Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 2794/19 in Comm. Suit No. 235/21. 1 Order.
MHCC010076772019
Presented on : 25-07-2019
Registered on : 25-07-2019
Decided on : 24-03-2022
Duration : 2 years, 7 months, 30 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2794 OF 2019
IN
COMMERCIAL SUIT NO. 235 OF 2021
(OLD SHORT CAUSE SUIT NO. 3122 OF 2018)
Modern Protection & Investigation Pvt. Ltd. ...Plaintiff
Versus
SPRINGS Condominium Association of
Apartment Owners and one ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 24th MARCH, 2022.
Smt. Mahalaxmi Ganpathy I/b Vrinda Daga, Advocate for defendant
no.2.
Shri Himanshu Shinde I/b Sachin Daga, Advocate for the plaintiff.
Smt. Nisha Shah, Advocate for defendant no.1.
ORDER
1. Defendant no.2 has taken out present notice of motion for
rejection of the plaint under Order VII Rule 11 of the Civil Procedure
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N/m No. 2794/19 in Comm. Suit No. 235/21. 2 Order.
Code (for short, 'the Code'). Perused notice of motion and affidavit in
reply filed by the plaintiff. I have gone through the suit proceeding.
Heard learned counsel Mahalaxmi Ganpathy for defendant no.2 and
learned counsel Himanshu Shinde for the plaintiff. Adv. Nisha Shah for
defendant no.1 present, but she did not advance arguments.
2. Learned counsel Mahalaxmi Ganpathy for defendant no.2
referred contents in affidavit in support, the plaint and documents on
record. In the course of her arguments, she submitted that security
service contract was entered into between the plaintiff and defendant
no.2 on 01/07/2011 (Exh.A annexed with the plaint). The plaintiff
prayed for recovery of outstanding amount of Rs.1,18,080/ from
defendant no.2 for alleged services rendered for the month of August
2016 as per two invoices mentioned in para 9 of the plaint. The
plaintiff also prayed for recovery of Rs.8,28,571/ from defendant no.1
on the basis of invoices regarding services rendered during March2016
to June2016 referred in para 9 of the plaint. According to her, notice
for termination of security services at Bombay Dying was issued to the
plaintiff by defendant no.2 through email dated 24/06/2016 (Exh.C
annexed with the plaint) and contract was terminated with effect from
23/07/2016. She further submitted that defendant no.2 has no liability
to make payment in respect of the invoices raised for the period of
August2016. She further referred emails sent to defendant no.1 by
the plaintiff (Exh.I annexed to the plaint). With the help of these
documents, she submitted that no cause of action has arisen to file the
suit against defendant no.2. The plaintiff joined two different causes of
action against two separate persons and this cannot be allowed to
happen. Contents in para 6 of affidavit in support reveals that
defendant no.2 had handed over the premises i.e. Springs Residential
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N/m No. 2794/19 in Comm. Suit No. 235/21. 3 Order.
Tower to defendant no.1 in March2016. She also pointed out
arbitration clause in the agreement dated 01/07/2011 and submitted
that plaintiff should not have approached this Court and he should have
resorted to the remedy of arbitration. She prayed for rejection of the
plaint.
3. On the contrary, learned counsel Himanshu Shinde for the
plaintiff submitted that the defendants have not denied the liability
categorically. He further submitted that defendant no.2 is a Real Estate
Company and the plaintiff provides manpower. Accordingly, the
plaintiff rendered security services to defendant no.2 at three sites
including Springs Residential Tower. He drew attention of the Court at
email dated 24/06/2016 sent to the plaintiff by defendant no.2 (Exh.C
annexed with the plaint) and submitted that services in respect of
remaining two sites were terminated and the contract is in force in
respect of the site of Springs Residential Tower. He further submitted
that defendant no.1 housing society is formed by residents in Springs
Residential Tower, but defendant no.2, developer has not conveyed
land to defendant no.1 up till now. He further submitted that services
provided to defendant no.1 are actually availed by defendant no.2. He
further submitted that Letter of Intent dated 03/03/2016 is executed
between the plaintiff and defendant no.1 with assurance to execute an
agreement for providing security services to their premises at Dadar on
10/07/2016. According to him, services are continuously provided to
the defendants at the site of Springs Residential Tower as well as at
Springs Club House and Security Cabin. Invoices are raised in respect
of this premises. He submitted that arbitration clause in the agreement
dated 01/07/2016 is not properly worded and it has become
infructuous. As the defendants have obtained services from the
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N/m No. 2794/19 in Comm. Suit No. 235/21. 4 Order.
plaintiff, the suit cannot be dismissed by questioning availability of
cause of action. He prayed for dismissal of the notice of motion.
