Defendants.
Appearances :
Ld. Adv. Jadhav for plaintiff.
Ld.Adv. Jayesh Gawade for defendant No.1 and 2.
CORAM : HER HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 18th November, 2022
ORAL ORDER
1. The present Notice of Motion is taken out by the
defendants to refer the parties to arbitration. It was submitted by the
defendant that the present Summary Suit is filed by the plaintiff for
recovery of the principal amount alongwith interest. The present
Summary Suit is not maintainable. The plaintiff issued debit note which
were not admitted by the defendant. However, he relied upon the
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invoices and as per the terms and conditions of the invoices the dispute
if any was to be referred to the arbitrator. The defendant therefore
raised objection in view of the arbitration clause and prayed to refer the
parties to arbitration as per Section 8 of the Arbitration and conciliation
Act, 1996.
2. The plaintiff gave say on the Notice of Motion itself. The
plaintiff submitted that the defendant has filed reply to the Summons
for Judgement and therefore, he had submitted to the jurisdiction of
this Court. The Notice of Motion is therefore not maintainable and thus
liable to be dismissed.
3. Heard Learned Advocate for plaintiff and defendant at
length.
4. The Learned Advocate for defendant relied upon following
citations:
1. (2009) 10 Supreme Court Cases 103: (2009)4
Supreme Court Cases (Civ)57:2009SCC OnLine SC1668
in the case of Branch Manager, Magma Leasing and
Finance Limited and Anr. Vs. Potluri Madhavilata and
Anr. In Civil Appeal No.6399 of 2009.
2. 2005 SCC OnLine Bom 928:(2005) 4 Mah LJ 921:
(2006)4 BC 463 in the High Court of Bombay in the
case of ION Exchange (India) Ltd Vs. MSK Projects
(India) Ltd.
3. (2006) 7 Supreme Court Cases 275: 2006 SCC OnLine
SC 816 in the case of Rashtriya Ispat Nigam Ltd and
another Vs. Verma Transport Co. In Civil Appeal
No.3420 of 2006.
I have carefully gone through the same.
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5. After going through the submissions raised by the
defendants and reply filed by the plaintiff, it seems that the plaintiff
filed the suit for recovery of the sum of Rs.6,23,773/ alongwith
interest. After filing of the suit, the defendant filed his appearance.
The plaintiff has taken out Summons for Judgement to which the
defendant filed his reply.
6. The plaintiff relied upon the invoices. The invoices filed by
the plaintiff shows that as per the terms and conditions all the disputes
and difference, which may arise between the parties related to/or
pertaining to the supply of goods was to be Governed by the provisions
of Arbitration and Conciliation Act, 1996. It therefore, seems that as
per the intention of both the parties any dispute was to be referred to
the artbitrator. The defendant had therefore filed the present Notice of
Motion for referring the matter to arbitrator. The plaintiff had not
denied the terms and conditions on the invoices. The only objection
raised by the plaintiff is that the defendant had not raised objection at
the first instance. It appears that the defendant in his reply to
Summons for Judgement had raised this issue also. The defendant
specifically submitted in the reply to the Summons for Judgement that
the suit is not maintainable before this Court as the dispute was to be
referred to arbitrator. In view of the observations laid down in the
ruling cited supra the first instance for raising the dispute under Section
8 of the Arbitration and Conciliation Act is the filing of the written
statement. As such the present suit is Summary Suit and reply to
Summons for Judgment can be treated as the first statement filed by the
defendant at the first instance. It seems that the issue raised in the
reply to Summons for Judgment and the present Notice of Motion can
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be treated as the objection under Section 8 of the Arbitration and
Conciliation Act. Considering the terms and conditions of the invoices,
the matter is to be referred to the arbitrator and therefore, it would be
appropriate to return the plaint to the plaintiff for filing the Arbitration
proceedings as per law. I, therefore, proceed to pass the following
order:
ORDER
1. The Notice of Motion No.2738 of 2019 is allowed.
2. The plaint in the Summary Suit No.1220 of 2017 is returned to
the plaintiff for filing the proceedings before the appropriate
forum as per law.
3. Summons for Judgment No.327 of 2018 is disposed off
accordingly.
4. Parties to bear their own costs.
5. R and P be sent to record department.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 18112022 City Civil Court, Gr. MUMBAI
Dictated on : 18112022
Transcribed on : 18112022
checked on : 18112022
Signed on : 18112022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
18.11.2022 at 05.30 a.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of
judgment/order
18.11.2022
Judgment/order signed by P.O. on 18.11.2022
Judgment/order uploaded on 18.11.2022
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