4. After considering rival submissions and material on record,
it appears that the plaintiff has attributed responsibility to defendant
no.2 to pay amount of Rs.1,18,080/ in respect of services rendered at
the premises of Springs Residential Tower as per agreement dated
01/07/2011. The said agreement has reference of two other sites and
the agreement is terminated in respect of those two sites as per email
dated 24/06/2016. There is no reference of Springs Residential Tower
at Dadar in email dated 24/06/2016. The plaintiff raised invoices in
respect of services rendered at Springs Club House and security cabin to
defendant no.2. Defendant no.2 is not questioning the liability for
earlier period and disputing the liability for August2019 on the basis of
email dated 24/06/2016, but the said email is not sufficient to absolve
him from the liability. In short, material on record is not sufficient
enough to draw any conclusion to the effect that liabilities of defendant
no.2 to make payment towards services rendered at Springs Residential
Tower by the plaintiff have come to an end.
5. Similarly, defendant no.1 is the housing society formed by
residents in Springs Residential Tower. Defendant no.1 has executed
Letter of Intent dated 03/03/2016 in favour of the plaintiff for the
purpose of providing security services at their premises commencing
from 03/03/2016 for a period of one year. The plaintiff issued invoices
to defendant no.1 for specific services rendered to them. In short, the
plaintiff has sufficient material providing him causes of action to file
suit against both defendants.
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N/m No. 2794/19 in Comm. Suit No. 235/21. 5 Order.
6. Now, only question of joining causes of action remains
open for consideration. With this regard, it is necessary to consider that
land of the housing society is allegedly not transferred to the housing
society (defendant no.1) by the developer (defendant no.2). In such
circumstances, the plaintiff made claim in respect of security services
rendered in common area at defendant no.2 by raising two invoices as
referred in para 9 of the plaint. So far as claim regarding services
rendered at remaining portion of the said premises is made at
defendant no.1. Both defendants are in a position to raise fingers at
each other for shirking their responsibilities. In such circumstances, the
plaintiff is justified in joining defendants in the present suit. Case of the
plaintiff is squarely covered by Order I Rule 3 of the Code. Material on
record is not sufficient to reject the plaint by raising the question of
joining causes of action. It is for the reason that the act of providing
security services at the suit site has resulted into the cause of action to
file the suit against the defendants. Case of the plaintiff is not hit by the
contingency of Order II Rule 3(1) of the Code.
7. So far as issue of arbitration clause in the agreement dated
01/07/2011 is concerned, defendants no.1 and 2 have already filed
written statements (Exh.8 and 9 respectively) in the suit. The
defendants did not move an application under Section 8(1) of the
Arbitration and Conciliation Act, 1996 neither before nor after filing of
written statements. Even otherwise, such application is not
maintainable after filing of written statement which can be called as
the first statement on the substance of the dispute within the meaning
of Section 8(1) of the Arbitration and Conciliation Act, 1996.
Therefore, this ground cannot form basis to reject the plaint. For all
these reasons, notice of motion is liable to be dismissed. Hence, I pass
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N/m No. 2794/19 in Comm. Suit No. 235/21. 6 Order.
the following order :
ORDER
1. Notice of Motion No. 2794/2019 is dismissed.
2. The proceeding of N/m No. 2794/19 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
Date : 24/03/2022. Mumbai.
1. Dictated online on : 24/03/2022.
2. Signed on : 24/03/2022.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
24/03/2022. 5.29 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 24/03/2022.
Judgment/Order signed by P.O. on 24/03/2022.
Judgment/Order uploaded on 24/03/2022.
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